Armintrout v. People, No. 92SC697

Docket NºNo. 92SC697
Citation864 P.2d 576
Case DateDecember 13, 1993
CourtSupreme Court of Colorado

Page 576

864 P.2d 576
John Cecil ARMINTROUT, Petitioner,
v.
The PEOPLE of the State of Colorado, Respondent.
No. 92SC697.
Supreme Court of Colorado,
En Banc.
Dec. 13, 1993.
Rehearing Denied Jan. 10, 1994.

Page 577

David F. Vela, State Public Defender, Nancy J. Lichtenstein, Deputy State Public Defender, Denver, for petitioner.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Deborah Isenberg Pratt, Asst. Atty. Gen., Crim. Enforcement Section, Denver, for respondent.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to review People v. Armintrout, No. 90CA1861 (Colo.App. Aug. 20, 1992) (not selected for official publication), in which the court of appeals held that the petitioner, John Cecil Armintrout, was properly convicted of both

Page 578

first degree burglary and second degree burglary based on the same entry. We now reverse and hold that Armintrout's conviction of second degree burglary was merged into the greater inclusive offense of first degree burglary, precluding the imposition of concurrent sentences for both offenses.
I

In the early morning of December 19, 1989, Armintrout, armed with a handgun, entered the home of his estranged wife. At the time, his wife was seeking a divorce. She had obtained restraining orders prohibiting Armintrout from contacting her and from being at the family home pending the issuance of permanent orders.

Armintrout's wife testified that he remained in her bedroom on the morning in question, asking her questions. She further testified that Armintrout stated that he had broken into the house, intending to kill her and their children, but that he had changed his mind when he saw his youngest son asleep. Armintrout left the house four hours later. As a result of his actions, Armintrout was charged with one count of first degree burglary, 1 one count of second degree burglary, 2 one count of menacing 3 and two counts of crime of violence. 4

A jury convicted Armintrout of first degree burglary and second degree burglary, but acquitted him of the charges of menacing and crime of violence. The trial court sentenced him to fourteen years in the Department of Corrections on each of the two burglary convictions, the sentences to be served concurrently. 5

The court of appeals affirmed Armintrout's convictions. Relying on People v. Ball, 813 P.2d 759 (Colo.App.1990), cert. denied (July 29, 1991), the court of appeals held that the trial court did not err in entering convictions for both first and second degree burglary. According to the court of appeals, second degree burglary is not a lesser included offense of first degree burglary because conviction for the class 3 felony of second degree burglary of a dwelling requires proof that the burglary was of a "dwelling," whereas conviction of first degree burglary does not. Slip op. at 3. Since we conclude that burglary of a "dwelling" is not an essential element of second degree burglary, we reverse this case and overrule Ball.

II

A defendant may be convicted of multiple offenses arising out of a single transaction if the defendant has violated more than one statute. § 18-1-408(7), 8B C.R.S. (1986); People v. Salas, 189 Colo. 111, 116, 538 P.2d 437, 441 (1975); People v. Martinez, 640 P.2d 255, 256 (Colo.App.1981). In this situation, the sentences imposed must run concurrently. § 18-1-408(3), 8B C.R.S. (1986). However, in the absence of legislative authorization, a defendant may not be convicted of more than one offense if one offense is a lesser included offense of the other. A court is prohibited from imposing multiple punishments for a greater and lesser included offense by the Double Jeopardy Clauses of the federal and state constitutions, 6 see

Page 579

Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); Boulies v. People, 770 P.2d 1274, 1278 (Colo.1989), by statute, § 18-1-408(1)(a), 8B C.R.S. (1986), and by the judicially-created rule of merger. E.g., People v. Bartowsheski, 661 P.2d 235, 245 (Colo.1983).

Section 18-1-408(5)(a), 8B C.R.S. (1986), defines a lesser included offense as one "established by proof of the same or less than all the facts required to establish the commission of the offense charged." Similarly, our case law pertaining to the judicially-created rule of merger treats an offense as lesser included when proof of the essential elements of the greater offense necessarily establishes the elements required to prove the lesser offense. E.g., People v. Henderson, 810 P.2d 1058, 1061 (Colo.1991); Boulies, 770 P.2d at 1282; Bartowsheski, 661 P.2d at 245. Accord Blockburger, 284 U.S. at 304, 52 S.Ct. at 182 (Two offenses are not the same offense for double jeopardy purposes if each statute requires proof of a fact which the other does not.).

In order to determine whether one offense is included in another, we compare the elements of the statutes involved and not the evidence shown at trial. People v. Raymer, 662 P.2d 1066, 1069 (Colo.1983); People v. Rivera, 186 Colo. 24, 27, 525 P.2d 431, 433 (1974); Martinez, 640 P.2d at 256. Therefore, we must begin our analysis by examining the statutes involved in this case.

