People v. Wade.
2024 COA 13. No. 21CA1581. Harassment—Assault in the Second Degree—Assault in the Third Degree—Child Abuse—Prosecution of Multiple Counts for Same Act—Lesser Included Offenses—Affirmative Defenses—Self-Defense.
February 15, 2024
One night, Wade physically assaulted his wife A.C. in their bedroom and intermittently strangled her for 30 to 45 minutes. Wade also threatened to kill A.C., and at some point, he took either A.C.’s phone or her SIM card to keep her from calling for help. During this incident, Wade also physically assaulted 10-year-old D.W. and 12-year-old H.W. Wade was convicted of (1) second-degree assault of A.C.; (2) third-degree assault of A.C. and H.W.; (3) misdemeanor child abuse of H.W.; (4) harassment of A.C., H.W., and D.W.; (5) misdemeanor menacing; and (6) telephone service obstruction.
On appeal, Wade contended that the court erred by failing to sua sponte instruct the jury on the affirmative defense of self-defense, based on prosecution witness Officer Westcott’s testimony. Before trial, Wade filed an endorsement of the affirmative defense of self-defense. However, defense counsel did not mention self-defense during his opening or closing statements, nor did he request or tender a self-defense instruction, which appeared to be a tactical decision. To the extent Officer Westcott’s testimony supports a self-defense instruction, it would be applicable only to the offenses perpetrated against A.C. Here, Officer Westcott testified that his investigation uncovered no evidence to support Wade’s claims that he had been choked and stabbed by A.C., and A.C.’s testimony provided only minimal support. Even assuming that the district court erred in not giving a self-defense instruction, any error was neither obvious nor likely to contribute to Wade’s convictions because the defense appeared to abandon the assertion of self-defense, and the evidence supporting the defense was thin. Accordingly, the district court did not err by failing to sua sponte instruct the jury on self-defense.
Wade also alleged double jeopardy, arguing that several of his convictions are lesser included offenses under both the strict elements test in CRS § 18-1-408(5)(a) and the broader test in § 18-1-408(5)(c). Specifically, he maintained that his harassment of A.C. conviction must merge into his conviction for either second- or third-degree assault of A.C. Wade’s second-degree assault conviction is based on evidence that he strangled A.C., and his third-degree assault conviction is based on evidence that he punched A.C. in her shoulder and her back. A lesser included offense merges into a greater offense when both offenses are based on the defendant’s same conduct against the same victim. Under the strict elements test, harassment is not a lesser included offense of either second- or third-degree assault because harassment contains a culpable mental state element that is not required by the elements of either second-degree assault (intent to cause bodily injury) or third-degree assault (knowingly or recklessly or with criminal negligence). Nor is harassment a lesser included offense of second- or third-degree assault under the § 18-1-408(5)(c) test. Thus, those convictions do not merge. Further, harassment and third-degree assault do not merge because although third-degree assault requires a lesser kind of culpability than harassment, it requires a more serious risk of injury. Because the court of appeals concluded that none of Wade’s offenses against A.C. is a lesser included offense, it did reach whether the offenses are factually distinct to conclude that the offenses do not merge.
Wade further contended that his child abuse and harassment of H.W. convictions must merge into his conviction for third-degree assault. Wade’s third-degree assault conviction is based on evidence that he slapped H.W. in the face. Wade’s child abuse conviction is based on evidence that he grabbed H.W. by the ankle and wrist and pulled her off the bed. As discussed above, harassment is not a lesser included offense of third-degree assault, so those convictions do not merge under the strict elements test or the test in § 18-1-408(5)(c). As to the child abuse and third-degree assault convictions, if the two convictions arise from a single act against the same victim, they must merge into a single conviction for child abuse. However, this case involves two separate offenses and two separate acts, and multiple convictions for two separate offenses, where one is a lesser included of the other, can stand if the offenses were committed by distinctly different conduct. Therefore, Wade’s offenses do not merge.
The judgment was affirmed.