People v. Abiodun, No. 03SC690.

• Docket Nº: No. 03SC690.
• Citation: 111 P.3d 462
• Case Date: May 02, 2005
• Court: Supreme Court of Colorado

111 P.3d 462

Petitioner: The PEOPLE of the State of Colorado,
v.
Respondent: Benad ABIODUN

No. 03SC690.

Supreme Court of Colorado.

May 2, 2005.

111 P.3d 463

John W. Suthers, Attorney General, Jennifer M. Smith, Assistant Attorney General, Appellate Division, Criminal Justice Section, Denver, for Petitioner

David S. Kaplan, Colorado State Public Defender, Keyonyu X. O'Connell, Deputy State Public Defender, Denver, for Respondent.

COATS, Justice.

The People sought review of the court of appeals' judgment in People v. Abiodun, 87 P.3d 164 (Colo.App.2003), vacating both of the defendant's convictions for possession of

111 P.3d 464

a controlled substance. The jury returned guilty verdicts, and the district court entered separate judgments of conviction, on two counts of possession and two counts of distribution, as proscribed by section 18-18-405 of the revised statutes. One set of convictions for possession and distribution arose from the defendant's conduct on each of two separate occasions, six days apart. The court of appeals vacated the defendant's convictions for possession, holding that possession and distribution on each occasion were committed as part of the same transaction and merged

Because section 18-18-405 defines a single offense, and because the evidence at trial did not support a finding that the defendant committed the offense defined by section 405 more than once on either occasion, two convictions for the defendant's conduct on each occasion violated the double jeopardy clause. The judgment of the court of appeals vacating the convictions for possession is therefore affirmed.

I.

The defendant was charged with separate counts of possession and distribution of a schedule II controlled substance, as proscribed by section 18-18-405(1)(a), 6 C.R.S. (2000), for his conduct on June 21, 2001; and with separate counts of possession and distribution for his conduct on June 27, 2001. The jury returned guilty verdicts on all four counts, and the district court entered judgment on each and sentenced the defendant to four, concurrent four-year terms in the Colorado Department of Corrections.

The uncontradicted evidence at trial indicated that on June 21, a paid police informant called the defendant's residence to arrange to buy cocaine. The informant spoke over the telephone with the defendant's wife and arranged the deal. When the informant arrived at the defendant's apartment that afternoon, he was told by the defendant's wife that he would have to wait for the defendant's return. When the defendant arrived, he spoke with his wife, drove away, and returned about ten minutes later. Shortly thereafter, the informant came out, told a waiting officer that he had made the purchase, and turned over a quantity of crack cocaine to the officer. On June 27, the same informant arranged another transaction, and along with an undercover officer, met the defendant in a parking lot. Immediately after producing a bag of crack cocaine, the defendant was arrested.

The defendant testified on his own behalf, admitting the sales and asserting an affirmative defense of duress. The defendant testified that on both occasions he was acting at the request of his wife, who was a drug addict and who had been threatened by the informant. He testified that on June 21, when his wife asked him to procure the drugs, he left, returned home with them, and gave them to his wife, who handed them to the informant. He testified that on June 27, his wife again requested that he obtain drugs, which he did, and within thirty minutes of returning home, he drove to the parking lot to complete the transaction.

Although it rejected the defendant's other assignments of error, the court of appeals held that where possession and distribution were committed during the same transaction and the same time period, and where the defendant's possession was necessary and incidental to his act of distribution, convictions for both offenses must merge. Because it concluded that the only evidence of the defendant's possession was that he acquired the drugs from a third party for distribution to the informant, it ordered the defendant's separate convictions for possession to be vacated.

We granted the People's petition for a writ of certiorari.

II.

