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Thomas v. People.

2021 CO 84. No. 20SC236. Resisting Arrest—When Arrest is Effected—Rule of Lenity—Merger of Convictions—Habitual Criminal Adjudication and Sentencing—Reclassification of Predicate Offenses.

December 20, 2021

The Supreme Court addressed three issues in this case. First, the Court held that when deputies placed defendant in handcuffs, they applied a level of physical control over him to reasonably ensure that he would not leave, and that is when his arrest was effected for purposes of the crime of resisting arrest. Because a person can resist arrest only until the arrest is effected, it was error for the Court of Appeals to resolve defendant’s challenge to the sufficiency of the evidence on the resisting arrest conviction by relying in part on conduct that followed his handcuffing.

Second, relying on People v. Lowe, 660 P.2d 1261 (Colo. 1983), overruled in part on other grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984), and its progeny, the Court concluded that defendant’s felony convictions for bodily injury to an at-risk person (bodily injury-AR) and third degree assault of an at-risk person (third degree assault-AR) cannot both stand and must merge. Because both of these convictions are generally grounded in the same statute, CRS § 18-6.5-103, and because there was only one victim and only one criminal act, Lowe and its offspring instruct that, absent clear legislative intent, only one of the two felony convictions may remain. Given the resolution of the issue on this narrow basis, the Court did not consider whether bodily injury-AR is a lesser included offense of third degree assault or otherwise reach the merits of defendant’s double jeopardy claim under CRS § 18-1-408(5)(a), and Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816. Consistent with the Court’s merger jurisprudence requiring maximization of the effect of the jury’s verdicts, the matter was remanded with instructions to return the case to the trial court at the appropriate time so it may merge the convictions for bodily injury-AR and third degree assault-AR into a single conviction for bodily injury-AR.

Finally, expanding on its recent decision in Wells-Yates v. People, 2019 CO 90M, 454 P.3d 191, the Court clarified that defendant’s past drug possession convictions could not serve as either triggering offenses or predicate offenses for habitual criminal purposes once they were reclassified as level 4 drug felonies. Because two of defendant’s three predicate offenses had been so reclassified when he committed the triggering offense, he should not have been adjudicated a habitual criminal or sentenced as such.

The Court of Appeals’ judgment was reversed and the case was remanded for further proceedings consistent with this opinion.

Official Colorado Supreme Court proceedings can be found at the Colorado Supreme Court website.

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