COLORADO COURT OF APPEALS 2017COA105
Court of Appeals No. 14CA2242 Larimer County District Court No. 13CR1167 Honorable Julie K. Field, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher Wesley Welborne,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE NAVARRO Hawthorne and Dunn, JJ., concur
Announced August 10, 2017
Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Christopher Wesley Welborne, appeals the
judgment of conviction entered on jury verdicts finding him guilty of
first degree arson, criminal mischief, theft, and attempted theft. We
affirm. In doing so, we hold — for the first time in a reported
decision — that criminal mischief is not an included offense of first
degree arson. See infra Part V.
I. Factual and Procedural History
¶2 The prosecution alleged that Welborne and his mother, Kellie
Lawson, set fire to the house in which they lived and then filed false
insurance claims based on the fire. Welborne and Lawson were
tried together, and the prosecution presented evidence of the
following.
¶3 Welborne rented a house with Lawson, his then girlfriend J.K.,
and other family members. In April 2012, Welborne and Lawson
purchased renters insurance and automobile insurance policies.
The renters insurance covered losses up to $350,000. The
insurance agent had never seen a renters policy with such high
coverage.
¶4 In August 2012, the insurance company notified Welborne and
Lawson that it did not plan to renew the renters policy upon
1 expiration in October 2012 because an adjustor had seen a large
snake on the premises, contrary to a policy provision. The
insurance agent was also suspicious of Welborne and Lawson due
to the agent’s past interactions with them,1 and the agent asked a
company underwriter if the company could cancel their policy
before the expiration date. The agent told the underwriter he feared
that, if the company did not cancel the policy, the “house is going to
burn down.” But the policy remained in place.
¶5 On August 27, 2012, the house in which Welborne and
Lawson lived was set on fire. On that day, the occupants went on a
picnic shortly before the fire started. Multiple sources of ignition
were found, and all accidental causes were eliminated. Experts
concluded that someone intentionally started the fire with an open-
flame source that was removed from the scene when the fire
started.
¶6 Before the day of the fire, Lawson said multiple times in front
of many people that she wished the house would burn down so the
family could start again. J.K. observed Lawson searching the
1 We discuss some of these interactions in Part II of this opinion.
2 Internet to learn methods by which a fire could start in a home
without someone being there.
¶7 Welborne used “pyroman876” as an online username and as
part of his e-mail address, and he chose faces created out of flames
for his profile picture on Facebook. J.K. heard Welborne agree that
burning down the house would be a good idea, and she heard him
talking with Lawson about how a fire could be started by placing a
scarf soaked in rubbing alcohol on an over-wattage bulb in a lamp.
J.K. was so concerned about those statements that she discussed
them with her mother. Her mother told J.K.’s sister about those
concerns; after the fire, the sister advised authorities that the fire
had been set intentionally.
¶8 Shortly after the fire, Welborne and Lawson filed an insurance
claim based on allegedly destroyed personal items. They created a
140-page list of over 2800 items, seeking reimbursement for
$443,626. An inventory of the house, however, revealed only 816
items, valued at $102,358. For example, although Welborne
claimed that the fire had destroyed an electric wheelchair, fire
investigators found the chair in a neighbor’s garage. And
3 investigators could not find some allegedly burned computers; their
remnants should have been in the house.
¶9 J.K. was with Welborne when he completed the insurance
claim. She saw him list items that he had never possessed or that
had not been lost, including a laptop that he had actually taken to
the picnic. When she questioned him, he said that he deserved a
new laptop.
¶ 10 After living with Welborne in a hotel for a few months, J.K.
moved to California. He visited her. She advised him that, if he
wished to salvage their relationship, he must list his lies to her. On
this list, Welborne admitted that he and his mother had set the fire.
He also admitted that earlier insurance claims had been fraudulent.
He then burned the list, telling J.K. that he would not let her use it
as evidence against him.
¶ 11 Welborne claimed that the house had many electrical
problems, but J.K. and the homeowner said they were aware only of
a problem with a dimmer switch. Investigators eliminated the
electrical system as the cause of the fire.