Subject to constitutional limitations, it is the prerogative of the legislature to define crimes and prescribe punishments. Sanabria v. United States, 437 U.S. 54, 69-70, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Woellhaf v. People, 105 P.3d 209, 215-20 (Colo.2005); Martinez v. People, 69 P.3d 1029 (Colo.2003). While the double jeopardy clauses of both the federal and state constitutions¹

111 P.3d 465

protect an accused from (among other things) multiple punishments for the same offense, this aspect of the constitutional limitation actually embodies a concern for the separation of governmental powers and manifests more as a rule of construction than a limitation on the authority of the legislature. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Boulies v. People, 770 P.2d 1274, 1278-79 (Colo.1989). As long as the general assembly makes clear its intent to punish the same offense with more than one conviction and sentence, it is not constitutionally prohibited from doing so. See Missouri v. Hunter, 459 U.S. at 368-69, 103 S.Ct. 673; Boulies, 770 P.2d at 1278-79

By the same token, precisely because it is the legislature's prerogative to define crimes and prescribe punishments, an accused may not be convicted more than once, even where there would otherwise be no constitutional impediment to doing so, unless the legislature has chosen to permit it. In this jurisdiction, an accused may not be convicted of two offenses if one is included within the other, § 18-1-408(1)(a), C.R.S. (2004); and an offense is so included if it is established by proof of the same or less than all the facts required to establish the commission of the other § 18-1-408(5)(a). We have on numerous occasions referred to this standard as the "statutory elements test," or the Blockburger test," equating it with the test developed in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), as a means of assessing whether separate statutory offenses will be considered the same in applying the constitutional protection against being twice placed in jeopardy for the same offense. See Meads v. People, 78 P.3d 290 (Colo.2003).

Logically preliminary to the question whether one offense is the same as or included within another, is the question whether the legislature intended to create two separate offenses at all. It is the legislature's choice to treat a course of conduct, or various acts that it considers to be related in time, nature, or purpose (or in any other way) as one or as more than one offense. See People v. Williams, 651 P.2d 899, 903 (Colo.1982) (citing Sanabria, 437 U.S. at 69-70, 98 S.Ct. 2170). For a host of reasons, including not only its assessment of the appropriateness of multiple punishments but also the practical consequences of requiring that similar or related acts be distinguishable, the legislature may very well choose to define a series of acts, related along a continuum of conduct or motivated by a single objective, for example, as a single crime.² E.g., Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957) (Congress' prerogative to proscribe the robbing of a federal bank and merely entering with the intent to rob it, as the same crime).

Where the general assembly proscribes conduct in different provisions of the penal code and identifies each provision with a different title, its intent to establish more than one offense is generally clear. Unless all of the elements of a separately-designated offense are included among the elements of another, and therefore the one is considered the same as, or included within, the other, see Blockburger, 284 U.S. at 304, 52 S.Ct. 180 a legislative intent to permit separate punishments for each can be presumed. See Albernaz v. United States, 450 U.S. 333, 341-42, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); see, e.g., Meads, 78 P.3d at 291-92 (holding that where theft and aggravated motor vehicle theft were proscribed by different statutes and the latter was not included within the former, the defendant could suffer convictions

111 P.3d 466

of both). Where, however, a number of acts are joined as a disjunctive series, in a single sentence, without any attempt to differentiate them by name or other organizational device, a legislative intent to permit separate convictions and sentences for each enumerated act is not so readily apparent and must be ascertained, if at all, by other aids to statutory construction.

In 1981, the general assembly adopted a version of the Uniform Controlled Substances Act,³ joining in a single proscription an entire range of conduct potentially facilitating or contributing to illicit drug traffic. See § 18-18-105, 8B C.R.S. (1986) (re-designated § 18-18-405, 6 C.R.S. (2000), as applicable here). In addition to the knowing, unauthorized manufacture, dispensing, sale, distribution, and possession of a controlled substance, the same provision also prohibits possessing with an intent to do any of these things, as well as inducing, attempting to induce, and conspiring with another to do any of them. The entire range of conduct is criminalized in a single subsection⁴ of a statute entitled simply, "Unlawful distribution, manufacturing, dispensing, sale, or possession."

The one-sentence proscription is structured as a series of acts, with reference to the same controlled substance and governed by a common mens rea. The acts chosen for specific inclusion are not themselves mutually exclusive but overlap in various ways and cover a continuum of conduct from the production of a controlled substance...