People v. Moore

• Decision Date: 14 January 1993
• Docket Number: No. 89CA1509,89CA1509
• Citation: 860 P.2d 549
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip R. MOORE, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 549

860 P.2d 549

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Phillip R. MOORE, Defendant-Appellant.

No. 89CA1509.

Colorado Court of Appeals Div. III.

Jan. 14, 1993.

Rehearing Denied April 15, 1993.

Certiorari Granted Oct. 18, 1993.

Cross-Petition for Writ of

Certiorari Denied (Moore) Oct. 18, 1993.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Catherine P. Adkisson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Robin Desmond, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge CRISWELL.

Defendant, Phillip R. Moore, was convicted of attempted second degree murder, first degree assault under provocation, three counts of sexual assault on a child, and three associated counts of crimes of violence. He asserts that: (1) the jurors' findings of guilt of attempted second degree murder and of first degree assault under provocation are inconsistent; (2) because of the manner in which he was charged, the sexual assaults here were lesser included offenses of the charge of first degree assault; and (3) that the court committed prejudicial instructional error in submitting the first degree assault charge to the jury. We affirm defendant's conviction of attempted second degree murder and the associated crime of violence count, but reverse his other convictions and remand the other charges for a new trial.

On the date of the incidents upon which the charges were based, defendant was present with his wife and two small children in their apartment. Initially, he and his wife were together in their bedroom For reasons which were disputed at trial, defendant began physically assaulting the wife, and this beating continued for an extended period. At one point, defendant called his 12-year old daughter into the bedroom with his wife and him and, while he watched, forced the wife to commit a sexual assault upon the daughter.

while the two children were in an adjoining sitting room watching television.

After compelling the wife to commit this sexual assault, defendant continued to beat upon her. Ultimately, she was rendered unconscious, emergency personnel were called, and she was transported to the hospital where she nearly succumbed from her injuries.

Based upon these events, the People charged defendant with numerous offenses. After all the evidence was received, however, three principal charges were presented to the jury--attempted second degree murder by knowingly, but without deliberation, attempting to cause his wife's death, see § 18-2-101(1), C.R.S. (1986 Repl.Vol. 8B) and § 18-3-103, C.R.S. (1986 Repl.Vol. 8B); first degree assault by causing serious bodily injury to his wife while committing or attempting to commit felony sexual assault on his daughter, § 18-3-202(1)(d), C.R.S. (1986 Repl.Vol. 8B); and, while in a position of trust, knowingly subjecting his daughter to a sexual assault by use of force. Sections 18-3-405(1) and 18-3-405(2)(a) and (b), C.R.S. (1986 Repl.Vol. 8B). In addition, with respect to each of these three substantive charges, an associated crime of violence charge was submitted to the jury. See § 16-11-309, C.R.S. (1986 Repl.Vol. 8A).

Defendant's evidence was that the beating of his wife commenced when he discovered her in the bedroom using a dildo upon herself and that he became irate at this scene. Thus, he asserted that any assault upon her occurred during a sudden heat of passion, caused by his wife's highly provoking act, as described in § 18-3-202(2)(a), C.R.S. (1986 Repl.Vol. 8B).

The jury returned guilty verdicts as to all counts. However, with respect to the first degree assault charge, the jurors found that defendant committed this offense under provocation.

I. Attempted Second Degree Murder

Defendant asserts that the jury's finding that he committed first degree assault while under provocation is inconsistent with its finding of guilt upon the attempted second degree murder charge. He argues, therefore, that his conviction of this offense must be set aside or, alternatively, that it must be reduced to attempted heat of passion manslaughter under § 18-3-104, C.R.S. (1986 Repl.Vol. 8B). We disagree for three reasons.

First, the General Assembly has not provided that heat of passion resulting from provocation is a defense either to first or second degree murder. It is not, therefore, applicable to such a charge. People v. Carrier, 791 P.2d 1204 (Colo.App.1990). Hence, there is no inconsistency between the two verdicts actually returned by the jury.

Second, even if we were to assume that the evidence of provocation here might have supported a lesser included offense instruction on attempted heat of passion manslaughter under § 18-3-104(1)(c), C.R.S. (1986 Repl.Vol. 8B), such an instruction is not required to be given unless there is a request for it. See People v. Romero, 694 P.2d 1256 (Colo.1985). And, if, as here, there is no such request, it will be presumed that the defendant elected to take his or her chances on an outright acquittal. See People v. Aalbu, 696 P.2d 796 (Colo.1985).

