The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY May 17, 2018
2018COA68
No. 16CA0835, People v. Wagner — Constitutional Law — Fifth Amendment — Double Jeopardy; Crimes — Stalking
A division of the court of appeals considers whether the
Double Jeopardy Clauses of the United States and Colorado
Constitutions require that a defendant’s three stalking convictions
merge. Considering the plain language of section 18-3-602(1)(a),
(b), and (c), C.R.S. 2017, the division concludes that the stalking
statute sets forth alternative ways of committing the same offense.
Because the defendant was convicted of three counts of stalking
(one under each subsection of section 18-3-602(1)) based on one
factually inseparable course of conduct, the division concludes that
the convictions were multiplicitous. Thus, the division vacates two
of the defendant’s stalking convictions and remands for correction
of the mittimus. The judgment is otherwise affirmed. The division also considers and rejects the defendant’s
contentions that insufficient evidence supported his convictions and
that the trial court erred in rejecting a defense-tendered unanimity
jury instruction. COLORADO COURT OF APPEALS 2018COA68
Court of Appeals No. 16CA0835 Arapahoe County District Court No. 14CR2454 Honorable Michelle A. Amico, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ryan Austin Wagner,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE TAUBMAN Harris and Rothenberg*, JJ., concur
Announced May 17, 2018
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2017. ¶1 Defendant, Ryan Austin Wagner, appeals his judgment of
conviction entered on a jury verdict finding him guilty of three
counts of stalking. We remand for the trial court to merge his
stalking convictions and correct the mittimus accordingly, but
affirm in all other respects.
I. Background
¶2 In May 2014, Wagner and the victim, his wife, separated. The
victim moved in with another man she had been dating. For the
next several months, Wagner repeatedly texted, called, and followed
the victim and her boyfriend.
¶3 Wagner and the victim were divorced in September 2014.
Shortly after the divorce was finalized, the victim disclosed Wagner’s
behavior to her supervisor after he made several calls to her
workplace. After the victim reported his behavior, Wagner was
arrested and charged with three counts of stalking — one count
under each of subsections (a), (b), and (c) of section 18-3-602(1),
C.R.S. 2017. A jury returned a guilty verdict on all counts.1
1Wagner was also charged with violation of a mandatory protection order imposed after his arrest on the stalking charges. He pleaded
1 ¶4 Wagner was sentenced to ninety 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 concurrently.
¶5 On appeal, Wagner argues that the trial court erred by (1)
entering convictions unsupported by sufficient evidence and (2)
rejecting a defense-tendered unanimity instruction or, in the
alternative, failing to require the prosecution to elect which acts
constituted credible threats. In their answer brief, the People
conceded that two of Wagner’s convictions — those charged under
the credible threat subsections (a) and (b) — should have merged at
sentencing.
¶6 After considering the People’s concession, we requested
supplemental briefing from Wagner and the People addressing
whether all three of the stalking convictions should have merged at
sentencing. Wagner asserted that, assuming his convictions were
not vacated altogether, merger was appropriate. The People argued
that the credible threat convictions should not merge with the
serious emotional distress conviction under section 18-3-602(1)(c).
guilty to this charge at the close of his jury trial. Wagner does not challenge this conviction on appeal.
2 ¶7 We conclude that Wagner’s stalking convictions should have
merged and therefore remand so that the trial court can vacate two
of the counts. However, we reject Wagner’s other contentions of
error and therefore affirm in all other respects.
II. Multiplicity
¶8 Although Wagner did not raise the issue before the trial court
or on appeal, the People conceded in their answer brief that two of
his stalking convictions should have merged at sentencing and we
agree. We further conclude that Wagner’s three stalking
convictions should have merged and therefore remand for the trial
court to vacate two of the convictions.
A. Standard of Review
¶9 We review de novo whether merger applies to criminal
offenses. People v. Zweygardt, 2012 COA 119, ¶ 40, 298 P.3d 1018.
An unpreserved double jeopardy claim is reviewable for plain error.
Reyna-Abarca v. People, 2017 CO 15, ¶¶ 45-46, 390 P.3d 816, 823.
Plain errors are errors that are “obvious and substantial,” Hagos v.
People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120, and “cast serious
doubt on the reliability of the judgment of conviction,” id. (quoting
People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
3 B. Applicable Law
1. Stalking Statute
¶ 10 A person commits stalking if he or she knowingly
(a) Makes a credible threat to another person and, in connection with the threat, repeatedly follows, approaches, contacts, or places under surveillance that person . . . ; or
(b) Makes a credible threat to another person and, in connection with the threat, repeatedly makes any form of communication with that person . . . ; or
(c) Repeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person, a member of that person’s immediate family, or someone with whom that person has or has had a continuing relationship to suffer serious emotional distress.
