v. Gillis ( 2020 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 16, 2020
2020COA68
No. 17CA1399, People v. Gillis — Crimes — First Degree
Burglary — First Degree Criminal Trespass — Assault in the
Third Degree; Criminal Law — Prosecution of Multiple Counts
for Same Act — Lesser Included Offenses
A division of the court of appeals considers whether first
degree criminal trespass and third degree assault are lesser
included offenses of first degree burglary under the statutory
elements test articulated in Reyna-Abarca v. People, 2017 CO 15,
390 P.3d 816. Given that the elements of first degree criminal
trespass are a subset of the elements of first degree burglary, the
division holds that first degree criminal trespass is a lesser included
offense of first degree burglary. The division vacates the
defendant’s conviction for first degree criminal trespass because it
merges into his conviction for first degree burglary.
Although third degree assault is a lesser included offense of
first degree burglary when the assault is charged as the predicate
offense for first degree burglary, the division affirms each of the
defendant’s convictions because he assaulted the victim twice.
The division also holds that the defendant was not denied his
right to counsel and that his appeal of the trial court’s denial of his
right to a preliminary hearing is moot because a jury found him
guilty as charged.
COLORADO COURT OF APPEALS 2020COA68
Court of Appeals No. 17CA1399
Adams County District Court No. 15CR2485
Honorable Michael A. Cox, Judge
Honorable Patrick T. Murphy, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ian Joseph Gillis,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART
AND VACATED IN PART
Division VII
Opinion by JUDGE LIPINSKY
Fox and Berger, JJ., concur
Announced April 16, 2020
Philip J. Weiser, Attorney General, Jennifer L. Carty, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Ian Joseph Gillis, appeals the judgment of
conviction entered on jury verdicts finding him guilty of first degree
burglary, first degree criminal trespass, and third degree assault.
We affirm Gillis’s convictions for first degree burglary and third
degree assault, but vacate his conviction for first degree criminal
trespass. We do not remand for resentencing because the court
sentenced Gillis to identical concurrent sentences for each offense.
I. Background Facts and Procedural History
A. The Underlying Incident
¶2 According to E.G., her boyfriend Gillis demanded that she
return to her apartment so he could collect belongings he had left
there. Later that day, E.G. placed Gillis’s belongings outside her
apartment and locked the door because she was “freaked out” from
their earlier conversation.
¶3 Shortly thereafter, Gillis attempted to enter E.G.’s apartment,
but was unable to do so because the door was locked. He kicked in
the door while E.G. screamed at him to stop from inside her
apartment.
¶4 Once inside her apartment, Gillis threw E.G. to the floor and
smothered her face to stop her from screaming. E.G. ran to her
1
bedroom when Gillis finally got off her. He followed her, threw her
on her bed, climbed on top of her, and smothered her face with a
pillow. Eventually, Gillis got off E.G. and told her they would leave
her apartment together. After E.G. said she would not leave with
him, Gillis dragged her down the hallway toward the front door,
causing rug burns on her knees.
¶5 At that point, E.G. convinced Gillis to let her use the
bathroom. While inside the bathroom, E.G. texted a friend for help.
Gillis waited outside the bathroom door and began hitting or
kicking it to force E.G. to leave the bathroom. Fearing he would
kick down the door, she stepped out of the bathroom. Gillis then
began to pull E.G. down the hallway to force her to leave with him.
When she struggled, he slammed her against a wall, causing her to
hit her head. Gillis next wrapped a towel around E.G.’s neck, used
it to pull her into the kitchen, and began to choke her with it.
¶6 Shortly thereafter, E.G.’s friend and her friend’s boyfriend
arrived and yelled at Gillis to leave. Gillis dropped the towel and left
the apartment. E.G. then left the apartment and called the police.
2
¶7 Based on the information E.G. gave to the police, the
prosecution charged Gillis with (1) first degree burglary; (2) first
degree criminal trespass; and (3) second degree assault.
B. Gillis’s Preliminary Hearings
¶8 During Gillis’s advisement on January 21, 2016, he informed
the court that he planned to hire private counsel. The court set his
preliminary hearing for March 3, 2016 (the March Preliminary
Hearing).