¶ 12 Lawson also denied starting the fire. She volunteered that she
had spilled rubbing alcohol on her bedroom carpet, used rags to
4 clean it up, and thrown the rags in a corner by a lamp. The lamp
had a 200-watt bulb, far exceeding the recommended maximum of
60 watts. But investigators eliminated the alcohol-soaked rags
thrown on the base of the lamp as the fire’s cause.
¶ 13 The fire caused $285,224 of damage to the house. Before
ultimately denying their claim, the insurance company paid
Welborne and Lawson $72,468 for temporary living expenses and
for some of the allegedly lost personal items.
¶ 14 The jury convicted Welborne and Lawson as charged. The trial
court sentenced Welborne to six years in prison for arson, six years
for criminal mischief, six years for attempted theft, and eight years
for theft — all to be served concurrently. He directly appeals the
judgment. (Lawson is not a party to this appeal.)
II. Earlier Insurance Claims
¶ 15 Welborne contends that the trial court erred by admitting
evidence of his earlier insurance claims to the same company. He
is mistaken.
A. Relevant Factual and Procedural History
¶ 16 Around August 2011, Welborne and Lawson purchased
insurance policies for multiple vehicles and a renters insurance
5 policy. Around December 2011, Welborne and Lawson filed an
insurance claim alleging that many items had been stolen from
their house. Police, however, could not find any signs of forced
entry or any other evidence of a burglary. Welborne and Lawson
could not provide receipts or other proof to support some claims.
Lawson repeatedly increased the alleged value of the items taken
each time she talked to the insurance agent. Still, the insurance
company paid them approximately $30,000. Welborne told J.K.
that the items had not been stolen and that he and Lawson had
committed insurance fraud.
¶ 17 Later, the family’s van was found crashed in a field with the
keys in the ignition. Welborne and Lawson claimed that the van
had been stolen, and they filed an insurance claim. According to
the investigating officer, the van was worth $2324. Lawson
asserted that the value should be increased because of recent work
on the van, but she could not provide proof of such work. Yet, the
insurance company paid them approximately $6000. Welborne told
J.K. that the van had not been stolen and that he and Lawson had
crashed it so they could get a new one.
6 ¶ 18 In July 2012, Lawson asserted that the house had been
burglarized again and the burglar had stolen a samurai sword.
J.K., however, had never seen a sword in the house. Once again,
police did not find signs of forced entry or other evidence of a
burglary. The insurance agent advised Lawson that the insurance
company would look hard at another questionable claim. Welborne
and Lawson ultimately dropped this claim.
¶ 19 The prosecutor moved to admit evidence of these prior
insurance claims under CRE 404(b) and as res gestae evidence.
The prosecutor argued that this evidence showed motive or intent,
lack of accident or mistake, and common plan and preparation.
The trial court agreed and admitted the evidence at trial, with
limiting instructions.
B. Standard of Review
¶ 20 A trial court has “substantial discretion when deciding
whether to admit evidence of other acts.” People v. Jones, 2013 CO
59, ¶ 11 (citation omitted). We will not disturb the court’s ruling
unless it is manifestly arbitrary, unreasonable, or unfair. People v.
Rath, 44 P.3d 1033, 1043 (Colo. 2002). The parties agree that
Welborne preserved this issue.
7 C. Analysis
¶ 21 Rule 404(b) provides that, although evidence of other acts is
not admissible if its relevance depends entirely on the inference that
the actor has a bad character and acted in conformity with that
character, such evidence may be admissible for other purposes.
See CRE 404(b) (listing, for example, proof of motive, intent,
preparation, plan, and absence of mistake or accident); see also
Jones, ¶ 12. To assess whether evidence satisfies Rule 404(b), a
trial court must apply the four-part test articulated in People v.
Spoto, 795 P.2d 1314, 1318 (Colo. 1990). This test allows
admission of the evidence if (1) it relates to a material fact; (2) it is
logically relevant to showing that fact; (3) the logical relevance is
independent of the inference that the defendant committed the
crime charged because of the likelihood that he acted in conformity
with his bad character; and (4) the probative value is not
substantially outweighed by the danger of unfair prejudice. Id.; see
CRE 403.
