People v. Fisher

• Decision Date: 29 December 1994
• Docket Number: No. 93CA0894,93CA0894
• Citation: 904 P.2d 1326
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Coquette FISHER, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 1326

904 P.2d 1326

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kenneth Coquette FISHER, Defendant-Appellant.

No. 93CA0894.

Colorado Court of Appeals,

Div. IV.

Dec. 29, 1994.

Rehearing Denied Feb. 16, 1995.

Certiorari Denied Nov. 14, 1995.

Cross-Petition for Writ of Certiorari Granted Nov. 14,1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John D. Seidel, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Janet Fullmer Youtz, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge CASEBOLT.

Defendant, Kenneth Coquette Fisher, appeals a judgment of conviction entered on jury verdicts finding him guilty of two counts of first degree assault, one count of aggravated robbery, and two counts of crime of violence. We affirm in part, vacate the aggravated robbery conviction, and remand for resentencing on the remaining convictions.

According to the prosecution's evidence, consisting principally of the victim's testimony, the following events occurred. Using a pretext, the co-defendant lured the victim to co-defendant's motel room, intending to rob the victim. After the victim entered the room, the co-defendant grabbed him around the throat, pushed him down on to a bed, jumped on him, forced him to put a sock in his mouth, and then pushed him into a chair.

At this point, the victim saw the defendant enter the room, and both men then took the victim's car keys, money, checkbook, and watch.

When the victim attempted to get up, the defendant punched him twice and the co-defendant tied him to the chair. While the co-defendant was doing so, defendant put both arms around the victim's neck and threatened to kill him. Thereafter, according to the victim, he was struck in the head with a hammer and lost consciousness.

As a result of this incident, both perpetrators were charged with various offenses. The co-defendant entered a guilty plea to one count of aggravated robbery and was called by the prosecution as a witness at defendant's trial.

The co-defendant testified that he had planned the robbery of the victim before the defendant came to his motel room and did not tell defendant about his plan. He also stated that he hit the victim on the head with the hammer because he panicked when the victim did not cooperate. The co-defendant further claimed that he hit the victim before the defendant even entered the room and that defendant played no role in the attack.

I.

Defendant contends that his conviction for aggravated robbery must merge into one of his convictions for first degree assault because the assaults were committed during the course of the robbery. We agree with the defendant that the conviction for aggravated robbery cannot stand.

A defendant may be convicted of multiple offenses arising out of a single transaction if he has violated more than one statute. However, the rule of merger precludes a conviction for a crime that is a lesser-included offense of another crime for which the defendant has also been convicted in the same prosecution. People v. Halstead, 881 P.2d 401 (Colo.App.1994).

A lesser-included offense is one which is established by proof of the same or less than all of the facts required to establish the commission of the offense charged. Section 18-1-408(5)(a), C.R.S. (1986 Repl.Vol. 8B). Hence, when proof of the essential elements of the greater offense necessarily establishes the elements required to prove the lesser offense, the offenses are not sufficiently distinguishable under the doctrine of merger to permit two separate convictions to stand. People v. Moore, 877 P.2d 840 (Colo.1994).

In this case the defendant was charged with two counts of first degree assault. One count, premised on § 18-3-202(1)(a), C.R.S. (1986 Repl.Vol. 8B), required proof of defendant's intent to cause serious bodily injury and required a finding that defendant actually caused the serious bodily injury to another person by use of a deadly weapon. Section 18-3-202(1)(a), C.R.S. (1986 Repl.Vol. 8B).

The other count charging first degree assault pursuant to § 18-3-202(1)(d), C.R.S. (1986 Repl.Vol. 8A), required proof that defendant, alone or with another person, committed or attempted to commit robbery, and in the course of or in furtherance of that crime, caused serious bodily injury to another person.

This latter charge required proof that the defendant committed the crime of robbery. Hence, in order to convict the defendant of first degree assault under this count, the jury was required to find the existence of every element of the predicate felony, plus the additional element of causing serious bodily injury to the victim. See People v. Halstead, supra.