¶9 Gillis appeared pro se at the March Preliminary Hearing. He
told the court that he still intended to hire private counsel, but that
he needed more time to find the money for a retainer to pay an
attorney. He requested another continuance. The court said that
“[w]e’ll set it over one time,” granted his request, and rescheduled
the preliminary hearing for April 14, 2016 (the April Preliminary
Hearing).
¶ 10 One day before the April Preliminary Hearing, the prosecution
requested a continuance because two of its witnesses were
unavailable. The court did not rule on the prosecution’s request
that day, however. At the April Preliminary Hearing, the prosecutor
informed the court that Gillis had recently hired counsel. Gillis did
3
not object to the prosecutor’s representation. The prosecutor then
renewed his request for a continuance. The court granted the
request, rescheduling the hearing for May 5, 2016 (the May
Preliminary Hearing).
¶ 11 Gillis appeared pro se at the May Preliminary Hearing. He
requested another continuance so he could apply for representation
from the public defender’s office. The prosecutor objected to Gillis’s
request and the court denied the requested continuance. The court
found that Gillis had waived his right to a preliminary hearing by
appearing at multiple hearings without counsel. Gillis objected to
the court’s ruling.
¶ 12 The court instructed Gillis to take his application to the public
defender’s office. Gillis complied, and a public defender entered her
appearance as his counsel of record later that day. Gillis’s public
defender moved for a preliminary hearing, but the record is unclear
whether the court ever addressed the motion. Gillis did not move
for a preliminary hearing during any subsequent hearings.
C. Gillis’s Trial
¶ 13 Because Gillis’s assault on E.G. occurred over time and
because he inflicted distinct injuries on her during the different
4
stages of the assault, the prosecutor argued that Gillis had
assaulted E.G. twice. For this reason, the prosecutor charged him
separately with first degree burglary, based on the predicate offense
of assault, and second degree assault. Gillis did not object at trial
to the prosecutor’s decision to treat his actions as constituting two
assaults.
¶ 14 A jury convicted Gillis of (1) first degree burglary, based on the
predicate offense of third degree assault; (2) first degree criminal
trespass; and (3) third degree assault. The court sentenced him to
four years’ probation on each conviction, to be served concurrently,
with the condition that he participate in, and abide by the rules and
regulations of, a veteran’s court program.
II. Discussion
¶ 15 Gillis raises two contentions of error. First, he contends that
the court erred by finding that he impliedly waived his right to
counsel and subsequently waived his right to a preliminary hearing.
Second, he asserts that the court erred by failing to merge his
convictions for first degree criminal trespass and third degree
assault into his conviction for first degree burglary. We agree that
Gillis’s conviction for first degree criminal trespass merges into his
5
conviction for first degree burglary but disagree with his remaining
arguments.
A. The Trial Court Found Only that Gillis Waived His Right to a
Preliminary Hearing
¶ 16 The parties disagree how we should analyze Gillis’s first
contention of error. Contending that the court violated his right to
counsel, Gillis asserts that the court erred in finding that he
impliedly waived his right to counsel by requesting multiple
continuances of his preliminary hearing and appearing without
counsel at any of the rescheduled hearings. Gillis argues that this
finding impaired his ability to construct, prepare, and present a
defense at trial.
¶ 17 According to the People, however, the court found that Gillis’s
actions resulted in a waiver of his right to a preliminary hearing,
rather than a waiver of his right to counsel. The People assert that
the trial court did not hold that Gillis waived his right to counsel,
particularly as it instructed him to apply to the public defender’s
office to obtain counsel.
¶ 18 Based on the record, we agree with the People that the court
did not deprive Gillis of his right to counsel. Gillis appeared pro se
6
at the March Preliminary Hearing, the April Preliminary Hearing,
and the May Preliminary Hearing only because he failed to retain
private counsel after informing the court of his intention to do so.
