May 21, 2019

Colorado Court of Appeals: Double Jeopardy Prohibition Does Not Preclude Trial Court from Allowing Multiplicitous Charges to be Tried

The Colorado Court of Appeals issued its opinion in People v. Rhea on Thursday, May 8, 2014.

Theft—Conspiracy to Commit Theft—Attempt to Influence a Public Official—Multiplicitous Charges—Double Jeopardy—Due Process—Merger—Prosecutorial Misconduct.

Defendant was charged with ten counts of theft, ten counts of conspiracy to commit theft, and three counts of attempting to influence a public official. These charges arose from approximately $250,000 in road work for which defendant’s company invoiced Adams County and was paid, but allegedly did not perform.

On appeal, defendant contended that allowing multiplicitous charges to go before the jury violated the double jeopardy prohibition and his due process right to a fair trial. Here, the trial court recognized that sentencing defendant on ten counts of the theft statute and on ten counts of conspiracy to commit theft for acts within the same six-month period would have violated the double jeopardy prohibition. Nevertheless, the prosecution charged defendant with and the jury convicted him on ten theft counts and ten related conspiracy counts, all of which were based on acts that occurred within a six-month period. Thus, these twenty charges and convictions were multiplicitous. However, the double jeopardy prohibition does not preclude a trial court from allowing multiplicitous charges to go before a jury. Any prejudice can be cured by merging multiplicitous convictions. Also, because the same evidence could have been presented to the jury, which convicted defendant on all counts, no due process violation occurred.

Defendant next contended that the trial court abused its discretion in denying his post-trial motion based on prosecutorial misconduct. The Court of Appeals disagreed with this contention. The judgment of conviction was affirmed.

Summary and full case available here.

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