August 25, 2019

Colorado Supreme Court: Child Abuse Resulting in Death is Lesser Included Offense of Child Abuse Murder

The Colorado Supreme Court issued its opinion in Friend v. People on Tuesday, November 13, 2018.

Plain Error Review—Double Jeopardy—Merger—Lesser Included Offenses.

This case principally presents two double jeopardy questions: (1) whether the child abuse statute, C.R.S. § 18-6-401, prescribes more than one unit of prosecution and whether the prosecution presented sufficient evidence to establish that defendant committed more than one crime of child abuse; and (2) whether child abuse resulting in death under C.R.S. § 18-6-401(1)(a) and (7)(a)(1) is a lesser included offense of first-degree murder of a child under C.R.S. § 18-3-102(1)(f) (“child abuse murder”).

As to the first double jeopardy question presented here, applying the principles set forth in Schneider v. People, 382 P.3d 835, 839 (Colo. 2016), and People v. Abiodun, 111 P.3d 462, 466–68 (Colo. 2005), the supreme court concluded that the division below correctly determined that C.R.S. § 18-6-401 creates one crime of child abuse that can be committed in alternative ways. The question thus becomes whether the prosecution proved separate counts of child abuse. The court again agreed with the division and concluded that the prosecution did not do so, and thus each of the child abuse convictions must merge into one conviction for child abuse resulting in death.

As to the second double jeopardy question at issue, the court concluded for two reasons that the division erred in determining that defendant’s merged child abuse resulting in death conviction does not merge into his child abuse murder conviction. First, the plain language of the applicable statutes shows that “[w]hen a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child,” that person is to be convicted of child abuse murder and not child abuse resulting in death. C.R.S. § 18-6-401(7)(c). Second, under the clarified principles set forth in People v. Rock, 402 P.3d 472 (Colo. 2017), and Page v. People, 402 P.3d 468 (Colo. 2017), which were announced after the division’s decision in this case, child abuse resulting in death is a lesser included offense of child abuse murder.

Having determined that the trial court erred in not merging the various counts in this case, the question remained whether these errors were plain. The court concluded that they were and therefore affirmed in part and reversed in part the division’s judgment.

Summary provided courtesy of Colorado Lawyer.

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