At the May Preliminary Hearing, he first disclosed that he planned
to ask the public defender’s office to represent him. After stating
that Gillis was “playing games,” the court found that he had waived
his right to a preliminary hearing. It did not find that he waived his
right to counsel. Instead, the court asked Gillis why he had not
retained private counsel, rejected his argument that he lacked
sufficient funds to hire a lawyer because he qualified for a public
defender, and instructed him to take his application “over to the
Public Defender’s Office right now” because “[t]hat way you’ll have
an attorney.” Gillis then submitted his application to the public
defender’s office. A public defender entered her appearance as his
counsel of record and represented him throughout the case.
¶ 19 Thus, Gillis was not deprived of his right to counsel. We next
consider his contention that the court erred in denying him the
right to a preliminary hearing.
7
B. Gillis’s Contention that the Court Denied him a Preliminary
Hearing Is Moot
1. Legal Authority
¶ 20 Section 16-5-301(1)(a), C.R.S. 2019, provides that “[e]very
person accused of a class 1, 2, or 3 felony . . . has the right to
demand and receive a preliminary hearing . . . .” See Crim. P.
5(a)(4). First degree burglary is a class 3 felony. § 18-4-202(2),
C.R.S. 2019. Second degree assault is a class 3 felony if the victim
“suffered serious bodily injury during the commission” of a
burglary. § 18-3-203(2)(b.5), C.R.S. 2019.
¶ 21 “The purpose of a preliminary hearing is to ‘screen out cases
in which prosecution is unwarranted by allowing an impartial judge
to determine whether there is probable cause to believe that the
crime charged may have been committed by the defendant.’” People
v. Nichelson, 219 P.3d 1064, 1066-67 (Colo. 2009) (quoting Rex v.
Sullivan, 194 Colo. 568, 571, 575 P.2d 408, 410 (1978)).
¶ 22 But the right to a preliminary hearing is not absolute. People
v. Moody, 630 P.2d 74, 76 (Colo. 1981); see Crim. P. 5(a)(4)(I)
(providing that the defendant or prosecution must request a
8
preliminary hearing within seven days of the defendant being
brought before the county court).
¶ 23 A defendant who seeks appellate review of a court’s denial of
his or her request for a preliminary hearing must do so before trial
because, if the defendant is convicted at trial, the alleged error in
denying the preliminary hearing becomes moot. Nichelson, 219
P.3d at 1067; see Kuypers v. Dist. Court, 188 Colo. 332, 335, 534
P.2d 1204, 1206 (1975) (“Resolution of [probable cause] questions
must be made prior to trial in order to avoid the anomalous
situation where a defendant may be found guilty at trial, and then
attempt to have the conviction reversed for a preliminary hearing on
probable cause.”). The proper procedure for seeking such review is
a C.A.R. 21 petition to the supreme court. Nichelson, 219 P.3d at
1066-67; Kuypers, 188 Colo. at 335, 534 P.2d at 1206.
2. Analysis
¶ 24 We do not reach the merits of Gillis’s contention that the court
denied his right to a preliminary hearing because we conclude the
issue is moot. Although Gillis repeatedly requested a preliminary
hearing and objected to the court’s finding that he had waived his
right to one, he did not seek relief under Rule 21 before his case
9
proceeded to trial. Thus, he failed to pursue the only remedy
available to him. See Nichelson, 219 P.3d at 1066-67. It is too late
for him to challenge whether there was probable cause to support
the first degree burglary charge after a jury found beyond a
reasonable doubt that he committed the offense. Nor can he
challenge whether there was probable cause to support the second
degree assault charge because a jury found beyond a reasonable
doubt that he also committed the lesser included charge of third
degree assault. See id.; Kuypers, 188 Colo. at 335, 534 P.2d at
1206; see also Blue v. United States, 342 F.2d 894, 901 (D.C. Cir.
1964) (“Where, as here, the accused has been found guilty of those
charges in a full-scale trial that we have otherwise found to be free
of error, the chances that he could persuade a magistrate that no
probable cause exists . . . are perhaps not ungenerously to be
characterized as speculative.”).