¶ 22 Welborne contends that the trial court abused its discretion
because the evidence of his prior insurance claims did not relate to
a material fact, was not logically relevant to the charges, and
8 therefore was not probative of anything other than to show his bad
character. As to these first three Spoto prongs, he argues only that
“[w]hether the defendants made false insurance claims [was] not
material to whether the defendants intentionally set the fire” and
“[n]one of the charges in this case were related to fraud.”
¶ 23 We disagree because the attempted theft and theft charges
were grounded in Welborne’s false insurance claims following the
fire. The prosecution had to prove that he knowingly took a
substantial step toward obtaining and actually obtained insurance
money by deception, and that he intended to permanently deprive
the insurance company of the money. §§ 18-2-101(1),
18-4-401(1)(a), C.R.S. 2016. According to the prosecution,
Welborne falsely claimed that certain personal property was
destroyed in the fire in order to deceive the insurance company into
paying him money under the renters policy.
¶ 24 So, the prior false insurance claims involving the same
company related to a material fact and were logically relevant to the
charges. See Yusem v. People, 210 P.3d 458, 464 (Colo. 2009)
(recognizing that whether the defendant’s actions were mistaken or
purposeful was related to the defendant’s mental state); Rath, 44
9 P.3d at 1043 (recognizing that other-act evidence shared common
elements with charged offenses that tended to show the charged
acts were “directed or purposive rather than coincidental”); People v.
Delgado, 890 P.2d 141, 143 (Colo. App. 1994) (noting that a
common plan can be shown by acts that have “a nexus or
relationship with each other” and “it is not necessary that there be
any substantial similarity between the acts”).
¶ 25 For similar reasons, the other-act evidence had probative
value outside of any improper inference. “Because all evidence of
other bad acts could support a propensity inference, Spoto ‘does not
demand the absence of the inference’ but ‘merely requires that the
proffered evidence be logically relevant independent of that
inference.’” People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009)
(citation omitted). The evidence here was not relevant merely to
prove Welborne’s character but also to show a common plan and
preparation, lack of accident or mistake, and his motive and intent.
See Rath, 44 P.3d at 1041 (“The inference relied on arises not from
the criminal character of the accused but from the demonstration of
his pattern of using a particular technique to accomplish a
particular end.”).
10 ¶ 26 As to Spoto’s fourth prong, because Rule 403 strongly favors
the admission of relevant evidence, we must afford other-act
evidence the maximum probative value attributable to it by a
reasonable fact finder and the minimum unfair prejudice to be
reasonably expected. Rath, 44 P.3d at 1043. Evidence that
strengthens the prosecution’s case necessarily poses some
disadvantage to the accused. People v. Garner, 806 P.2d 366, 375
(Colo. 1991). But unfair prejudice does not result from the
evidence’s legitimate probative force. Rath, 44 P.3d at 1043.
¶ 27 Evidence of Welborne’s false but fruitful insurance claims was
highly probative of whether he acted to deceive the same insurance
company with the intent to permanently deprive it of money. And
the trial court repeatedly instructed the jury on the limited
purposes of the evidence, which mitigated the potential for unfair
prejudice because we assume the jury heeded the instructions
absent contrary signs. People v. Garcia, 2012 COA 79, ¶ 20.
¶ 28 As a result, the trial court did not abuse its broad discretion.
11 III. Welborne’s California Theft Conviction
¶ 29 Welborne contends that the trial court committed reversible
error by permitting the prosecutor to impeach him with his
California theft conviction. We disagree.
A. Relevant History
¶ 30 Welborne elected to testify at trial. Before cross-examination,
the prosecutor announced the intent to impeach Welborne with a
California felony theft conviction, pursuant to section 13-90-101,
C.R.S. 2016. Defense counsel acknowledged that Welborne had
been convicted of felony theft in California, but counsel provided
documents showing that Welborne had successfully petitioned a
California court to reduce the conviction to a misdemeanor
pursuant to California law. Defense counsel argued that the
conviction could not be used to impeach Welborne because it was
no longer a felony.