A

Section 18-4-202(1), 8B C.R.S. (1986) provides that a person commits first degree burglary if he:

knowingly enters or remains unlawfully in a building or occupied structure with intent to commit therein a crime, ... against a person or property, and if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, he or another participant in the crime assaults or menaces any person, or he or another participant is armed with explosives or a deadly weapon.

First degree burglary is a class 3 felony. § 18-4-202(2).

Under the second degree burglary statute, a person commits second degree burglary if he "knowingly breaks an entrance into, or enters, or remains unlawfully in a building or occupied structure with intent to commit therein a crime against a person or property." § 18-4-203(1). Second degree burglary is normally a class 4 felony. § 18-4-203(2). However, if the burglary is of a "dwelling," the crime is elevated to a class 3 felony. § 18-4-203(2)(a).

A comparison of these statutes demonstrates that both first and second degree burglary require the unlawful entry into a "building or occupied structure." §§ 18-4-202(1), -203(1). The only difference between the two crimes is that first degree burglary requires proof of an additional element: either the assault or menacing of any person, or being armed with explosives or a deadly weapon. § 18-4-202(1).

Despite these similarities between the two statutes, the court of appeals held that second degree burglary is not a lesser included offense of first degree burglary. The court of appeals reasoned that a conviction of class 3 felony second degree burglary of a dwelling requires proof that the building or occupied structure entered was a "dwelling," and that proof of this fact is...

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94 practice notes
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...of the offense charged." See also Leske, 957 P.2d at 1036; People v. Garcia, 940 P.2d 357, 360 (Colo.1997); Armintrout v. People, 864 P.2d 576, 579 (Colo.1993); People v. Bartowsheski, 661 P.2d 235, 245 (Colo.1983). In addition to this statutory basis, the Double Jeopardy Clauses of the fed......
  • People v. Dunlap, No. 01CA1082.
    • United States
    • Colorado Supreme Court of Colorado
    • November 7, 2005
    ...provision is not an element of the offense charged, the enhancing factor must be proved beyond a reasonable doubt. Armintrout v. People, 864 P.2d 576 (Colo.1993); Beigel v. People, 683 P.2d 1188 Here, the trial court provided proper instructions on (1) the definition of reasonable doubt and......
  • Patton v. People, No. 00SC82.
    • United States
    • Colorado Supreme Court of Colorado
    • November 13, 2001
    ...lesser-included category. See, e.g., Leske, 957 P.2d at 1036; People v. Garcia, 940 P.2d 357, 361 n. 3 (Colo.1997); Armintrout v. People, 864 P.2d 576, 579 (Colo.1993); People v. Rivera, 186 Colo. 24, 27, 525 P.2d 431, 433 (1974). We have described the "statutory elements test" as If proof ......
  • People v. Gwinn, Court of Appeals No. 16CA1884
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2018
    ...of the prior conviction. People v. Whitley , 998 P.2d 31, 33 (Colo. App. 1999) ; see also Vega , 893 P.2d at 112 ; Armintrout v. People , 864 P.2d 576, 580 (Colo. 1993) ; Schreiber , 226 P.3d at 1223. Linking the severity of punishment to the presence or absence of an identified fact does n......
  • Request a trial to view additional results
94 cases
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...of the offense charged." See also Leske, 957 P.2d at 1036; People v. Garcia, 940 P.2d 357, 360 (Colo.1997); Armintrout v. People, 864 P.2d 576, 579 (Colo.1993); People v. Bartowsheski, 661 P.2d 235, 245 (Colo.1983). In addition to this statutory basis, the Double Jeopardy Clauses of the fed......
  • People v. Dunlap, No. 01CA1082.
    • United States
    • Colorado Supreme Court of Colorado
    • November 7, 2005
    ...provision is not an element of the offense charged, the enhancing factor must be proved beyond a reasonable doubt. Armintrout v. People, 864 P.2d 576 (Colo.1993); Beigel v. People, 683 P.2d 1188 Here, the trial court provided proper instructions on (1) the definition of reasonable doubt and......
  • Patton v. People, No. 00SC82.
    • United States
    • Colorado Supreme Court of Colorado
    • November 13, 2001
    ...lesser-included category. See, e.g., Leske, 957 P.2d at 1036; People v. Garcia, 940 P.2d 357, 361 n. 3 (Colo.1997); Armintrout v. People, 864 P.2d 576, 579 (Colo.1993); People v. Rivera, 186 Colo. 24, 27, 525 P.2d 431, 433 (1974). We have described the "statutory elements test" as If proof ......
  • People v. Gwinn, Court of Appeals No. 16CA1884
    • United States
    • Colorado Court of Appeals of Colorado
    • September 6, 2018
    ...of the prior conviction. People v. Whitley , 998 P.2d 31, 33 (Colo. App. 1999) ; see also Vega , 893 P.2d at 112 ; Armintrout v. People , 864 P.2d 576, 580 (Colo. 1993) ; Schreiber , 226 P.3d at 1223. Linking the severity of punishment to the presence or absence of an identified fact does n......
  • Request a trial to view additional results

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