People v. Henderson, No. 90SC173

Docket NºNo. 90SC173
Citation810 P.2d 1058
Case DateMay 06, 1991
CourtSupreme Court of Colorado

Page 1058

810 P.2d 1058
The PEOPLE of the State of Colorado, Petitioner,
v.
Mark Stanton HENDERSON, Respondent.
No. 90SC173.
Supreme Court of Colorado,
En Banc.
May 6, 1991.
Rehearing Denied June 3, 1991.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John J. Krause, Asst. Atty. Gen., Denver, for petitioner.

David F. Vela, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, for the respondent.

Justice ERICKSON delivered the Opinion of the Court.

We granted certiorari to review People v. Henderson, 794 P.2d 1050 (Colo.App.1989), in which the court of appeals held that the crime of sexual assault merged into second-degree kidnapping involving sexual assault. 1 We now reverse the court of appeals and hold that the doctrine of merger does not bar separate convictions and sentences for sexual assault and for second-degree kidnapping involving sexual assault during the same criminal episode.

Page 1059

Early evening on August 30, 1986, defendant Mark S. Henderson gave two fourteen-year old girls, who were hitchhiking, a ride. The girls were going to a party on Transfer Trail near Glenwood Springs, Colorado. Henderson drove to the top of Transfer Trail and asked the girls if they wanted to smoke some marijuana with him. The girls declined, and walked down the trail a short distance to the party. Later that evening, the girls again accepted a ride from Henderson.

While driving down Transfer Trail with the girls in the truck, Henderson stopped to urinate. After a few minutes, Henderson jumped into the passenger side of the truck and held a knife against one girl's throat. Henderson threatened to kill the girls, and then bound both of their wrists with rope. Henderson then drove to a secluded area near the Glenwood Springs airport, and sexually assaulted one girl and then the other. As Henderson was assaulting the second girl, he stopped, said he was sorry, and told the girls he would drive them home if they would ask him to make love to them. Henderson explained that at a trial he could use that statement in his favor. The defendant threatened to kill himself, and threatened to kill the girls if they told anyone what happened.

After Henderson released them in a residential section of Glenwood Springs, the girls phoned the police, reported the assault, described Henderson, and provided the truck's license plate number. Henderson was found a short time later, by his stepfather, attempting to commit suicide. Henderson was treated at a Denver hospital and then arrested in connection with the assaults.

A jury convicted Henderson of two counts of second-degree kidnapping involving sexual assault, 2 two counts of first-degree sexual assault, 3 and two counts of sexual assault on a child. 4 The trial court imposed a sentence of twenty-four years incarceration consecutively on each of the first-degree sexual assault and second-degree kidnapping convictions, for a total of ninety-six years, and sixteen years each for the two sexual assault on a child convictions, to be served concurrently with the other sentences.

The court of appeals affirmed in part and vacated in part. Although the court rejected most of Henderson's contentions, it held that either the first-degree sexual assault or sexual assault on a child convictions merged into the convictions for second-degree kidnapping involving sexual assault. 794 P.2d at 1053-54. The court remanded the case to the district court to determine, under the circumstances, which of the sexual assault crimes was the lesser included offense of second-degree kidnapping involving sexual assault. The district court was then to resentence Henderson.

A

The term "merger," in the criminal law context, connotes a variety of meanings. At common law, the doctrine of merger dictated that when the commission of a crime involved multiple criminal acts, some misdemeanors and some felonies, the misdemeanors merged into the felonies and could not be separately prosecuted. Lovgren v. Byrne, 787 F.2d 857, 862 (3d Cir.1986). A felony, however, did not merge into a felony, nor a misdemeanor into a misdemeanor. 1 Wharton's Criminal Law § 24 (14th ed. 1978) [hereinafter Wharton's]. Merger's application was limited to cases in which "the identical criminal act constituted both a felony and a misdemeanor." Elmore v. State, 269 Ind. 532, 382 N.E.2d 893, 896 (1978). Because the issues relating to multiple punishments and convictions are controlled by state and federal double jeopardy clauses, the "common law merger doctrine is an inadequate vehicle for resolving modern problems posed where multiple felonies arise from a single criminal act," id., and, accordingly, the merger doctrine has largely been repudiated. 1 Wharton's, supra, at 112.

