People v. Moore
| Decision Date | 27 June 1994 |
| Docket Number | No. 93SC313,93SC313 |
| Parties | The PEOPLE of the State of Colorado, Petitioner, v. Phillip R. MOORE, Respondent. |
| Court | Colorado Supreme Court |
Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Robert Mark Russel, First Asst. Atty. Gen., Catherine P. Adkisson, Asst. Atty. Gen., Criminal Enforcement Section, Denver, for petitioner.
David F. Vela, State Public Defender, Robin Desmond, Deputy State Public Defender, Denver, for respondent.
We granted certiorari to review the court of appeals decision in People v. Moore, 860 P.2d 549 (Colo.App.1993), to determine (1) whether the defendant's conviction for sexual assault on a child was a lesser-included offense that merged into his conviction for first-degree assault under section 18-3-202(1)(d), 8B C.R.S. (1986), and (2) whether voluntary rather than intentional conduct on the part of the actor is a prerequisite to a defendant's liability under a complicity theory.
The defendant was convicted of, among other crimes, first-degree assault while committing a crime and sexual assault on a child and was sentenced by the trial court on both. The first-degree assault conviction was obtained under section 18-3-202(1)(d), 8B C.R.S. (1986), which allows conviction of first-degree assault after proof of one of the felonies enumerated in the statute, and without proof of intent to cause injury. The court of appeals held that the class 3 felony of sexual assault on a child merged into the class 5 felony of first-degree assault after provocation under section 18-3-202(1)(d). The jury found the defendant guilty of sexual assault on a child based on a complicity theory. The jury had been instructed that, in order to convict, it had to find that another person "intended to commit" the crime of sexual assault on a child and that the defendant knew that person intended to commit the crime. The court of appeals instead inferred a voluntariness standard to assess the conduct of the actor and held that the evidence could not sustain the jury's decision that the person who committed the assault acted voluntarily. It therefore ruled that the trial court erred in giving the complicity instruction.
We reverse the court of appeals on both issues, and hold that, under section 18-3-202(1)(d), 8B C.R.S. (1986), when there are separate victims for each crime, an underlying conviction of sexual assault on a child does not merge into a conviction of first-degree assault while committing a crime. We further hold that the jury instruction on complicity which required intent rather than voluntariness was correct. We reverse and remand with instructions to the court of appeals to reinstate the convictions.
On January 15, 1989, the defendant, Phillip Moore (Moore), his wife, and two children were living in an apartment at the Bugs Bunny Motel in Lakewood. From early afternoon until approximately 8 p.m., Moore physically assaulted his wife, slapping and punching her, choking her, hitting her with a belt, and burning her with a cigarette, and forced her to perform various sex acts while the children watched. During this time, he also forced her to sexually assault their twelve-year-old daughter, and attempted to force her to sexually assault their seven-year-old son. Eventually, a neighbor called for assistance and police and paramedics took Moore's wife to a hospital. Her body was severely bruised, particularly her interior thighs and buttocks. She also suffered internal bleeding and had experienced severe trauma to her vaginal area. She went into cardiac arrest and the doctors performed open heart massage and administered electric shocks to restore her heartbeat. The doctors were also forced to remove her spleen. She remained in critical condition for three weeks and was hospitalized for several months.
Moore was arrested later that night after the children had spoken with social workers, and was charged with attempted second-degree murder, 1 five counts of first-degree assault, 2 three counts of sexual assault on a child, 3 and four "violent crime" sentence enhancement counts. 4 Moore's wife and the two children testified at trial. Moore also testified, admitting the assault but claiming that he had assaulted his wife in the "heat of passion." He claimed the beating began after he discovered his wife masturbating alone in their bedroom, and was renewed in the late afternoon when he observed his wife engaged in sex acts with their daughter.