¶ 31 The trial court agreed that the conviction was no longer a
felony. Relying on People v. Segovia, 196 P.3d 1126, 1132 (Colo.
2008), however, the court found the conviction admissible to
impeach Welborne’s credibility under CRE 608(b) because theft is
probative of truthfulness or dishonesty.
12 ¶ 32 In front of the jury, the prosecutor asked Welborne one
question regarding the earlier offense: “And you have a prior
misdemeanor theft conviction in California, don’t you?” Welborne
answered, “Fourteen years ago.” The trial court instructed the jury
to consider this evidence only to assess Welborne’s credibility.
¶ 33 As noted, trial courts possess considerable discretion in
deciding evidentiary matters. Segovia, 196 P.3d at 1129. Because
Welborne objected to admission of the evidence on
non-constitutional grounds, we review the alleged error for
harmlessness. Yusem, 210 P.3d at 469; see also People v. Kraemer,
795 P.2d 1371, 1377 (Colo. App. 1990) (analyzing erroneous
admission of CRE 608(b) evidence for harmlessness).
C. Analysis
¶ 34 Rule 608(b) permits cross-examination into specific instances
of conduct that are probative of a witness’s character for
truthfulness or untruthfulness. Only the underlying circumstances
surrounding the conduct — not the fact of a criminal conviction
itself — are admissible under the rule. See Segovia, 196 P.3d at
13 1132; People v. Drake, 748 P.2d 1237, 1246 (Colo. 1988); People v.
Garcia, 17 P.3d 820, 829 (Colo. App. 2000).
¶ 35 The trial court acted well within its discretion in admitting
evidence of Welborne’s prior theft offense under Rule 608(b)
because “theft is probative of truthfulness or dishonesty.” Segovia,
196 P.3d at 1132. Welborne asks us to “re-examine” the supreme
court’s holding in Segovia, but we lack such authority. See People
v. Al-Turki, 2017 COA 39, ¶ 12 n.2. Also, contrary to his claim that
the trial court admitted the evidence “carte blanche” (i.e., without
recognizing its discretion to either admit or exclude the evidence),
the court explicitly recognized its discretion to make this decision.
¶ 36 But Welborne is right that the trial court should not have
permitted the prosecutor to elicit the fact of his conviction because
only the facts underlying it were admissible. See, e.g., Segovia, 196
P.3d at 1132. No reasonable probability exists, however, that this
error prejudiced him. As defense counsel recognized, the
underlying facts of his California theft supported a conviction for a
felony offense. The jury heard, however, only the fact of a
misdemeanor conviction, not the facts of the felony-level offense.
Hence, the jury received evidence less prejudicial to Welborne,
14 perhaps, than Rule 608 permits. Further, the entire inquiry into
the earlier offense was limited to a single question during a lengthy
trial, and the court instructed the jury to consider the evidence for a
limited purpose only. Finally, the evidence of Welborne’s guilt was
profuse.
¶ 37 Consequently, the error in admitting the fact of the
misdemeanor conviction was surely harmless. See People v. Casias,
2012 COA 117, ¶ 68 (concluding that improperly admitted other-act
evidence was harmless where it did not play a significant role in the
case and the volume of properly admitted evidence dwarfed the
improperly admitted evidence).2 Because the trial court’s admission
2 To the extent Welborne contends — for the first time on appeal — that the trial court’s ruling burdened his “constitutional right to testify,” we do not detect plain error. The ruling did not preclude him from testifying, and he testified freely. See also People v. Henry, 195 Colo. 309, 315, 578 P.2d 1041, 1045 (1978) (holding that permitting the prosecution to impeach a defendant with prior convictions does not impermissibly burden his right to testify). Further, while Welborne notes that he was not expressly advised that he could be impeached under CRE 608(b) with the circumstances of a misdemeanor conviction, he does not assert that he would have made a different decision about whether to testify if he had been so advised. Cf. People v. Emert, 240 P.3d 514, 518-19 (Colo. App. 2010) (recognizing that, when a defendant is misinformed by the trial court about the consequences of his decision to testify, he may obtain relief only if he demonstrates detrimental reliance on the misleading advisement).