In People v. Griffin, 867 P.2d 27 (Colo.App.1993), a division of this court concluded that, under circumstances similar to these, the separately charged crime of attempted aggravated robbery is necessarily a lesser-included offense of the crime of first degree assault. Under the circumstances of this case, we agree with that holding, and conclude that aggravated robbery is a lesser-included offense of the crime of first degree assault.

The victim specified in the first degree assault count was the same as specified in the aggravated robbery count. Therefore, the elements necessary to prove the crime of first-degree assault under § 18-3-202(1)(d) of the first degree assault statute necessarily establish all of the elements of the aggravated robbery charged here. Hence, we conclude that the aggravated robbery conviction must merge into the conviction for first degree assault.

The People's reliance on People v. Moore, supra, to support their argument that the offenses should not merge, is misplaced. In Moore, the court did find that § 18-3-202(1)(d) requires separate punishment for first degree assault and for the underlying felony with which a defendant is charged, and that the underlying felony is not a lesser-included offense. However, the court in Moore specifically limited its holding in that case to situations in which there are separate victims of the assault and the underlying felony. Since there was only one victim here, the holding in Moore is inapplicable.

In People v. Halstead, supra, the court recognized the anomaly inherent in vacating a conviction for an offense carrying a more severe penalty than the first degree assault conviction. Nevertheless, the panel determined that at present the law in Colorado requires that result.

Likewise, here, where both first degree assault and aggravated robbery are class three felonies, we recognize the anomaly of holding that one such felony can merge with the other. Similarly, we are fully aware that treating one class three felony as a "lesser-included offense" of another class three felony departs from the traditional view of a lesser included offense as a less serious crime with a lesser penalty, not merely a crime with fewer included elements. See People v. Halstead, supra.

Nevertheless, we are bound by the existing statutory scheme. Consequently, the solution to this anomaly lies with the General Assembly, not with this court. For these reasons we must reject the People's argument that the aggravated robbery conviction can be upheld under existing law.

II.

Defendant also contends that there was insufficient evidence to support the jury verdicts that he was guilty of first degree assault and aggravated robbery as either a principal or a complicitor. Thus, he reasons, he was entitled to an acquittal. We disagree.

A challenge to the sufficiency of the evidence requires a reviewing court to determine whether the evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support the conclusion by a reasonable person that the defendant is guilty of the crime charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988).

As is pertinent here, a person commits the crime of aggravated robbery by taking anything of value from the person or presence of another by the use of force, threats, or intimidation and, during the act of the robbery or the immediate flight therefrom, by knowingly striking or wounding the person robbed with a deadly weapon. Section 18-4-302, C.R.S. (1986 Repl.Vol. 8B).

While the specific intent to commit first degree assault is an element which must be established beyond a reasonable doubt, People v. Walker, 189 Colo. 545, 542 P.2d 1283 (1975), this element may be inferred from the facts and circumstances surrounding the offense. People v. Edwards, 184 Colo. 440, 520 P.2d 1041 (1974).

In addition to being instructed on the elements of aggravated robbery and first degree assault (as set out in part I above), the jury was also instructed on the theory of complicity. Complicity is not a separate and distinct crime under the criminal code, but rather a theory by which a defendant becomes legally accountable for a criminal offense committed by another. People v. Thompson, 655 P.2d 416 (Colo.1982).

A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, or advises the other person in planning or committing the offense. Section 18-1-603, C.R.S. (1986 Repl.Vol. 8B).

Conviction as a complicitor requires that a crime be committed by another person, that the defendant have knowledge that the other person intended to commit the crime, and that the defendant intentionally aided, abetted, encouraged, or advised the other person in the commission or planning of the crime. People v. Wilson, 791 P.2d 1247 (Colo.App.1990). Under a complicity theory, although all of the elements of a crime must have been committed, it is not necessary that any single person have done so. It is only...