Summary
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
Summary of this case from People v. WelborneOpinion
No. 02SC590
October 14, 2003 Rehearing denied EN BANC November 3, 2003.
Certiorari to the Colorado Court of Appeals, Court of Appeals Case No. 00CA1864.
JUDGMENT AFFIRMED.
No. 02SC590, Meads v. People - Lesser-included Offenses — Multiple Punishments — Strict Elements Test
William Meads was arrested for stealing a truck belonging to a family friend. The prosecution charged Meads with felony theft, a violation of section 18-4-401(1)(a), 6 C.R.S. (1999). At trial, Meads asked the court to instruct the jury on the offense of second degree aggravated motor vehicle theft, a misdemeanor violation of section 18-4-409(4), 6 C.R.S. (1999). Meads asserted that the latter charge was a lesser-included offense of felony theft. The trial court agreed to instruct the jury on the charge of aggravated motor vehicle theft. However, the trial court categorized aggravated motor vehicle theft as a lesser non-included offense. As a result, the jury had the option of convicting Meads of both offenses, and did convict him of both felony theft and aggravated motor vehicle theft. The trial court ordered that the sentences for both offenses should run concurrently.
The court of appeals affirmed, holding that aggravated motor vehicle theft is not a lesser-included offense of felony theft. This court affirms the court of appeals. Applying the strict elements test to the relevant statutes in this case, the offense of felony theft does not necessarily include all of the essential elements of aggravated motor vehicle theft. As a result, aggravated motor vehicle theft is not a lesser-included offense of felony theft. Thus, Meads can be convicted of both offenses.
David S. Kaplan, Colorado State Public Defender Tracy C. Renner, Deputy State Public Defender, Denver, Colorado, Attorneys for Petitioner.
Ken Salazar, Attorney General Paul Koehler, Assistant Attorney General Appellate Division, Criminal Justice Section, Denver, Colorado, Attorneys for Respondent.
I. Introduction
In this case, we address the issue of whether second degree aggravated motor vehicle theft is a lesser-included offense of felony theft. Following a jury trial, Defendant William L. Meads was convicted of both offenses. In People v. Meads, 58 P.3d 1137 (Colo.App. 2002), the court of appeals affirmed both convictions, concluding that second degree aggravated motor vehicle theft was not a lesser-included offense of theft. Id. at 1139-1140.
See § 18-4-409(4), 6 C.R.S. (2002).
See § 18-4-401(1)(a), 6 C.R.S. (2002).
We affirm the court of appeals' decision that second degree aggravated motor vehicle theft is not a lesser-included offense of theft. Applying the "strict elements test" to the relevant statutes in this case, we conclude that the statutory elements of the greater offense, theft, do not necessarily include all the statutory elements of the lesser offense, second degree aggravated motor vehicle theft. Accordingly, one is not a lesser-included offense of the other and the defendant could suffer convictions for both offenses.
II. Facts and Procedural History
William Meads, the Petitioner, stood trial for the theft of a truck belonging to a family friend. The prosecution charged Meads with felony theft, a violation of section 18-4-401(1)(a). Through counsel, Meads requested the court to instruct the jury on the offense of second degree aggravated motor vehicle theft, a misdemeanor violation of section 18-4-409(4). Meads asserted that the latter charge was a lesser-included offense of theft. The trial court agreed to give the jury the instruction but categorized second degree aggravated motor vehicle theft as a lesser non-included offense of theft. As a result, the jury had the option of convicting Meads of both offenses, and ultimately did find him guilty of both felony theft and second degree aggravated motor vehicle theft.
The trial court sentenced Meads to four years in the custody of the Department of Corrections for the felony theft conviction. Additionally, the trial court sentenced him to one year in jail for the second degree aggravated motor vehicle theft conviction, and ordered that both sentences should run concurrently. Thus, the harm Meads argues he has suffered is the imposition of both a misdemeanor conviction and a felony conviction. He does not argue that he is suffering a longer sentence as a result of the two convictions.
See § 18-1-408(3), 6 C.R.S. (2002).
Meads appealed his convictions to the court of appeals, asserting that second degree aggravated motor vehicle theft is a lesser-included offense of theft. As a result, Meads argued, he could not be convicted of two offenses that arose out of the same criminal episode. The court of appeals rejected Meads' argument and held that second degree aggravated motor vehicle theft is not a lesser-included offense of theft. Meads, 58 P.3d at 1139-1140.