15 of the evidence under CRE 608(b) does not require reversal, we need
not address the People’s argument that Welborne’s California
conviction remained a felony for purposes of section 13-90-101.
IV. Welborne’s Proposed Impeachment Witness
¶ 38 According to Welborne, the trial court erred by barring him
from calling a witness, G.S., to impeach the testimony of J.K., his
former girlfriend. The record does not reveal reversible error.
¶ 39 The trial court ordered the parties to disclose witnesses well
before trial. The defense did not disclose G.S.
¶ 40 During J.K.’s testimony, defense counsel did not ask her
about G.S. Counsel did not object to releasing J.K. from her
subpoena after her testimony, and she flew home to California the
next day as planned.
¶ 41 Two days after J.K.’s testimony, defense counsel requested
permission to call G.S. to impeach J.K. Counsel represented that
G.S. had been present for the California meeting in which,
according to J.K., Welborne had confessed to setting the fire.
Counsel said that G.S. would testify “regarding what she observed
at the meeting” as well as to “some things [J.K.] said.” Counsel
16 explained that G.S. would not testify to “new unknown information”
and that Welborne would “probably address the same items” in his
testimony. Counsel conceded that he had not disclosed G.S. to the
prosecution. He also admitted that he had received the
prosecution’s disclosures about J.K.’s testimony well before trial.
While defense counsel suggested that the prosecution’s latest
synopsis of J.K.’s expected testimony (provided at the start of trial)
“added additional information about” her, defense counsel did not
identify any such new information.
¶ 42 The prosecutor objected, arguing that the endorsement was
untimely, J.K.’s testimony had been known to the defense since the
charges were filed, J.K. could not be recalled to respond to G.S.’s
testimony because J.K. had left the state, and the prosecution could
have extended J.K.’s stay if the defense had revealed G.S. earlier.
The prosecutor also voiced concern that (1) G.S.’s testimony would
be hearsay if she testified about conversations she had overheard
between J.K. and Welborne; and (2) the defense had not laid a
proper foundation to impeach J.K.’s testimony under section
16-10-201, C.R.S. 2016, or CRE 613. Defense counsel did not
respond to these hearsay and foundational concerns.
17 ¶ 43 The trial court decided that G.S. could not testify because the
defense had not timely disclosed her per Crim. P. 16(II)(c) and the
pretrial order, and the defense had not shown good cause for failing
to disclose her earlier — especially given that the prosecution had
disclosed J.K.’s testimony long before trial. The court also
expressed its “very serious concern” about whether G.S.’s testimony
would be admissible in light of its apparent hearsay nature and the
absence of a proper foundation.
B. Analysis
¶ 44 Welborne maintains that the trial court erred by excluding
G.S.’s testimony because the defense did not violate any rule and
the court did not adequately consider the factors outlined in People
v. Pronovost, 773 P.2d 555 (Colo. 1989). The People answer that
Welborne did not provide an offer of proof sufficient to permit us to
reverse the court’s ruling. The People are right.
¶ 45 Under CRE 103(a), “error may not be predicated upon a ruling
that excludes evidence unless a substantial right of the proponent
is affected and the substance of the evidence is made known to the
court by offer of proof or is apparent from the context within which
questions were asked.” People v. Saiz, 32 P.3d 441, 446-47 (Colo.
18 2001). “This offer of proof must demonstrate that evidence is
admissible as well as relevant to the issues in the case.” Melton v.
Larrabee, 832 P.2d 1069, 1071 (Colo. App. 1992). “The offer must
sufficiently apprise the trial court of the nature and substance of
the testimony to enable it to exercise its discretion pursuant to the
rules of evidence, and it must establish a basis in the record for
appellate review of the trial court’s ultimate ruling.” Saiz, 32 P.3d
at 447.