§ 18-3-602(1)(a)-(c).
2. Merger
¶ 11 Unless a statute expressly authorizes multiple punishments
for the same criminal offense, the Double Jeopardy Clauses of the
United States and Colorado Constitutions prohibit “the imposition
4 of multiple punishments for the same criminal conduct.” Woellhaf
v. People, 105 P.3d 209, 214 (Colo. 2005); see U.S. Const. amends.
V, XIV; Colo. Const. art. II, § 18. Multiplicitous charging creates a
risk that a defendant “would be punished more than once for the
same offense.” Quintano v. People, 105 P.3d 585, 589 (Colo. 2005).
¶ 12 When a statute provides alternative ways of committing a
single criminal offense, multiplicity concerns may materialize.
Woellhaf, 105 P.3d at 214. “Such an issue may arise if imprecise
statutory language leads a prosecutor to charge multiple counts of
the same offense because a defendant has committed the crime
using more than one of the prohibited alternative methods.” Id. at
215. In these cases, courts must determine “the legislatively
prescribed unit of prosecution.” Id. at 211.
¶ 13 “After determining the unit of prosecution designated by the
General Assembly, double jeopardy analysis requires us to consider
whether the defendant’s conduct constitutes factually distinct
offenses, that is, whether the conduct satisfies more than one
defined unit of prosecution.” Id. at 218-19. In determining whether
offenses are factually distinct, we consider factors including the
time and location of the events, the defendant’s intent, and whether
5 the People presented the acts as legally separable. See Quintano,
105 P.3d at 591-92. However, no one factor is dispositive and the
inquiry ultimately focuses on “all the evidence introduced at trial to
determine whether the evidence on which the jury relied for
conviction was sufficient to support distinct and separate offenses.”
Id. at 592.
¶ 14 In the event that a defendant is convicted of multiplicitous
counts, the proper remedy is to merge the multiplicitous
convictions. See People v. Rhea, 2014 COA 60, ¶¶ 16-17, 349 P.3d
280, 287-88 (“Merger has the same effect as vacating one of the
multiplicitous sentences.”).
C. Analysis
¶ 15 Wagner was charged with two counts of stalking under the
“credible threat” subsections of the stalking statute, section 18-3-
602(1)(a) and (b), and one count of stalking under the “serious
emotional distress” subsection of the stalking statute, section 18-3-
602(1)(c). The complaint and information lists the same period for
all three alleged offenses, May 15, 2014, through October 2, 2014.
The People conceded in their answer brief that the credible threat
convictions should have merged at sentencing because “the
6 prosecution did not separate the charges based on shorter time
frames or specific incidents.” Although we are not bound by the
People’s concession, see People v. Knott, 83 P.3d 1147, 1148 (Colo.
App. 2003), we agree.
¶ 16 As noted, in their supplemental brief the People contend that
the credible threat convictions should not merge with the serious
emotional distress conviction. In support of that position, the
People rely on People v. Carey, 198 P.3d 1223 (Colo. App. 2008),
and People v. Herron, 251 P.3d 1190 (Colo. App. 2010). We
consider the People’s reliance on those cases misplaced.
¶ 17 In contrast to the People’s contention, the division in Carey
did not uphold multiple convictions under the credible threat and
serious emotional distress subsections of the stalking statute;
instead, as a careful reading of the division’s opinion reveals, the
defendant there was convicted of a single count of stalking, though
he was apparently charged under both subsections of the statute.
See 198 P.3d at 1227. Thus, the People’s reliance on Carey is
unavailing.
¶ 18 In Herron, the division concluded that two stalking
convictions, one under the credible threat subsection and one
7 under the serious emotional distress subsection, should merge.
251 P.3d at 1192. The division determined, based on the plain
language of section 18-3-602(1), that “the legislatively defined unit
of prosecution for the crime of stalking is a continuous course of
conduct by which one repeatedly follows, approaches, contacts, or
places another under surveillance.” Id. at 1193. Further, the
division concluded that the stalking statute “does not contain any
specific authorization for multiple punishments for each act of
stalking,” but instead “defines alternative means of committing a
single offense.” Id.; see also People v. Abiodun, 111 P.3d 462, 466
(Colo. 2005) (when the legislature joins “a number of acts . . . as a
disjunctive series,” rather than describing them in different
provisions under different titles, it defines alternative means of
committing a single offense); People v. Friend, 2014 COA 123M,
¶ 53, ___ P.3d ___, ___ (cert. granted in part Feb. 8, 2016). Thus, the
Herron division merged the defendant’s two stalking convictions
under former section 18-9-111(4)(b)(I) (now codified at section 18-3-
602(1)(a)) and former section 18-9-111(4)(b)(III) (now codified at
section 18-3-602(1)(c)). 251 P.3d at 1192.