C. The Court Erred When It Did Not Merge Gillis’s Conviction for
First Degree Criminal Trespass, but Not His Conviction for
Third Degree Assault, Into His Conviction for First Degree
Burglary
¶ 25 Gillis argues that the elements of first degree burglary
encompass the elements of first degree criminal trespass and third
10
degree assault. For this reason, he contends that the court erred
by sua sponte failing to merge his convictions for first degree
criminal trespass and third degree assault into his conviction for
first degree burglary. The People concede, and we agree, that his
conviction for first degree criminal trespass merges with his
conviction for first degree burglary. Thus, we vacate his conviction
for first degree criminal trespass. We disagree, however, that
Gillis’s conviction for third degree assault merges because his
multiple assaults against E.G support his convictions of the two
separate offenses.
1. Standard of Review
¶ 26 “Whether convictions for different offenses merge is a question
of law that we review de novo.” Page v. People, 2017 CO 88, ¶ 6,
402 P.3d 468, 469. If a defendant fails to preserve a double
jeopardy claim based on merger, we review for plain error.
Reyna-Abarca v. People, 2017 CO 15, ¶ 46, 390 P.3d 816, 823.
“Errors that so undermine the fundamental fairness of the trial as
to cast serious doubt on the reliability of the judgment of conviction
constitute plain error.” People v. Vigil, 127 P.3d 916, 929-30 (Colo.
2006). “In the double jeopardy context, the answer [to whether
11
plain error occurred] would invariably be ‘yes’” if the defendant was
convicted multiple times for the same conduct. People v. Tillery,
231 P.3d 36, 48 (Colo. App. 2009), aff’d sub nom. People v. Simon,
266 P.3d 1099 (Colo. 2011).
2. Legal Authority
¶ 27 The Double Jeopardy Clauses of the United States and
Colorado Constitutions and the doctrine of merger protect an
accused “against multiple punishments for the same offense,”
unless the General Assembly “specif[ied] multiple punishments
based upon the same criminal conduct.” Woellhaf v. People, 105
P.3d 209, 214 (Colo. 2005) (quoting Whalen v. United States, 445
U.S. 684, 688 (1980)); see U.S. Const. amends V, XIV; Colo. Const.
art. II, § 18; People v. Delci, 109 P.3d 1035, 1036 (Colo. App. 2004)
(discussing the merger doctrine).
¶ 28 The General Assembly has determined that “a defendant may
not be convicted of two offenses for the same conduct if the lesser
offense is included in the greater.” Page, ¶ 9, 402 P.3d at 470; see
§ 18-1-408(1)(a), C.R.S. 2019. We apply the statutory elements test
articulated in Reyna-Abarca to determine whether an offense is a
lesser included offense of another. Page, ¶ 9, 402 P.3d at 470. The
12
statutory elements test provides 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.” Reyna-Abarca, ¶ 64, 390 P.3d at
826. If the statutory elements test is satisfied, the lesser offense
merges into the greater offense. Id. at ¶ 79, 390 P.3d at 827-28.
¶ 29 However, “[m]ultiple convictions for two separate offenses the
elements of one of which constitute a subset of the elements of the
other can clearly stand if the offenses were committed by distinctly
different conduct.” People v. Rock, 2017 CO 84, ¶ 17, 402 P.3d 472,
478. And a defendant may be convicted separately for the same
offense if he or she committed the offense more than once. Id.
Under either circumstance, a defendant may be convicted of both
offenses only if (1) “the unit of prosecution prescribed by the
legislature permits the charging of multiple offenses” and (2) “the
evidence in support of each offense justifies the charging of distinct
offenses.” Quintano v. People, 105 P.3d 585, 590 (Colo. 2005)
(citing Woellhaf, 105 P.3d at 214).
13
¶ 30 The unit of prosecution is “the manner in which a criminal
statute permits a defendant’s conduct to be divided into discrete
acts for purposes of prosecuting multiple offenses. Once the
General Assembly prescribes the unit of prosecution, the
prescription determines the scope of protection offered by the
Double Jeopardy Clause.” Woellhaf, 105 P.3d at 215 (citations
omitted). “To determine the unit of prosecution, we look exclusively
to the statute and, where possible, seek to discern the legislative
intent from the plain and ordinary meaning of the statutory
language.” People v. McMinn, 2013 COA 94, ¶ 21, 412 P.3d 551,
558.