In its analysis, the court of appeals compared the statutory elements of theft and second degree aggravated motor vehicle theft. The court noted two main differences between the two offenses. Id. at 1139. First, felony theft requires that the actor have the intent to permanently deprive the victim of the use or benefit of a thing of value. This mens rea requirement is not an element of second degree aggravated motor vehicle theft. Second, aggravated motor vehicle theft requires that the thing taken be a motor vehicle. Conversely, felony theft only requires that the thing taken be anything of value.
After comparing the two statutes, the court of appeals relied onPeople v. Leske, 957 P.2d 1030 (Colo. 1998) and concluded that second degree aggravated motor vehicle theft is not a lesser-included offense of felony theft. Meads, 58 P.3d at 1139-1140. In Leske, we held that under the strict elements test, "if proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for the purposes of section 18-1-408(5)(a)." Leske, 957 P.2d at 1036. We went on to clarify that "[i]f, however, each offense necessarily requires proof of at least one additional fact which the other does not, the strict elements test is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent." Id. (citingPeople v. Henderson, 810 P.2d 1058, 1063 (Colo. 1991)).
Section 18-1-408(1) expressly provides that, "[w]hen any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." Section 18-1-408(5)(a) states that "[a] defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included 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."
III. Analysis
The crux of what we are asked to determine in this case is quite simple: what punishment has the legislature prescribed for a particular criminal act? More specifically, when a person is convicted of stealing a truck in Colorado, can he be charged with and convicted of two separate crimes arising out of that incident? In our view, the court of appeals correctly applied the strict elements test formally adopted in People v. Rivera, 525 P.2d 431 (Colo. 1974). Therefore, the court of appeals did not err in concluding that second degree motor vehicle theft is not a lesser-included offense of felony theft, and that, therefore, Meads could suffer convictions for both offenses arising out of the same incident.
A. Background
Under the Double Jeopardy Clauses of both the United States and Colorado Constitutions, the state may not punish a person twice for the same offense. Patton v. People, 35 P.3d 124, 128-129 (Colo. 2001) (citing U.S. Const. amend. V; Colo. Const. art. II, § 18). This protection specifically includes the guarantee that the accused will not be subject to multiple punishments imposed in the same criminal prosecution for statutory offenses proscribing the same conduct. Id. at 129.
Ordinarily, the legislature does not intend to punish the same offense under two different statutes. See Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678 (1983) (quoting Whalen v. United States, 445 U.S. 684, 691-692, 100 S.Ct. 1432, 1437-1438 (1980)); see also People v. Haymaker, 716 P.2d 110, 116 (Colo. 1986). That is not to say, however, that the legislature may not choose to do so. Rather, upon a clear showing of legislative intent, the General Assembly is free to authorize multiple punishments based upon the same criminal conduct without offending the Double Jeopardy Clause. Patton, 35 P.3d at 129;Leske, 957 P.2d at 1035; Boulies v. People, 770 P.2d 1274, 1278-1279 (Colo. 1989). However, in the absence of express legislative authorization, the court must ascertain whether the offenses are sufficiently distinguishable to permit the imposition of multiple punishments. Patton, 35 P.3d at 129.
Thus, in order to answer the question of what punishment the legislature intended for an actor who steals a truck in Colorado, we engage in a two-part inquiry. See id. First, did the General Assembly clearly authorize separate punishments for stealing both "anything of value", as required by the felony theft statute, and a "motor vehicle", as required by the second degree aggravated motor vehicle theft statute,or was only one punishment contemplated? Second, if no such express authorization is evident in the legislation, are these offenses otherwise sufficiently distinguishable to permit multiple punishments? Id.
B. Legislative Intent
Where the same conduct violates two statutory provisions, we must determine whether the legislature intended that each violation be a separate offense. Patton, 35 P.3d at 129 (citing Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407 (1985)). If the legislative intent to create separate offenses is clear from the face of the statute or the legislative history, our inquiry ends. Id.