Finally, if the evidence permits the verdicts to be reconciled, they may not be considered to be inconsistent. See Aurora v. Loveless, 639 P.2d 1061 (Colo.1981); People v. Jones, 832 P.2d 1036 (Colo.App.1991). Such is the case here.

As we note in greater detail below, the People's charge of first degree assault was based upon the serious bodily injury suffered by the wife while defendant was compelling her to commit a sexual assault upon their daughter. After this episode ended Given these factual circumstances, the jury could have determined that the wife's actions provoked her first beating and the resulting assault upon the child. The jurors also could have determined, however, that, by the time that the sexual assault upon the child had been completed and defendant began again to assault his wife, the effect of the wife's prior provocation had been entirely dissipated and that it was at this point that defendant knowingly attempted to kill her.

however, defendant continued to beat his wife, rendering her unconscious.

Defendant's convictions of attempted second degree murder and the associated crime of violence, therefore, will be affirmed.

II. Sexual Assaults

Defendant also asserts that, because of the nature of the offenses with which defendant was charged in this case, the three counts of sexual assault on a child, all of which were based upon but a single incident, were lesser included offenses of the first degree assault charge. We agree.

Section 18-3-202(1), C.R.S. (1986 Repl.Vol. 8B) contains six sub-subsections, each describing a different method whereby a person may commit the crime of first degree assault. In several respects, it is similar both in concept and in structure to the statute that sets forth five methods by which the singular crime of first degree murder may be committed. See § 18-3-102(1)(a), (c), and (d), C.R.S. (1986 Repl.Vol. 8B) and § 18-3-102(1)(b) and (e), C.R.S. (1992 Cum.Supp.).

Of the six methods of committing first degree assault, four require the specific intent to cause serious bodily injury or disfigurement. Section 18-3-202(1)(a), (b), (e), and (f), C.R.S. (1986 Repl.Vol. 8B). Two such methods require no such intent, § 18-3-202(1)(c) and (d), C.R.S. (1986 Repl.Vol. 8B), and defendant was charged under one of these latter sub-subsections.

Under § 18-3-202(1)(d), pursuant to which defendant was charged, first degree assault is committed if, during the actor's commission or attempt to commit certain specified felonies (including a class 3 felony sexual assault on a child), serious bodily injury is caused to any other person. Here, it was charged that the wife suffered serious bodily injury while defendant was committing a class 3 felony sexual assault upon his daughter.

Pursuant to the statute under which defendant was charged, therefore, in order to convict defendant of first degree assault the People had to prove that he committed, or attempted to commit, a class 3 felony sexual assault on his daughter and to prove that his wife received serious injury during his commission or his attempt to commit this felony. Under such circumstances, we conclude that the underlying predicate offense of sexual assault on a child is a lesser included offense of the crime of first degree assault.

The provisions of the first degree assault statute with which defendant was charged are substantially identical, except for the result required, to § 18-3-102(1)(b), C.R.S. (1986 Repl.Vol. 8B), the "felony murder" statute. See People v. Brewer, 720 P.2d 596 (Colo.App.1985). Under each statute, it must be established that another person received physical injuries during the course of a defendant's commission or attempt to commit one of several specified felonies--and a class 3 felony sexual assault on a child is one of the predicate offenses specified in both statutes. No specific intent is required under either statute, but if any person suffers serious bodily injury during the commission or attempted commission of one of the predicate offenses, the crime is that of first degree assault, while if death results, first degree murder is committed.

We emphasize the similarities between these two statutes because of our supreme court's opinion in People v. Bartowsheski, 661 P.2d 235 (Colo.1983), which construed the felony murder statute. In that case, the supreme court noted the provisions of § 18-1-408, C.R.S. (1986 Repl.Vol. 8B), which prohibit the conviction of more than one offense arising out of the same conduct, if one offense is included within another Accordingly, it concluded that:

                i.e., if the included offense "is established by proof of the same or less than all of the facts required to establish the commission of [another] offense charged."   It then noted that, to convict under the felony murder

...