August 17, 2018

Colorado Court of Appeals: Defendant’s Three Stalking Convictions for Single Offense Must Be Merged

The Colorado Court of Appeals issued its opinion in People v. Wagner on Thursday, May 18, 2018.

Stalking—Merger—Evidence—Unanimity Jury Instruction—Double Jeopardy.

Wagner was arrested and charged with three counts of stalking his ex-wife. He was found guilty on all counts and sentenced to 90 days in jail on each count with all jail terms to run consecutively, and six years of probation on each count with all probation terms to run consecutively.

On appeal, the People conceded that two of Wagner’s stalking convictions should have merged at sentencing. The court of appeals determined that the People did not prove factually distinct instances of conduct sufficient to support multiple stalking convictions. The Double Jeopardy Clauses of the U.S. and Colorado Constitutions required that defendant’s three stalking convictions merge. The court concluded that defendant was charged with and convicted of multiplicitous counts and it was plainly erroneous for the trial court to enter three stalking convictions.

Wagner argued that there was insufficient evidence to support all three of his convictions. However, the evidence was sufficient to show both that Wagner’s conduct would have caused a reasonable person serious emotional distress and that it caused the victim serious emotional distress. Additionally, the evidence was sufficient for the jury to find that Wagner made credible threats.

Wagner further contended that the trial court erred in rejecting a defense-tendered unanimity jury instruction or, in the alternative, failing to require the prosecution to elect between the alleged credible threats. The prosecution presented evidence of numerous occasions on which Wagner contacted and followed the victim, any number of which could have supported a stalking conviction. The defense did not argue that Wagner did not commit the acts about which the victim and witnesses testified, and the jury would be likely to agree either that all of the acts occurred or that none occurred. Therefore, the prosecution was not required to elect the acts on which it was relying to prove that Wagner had made a credible threat, nor was the trial court required to give a unanimity instruction.

Two of the counts were vacated. The case was remanded for the trial court to merge the convictions and correct the mittimus. The judgment was otherwise affirmed.

Summary provided courtesy of Colorado Lawyer.