The case was submitted to the jury on the attempted second-degree murder charge and its accompanying crime of violence count; on one count of first-degree assault while committing a crime; and on three counts of sexual assault on a child, which the parties and the trial court agreed would merge if Moore was convicted of more than one of them. Because Moore did not sexually assault his daughter directly, the jury was given a complicity instruction based on section 18-1-603, 6B C.R.S. (1986). The jury was instructed that, in order to convict, it must find that another person [the wife] intended to commit the crime of sexual assault on a child, that Moore had knowledge that she intended to commit the crime, and that Moore did intentionally aid, abet, advise, or encourage the commission of the crime. 5
Moore was convicted on all counts. However, because the jury found that Moore's first-degree assault on his wife was committed "after provocation," the crime was reduced from a class 3 felony to a class 5 felony. He was sentenced to thirty-two years on the attempted second-degree murder conviction, eight years on the assault, and thirty-two years on each of the three counts of sexual assault on a child. The sexual assault sentences were to run concurrently, but all other sentences were to be served consecutively. The prosecution conceded on appeal that the three counts of sexual assault on a child should merge into one count of sexual assault on a child. 6
The court of appeals reversed Moore's conviction for sexual assault on a child, holding that the conviction on the class 3 felony of sexual assault on a child merged into the class 5 felony of first-degree assault. It also reversed Moore's convictions for sexual assault on a child and for first-degree assault because it found that the jury instruction on complicity was erroneously given.
We first address the issue of whether, under section 18-3-202(1)(d), 8B C.R.S. (1986), the conviction for class 3 sexual assault on a child must merge into the conviction for first-degree assault.
First-degree assault may be proved by several different theories. In this case, the prosecution chose to prove that Moore had committed first-degree assault on his wife in the course of the sexual assault on their daughter. Section 18-3-202, 8B C.R.S. (1986), states:
Assault in the first degree. (1) A person commits the crime of assault in the first degree if:
....
(d) ... he commits or attempts to commit murder, robbery, arson, burglary, escape in the first degree, kidnapping in the first degree, sexual assault in the first or second degree, or class 3 felony sexual assault on a child and in the course of or in furtherance of the crime that he is committing or attempting to commit, or of immediate flight therefrom, the serious bodily injury of a person, other than a participant in the commission or attempted commission of the crime, is caused by anyone; ...
....
(2)(a) If assault in the first degree is committed under circumstances where the act causing the injury is performed, not after deliberation, upon a sudden heat of passion, caused by a serious and highly provoking act of the intended victim, affecting the person causing the injury sufficiently to excite an irresistible passion in a reasonable person, it is a class 5 felony.
(b) If assault in the first degree is committed without the circumstances provided in paragraph (a) of this subsection (2), it is a class 3 felony.
In order to prove that Moore was guilty of first-degree assault on his wife, the prosecution first had to prove that he committed a class 3 felony sexual assault on his daughter. First-degree assault under section 18-3-202(1)(d) is like a strict liability crime. The prosecution need not prove that the defendant intended to cause serious bodily injury or disfigurement or that he knowingly created a grave risk of death to another. 7
A defendant may be convicted of more than one offense arising out of a single incident if he has violated more than one statute. § 18-1-408(7), 8B C.R.S. (1986); People v. Salas, 189 Colo. 111, 116, 538 P.2d 437, 441 (1975). However, in the absence of legislative authorization, a defendant may not be convicted of more than one offense if one offense is a lesser included offense of the other. Armintrout v. People, 864 P.2d 576, 578 (Colo.1993); § 18-1-408(1)(a), 8B C.R.S. (1986). This result is also required by the judicially created rule of merger. People v. Bartowsheski, 661 P.2d 235 (Colo.1983). Section 18-1-408(5)(a), 8B C.R.S. (1986), defines a lesser included offense as one "established by proof of the same or less than all the facts required to establish the commission of the offense charged." Case law pertaining to the rule of merger treats an offense as lesser included when proof of the essential elements of the greater offense necessarily establishes the elements required to prove the lesser offense. Armintrout, 864 P.2d at 579.
We resolve the issue of whether Moore's conviction for sexual assault on a child merges into his conviction for first-degree assault on statutory grounds. We do not base our holding on a double-jeopardy analysis under the Fifth and Fourteenth Amendments to the United States Constitution, nor on the corresponding provision of the Colorado...
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