June 16, 2019

Colorado Court of Appeals: Criminal Mischief Included in First Degree Arson if Both Offenses Based on Same Conduct

The Colorado Court of Appeals issued its opinion in People v. Welborne on Thursday, September 6, 2018.

Criminal Law—First Degree Arson—Criminal Mischief—Theft—Double Jeopardy—Merger—Lesser Included Offense.

Welborne and his mother were charged with setting fire to their rented house and then filing false insurance claims based on the fire damage. Welborne was convicted of first degree arson, criminal mischief, theft, and attempted theft. The court of appeals previously rejected his challenges to his convictions based on Reyna-Abarca v. People, 2017 CO 15. After this decision, the Colorado Supreme Court clarified Reyna-Abarca and vacated the court’s judgment here as to the included offense statute and remanded this case.

On appeal, Welborne contended that criminal mischief is an included offense of first degree arson and, therefore, those convictions must merge under both statutory and double jeopardy dictates. Criminal mischief is included in first degree arson where both offenses are based on the same conduct. Here, when Welborne knowingly burned the rented house without the owner’s consent, he committed both criminal mischief and first degree arson. The failure to merge the convictions was plain error.

The criminal mischief conviction and sentence were vacated. The judgment was affirmed in all other respects. The case was remanded for the trial court to correct the mittimus.

Summary provided courtesy of Colorado Lawyer.

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