People v. Carey, 05CA1378.

• Decision Date: 17 April 2008
• Docket Number: No. 05CA1378.,05CA1378.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence Joseph CAREY, Jr., Defendant-Appellant.
• Court: Colorado Court of Appeals

198 P.3d 1223

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Lawrence Joseph CAREY, Jr., Defendant-Appellant.

No. 05CA1378.

Colorado Court of Appeals, Div. VI.

April 17, 2008.

Rehearing Denied June 12, 2008.

John W. Suthers, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge VOGT.

Defendant, Lawrence Joseph Carey, Jr., appeals the judgment of conviction entered on a jury verdict finding him guilty of harassment by stalking, violation of a protection order, and violation of a bail bond condition. We affirm.

Defendant and the victim, B.B., met in 2001 and thereafter had both a personal and a business relationship. Before this case was filed, defendant's relationship with B.B. had led to criminal charges in other cases, the circumstances of which are relevant to the issues raised on appeal here.

In July 2002, following an altercation with B.B., defendant was arrested and pled guilty in case number 02M1818 to misdemeanor harassment, for which he received a two-year deferred judgment and sentence. Thereafter, defendant and B.B. quit living together, but they worked together to run a restaurant. In the spring of 2003, defendant began telephoning B.B. frequently. After defendant repeatedly called and threatened B.B. on July 26, 2003, he was arrested on July 27 and charged, in case number 03M1776, with domestic violence and harassment.

The original charges in this case — intimidation of a witness or victim, violation of a protection order, and violation of bail bond conditions — were based on defendant's calls to B.B. after he was released on bond following his July 27 arrest. The prosecution later added a harassment by stalking count based on events occurring between April 1 and August 5, 2003.

The jury found defendant not guilty of intimidating a witness but guilty of the three remaining charges. The trial court denied defendant's motion for new trial, in which he argued, as he had during trial, that his harassment by stalking conviction violated double jeopardy principles and the mandatory joinder rule.

I. Double Jeopardy, Mandatory Joinder, and Due Process

As noted, defendant was charged in case number 03M1776 with harassment and domestic violence based on telephone calls he made to B.B. on July 26, 2003. That case was resolved by defendant's entry of a guilty plea, on February 17, 2004, to violation of a mandatory restraining order in exchange for dismissal of the original charges. Defendant now argues on appeal, as he did in the trial court, that his conviction for harassment by stalking in this case, based in part on his conduct on July 26, 2003, violated his right to be protected against double jeopardy and his statutory right to mandatory joinder. He further asserts for the first time on appeal that the conviction violated his right to due process. We disagree.

A. Double Jeopardy

We do not agree with defendant that his conviction for harassment by stalking violates constitutional double jeopardy protections.

The Double Jeopardy Clauses of both the United States and Colorado Constitutions protect an accused against being twice placed in jeopardy for the same offense. U.S. Const. amend. V; Colo. Const. art. II, § 18.

To determine whether two or more offenses are the "same offense," we apply the "same elements" test set forth by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under that test, if the same conduct violates distinct statutory provisions, we are to compare the statutory elements of the offenses in question. Double jeopardy "does not bar a subsequent prosecution where at least one of the elements of the offense in the second prosecution is different from the elements of the offense in the first prosecution." People v. Allen, 868 P.2d 379, 381 (Colo. 1994); see People v. Tallwhiteman, 124 P.3d 827, 835 (Colo.App.2005); see also § 18-1-408(1), C.R.S.2007.

Double jeopardy principles also preclude the imposition of "multiple punishments for a greater and lesser included offense." People v. Leske, 957 P.2d 1030, 1035 (Colo.1998) (quoting Armintrout v. People, 864 P.2d 576, 578-79 (Colo.1993)); see § 18-1-408(1), (5)(a), C.R.S.2007. An offense is included in another if proof of the facts establishing the statutory elements of the greater offense necessarily establishes all the elements of the lesser offense. Leske, 957 P.2d at 1036.

