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Colorado Supreme Court Rules That Criminal Trespass Is a Lesser Included Offense of Burglary

by Christopher Zoukis

The Colorado Supreme Court ruled on September 11, 2017 that the crime of unlawful sexual contact is a lesser included offense of sexual assault, meaning the two must merge.

This was the second case dealing with lesser included offenses decided by the Supreme Court on the same day. In People v. Rock, 2017 CO 84, the Court determined that because the elements of second degree criminal trespass are within the elements of second degree burglary, second degree criminal trespass is a lesser included offense of second degree burglary. In making this determination, the Supreme Court ruled “if establishing the elements of the greater offense necessarily establishes the elements of the lesser, then the lesser offense is included in the greater.”

In Rock, the defendant requested the lesser included offense be presented as an option to enable the jury to convict her of a less severe crime. This is not the only situation in which lesser included offense arguments arise, however. When the State charges someone with two crimes, one of which is a lesser included offense of the other, double jeopardy is potentially implicated.

This was the argument advanced by James Robert Page. He was accused of sexually assaulting an 86-year-old woman. Among other crimes, he was convicted of both unlawful sexual contact and sexual assault, and he was sentenced separately for each crime. He argued that these convictions must merge in order to avoid offending the prohibition against double jeopardy, which protects individuals from multiple punishments for the same offense.

The Colorado Supreme Court analyzed the case using the statutory elements test, which holds that “an offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense.” 

The State argued that because unlawful sexual contact requires knowledge by the perpetrator that the victim does not consent and that the contact be for sexual or abusive purposes, neither of which are an element of sexual assault, the offenses should not merge. The Court rejected this argument in a refreshingly commonsense manner: Sexual assault, by its nature, requires the defendant’s knowledge that the victim did not consent, and sexual assault by means of penetration cannot be committed without a sexual purpose. Accordingly, establishing the elements of sexual assault necessarily establishes the elements of unlawful sexual contact.

“Thus, unlawful sexual contact is a lesser included offense of sexual assault, and when a defendant is convicted of both offenses based on the same conduct the conviction for unlawful sexual contact merges into the conviction for sexual assault,” the Supreme Court ruled. The Court reversed the court of appeals’ judgment to the contrary and remanded the case with instructions to vacate Page’s conviction for unlawful sexual contact. See: Page v. People, 2017 CO 88 (2017). 

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Related legal case

Page v. People



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