Our General Assembly has expressly provided that, "[w]hen any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." Leske, 957 P.2d at 1035 (citing § 18-1-408(1)). This language clearly authorizes a prosecutor to charge a defendant with the violation of two or more statutes arising out of the same conduct. However, this general expression of intent to allow multiple charges for a single act is subject to statutory limitations. Specifically, a defendant may not be convicted of multiple offenses arising out of the same conduct if one offense is a lesser-included offense of the other offense, as defined by section 18-1-408(5)(a). In this context, in order to determine whether one offense is a lesser-included offense of another, this court applies the strict elements test.
Subsection (5)(a) of section 18-1-408 defines a lesser — included offense as an offense "established by proof of the same or less than all the facts required to establish the commission of the offense charged."
C. Strict Elements Test
In determining whether one offense is within the lesser-included category, this court has construed section 18-1-408(5)(a) to require a comparison of the statutory elements of each offense. Patton, 35 P.3d at 130. Under the strict elements test, also known as the "statutory elements test" or "Blockburger test," if proof of facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for purposes of section 18-1-408(5)(a). Leske, 957 P.2d at 1036. However, if each offense necessarily requires proof of at least one additional fact which the other does not, the strict elements test is not satisfied and a presumption arises that a defendant can be convicted of both offenses.Id. Here, establishing the elements of theft, the greater offense in this case, does not necessarily establish all of the elements of aggravated motor vehicle theft, the lesser offense. Therefore, our case law would presume that convictions could enter on both offenses.
The strict elements test is only one of a number of tests used by courts in the United States to define a lesser-included offense. See generally State v. Jeffries, 430 N.W.2d 728, 730-732 (Iowa 1988) (survey of various approaches used in the United States to define lesser-included offenses); see also State v. Meadors, 908 P.2d 731, 735 (N.M. 1995) (same); Patrick D. Pflaum, Comment, Justice is Not All or Nothing: Preserving the Integrity of Criminal Trials Through the Statutory Abolition of the All-Or-Nothing Doctrine, 73 U.Colo.L.Rev. 289, 295-298 (2002) (other tests include the "Pleadings" approach which examines the actual charges brought by the prosecution; the "Evidence" approach in which courts consider the evidence presented at trial to see if evidence supports any lesser-included offense charges; and the "Cognate" approach which identifies lesser-related, as opposed to lesser-included, offenses that have several elements in common with the greater-related offense but may have one or two elements not essential to the greater crime.). Regardless of the positive or negative attributes of each approach, this court has adopted the strict elements test as the means of determining whether one crime is the lesser-included offense of another crime. Thus, until a decision to abandon this test for a new approach is made, we must apply the strict elements test as it stands.
There is even an argument that our legislature anticipates a different test. See § 18-1-408(5)(a) (referring to "proof of the same or less than all the facts").
This court formally adopted the strict elements test in Rivera, 525 P.2d at 433-434. In Rivera, this court recognized that the problem of determining what is a lesser-included offense under Colorado law had received "varied treatment." Id. at 433. In choosing the strict elements test among other competing tests, this court pointed to several attributes that favored the adoption of the statutory approach. Specifically, this court highlighted the ease with which the test is applied, the uniform nature of its application and a defendant's right to notice of the possible charges against him or her. Id. at 433-434. As a result, for almost thirty years we have applied the statutory test set out in Rivera, which mandates that the greater offense must establish every essential element of the lesser offense. Id. at 433 (citing Daniels v. People, 411 P.2d 316 (Colo. 1966)).
Applying the strict elements test involves nothing more than placing the relevant statutes next to each other, comparing the language, and determining how closely they match. If the greater offense includes all of the elements of the lesser offense plus one or more additional elements, it is fair to say that the lesser offense is included within the greater offense. Conversely, if a comparison of the two statutes reveals that the lesser offense has substantively different elements than the greater offense, the lesser offense is not included in the greater offense and a defendant may be convicted of both. This analysis parallels the analysis used in Rivera.
In Rivera, this court concluded, after applying the strict elements test, that assault with a deadly weapon was not a lesser-included offense of assault with the intent to commit murder. Id. at 434. This court reasoned, after comparing the two relevant statutes, that assault with the intent to commit murder did not have the use of a deadly weapon as an essential element. Id. Thus, this court concluded that assault with intent to commit murder did not establish all the essential elements of the lesser crime, assault with a deadly weapon, and could not be considered a lesser-included offense. Id.
