People v. Leske, No. 96SC693

Docket NºNo. 96SC693
Citation957 P.2d 1030
Case DateApril 13, 1998
CourtSupreme Court of Colorado

Page 1030

957 P.2d 1030
98 CJ C.A.R. 1702
The PEOPLE of the State of Colorado, Petitioner/Cross-Respondent,
v.
Randall Lee LESKE, Respondent/Cross-Petitioner.
No. 96SC693.
Supreme Court of Colorado,
En Banc.
April 13, 1998.
Rehearing Denied May 18, 1998.

Page 1033

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, John Daniel Dailey, Deputy Attorney General, Robert Mark Russel, First Assistant Attorney General, Paul Koehler, Assistant Attorney General, Kim L. Montagriff, Assistant Attorney General, Criminal Enforcement Section, Denver, for Petitioner/Cross-Respondent.

David F. Vela, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, for Respondent/Cross-Petitioner.

Justice MARTINEZ delivered the Opinion of the Court.

We granted certiorari to consider the decision of the court of appeals in People v. Leske, 937 P.2d 821 (Colo.App.1996). The court of appeals vacated the respondent's conviction and sentence for sexual assault on a child, concluding that it was a lesser included offense of sexual assault on a child by one in a position of trust ("position of trust"). The court of appeals affirmed the trial court's decision to impose sentences within the aggravated range for the respondent's remaining convictions. We granted certiorari to consider whether the defendant could be convicted of both the sexual assault on a

Page 1034

child and position of trust offenses, and whether the trial court abused its discretion by imposing sentences outside the presumptive range. 1 We hold that sexual assault on a child is not a lesser included offense of sexual assault on a child by one in a position of trust, and therefore reverse the court of appeals' judgment vacating the respondent's conviction and sentence for sexual assault on a child. We affirm the court of appeals' judgment that the trial court did not abuse its discretion by imposing sentences in the aggravated range.

I.

On March 17, 1994, the respondent, Randall Lee Leske, was charged by information in the District Court of the City and County of Denver with one count of sexual assault on a child, 2 one count of sexual assault on a child by one in a position of trust, 3 and one count of aggravated incest. 4 The charges arose from allegations that the respondent sexually assaulted his four-year-old daughter, N.L., on February 17, 1994.

Before he was charged, the respondent confessed to the police in writing that he had subjected N.L. to sexual contact in order to relieve "sexual" and "financial" stress. The respondent later filed a motion to suppress this statement, along with other oral and written statements, arguing that they were involuntary and coerced. At the conclusion of the suppression hearing, the trial court denied the motion, finding that the respondent "understood his rights as read to him" and that "there was no coercion or pressure brought upon him by the police".

A jury found the respondent guilty on all counts. Following a sentencing hearing, the trial court determined that aggravating factors justified imposing sentences outside the presumptive range. The court sentenced the respondent to concurrent terms of sixteen years imprisonment for the sexual assault conviction, twenty-two years imprisonment for the position of trust conviction, and twenty-eight years for the aggravated incest conviction.

The court of appeals affirmed the position of trust and aggravated incest convictions and sentences, but vacated the conviction and sentence for sexual assault on a child. See Leske, 937 P.2d at 822-23. The court of appeals held that, pursuant to section 18-1-408(5)(a), 8B C.R.S. (1986), sexual assault on a child is a lesser included offense of sexual assault on a child by one in a position of trust, and that the respondent's sexual assault on a child conviction must be vacated under the "doctrine of merger." Id. at 825. The prosecution subsequently petitioned for certiorari review, arguing that the court of appeals erroneously vacated the sexual assault on a child conviction. The respondent cross-petitioned, alleging, inter alia, that the court of appeals erred by affirming the trial court's imposition of sentences in the aggravated range.

II.

We first review the law with respect to multiple punishments for the same criminal act. We reject the respondent's contention that section 18-1-408(5)(a), 6 C.R.S. (1997), adopts an "evidentiary test" for determining lesser included offenses. Applying a strict elements test to the respondent's convictions, we conclude that sexual assault on a child is

Page 1035

not a lesser included offense of sexual assault on a child by one in a position of trust.

A.

Generally, "[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,[ 5] by statute, and by the judicially-created rule of merger." Armintrout v. People, 864 P.2d 576, 578-79 (Colo.1993) (citations & footnote omitted). At common law, the rule of merger provided that a defendant could not be convicted of both misdemeanors and felonies arising from the same criminal act because the misdemeanors "merged" into the felonies. See People v. Henderson, 810 P.2d 1058, 1059 (Colo.1991). However, the common law doctrine of merger has been largely abandoned, and in Colorado "judicial merger has consistently been analyzed under double jeopardy principles." Id. at 1060. Thus, regardless of whether double jeopardy or merger principles are invoked, we employ an identical analysis to determine whether a lesser offense is "included" within a greater offense. See People v. Rodriguez, 914 P.2d 230, 287 (Colo.1996); Henderson, 810 P.2d at 1061. 6 For purposes of both double jeopardy and merger, a defendant may be subjected to multiple punishments based upon the same criminal conduct as long as such punishments are "specifically authorized" by the General Assembly. See, e.g., Rodriguez, 914 P.2d at 287 ("The purpose [of merger] is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments."); Henderson, 810 P.2d at 1061 (" '[T]he role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization' " (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977))). 7