¶ 31 After identifying the unit of prosecution, “we then examine the
evidence to determine whether the defendant’s conduct constituted
factually distinct offenses.” Id. at ¶ 22, 412 P.3d at 558. When
determining whether a course of conduct constituted a single
offense or multiple offenses, we consider the following
nonexhaustive list of factors:
(1) whether the acts occurred at different times
and were separated by intervening events; (2)
whether there were separate volitional acts or
new volitional departures in the defendant’s
course of conduct; and (3) factors such as
14
temporal proximity, the location of the victim
(e.g., if the victim was moved), the defendant’s
intent as indicated by his or her conduct and
utterances, and the number of victims.
Id.; see also Quintano, 105 P.3d at 591-92; Woellhaf, 105 P.3d at
219. We also consider whether the prosecution treated the
defendant’s acts as legally separable. Quintano, 105 P.3d at 592.
Ultimately, the critical inquiry is “whether the evidence on which
the jury relied for conviction was sufficient to support distinct and
separate offenses.” Id.
3. The Court Erred in Failing to Merge Gillis’s Conviction for First
Degree Criminal Trespass into His Conviction for First Degree
Burglary
¶ 32 Gillis contends, the People concede, and we agree that,
pursuant to the statutory elements test, first degree criminal
trespass is a lesser included offense of first degree burglary. Thus,
the court’s failure to merge his conviction for first degree criminal
trespass into his conviction for first degree burglary amounted to
plain error.
¶ 33 In holding that first degree criminal trespass is a lesser
included offense of first degree burglary, we recognize that we
depart from decisions of other divisions that took a different
15
position. See, e.g., People v. Lucas, 232 P.3d 155, 168 (Colo. App.
2009) (“First degree criminal trespass is not a lesser included
offense of first degree burglary, because it requires entry into a
dwelling, which is not an element of burglary by statute or as
charged and instructed here.”); see also People v. Garcia, 940 P.2d
357, 362 (Colo. 1997) (holding that “first degree criminal trespass is
not a lesser included offense of second degree burglary”). However,
we conclude that the Colorado Supreme Court’s analysis in Rock,
which post-dates these cases, compels the conclusion that first
degree criminal trespass is a lesser included offense of first degree
burglary.
¶ 34 The Colorado Supreme Court specified the test for determining
whether an offense is a lesser included offense in Reyna-Abarca and
clarified the relationship between criminal trespass and burglary in
Rock. See Rock, ¶ 20, 402 P.3d at 479 (holding that second degree
criminal trespass is a lesser included offense of second degree
burglary); Reyna-Abarca, ¶ 59, 390 P.3d at 825-26 (explaining that
the “prior articulations of the strict elements test have not provided
. . . clear and consistent guidance,” thereby requiring the supreme
court to adopt a standard that can be uniformly applied); see also
16
People v. Smoots, 2013 COA 152, ¶ 20, 396 P.3d 53, 57 (“We are not
obligated to follow the precedent established by another division [of
the court of appeals], even though we give such decisions
considerable deference.”), aff’d sub nom. Reyna-Abarca, 2017 CO
15, 390 P.3d 816.
¶ 35 In Rock, the court noted that “[s]econd degree burglary is
committed by . . . knowingly entering or remaining unlawfully in a
‘building or occupied structure,’” which includes a “dwelling.” ¶ 20,
402 P.3d at 479 (quoting § 18-4-203(1), C.R.S. 2019); see
§ 18-4-101(1), C.R.S. 2019. It also explained that “second degree
criminal trespass is committed by, among various other means of
commission, knowingly entering or remaining unlawfully in or upon
‘the premises of another,’” which includes “buildings.” Rock, ¶ 20,
402 P.3d at 479 (quoting § 18-4-503(1)(a), C.R.S. 2019); see
§ 18-4-504.5, C.R.S. 2019. The court then held that
[w]hile second degree criminal trespass may be
committed in ways other than unlawfully
entering or remaining in or upon the premises
of another and, in fact, the premises at issue
in criminal trespass need not even be a
building, much less a dwelling, with reference
to the element at issue here the commission of
second degree criminal trespass requires no
more than knowingly and unlawfully entering
17
or remaining in the dwelling of another, a
subset of the statutory elements of second
degree burglary.