8 ¶ 19 Still, in their supplemental brief, the People maintain that
there is no multiplicity problem presented by Wagner’s credible
threat and serious emotional distress stalking convictions because,
“unlike in Herron, Wagner committed enough factually distinct
incidents to permit convictions on each theory.” We disagree.
¶ 20 The People rely on the analysis in Herron that three instances
of following the victim could not support the defendant’s two
stalking convictions because each stalking conviction must be
based on repeated conduct. See id. at 1194. The People contend
that Wagner’s conduct, unlike the defendant’s in Herron, could be
separated into two distinct stalking convictions because he
contacted the victim more than four times. However, because the
stalking statute proscribes an entire course of conduct, “a second or
successive offense is not necessarily committed by acts that are
factually distinct from each other but only by acts that are factually
distinct from the entire course of conduct punished by the first
conviction.” Abiodun, 111 P.3d at 470. Contrary to the People’s
argument, we determine that Wagner’s conduct did not support
factually separate stalking transactions.
9 ¶ 21 While Wagner’s course of conduct lasted for several months,
the extended timeframe alone does not render his numerous
contacts with the victim factually distinct. See Herron, 251 P.3d at
1194 (finding stalking transactions were not factually distinct
despite passage of three months between them). Further, Wagner’s
contacts with the victim were related to a common theme —
namely, his desire to reconcile and resume their relationship. Most
significantly, the prosecution did not treat Wagner’s acts as legally
separable at trial. Instead, the prosecution based all three charges
on the same evidence and designated the same approximately
five-month period for each charge. During closing argument, the
prosecutor urged the jury to “think about all of the threats and the
conduct in connection with those threats in this case” and to
consider Wagner’s actions “taken in conjunction with everything.”
Accordingly, we conclude that the evidence supports only one
conviction for stalking, and, therefore, two of his stalking
convictions must be vacated.
¶ 22 We determine only that, in the circumstances here, the People
did not prove factually distinct instances of conduct sufficient to
support multiple stalking convictions. Nevertheless, we do not
10 conclude or even suggest that a defendant can never be convicted of
multiple stalking convictions. Cf. Woellhaf, 105 P.3d at 218 (“[W]e
do not suggest that the statute defines sexual assault on a child
such that the prosecution may never charge separate offenses
arising from a single course of conduct or criminal episode.”). “The
prosecution may pursue multiple convictions if the underlying
evidence supports factually distinct offenses.” Id.
¶ 23 In sum, we conclude that Wagner was charged with, and
convicted of, multiplicitous counts. Further, we conclude that the
error was plain. Herron was decided when Wagner was sentenced,
as were Woellhaf and Quintano. See Friend, ¶ 74, ___ P.3d at ___.
The protections against double jeopardy affect a substantial
constitutional right. Id. at ¶ 75, ___ P.3d at ___. It was plainly
erroneous for the trial court to enter three stalking convictions.
¶ 24 Thus, we remand for the trial court to vacate two of the
stalking counts and to correct the mittimus accordingly.
III. Sufficiency of the Evidence
¶ 25 Wagner contends that insufficient evidence supported all three
of his convictions. We disagree. Because we have concluded that
all of Wagner’s convictions should have merged, we need only
11 address the sufficiency of the evidence supporting his conviction
under any one of the subsections of section 18-3-602(1). However,
we will address his argument as to all three convictions.
A. Additional Facts
¶ 26 The victim testified that Wagner began texting, calling, and
following her after the two separated, but that the contact increased
over the next few months until their divorce was finalized. She
testified that Wagner repeatedly parked outside her home, once
confronted her in the parking lot at her workplace, and followed her
and her boyfriend to a park. Additionally, Wagner told the victim
on a few occasions that if he could not have her then no one could
and implied “that [she] had to come back to him or else.” During
one phone conversation, the victim believed she heard Wagner
“pull[] the slide back on a gun . . . and [she] was really concerned
that he was either going to shoot himself or come over and kill [her
or her boyfriend].” Wagner also told the victim that he knew where
she lived, as well as where her and her boyfriend’s families resided.
¶ 27 As a result of Wagner’s behavior, the victim testified that she
did not feel safe or secure, was “always worried” that Wagner “was
either going to hurt himself, [her], or [her boyfriend],” started to
12 carry a concealed firearm, altered her route to work and her
schedule, and lost sleep because she was “pretty emotional.” In
addition, the victim’s boyfriend testified that he purchased a
security system for his home and also started to carry a concealed
gun.
