June 25, 2019

Colorado Court of Appeals: People v. Portillo

on June 10, 2010.

Trial Record—Merger—Menacing—Lesser-Included Offense—Attempted Extreme Indifference Murder.

Defendant Portillo appealed the judgment of conviction entered on jury verdicts finding him guilty of two counts of attempted extreme indifference murder and two counts of menacing. The judgment was affirmed.

Defendant contended that the trial court erred, and thereby violated his right not to be subjected to double jeopardy, by bifurcating the attempted murder and menacing counts of the original information (each of which named two victims) into two separate counts (each of which named a single victim). Because defendant did not provide a portion of the record containing the trial court’s ruling, the Court of Appeals had no basis to question the soundness of the court’s decision.

Defendant also contended that his dual convictions with respect to each victim should be merged, because menacing is a lesser-included offense of attempted extreme indifference murder. Because the offense of menacing requires proof of an element that need not be proved to obtain a conviction for attempted extreme indifference murder (knowingly placing, or attempting to place, another person in fear of imminent serious bodily injury), the former offense is not a lesser-included offense of the latter. Therefore, the convictions for the two offenses do not merge.

Defendant finally contended that the evidence is insufficient to support the jury’s verdicts. Again, because defendant provided only a portion of the trial transcript (and none of the exhibits), it is presumed that the full record supports the jury’s verdicts. The judgment was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries by the Colorado Court of Appeals on June 10, 2010, can be found here.

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