Armintrout v. People

• Decision Date: 13 December 1993
• Docket Number: No. 92SC697,92SC697
• Citation: 864 P.2d 576
• Parties: John Cecil ARMINTROUT, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

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.

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 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 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 not required by the first degree burglary statute. Slip op. at 3 (citing Ball, 813 P.2d at 766).

We believe that the court of appeals erred in both this case and in Ball by treating class 4 and class 3 felony second degree burglary as separate statutory offenses. In our view, burglary of a "dwelling" is a sentence enhancement provision defining the level of punishment for a particular type of second degree burglary. It is not an element of a distinguishable offense for purposes of determining whether second degree burglary is a lesser included offense of first degree burglary.

In the past, we have considered statutory provisions raising the level of a particular offense from one class of felony to another. In these cases, we have treated the provisions as sentence enhancers, as opposed to elements of the offense charged. See, e.g., Henderson, 810 P.2d at 1062 (defining sexual assault as a penalty enhancement factor in second degree kidnapping); People v. Powell, 716 P.2d 1096, 1105 (Colo.1986) (same); People v. Vigil, 718 P.2d 496, 504-05 (Colo.1986) (addressing the provisions raising first degree sexual assault from a class 3 to a class 2 felony if the victim suffered serious bodily injury or a deadly weapon was used as "enhancement factors"). See also People v. Huggins, 825 P.2d 1024, 1027 (Colo.App.1991), cert. denied (March 10, 1992) (holding that robbery is a "penalty enhancement factor" in second degree kidnapping and not a lesser included offense of second degree kidnapping involving robbery); People v. Turner, 730 P.2d 333, 337 (Colo.App.1986) (relying on Powell to hold that sexual assault is not an element of second degree kidnapping).

A sentence enhancer is similar to an essential element of an offense in that a defendant may not be sentenced at the higher felony level unless the factor enhancing the sentence is proved beyond a reasonable doubt. Powell, 716 P.2d at 1103; Beigel v. People, 683 P.2d 1188, 1191 (Colo.1984). Thus, Armintrout could not have been convicted of class 3 felony second degree burglary unless the jury found, beyond a reasonable doubt, that the burglary was of a "dwelling."

However, a sentence enhancement provision is not an element of the offense charged. A defendant still may be convicted of the underlying offense without any proof of the sentence enhancer, and this would not be possible if we were dealing with an essential element of the offense. See Henderson, 810 P.2d at 1064; Powell, 716 P.2d at 1105. Moreover, both Powell and Henderson demonstrate that we do not consider sentence enhancement provisions when determining whether one offense is the lesser included of another.

In Powell, we were asked to consider whether the Double Jeopardy Clauses of the state and federal constitutions precluded convicting the defendant of both first degree sexual assault with a weapon and second degree kidnapping involving...