¶ 28 The defense moved for a judgment of acquittal on all charges.
In a thorough bench ruling, the trial court denied that motion.
B. Standard of Review
¶ 29 In considering a challenge to the sufficiency of the evidence,
we review the record de novo. Dempsey v. People, 117 P.3d 800,
807 (Colo. 2005). “When determining a challenge to the sufficiency
of the evidence, an appellate court must consider whether the
evidence, viewed as a whole and in the light most favorable to the
prosecution, is sufficient to support a conclusion by a reasonable
person that the defendant is guilty of the charged crime beyond a
reasonable doubt.” Carey, 198 P.3d at 1232.
¶ 30 Wagner contends that there was insufficient evidence to
support his stalking convictions. His argument is twofold. First, he
contends that the evidence did not prove beyond a reasonable
13 doubt that his conduct would have caused a reasonable person to
suffer serious emotional distress or that the victim actually suffered
serious emotional distress. Second, he asserts that his actions did
not constitute “credible threats” because they would not have
caused “a reasonable person to be in fear for the person’s safety or
the safety of his or her immediate family or of someone with whom
the person has or has had a continuing relationship.” § 18-3-
602(2)(b), C.R.S. 2017. We disagree with both contentions.
¶ 31 Taken in the light most favorable to the People, we conclude
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. The victim
testified that, as a result of Wagner’s surveillance and frequent
communications, she felt unsafe, lost sleep, changed her daily
routine to evade Wagner, and started to carry a concealed weapon.
This evidence was sufficient to allow the jury to find the objective
and subjective serious emotional distress elements had been
established. See Carey, 198 P.3d at 1233 (victim’s testimony “that
she was ‘very fearful’ and ‘very distressed’ because she realized that
defendant could easily act on his threats” and that she “increased
14 her level of awareness of her surroundings” was sufficient evidence
of serious emotional distress); People v. Cross, 114 P.3d 1, 6 (Colo.
App. 2004) (sufficient evidence of serious emotional distress when
victim testified that the defendant’s behavior caused her to change
her work schedule, feel nervous, and have trouble sleeping), rev’d in
part on other grounds, 127 P.3d 71 (Colo. 2006); People v. Sullivan,
53 P.3d 1181, 1185 (Colo. App. 2002) (sufficient evidence of serious
emotional distress when victim testified that she changed her
routines, was afraid, felt she was constantly being watched, and
had trouble sleeping).
¶ 32 Similarly, the evidence was sufficient for the jury to find that
Wagner made credible threats. On several occasions, he told the
victim something like, “If I can’t have you, then no one can.” The
victim testified that, during one phone call, she heard Wagner pull
the slide of a gun back. Wagner also told the victim that he knew
where her family lived. Again, taking the evidence in the light most
favorable to the People, we conclude that this evidence was
sufficient for the jury to conclude that Wagner had made credible
threats. See People v. Chase, 2013 COA 27, ¶¶ 53-54, ___ P.3d ___,
___ (concluding that several emails containing “implicit and explicit
15 threats” was sufficient evidence of credible threats when victim
considered the emails serious and bought a gun as a result); People
v. Suazo, 87 P.3d 124, 126 (Colo. App. 2003) (noting sufficient
evidence of credible threat where the “defendant told the victim that
he was going to kill her if she did not see him”).
IV. Unanimity Instruction and Prosecutorial Election
¶ 33 Wagner contends 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. We perceive no error.
¶ 34 In light of our conclusion that all Wagner’s stalking
convictions should merge, it may seem that we do not need to
consider this argument. In Herron, the division apparently declined
to address a similar contention in light of its conclusion that the
defendant’s stalking convictions should merge. See Herron, 251
P.3d at 1192-93 (“Because we agree with [the defendant’s] double
jeopardy argument, we do not address his alternative contention
that the court erred in failing to require the prosecution to specify
what conduct comprised emotional distress stalking and credible
16 threat stalking or to give the jury a unanimity instruction
concerning the stalking counts.”).
¶ 35 However, we conclude that because of the large number of
stalking incidents alleged under both the credible threat and
serious emotional distress subsections of the stalking statute, we
must address this contention regardless of our conclusion that
Wagner’s convictions should merge. 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. Thus, we must still address Wagner’s
argument that the jury should have been required to unanimously
agree as to which acts in fact occurred.