The General Assembly has expressly provided that, "[w]hen any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." 18-1-408(1), 6 C.R.S. (1997). Under certain circumstances, however, the legislature has directed that a

Page 1036

defendant may not be subjected to multiple convictions for the same criminal conduct, including when "[o]ne offense is included in the other, as defined in subsection (5) of this section ...." 18-1-408(1)(a). Pursuant to subsection (5)(a), a lesser offense is "included" in a greater offense when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged."

We have consistently interpreted section 18-1-408(5)(a) as requiring a court to compare the statutory elements of the offenses in question, not the evidence presented at trial, in determining whether an offense is lesser-included. See, e.g., People v. Garcia, 940 P.2d 357, 361 n. 3 (Colo.1997); Armintrout, 864 P.2d at 579; People v. Raymer, 662 P.2d 1066, 1069 (Colo.1983); People v. Bartowsheski, 661 P.2d 235, 245 (Colo.1983). 8 Under this "strict elements test," also known as the "statutory elements test" or the "Blockburger test," if proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for the purposes of section 18-1-408(5)(a). See, e.g., Armintrout, 864 P.2d at 579; Bartowsheski, 661 P.2d at 245. If, however, each offense necessarily " 'requires proof of at least one additional fact which the other does not,' " the strict elements test is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent. Henderson, 810 P.2d at 1063 (quoting Wicker v. State, 462 So.2d 461, 462 (Fla.1985)); see Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) ("The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.").

B.

Despite our longstanding construction of section 18-1-408(5)(a) as mandating application of a strict elements test, the respondent insists that the plain language of the statute requires use of an "evidentiary test" for determining lesser-included offenses. 9 Specifically, the respondent argues that we have ignored the plain language of the provision by "mutating" the words, "proof" and "facts" into the phrase, "statutory elements." We are not persuaded.

Subsection (5)(a) does not require application of an evidentiary test. It is true that the statute, by its terms, provides that an offense is lesser included when it is "established by proof of the same or less than all the facts required to establish the charged offense." 18-1-408(5)(a) (emphasis added). The provision is silent, however, on the question of whether proof of a lesser included offense is established when the facts establishing its elements are proven at trial by evidence, or only when proof of the facts required to establish the elements of the greater offense necessarily establishes the elements of the lesser offense.

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139 practice notes
  • Ervin v. State, No. 73,137
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 13, 1999
    ...court came to similar conclusions regarding the consequences of placing offenses in the same or separate statutes. In People v. Leske, 957 P.2d 1030 (Colo.1998), the Supreme Court of Colorado was called upon to address the double jeopardy implications of simultaneous convictions for sexual ......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...Sexual assault on a child is not a lesser included offense of sexual assault on a child by one in a position of trust. People v. Leske, 957 P.2d 1030, 1036 (Colo.1998). In People v. Valdez, 874 P.2d 415, 418 (Colo.App.1993), the division explained:To be convicted of sexual assault on a chil......
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent.” People v. Leske, 957 P.2d 1030, 1036 (Colo.1998) (internal quotation marks omitted). ¶ 35 Applying this test here, section 18–8–211(1), C.R.S.2013, provides: A person confine......
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent.” People v. Leske, 957 P.2d 1030, 1036 (Colo.1998) (internal quotation marks omitted).¶ 35 Applying this test here, section 18–8–211(1), C.R.S.2013, provides:A person confined ......
  • Request a trial to view additional results
139 cases
  • Ervin v. State, No. 73,137
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • January 13, 1999
    ...court came to similar conclusions regarding the consequences of placing offenses in the same or separate statutes. In People v. Leske, 957 P.2d 1030 (Colo.1998), the Supreme Court of Colorado was called upon to address the double jeopardy implications of simultaneous convictions for sexual ......
  • The People Of The State Of Colo. v. Tillery, No. 06CA1853.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 19, 2009
    ...Sexual assault on a child is not a lesser included offense of sexual assault on a child by one in a position of trust. People v. Leske, 957 P.2d 1030, 1036 (Colo.1998). In People v. Valdez, 874 P.2d 415, 418 (Colo.App.1993), the division explained:To be convicted of sexual assault on a chil......
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent.” People v. Leske, 957 P.2d 1030, 1036 (Colo.1998) (internal quotation marks omitted). ¶ 35 Applying this test here, section 18–8–211(1), C.R.S.2013, provides: A person confine......
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...is not satisfied and a presumption arises that convictions for both offenses is consistent with legislative intent.” People v. Leske, 957 P.2d 1030, 1036 (Colo.1998) (internal quotation marks omitted).¶ 35 Applying this test here, section 18–8–211(1), C.R.S.2013, provides:A person confined ......
  • Request a trial to view additional results

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