Page 1060

Other jurisdictions refer to merger as a rule of statutory interpretation "designed to prevent an unnatural elevation of the 'true' crime charged." State v. Slemmer, 48 Wash.App. 48, 56, 738 P.2d 281, 286-87 (1987). Used in that context, merger determines whether the legislature intended to impose multiple punishments for a single act that violated several statutory provisions. State v. Vladovic, 99 Wash.2d 413, 420-21, 662 P.2d 853, 857 (1983); 5 see also Moore v. State, 23 Md.App. 540, 548-49, 329 A.2d 48, 53 (1974) ("The true test of merger under the modern doctrine is whether one crime necessarily involves the other, viz, when the facts necessary to prove the lesser offense are essential ingredients in establishing the greater offense, the lesser offense is merged into the greater offense." (citations omitted)).

Finally, merger is also used in the context of double jeopardy. "Merger is an aspect of double jeopardy. Double jeopardy applies to subsequent prosecutions; merger applies to the concept of multiple punishment when multiple charges are brought in a single prosecution." State v. Gammil, 108 N.M. 208, 209, 769 P.2d 1299, 1300 (App.1989); see also Robinson v. United States, 501 A.2d 1273 (D.C.App.1985); State v. Allen, 89 Or.App. 167, 169-71, 747 P.2d 384, 385-86 (1988) (distinguishing "merger" and the issue of when cumulative sentences can be imposed). 6

In Colorado, judicial merger has consistently been analyzed under double jeopardy principles. See People v. Roark, 643 P.2d 756, 768 (Colo.1982); People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980) (merger did not bar separate convictions for first-degree kidnapping and first-degree sexual assault, although kidnapping conviction reversed on other grounds); Vaughn v. People, 175 Colo. 124, 485 P.2d 878 (1971); Johnson v. People, 174 Colo. 413, 484 P.2d 110 (1971) (adopting the test under Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), to determine that assault with a deadly weapon and kidnapping do not merge). Merger and double jeopardy doctrines seek the same end: protecting against punishing one criminal act twice. Boulies v. People, 770 P.2d 1274, 1282 (Colo.1989); People v. Hancock, 186 Colo. 30, 34, 525 P.2d 435, 437 (1974). Analysis of whether convictions should be merged must, therefore, be based on double jeopardy principles. 1 Wharton's, supra, § 24; Swafford v. State, 498 N.E.2d 1188, 1191 (Ind.1986); Lovgren v. Byrne, 787 F.2d at 862. Those principles "embody three separate but related prohibitions: (1) a rule which bars a reprosecution for the same offense after acquittal; (2) a rule barring reprosecution for the same offense after conviction, and; (3) a rule barring multiple punishment for the same offense." 382 N.E.2d at 894 (citing North Carolina v. Pearce, 395 U.S. 711, 89

Page 1061

S.Ct. 2072, 23 L.Ed.2d 656 (1969)); see Boulies, 770 P.2d at 1278.

In reviewing multiple punishments for the same offense, the federal and state Double Jeopardy Clauses play a more limited role than when reviewing subsequent prosecutions. 770 P.2d at 1278. " 'Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.' " Id. (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977)). Hence, so long as the legislature has specifically authorized cumulative punishments in a single trial for statutory offenses proscribing the same conduct, double jeopardy does not apply. Id. at 1278-80; Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

When analyzing multiple punishments in a single trial, a court begins by determining whether the offenses at issue are the same or whether one is a lesser included offense of the other. If not, there is no need to analyze whether the legislature authorized multiple punishments. Boulies, 770 P.2d at 1279. We said in Boulies, when analyzing the Double Jeopardy Clause, that we have adhered to the "same offense" test set out in Blockburger v. United States, 284 U.S. at 304, 52 S.Ct. at 182, which provides that if each offense requires proof of a fact not required by the other offense, the offenses are sufficiently distinguishable for purposes of double jeopardy. 770 P.2d at 1278. "If, however, a person has been tried and convicted for a crime which includes proof of all the requisite elements of some other lesser offense, he cannot thereafter be tried for the lesser offense." Id. (citations omitted). 7