¶ 36 During a conference on the jury instructions, the defense
tendered an instruction that read, “In order to convict the defendant
of the crime of stalking as set forth in [the elemental instructions],
you must either unanimously agree that the defendant committed
the same act or acts, or that the defendant committed all of the acts
described.” In the alternative, the defense requested that the
prosecution elect which acts constituted credible threats with
17 regard to counts two and three because there were “a number of
different statements, any one of which could” constitute a credible
threat.
¶ 37 The trial court denied the defense’s request, relying primarily
on Carey, 198 P.3d 1223, and stating, “When a defendant is
charged with crimes occurring in a single transaction, the
[p]rosecution does not have to elect among the acts that constitute
the crime, and the unanimity instruction need not be given.”
¶ 38 We review de novo whether the trial court was required to give
a unanimity instruction. People v. Torres, 224 P.3d 268, 278 (Colo.
App. 2009). We also review de novo whether “the prosecution’s
failure to elect the particular act on which it relies for conviction”
denied a defendant due process of law. Quintano, 105 P.3d at 592.
C. Applicable Law
¶ 39 An accused has the right to a jury trial, U.S. Const. amends.
VI, XIV; Colo. Const. art. II, §§ 16, 25, and a unanimous jury
verdict, § 16-10-108, C.R.S. 2017. “The trial court is responsible
for ensuring that the jury is properly instructed on the law and that
a conviction on any count is the result of a unanimous verdict.”
18 People v. Rivera, 56 P.3d 1155, 1160-61 (Colo. App. 2002).
Therefore, as a general rule,
[w]hen evidence of many acts is presented, any one of which could constitute the offense charged, the trial court must take one of two actions to ensure jury unanimity: (1) require the prosecution to elect the transaction on which it relies for the conviction, or (2) if there is not evidence to differentiate between the acts and there is a reasonable likelihood that jurors may disagree on the act the defendant committed, instruct the jury that to convict it must agree unanimously that the defendant committed the same act or that the defendant committed all of the acts included within the period charged.
People v. Greer, 262 P.3d 920, 925 (Colo. App. 2011), as modified on
denial of reh’g (Apr. 21, 2011).
¶ 40 However, that general rule is inapposite when there is no
“reasonable likelihood that jurors may disagree on the act the
defendant committed.” Rivera, 56 P.3d at 1160; see also Greer, 262
P.3d at 925. Thus, a trial court errs in rejecting a request for
prosecutorial election or in denying a unanimity instruction only
“[i]f the record demonstrates that ‘[s]ome of the jurors may have
decided to convict on one act, while others may have decided to
convict on another’ such that ‘it is impossible to be reasonably
19 certain of the reliability of the judgment of conviction.’” People v.
Gookins, 111 P.3d 525, 528 (Colo. App. 2004) (quoting Woertman v.
People, 804 P.2d 188, 192 (Colo. 1991)).
D. Analysis
¶ 41 Wagner contends that the trial court erred by rejecting the
unanimity instruction or by failing to require the People to elect
which acts were credible threats in support of counts two and three.
We disagree.
¶ 42 During trial, the defense’s theory of the case was that Wagner
had committed harassment rather than stalking. In fact, the
defense began its closing argument by stating that “no one was
going to deny how many text messages [there were] and how much
contact there was” between Wagner and the victim. As Wagner
acknowledges in his reply brief, it was “undisputed” that he made
repeated contact with the victim. The defense did not argue that
Wagner did not commit any of the acts about which the victim or
the other witnesses testified.
¶ 43 We conclude that this is a case in which the evidence
“described repeated acts with respect to a single victim-witness,
such that the jury would be likely to agree either that all of the acts
20 occurred or that none occurred.” Rivera, 56 P.3d at 1160.
Accordingly, there is no “reasonable likelihood that the jury could
have disagreed concerning the act or acts [Wagner] committed” and
the prosecution therefore was not required to elect on which acts it
was relying to prove that Wagner had made a credible threat. See
id. Nor was the trial court required to give a unanimity
instruction.2 See Carey, 198 P.3d at 1236; see also Melina v.
People, 161 P.3d 635, 639-40 (Colo. 2007). Thus, the trial court did
not err in denying the defense’s request for prosecutorial election
or, in the alternative, for a unanimity instruction.
V. Conclusion
¶ 44 Accordingly, we vacate two of the counts and remand for the
trial court to merge the convictions under section 18-3-602(1)(a),
(b), and (c), and to correct the mittimus. In all other respects, the
judgment is affirmed.
JUDGE HARRIS and JUDGE ROTHENBERG concur.
2 Although we conclude that the trial court was not required to give the jury a unanimity instruction under the circumstances here, a unanimity instruction may be appropriate in cases, such as stalking, in which the charged crime is composed of multiple distinct acts.