Rock, ¶ 20, 402 P.3d at 479.
¶ 36 As pertinent here, section 18-4-202(1) provides that a
conviction for first degree burglary requires proof, among other
things, that the defendant (1) knowingly (2) entered unlawfully, or
remained unlawfully after a lawful or unlawful entry, (3) in a
building or occupied structure. See also Lucas, 232 P.3d at 166-67.
Section 18-4-502, C.R.S. 2019, similarly provides that a conviction
for first degree criminal trespass requires proof that the defendant
(1) knowingly and (2) unlawfully (3) entered or remained in a
dwelling of another. See also People v. Hanna, 981 P.2d 627, 629
(Colo. App. 1998) (discussing the elements of first degree criminal
trespass and the meaning of “dwelling”).
¶ 37 Like the second degree criminal trespass offense discussed in
Rock, the elements of first degree criminal trespass are knowingly
and unlawfully entering or remaining in the dwelling of another.
These elements are a subset of the elements of first degree burglary.
Thus, first degree criminal trespass is a lesser included offense of
first degree burglary. See Reyna-Abarca, ¶ 64, 390 P.3d at 826.
18
¶ 38 Because the record contains no evidence that Gillis’s conduct
could be sufficiently differentiated to support a conviction for each
offense, the court plainly erred in failing to merge his conviction for
first degree criminal trespass into his conviction for first degree
burglary. See id. at ¶¶ 80-82, 390 P.3d at 828; Tillery, 231 P.3d at
48. Accordingly, we vacate Gillis’s conviction and sentence for first
degree criminal trespass. However, we do not remand for
resentencing because the court imposed identical and concurrent
sentences for each of Gillis’s convictions. See People v. Berner, 42
Colo. App. 520, 522, 600 P.2d 112, 114 (1979); see also People v.
Fuentes, 258 P.3d 320, 326 (Colo. App. 2011) (“[A] court should
enter as many convictions and impose as many sentences as are
legally possible so as to fully effectuate the jury’s verdict.”).
4. The Court Did Not Err in Holding that Gillis’s Convictions for
Third Degree Assault and First Degree Burglary Did Not Merge
¶ 39 Given that the prosecution charged him with third degree
assault as the predicate offense for his first degree burglary charge,
Gillis contends that the court erred in failing sua sponte to merge
his conviction for third degree assault into his conviction for first
degree burglary. We disagree.
19
¶ 40 Gillis is correct in asserting that section 18-4-202(1), which
establishes the unit of prosecution, does not authorize separate
punishments for first degree burglary and its predicate offense. See
§ 18-4-202(1) (assault is one of the predicate offenses for first
degree burglary); Delci, 109 P.3d at 1037-38. However, “[s]eparate
convictions for even the same offense are permissible if it was
committed more than once.” Rock, ¶ 17, 402 P.3d at 478; see
Quintano, 105 P.3d at 592 (upholding the defendant’s five
convictions because sufficiently distinct evidence supported each
conviction). Thus, we consider whether Gillis assaulted E.G. more
than once. If so, one assault would be the predicate offense for his
burglary conviction and the other assault would support a separate
conviction for assault.
¶ 41 Although we cannot determine from the record the court’s
reasoning in not merging Gillis’s convictions for first degree
burglary and third degree assault, we conclude that this decision
was correct because Gillis assaulted E.G. twice. See Rush Creek
Sols., Inc. v. Ute Mountain Ute Tribe, 107 P.3d 402, 406 (Colo. App.
2004) (holding that an appellate court may affirm the trial court’s
ruling on any grounds supported by the record).
20
¶ 42 We primarily base our reasoning on two cases: Quintano and
Qureshi v. District Court, 727 P.2d 45 (Colo. 1986). In Quintano, the
supreme court affirmed the defendant’s five convictions for sexual
assault on a child based on evidence that he followed the victim
around her aunt’s home and (1) touched her breast in the living
room; (2) touched her vaginal area at the home’s pool; (3) touched
her buttocks in the bathroom; (4) touched her breast in the
bathroom; and (5) bit her breast in the living room. 105 P.3d at
588-89, 592. It reasoned that
[t]he record evidences that the defendant had
sufficient time to reflect after each encounter.