Boulies held that aggravated robbery, when used as the predicate felony, was a lesser included offense of a felony murder conviction. Id. at 1280. Although we said that, in the absence of specific legislative authority, the trial court erred by imposing cumulative sentences for the two offenses, we declined to reach the question whether the defendant could be convicted of both offenses in the same trial under the Double Jeopardy Clauses because "the judicial rule of merger requires that the...

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54 practice notes
  • State v. Thornton, No. 99-376-C.A. And 98-263-C.A.
    • United States
    • Rhode Island Supreme Court
    • June 27, 2002
    ...to use the defendant's prior bad acts to cross-examine the expert concerning the basis of his opinion), rev'd on other grounds, 810 P.2d 1058 (Colo.1991); McCloskey v. State, 457 A.2d 332, 336-37 (Del.1983) (permitting under Rule 703 the introduction of inadmissible facts on cross-examinati......
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1996
    ...the lesser included offense of first-degree sexual assault as a class 3 felony. See § 18-1-408(5), 8B C.R.S. (1986); People v. Henderson, 810 P.2d 1058, 1062-63 (Colo.1991) (discussing enhancement of second-degree kidnapping In Issues 112 and 142, Rodriguez alleges insufficient evidence to ......
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...robbery or sexual assault and use of a deadly weapon were elements of second degree kidnapping is consistent with People v. Henderson, 810 P.2d 1058, 1062 9. Whether the trial court's jury instructions on the sentence enhancement factors for second degree kidnapping were proper. Harlan had ......
  • People v. Dunlap, No. 01CA1082.
    • United States
    • Colorado Supreme Court of Colorado
    • November 7, 2005
    ...in the same prosecution. Offenses are not included if each offense requires proof of a fact that the other does not. People v. Henderson, 810 P.2d 1058 Defendant nevertheless argues that Henderson cannot survive Apprendi v. New Jersey, supra. We disagree. Defendant recognizes that the divis......
  • Request a trial to view additional results
54 cases
  • State v. Thornton, No. 99-376-C.A. And 98-263-C.A.
    • United States
    • Rhode Island Supreme Court
    • June 27, 2002
    ...to use the defendant's prior bad acts to cross-examine the expert concerning the basis of his opinion), rev'd on other grounds, 810 P.2d 1058 (Colo.1991); McCloskey v. State, 457 A.2d 332, 336-37 (Del.1983) (permitting under Rule 703 the introduction of inadmissible facts on cross-examinati......
  • People v. Rodriguez, No. 91SA112
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1996
    ...the lesser included offense of first-degree sexual assault as a class 3 felony. See § 18-1-408(5), 8B C.R.S. (1986); People v. Henderson, 810 P.2d 1058, 1062-63 (Colo.1991) (discussing enhancement of second-degree kidnapping In Issues 112 and 142, Rodriguez alleges insufficient evidence to ......
  • People v. Harlan, No. 95SA298.
    • United States
    • Colorado Supreme Court of Colorado
    • March 27, 2000
    ...robbery or sexual assault and use of a deadly weapon were elements of second degree kidnapping is consistent with People v. Henderson, 810 P.2d 1058, 1062 9. Whether the trial court's jury instructions on the sentence enhancement factors for second degree kidnapping were proper. Harlan had ......
  • People v. Dunlap, No. 01CA1082.
    • United States
    • Colorado Supreme Court of Colorado
    • November 7, 2005
    ...in the same prosecution. Offenses are not included if each offense requires proof of a fact that the other does not. People v. Henderson, 810 P.2d 1058 Defendant nevertheless argues that Henderson cannot survive Apprendi v. New Jersey, supra. We disagree. Defendant recognizes that the divis......
  • Request a trial to view additional results

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