¶ 46 Defense counsel, despite the trial court’s requests for more
detail, offered only that G.S. was present during the California
meeting between J.K. and Welborne and that G.S. would “impeach
some of the testimony put forth by J.K.” Counsel did not identify
which parts of J.K.’s testimony G.S. would impeach. For instance,
counsel did not assert that G.S. would contradict J.K.’s testimony
that Welborne had confessed to setting the fire or to filing false
insurance claims. Nor did defense counsel explain how the defense
could overcome the hearsay and foundational concerns flagged by
the prosecutor and shared by the court. Instead, defense counsel
said that G.S.’s testimony would be cumulative of Welborne’s
expected testimony (although counsel did not elaborate).
19 ¶ 47 Arguably, this offer of proof was so limited as to justify the
trial court’s ruling on the basis that the offer did not satisfy CRE
103(a)(2) (i.e., the substance of the evidence was not adequately
made known to the court). In any event, the sparse offer of proof
does not show that the court’s ruling affected a “substantial right of
[a] party.” CRE 103(a); see Saiz, 32 P.3d at 447-48 (concluding that
the trial court properly excluded videotaped statement where the
offer of proof was relatively limited in nature, solely for
impeachment, and not alleged to be different or more probative
than other related testimony); id. at 448 (“A trial court also cannot
be considered to have abused its discretion in excluding logically
relevant evidence as needlessly cumulative unless its decision,
under the circumstances, was manifestly arbitrary, unreasonable,
or unfair.”); cf. People v. Brown, 2014 COA 155M-2, ¶ 6 (“[A]
defendant’s right to present a defense is violated ‘only where the
defendant was denied virtually his only means of effectively testing
significant prosecution evidence.’”) (alteration and citation omitted).
For the same reason, we cannot conclude that the court’s ruling
prejudiced Welborne even if we assume (without deciding) that
constitutional harmless error analysis applies. See Hagos v. People,
20 2012 CO 63, ¶ 11 (describing review of errors of constitutional
dimension).
¶ 48 As discussed, the offer of proof did not show that G.S.’s
testimony was admissible or that she would impeach J.K.’s
testimony that Welborne had confessed to starting the fire. See
Saiz, 32 P.3d at 449 (explaining that, where “the defense never
specified the statements that would appear on the tape or asked the
court to view the videotape,” excluding the tape did not prejudice
the defendant’s constitutional rights). And Welborne himself later
contradicted J.K.’s account. See People v. Hoover, 165 P.3d 784,
796 (Colo. App. 2006) (finding the erroneous exclusion of state-of-
mind evidence to be harmless where the record showed that the
defendant was able to provide substantial testimony concerning his
state of mind); cf. Vega v. People, 893 P.2d 107, 120 (Colo. 1995)
(holding constitutional error in precluding cross-examination into
incentive program for Drug Enforcement Administration agents was
harmless beyond a reasonable doubt where other evidence revealed
the agents’ bias toward obtaining convictions for drug-related
offenses).
21 ¶ 49 Finally, the evidence of Welborne’s guilt was abundant.
Indeed, J.K. testified to Welborne’s inculpatory conversations that
G.S. could not have overheard (e.g., those between Welborne and
Lawson about how to set a house fire). For all these reasons, any
error was harmless beyond a reasonable doubt.
V. Merger
¶ 50 Welborne contends that criminal mischief is an included
offense of first degree arson and, therefore, those convictions must
merge. His contention finds support in People v. Abeyta, 541 P.2d
333, 335 (Colo. App. 1975) (not published pursuant to C.A.R. 35(f)).
We decline to apply Abeyta, however, because it conflicts with both
the controlling law at the time it was issued and the supreme
court’s recent clarification of the applicable test for evaluating when
one offense is included in another. See Reyna-Abarca v. People,
2017 CO 15, ¶¶ 59-66. Welborne’s claim fails the governing test.
A. Standard of Review
¶ 51 We review de novo a claim that a conviction violates the
constitutional prohibition against double jeopardy. People v.