Comparing the elements of the harassment by stalking offense in this case with the offense to which defendant pled guilty in case number 03M1776, we find no double jeopardy violation.

A person commits harassment by stalking if, as relevant here, he knowingly "[m]akes a credible threat to another person and, in connection with such threat, repeatedly makes any form of communication with that person ... regardless of whether a conversation ensues" or if he "[r]epeatedly follows, approaches, contacts, places under surveillance, or makes any form of communication with another person ... in a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person ... to suffer serious emotional distress." § 18-9-111(4)(b)(II), (III), C.R.S. 2007. Defendant was charged in this case with harassment by stalking under both subsection (II) and subsection (III) of section 18-9-111(4)(b), and the jury found him guilty of both.

The offense to which defendant pled guilty in case number 03M1776, violation of a restraining order, is committed if a person with knowledge of a protection order "[c]ontacts, harasses, injures, intimidates, molests, threatens, or touches the protected person." § 18-6-803.5(1)(a), C.R.S.2007. This offense contains an element — knowledge of a protection order — that is not an element of either form of harassment by stalking charged in this case. Conversely, both types of harassment by stalking include elements — making a credible threat, in section 18-9-111(4)(b)(II), and serious emotional distress, in section 18-9-111(4)(b)(III) — that are not required to establish violation of a protection order. Thus, the offenses are not the same under the same elements test, and double jeopardy protections are not implicated.

We are not persuaded otherwise by defendant's contention that, because the restraining order which he violated provided that a violation would occur if he "harassed" B.B., the harassment of B.B. on July 26, 2003, to which he effectively pled guilty was encompassed within the harassment offense of which he was convicted in this case.

Even if defendant's guilty plea in case number 03M1776 were somehow deemed a plea of guilty to harassment, the harassment offense charged in that case was not the same offense as, or a lesser included offense of, the harassment by stalking of which defendant was convicted here. Defendant was charged in 03M1776 with violating section 18-9-111(1)(e), C.R. S.2007, which provides that a person commits misdemeanor harassment

if, with intent to harass, annoy, or alarm another person, he or she ... [i]nitiates communication with a person, anonymously or otherwise by telephone, computer, computer network, or computer system in a manner intended to harass or threaten bodily injury or property damage, or makes any comment, request, suggestion, or proposal by telephone, computer, computer network, or computer system that is obscene.

That offense specifically requires communication by telephone or computer, which is not required to establish harassment by stalking; and the two forms of harassment by stalking charged in this case include elements — a "credible threat" and repeated communication in connection with such threat, on the one hand, and serious emotional distress, on the other — that are not elements of the offense set forth in section 18-9-111(1)(e).

Thus, convicting defendant of harassment by stalking in this case did not violate double jeopardy protections.

B. Mandatory Joinder

Defendant further contends that the harassment by stalking charge arose from the same criminal episode as the misdemeanor harassment charge in 03M1776, and that prosecuting him on the former charge in this case violated his right, under section 18-1-408(2), C.R.S.2007, to have the offenses prosecuted in a single prosecution. We conclude that defendant has waived this contention.

Section 18-1-408(2) states:

If the several offenses are actually known to the district attorney at the time of commencing the prosecution and were committed within the district attorney's judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution; except that, if at the time jeopardy attaches with respect to the first prosecution against the defendant the defendant or counsel for the defendant actually knows of additional pending prosecutions that this subsection (2) requires the district attorney to charge and the defendant or counsel for the defendant fails to object to the prosecution's failure to join the charges, the defendant waives any claim pursuant to this subsection (2) that a subsequent prosecution is prohibited.

In its order denying defendant's new trial motion, the trial court noted that the test for establishing a right to mandatory joinder under the statute, see Jeffrey v. District Court, 626 P.2d 631, 637 (Colo.1981), had been met, and that the prosecution conceded that it had. However, the court concluded, defendant had waived his right to compulsory joinder by failing to raise this issue either at the time jeopardy attached in 03M1776 or...