This case principally presents two double jeopardy questions: (1) whether the child abuse statute, CRS § 18-6-401, prescribes more than one unit of prosecution and whether the prosecution presented sufficient evidence to establish that defendant committed more than one crime of child abuse; and (2) whether child abuse resulting in death under CRS § 18-6-401(1)(a) and (7)(a)(1) is a lesser included offense of first-degree murder of a child under CRS § 18-3-102(1)(f) (“child abuse murder”).

As to the first double jeopardy question presented here, applying the principles set forth in Schneider v. People, 382 P.3d 835, 839 (Colo. 2016), and People v. Abiodun, 111 P.3d 462, 466–68 (Colo. 2005), the Supreme Court concluded that the division below correctly determined that CRS §18-6-401 creates one crime of child abuse that can be committed in alternative ways. The question thus becomes whether the prosecution proved separate counts of child abuse. The Court again agreed with the division and concluded that the prosecution did not do so, and thus each of the child abuse convictions must merge into one conviction for child abuse resulting in death.

As to the second double jeopardy question at issue, the Court concluded for two reasons that the division erred in determining that defendant’s merged child abuse resulting in death conviction does not merge into his child abuse murder conviction. First, the plain language of the applicable statutes shows that “[w]hen a person knowingly causes the death of a child who has not yet attained twelve years of age and the person committing the offense is one in a position of trust with respect to the child,” that person is to be convicted of child abuse murder and not child abuse resulting in death. CRS § 18-6-401(7)(c). Second, under the clarified principles set forth in People v. Rock, 402 P.3d 472 (Colo. 2017), and Page v. People, 402 P.3d 468 (Colo. 2017), which were announced after the division’s decision in this case, child abuse resulting in death is a lesser included offense of child abuse murder.

Having determined that the trial court erred in not merging the various counts in this case, the question remained whether these errors were plain. The Court concluded that they were and therefore affirmed in part and reversed in part the division’s judgment.

In this direct appeal, the Supreme Court reviewed the water court’s contempt order, which imposed punitive and remedial sanctions on defendant. The water court determined that defendant was responsible for work performed on his property, the Sease Ranch, which caused out-of-priority depletions of water from Sheep Creek in violation of a court order. In its ruling, the water court inferred from defendant’s ownership of the Sease Ranch that he, not someone else, was responsible for the contemptuous work.

The Court concluded that the water court had ample evidence to find that defendant is the owner of the Sease Ranch. Further, the Court determined that the water court did not shift the burden of proof to defendant. The water court was entitled to draw reasonable and commonsense inferences from the circumstances before it. Thus, it was appropriate for the water court to consider the lack of evidence, and the corresponding improbability, that someone else entered the Sease Ranch and performed the contemptuous work without defendant’s authorization.

Accordingly, the water court’s judgment was affirmed.