He persisted after the victim admonished him
to stop several times. Each incident occurred
in a different location [of the home], or after
the victim had left a location and returned
there. As well, the record reflects sufficient
breaks between each incident to allow the
defendant time to reflect. Moreover, the
defendant’s statements supported the forming
of renewed intentions. Though the record does
not disclose specifically how long each incident
lasted, the facts prove that the defendant’s
conduct was separate in temporal proximity
and constituted a new volitional departure in
his course of conduct.
Id. at 592. The court also noted that the prosecution treated the
defendant’s acts as legally separable by charging him with five
21
counts and arguing in support of all the counts during the
preliminary hearing. Id.
¶ 43 In Qureshi, the supreme court upheld the defendant’s
convictions for attempted manslaughter and first degree assault
because “there were two separate and different sets of acts which
occasioned two crimes.” 727 P.2d at 47. It held that the evidence
at trial supported the defendant’s conviction for first degree assault
because he stabbed the victim in the abdomen and his conviction
for attempted manslaughter because, after the victim escaped the
initial assault, he pursued her to a separate room and stabbed her
again. Id.
¶ 44 For four reasons, we discern no meaningful difference between
the facts supporting Gillis’s convictions for first degree burglary and
third degree assault and the facts supporting the defendants’
multiple convictions in Quintano and Qureshi.
¶ 45 First, Gillis’s conduct occurred at different times and was
separated by intervening events. Gillis initially assaulted E.G. by
smothering her after throwing her on the floor and on her bed.
Then, after E.G. managed to escape to the bathroom, text her friend
for help, and emerge from the bathroom, Gillis slammed her head
22
into a wall, dragged her down the hallway, and choked her with a
towel. Thus, like the defendants in Quintano and Qureshi, Gillis
engaged in an initial criminal act, allowed the victim to leave the
immediate area, and then committed another criminal act against
the same victim after a short period of time.
¶ 46 Second, Gillis engaged in separate volitional acts during his
assaults on E.G. E.G. yelled at Gillis to stop throughout the entire
episode — before he kicked down her door and while in her
apartment. Therefore, like the defendant in Quintano, Gillis knew
that the victim opposed his actions, but proceeded anyway. 105
P.3d at 592. Moreover, while E.G. was in the bathroom, Gillis had
sufficient opportunity to reflect on his course of conduct. See id.;
Qureshi, 727 P.2d at 47.
¶ 47 Third, Gillis’s conduct supported the formation of renewed
intentions to assault E.G. He assaulted her at different locations
within her apartment. As noted above, after E.G. temporarily
escaped to the bathroom, Gillis had time to reflect on his actions.
Instead of leaving the apartment or de-escalating the situation, he
hit or kicked the bathroom door until E.G. emerged, slammed her
head into a wall, dragged her across the floor, and choked her with
23
a towel. And, this time, the assault occurred in the hallway and in
the kitchen of E.G.’s apartment, instead of near the front door and
in the bedroom. See Quintano, 105 P.3d at 592; Qureshi, 727 P.2d
at 47.
¶ 48 Lastly, although the prosecutor did not clearly argue that each
of Gillis’s acts (and E.G.’s corresponding injuries) fit into one of two
distinct assaults, Gillis was charged with first degree burglary and
second degree assault. The prosecutor consistently asserted that
Gillis committed all the charged offenses. Thus, the prosecution
treated Gillis’s assaults as legally separable. See Quintano, 105
P.3d at 592.
¶ 49 Because each of the four factors supports our conclusion that
Gillis assaulted E.G. twice and because “the evidence on which the
jury relied for conviction was sufficient to support distinct and
separate offenses,” id., we hold that the court did not err in entering
the convictions for first degree burglary and third degree assault.
III. Conclusion
¶ 50 Gillis’s conviction for first degree criminal trespass is vacated.
We affirm his convictions for first degree burglary and third degree
assault.
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JUDGE FOX and JUDGE BERGER concur.
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