McMinn, 2013 COA 94, ¶ 18. Because Welborne did not preserve
22 this issue, we may reverse only if plain error occurred.
Reyna-Abarca, ¶ 2; People v. Morales, 2014 COA 129, ¶¶ 46-47.
¶ 52 If one offense is included in another offense, a defendant may
not be convicted of both. § 18-1-408(1)(a), C.R.S. 2016. As
pertinent here, one offense is included in another offense charged
when “[i]t is established by proof of the same or less than all the
facts required to establish the commission of the offense charged.”
§ 18-1-408(5)(a); Reyna-Abarca, ¶ 51. Our supreme court has
consistently held that this statute requires a “statutory elements” or
“strict elements” test, under which we compare the elements of the
two criminal statutes rather than the specific evidence used to
sustain the charges. Reyna-Abarca, ¶ 53; People v. Rivera, 186
Colo. 24, 27-28, 525 P.2d 431, 433-34 (1974).
¶ 53 As charged here, first degree arson requires proof that the
defendant (1) knowingly; (2) set fire to, burned, or caused to be
burned; (3) any building or occupied structure; (4) of another;
(5) without that person’s consent. § 18-4-102(1), C.R.S. 2016; cf.
COLJI-Crim. 4-1:01 (2016). As charged here, criminal mischief
requires proof that the defendant (1) knowingly; (2) damaged; (3) the
23 real or personal property; (4) of one or more other persons,
including property owned by the defendant jointly with another
person or property owned by the defendant in which, at the time of
the damage, another person had a possessory or propriety interest;
(5) in the course of a single criminal episode. § 18-4-501(1), C.R.S.
2016; § 18-4-501(1), C.R.S. 2012; cf. COLJI-Crim. 4-5:01 (2016).3
1. Before Reyna-Abarca
¶ 54 In Abeyta, 541 P.2d at 335, the division opined that criminal
mischief is a lesser included offense of first degree arson. Other
than the requisite mental state, the statutory elements of both
offenses then were substantially the same as those in 2012 and
2016. See id. (stating that both 1973 statutes required mental state
of “intentionally”). Citing Rivera’s statutory elements test, the
Abeyta division decided, with little discussion, that “the essential
elements of [criminal mischief] are necessarily proven if the
elements of [first degree arson] are present.” Id.
3 The 2016 statute differs somewhat from the 2012 version in effect at the time of Welborne’s offenses, but not as to the elements set forth above. The 2016 version restructures and revises the aggregate damage amounts relevant to enhancing criminal mischief from a misdemeanor to a felony. See § 18-4-501(4), C.R.S. 2016.
24 ¶ 55 The Abeyta division was mistaken because criminal mischief
required an element that first degree arson did not. As it did in
2012 and does today, the criminal mischief statute in Abeyta
applied only if the charged acts occurred “in the course of a single
criminal episode.” Id. (quoting section 18-4-501, C.R.S. 1973); see
People v. Thoro Prods. Co., 45 P.3d 737, 745 (Colo. App. 2001)
(describing the “single criminal episode” language of section
18-4-501 as an element of the offense), aff’d, 70 P.3d 1188 (Colo.
2003). In other words, the criminal mischief statute has always
required proof that the defendant committed the acts in the course
of a single criminal episode. See also COLJI-Crim. 4-5:01 cmt. 3
(2016) (explaining that Thoro Products recognized “the ‘single
criminal episode’ language of section 18-4-501 as establishing an
element of the offense”).4 The first degree arson statute has never
set forth such an element.
4 The 2016 model instructions had not been issued at the time of Welborne’s offenses. Still, those instructions are informative because they interpret relevant statutory language that was in effect at the time of his offenses. See § 18-4-501(1), C.R.S. 2012; People v. Morales, 2014 COA 129, ¶ 42 (recognizing that model instructions, while not binding, are intended as guidelines and should be considered by courts); People v. Romero, 197 P.3d 302, 309 (Colo. App. 2008) (Pattern jury instructions “carry weight and
25 ¶ 56 Accordingly, Abeyta was wrongly decided at the time.
