October 26, 2011
People v. Lewis 2˚ Kidnapping with Sexual Assault and Sexual Assault / Double Jeopardy and Multiple Punishments
Facts: A jury convicted Mr. Lewis of three counts of kidnapping and three counts of sexual assault for three separate complaining witnesses. The sexual assault convictions for each kidnapping conviction upped the kidnapping conviction from a class four felony to a class two felony. To be clear, the DA alleged only one sexual assault on each kidnapping victim. The trial court sentenced Mr. Lewis separately on each sexual assault and kidnapping charge, and ran each kidnapping conviction consecutive to the sexual assault conviction – despite that the facts for the sexual assault and the sexual assault in the kidnapping were exactly the same set of facts.
Issue: Whether the separate convictions and sentences for sexual assault and kidnapping violate the Double Jeopardy Clauses?
Reasoning: The Colorado Supreme Court held that because the statute and elements defining kidnapping did not include all the elements of the sexual assault of which the jury convicted Mr. Lewis, the trial court did not err in imposing separate sentences. Simply stated, Colorado uses the simple elements test to determine whether an offense can be classified as lesser-included; thus, if the greater offense contains every element of the lesser offense, then the lesser offense is classified as lesser-included. Further, the Court reasoned only lesser-included offenses merge for sentencing purposes under the Double Jeopardy Clauses.
The Court spent some time discussing other jurisdictions treatment of lesser-included offenses. One approach, the same facts approach, does not compare the elements by rote, but holds that the offenses would merge if the same facts proven at trial established the offenses simultaneously. The Court, with Justice Coates – former DA - writing for the majority, found the analysis under the same-facts approach too taxing, and declined to adopt it in Colorado.
Therefore, in Mr. Lewis’s case, because the kidnapping statute did not delimitate a specific sexual assault, but included any sexual assault, the sexual assault and kidnapping did not merge. Thus, the trial court did not violate the Double Jeopardy Clauses by sentencing Mr. Lewis separately on each offense.