August 22, 2014

Colorado Court of Appeals: Conviction Predicated on Multiple Offenses Need Only Have One of Lesser Included Offenses Merged

The Colorado Court of Appeals issued its opinion in People v. Dutton on Thursday, April 24, 2014.

CRE 901—Authentication—Evidence—Reckless Driving—Vehicular Eluding—Driving With a Revoked License—Lesser Included Offense.

After being pulled over by a police officer, Anton Dutton accelerated his car and fled the scene. To protect the safety of the public, the officer ceased his pursuit and later identified Dutton through the vehicle’s owner. At trial, Dutton’s defense was that he was not the driver of the vehicle.

On appeal, Dutton argued that the trial court abused its discretion in admitting a statement from a phone call to a police officer that was insufficiently authenticated under CRE 901 as a call made by Dutton. There was sufficient evidence in the record, however, to authenticate the phone call, because the timing of the call to the officer and the caller’s self-identification as “Anton Dutton” allowed the jury to reasonably infer that Dutton received the officer’s message to call him through the owner and then promptly responded to it by calling the officer. Therefore, the court did not err in admitting such testimony.

Defendant also argued that there was insufficient evidence to support his reckless driving and vehicular eluding convictions. Based on the officer’s testimony, there was sufficient evidence for the jury to find that Dutton drove the vehicle recklessly, given testimony that Dutton was driving at unsafe speeds and almost hit a pedestrian. Thus, there was evidence to support the jury’s finding that he drove “in such a manner as to indicate either a wanton or a willful disregard for the safety of persons or property” and “consciously disregard[ed] a substantial and unjustifiable risk” of harm.

Dutton argued that his reckless driving and vehicular eluding convictions should be vacated because they are lesser included offenses of aggravated driving with a revoked license (DARP). The jury found that Dutton’s conviction for aggravated DARP was predicated on him committing vehicular eluding and reckless driving, which are both lesser included offenses of aggravated DARP. However, where a conviction is predicated on more than one offense, only one of those offenses need be merged, because only one predicate offense is essential to support the greater offense. Therefore, Dutton’s conviction for reckless driving must merge under his conviction for aggravated DARP on remand. The judgment was affirmed in part and vacated in part, and the case was remanded with directions.


Summary and full case available here.

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