2. After Reyna-Abarca
¶ 57 Under the supreme court’s new formulation in Reyna-Abarca,
¶ 64, “an offense is a lesser included offense of another offense if
the elements of the lesser offense are a subset of the elements of the
greater offense, such that the lesser offense contains only elements
that are also included in the elements of the greater offense.” We
asked the parties to brief Reyna-Abarca’s effect on Abeyta.
¶ 58 Welborne, noting that Reyna-Abarca did not expressly overrule
Abeyta and arguing that the cases apply the same strict elements
test, contends that Reyna-Abarca does not contradict Abeyta. True,
the Reyna-Abarca court did not mention Abeyta. Even so, the
reasoning of Reyna-Abarca confirms that Abeyta was wrong.
¶ 59 Just as under the former test, under the Reyna-Abarca test
“one offense is not a lesser included offense of another if the lesser
offense requires an element not required for the greater offense.” Id.
at ¶ 60 (discussing Schmuck v. United States, 489 U.S. 705 (1989),
from which the Reyna-Abarca court fashioned its new test).
should be considered by the court.” (citing People v. Armstrong, 720 P.2d 165, 168 (Colo. 1986))).
26 Because criminal mischief requires proof that the acts were
committed in a single criminal episode — while first degree arson
does not — criminal mischief is not an included offense of first
degree arson under the Reyna-Abarca analysis.5
¶ 60 We are not persuaded otherwise by Welborne’s claim that
criminal mischief is “necessarily included” in first degree arson
because “it is impossible to commit first degree arson without also
committing criminal mischief.” In Reyna-Abarca, ¶¶ 65-67, the
court rejected such a test for identifying an included offense when
the court disavowed Meads v. People, 78 P.3d 290 (Colo. 2003).
Meads had applied the following test: if proof of facts establishing
the statutory elements of the greater offense necessarily establishes
all the elements of the lesser offense, the lesser offense is included.
See Reyna-Abarca, ¶ 65. The Reyna-Abarca court abandoned that
former test and acknowledged that “the result in Meads would have
5 Because we must apply the strict elements test (rather than an evidentiary test), we are loath to look beyond the elements expressed in the first degree arson statute by theorizing that a “single criminal episode” element is necessarily implicit in the first degree arson offense. Cf. People v. Leske, 957 P.2d 1030, 1036-40 (Colo. 1998) (rejecting the claim that the age disparity element of the sexual assault on a child offense is “jurisdictionally implicit” in the position of trust offense).
27 been different” under the new “clarified version of the strict
elements test.” Id. at ¶ 67.
¶ 61 Indeed, the result in Reyna-Abarca would have been different
under the version of the strict elements test used in Meads and
advocated by Welborne. Reyna-Abarca considered, among other
things, whether “DUI” is a lesser included offense of “vehicular
assault-DUI.” Id. at ¶ 1. Because vehicular assault-DUI can be
committed with a boat or a plane, whereas DUI can be committed
only in a self-propelled vehicle that is designed primarily for travel
on the public highways, it is possible to commit vehicular assault-
DUI without also committing DUI. Id. at ¶ 75. Under Meads and
Welborne’s approach, therefore, DUI would not be a lesser included
offense of vehicular assault-DUI because proof of vehicular assault-
DUI does not necessarily establish all the elements of DUI. See
Meads, 78 P.3d at 295-96 (holding that, because the element of
obtaining or exercising control over anything of value does not
necessarily establish the element of obtaining or exercising control
over a motor vehicle, second degree aggravated motor vehicle theft
is not a lesser included offense of felony theft). But Reyna-Abarca
28 rebuffed that analysis and conclusion under its new test. Id. at
¶¶ 76-78. Likewise, we must reject Welborne’s contention.6
VI. Conclusion
¶ 62 The judgment is affirmed.
JUDGE HAWTHORNE and JUDGE DUNN concur.
6Given our disposition, we need not address the People’s other arguments as to why criminal mischief is not included in first degree arson.