Similarly, applying the strict elements test to the relevant statutes in this case, the offense of felony theft does notnecessarily include all of the essential elements of aggravated motor vehicle theft. The latter is committed only by obtaining or exercising control over a motor vehicle, while the former can be committed by obtaining or exercising control over any number of things that are not motor vehicles. Stated differently, proof that a defendant obtained or exercised control over "anything of value" does not necessarily establish that a defendant obtained or exercised control over a "motor vehicle."
We note that in People v. Westrum, 624 P.2d 1302, 1304 (Colo. 1981), this court, engaging in an equal protection analysis, recognized a "crucial difference" between the same two statutes at issue in this case.
That conclusion could only be supported by viewing either the pleadings or the evidence adduced at trial; an inquiry outside the purview of the strict elements test. Thus, although the offense of aggravated motor vehicle theft may be established by the facts establishing felony theft in a particular case, it is not necessarily established by proof of the same or less than all of the statutory elements of felony theft.
A portion of our precedent on this issue has arisen in the felony murder context. Those cases are not apposite because of the necessarily parasitic relationship between the felony murder offense and the underlying offense on which it is predicated. In other words, a defendant cannot be convicted of felony murder unless he is guilty of an underlying qualifying offense.
Felony murder is a homicide that occurs during the commission of one of a number of different felonies, including arson, rape, and robbery. We have held that a particular predicate felony is a lesser-included offense of felony-murder premised upon commission of that felony. In doing so, we have made clear that by defining the offense in terms of a series of potential predicate felonies, the legislature intended to prescribe the "unit of prosecution" to which the strict elements test must be applied.See Boulies, 770 P.2d 1274; see also People v. Bartowsheski, 661 P.2d 235 (Colo. 1983). For purposes of the strict elements test then, the statutory elements of felony-murder are therefore limited to a homicide predicated upon the commission of a particular underlying felony, just as if each were proscribed in a different statutory provision. Cf. Whalen, 445 U.S. at 694 ("There would be no question in this regard if Congress, instead of listing the six lesser included offenses in the alternative, had separately proscribed the six different species of felony murder under six statutory provisions.").
In Bartowsheski, 661 P.2d at 245, this court analyzed whether a defendant could be simultaneously convicted of both felony murder and the predicate felony of robbery without violating the statutory provisions of section 18-1-408. We concluded that because proof of the greater offense "based upon the causation of the robbery victim's death, either in the course of or in furtherance of the crime of robbery or in the course of immediate flight therefrom," necessarily included proof of the very same elements essential to the lesser offense, robbery, a conviction on both offenses could not stand. Id. at 245-246. Thus, in Bartowsheski the court compared the proof of elements required in each statute, and thereby determined that robbery was a lesser-included offense of felony murder predicated upon robbery. We note that this analysis effectuated the goals articulated in Rivera — efficiency, uniformity, and notice to defendants.
In Boulies, 770 P.2d at 1278-1279, the court relied more expressly on the unit of prosecution theory, reasoning that the robbery offense was the predicate for the felony murder conviction and, thus, was the "same offense" for purposes of double jeopardy. The court in that case looked to unit of prosecution actually charged to compare the two offenses, rather than to the elements of the entire felony murder statute. This approach cannot guide our analysis in this case, because — in contrast to the felony murder statutes — here the legislature chose not to define felony theft in terms of separate units of prosecution.
The legislature has, however, not left the defendant without protection against multiple punishments for the same conduct. Even where two offenses are not related as greater and lesser included offenses within the meaning of the strict elements test, convictions for committing two offenses cannot result in consecutive sentences if the convictions are based on the same act or series of acts arising from the same criminal episode and they are supported by identical evidence. § 18-1-408(3). Although the defendant incurred judgments of conviction both for theft and for aggravated motor vehicle theft of the same truck in this case, his sentences resulting from those convictions were properly concurrent sentences.
IV. Conclusion
In our view, applying the strict elements test to the relevant statutes in this case leads to the conclusion that second degree aggravated motor vehicle theft is not a lesser-included offense of felony theft. Accordingly, we affirm the court of appeals and uphold the imposition of two convictions by the trial court.
JUSTICE MARTINEZ dissents, and CHIEF JUSTICE MULLARKEY and JUSTICE BENDER join in the dissent.