concurring in part and dissenting in part.
I. Introduction
The majority affirms the conviction of defendant, Ezequiel Esparza-Treto (Esparza), for first degree assault with extreme indifference, but concludes there was insufficient evidence to sustain his convictions for one count of second degree reckless assault and one count of third degree assault. However, all three assault convictions were based on Esparza's collision with another vehicle, which caused serious bodily injury to both Esparza's passenger and the driver of the other vehicle, and even though the language of the three assault statutes differs, I respectfully conclude there was sufficient evidence to sustain Esparza's three assault convictions.
Nevertheless, I would vacate Esparza's conviction for third degree assault, because I agree with his contention that his convictions for third degree assault and vehicular assault on his passenger are legally and logically inconsistent. I therefore address that argument below, particularly because Esparza argues that if his contention is correct, the convictions for both offenses must be vacated. In addition, I address two other merger issues raised by Esparza, which the majority does not address because of its reversal of Esparza's convictions for second and third degree assault. I also address, but reject, Esparza's contention that the trial court abused its discretion when it imposed a sentence for his second degree assault conviction to run consecutively to his sentence for his first degree assault conviction. Because of its reversal of the second degree assault conviction, the majority does not address this issue.
Finally, I note that I agree with the majority's analysis of the sufficiency of the evidence concerning first degree assault (part ILB), merger (part III), jury instruction (part IV), and correction of the mittimus (part V).
II. Sufficiency of the Evidence
Esparza contends that the evidence at trial was insufficient to prove beyond a reasonable doubt that he committed the crimes of first, second, and third degree assault. As noted, I agree with the majority's analysis that Es-parza's first degree assault conviction should be affirmed, but I disagree with its reversal of his convictions for second and third degree assault.
A. Standard of Review
I agree with the majority's recitation of the standard of review, especially the principles that we must view the evidence in the light most favorable to the prosecution and that the prosecution must be given the benefit of every reasonable inference that may be fairly drawn from the evidence. See People v. Sprouse, 983 P.2d 771, 777-78 (Colo.1999).
B. Second and Third Degree Assault
A person commits the crime of second degree reckless assault when he or she recklessly causes serious bodily injury to another person by means of a deadly weapon. 18-3-208(1)(d), C.R.98.2010.
A person commits the crime of third degree assault when he or she "knowingly or recklessly causes bodily injury to another person or with eriminal negligence causes bodily injury to another person by means of a deadly weapon." 18-3-204(1)(a), C.R.S.2010. Although this offense contains three different mens reas, here, the jury was instructed only with respect to the mens rea of criminal negligence.
Relying on People v. Stewart, 55 P.3d 107, 112 (Colo.2002), the majority concludes that there was insufficient evidence to show that Esparza used his motor vehicle as a deadly weapon. Specifically, the majority concludes that unlike the defendant in Stewart, there was no evidence that he actually used or *482intended to use his motor vehicle as a weapon.
I disagree with the majority's analysis for three reasons. First, I disagree that principles of statutory construction lead to the majority's conclusion that a defendant must use a motor vehicle "in connection with as-saultive conduct directed toward an intended opponent or adversary." Second, under the applicable principles, there was sufficient evidence that Esparza caused both serious bodily injury and bodily injury to the victims by means of a deadly weapon. Third, the Stewart court already has rejected the argument that convicting an individual of both second degree reckless assault and reckless vehicular assault violates a defendant's right to equal protection, and, in my view, its analysis similarly applies to the majority's equal protection concern regarding the offenses of see-ond degree reckless assault and reckless driving under section 424-1401, C.R.8.2010.
1. Statutory Interpretation
Statutory interpretation is question of law that appellate courts review de novo. People v. Disher, 224 P.3d 254, 256 (Colo.2010). When conducting statutory interpretation, a court's task is to give effect to the intent of the General Assembly and the purpose of the statute's legislative scheme. In so doing, a reviewing court considers the statute as a whole, giving consistent, harmonious, and sensible effect to all its parts. Moffett v. Life Care Ctrs., 219 P.3d 1068, 1072 (Colo.2009).
A reviewing court first looks to the plain language of the statute and, if the statutory language is clear and unambiguous, the court applies it as written without resorting to interpretive rules of statutory construction. In re Marriage of Rozzi, 190 P.3d 815, 824 (Colo.App.2008).
Both the second and third degree assault statutes require that a person cause bodily injury or serious bodily injury by means of a deadly weapon. The term "deadly weapon" is defined by statute.
Each of the following is a deadly weapon when it is used or intended to be used in a manner "capable of producing death or serious bodily injury: (I) A firearm, whether loaded or unloaded; (II) [a] knife; (ID) [a] bludgeon; or (IV) [alny other weapon, device, instrument, material, or substance, whether animate or inanimate." 18-l-901(8)(e)(I)-(IV), C.R.8.2010..
"We have consistently analyzed whether objects are deadly weapons by evaluating the manner in which the objects are used." People v. Ross, 831 P.2d 1310, 1312 (Colo.1992). "[Any object can be a deadly weapon if it is used in a manner capable of producing death or serious bodily injury." Stewart, 55 P.3d at 117 (quoting People v. Saleh, 45 P.3d 1272, 1275 (Colo.2002)).
To determine whether an object is a deadly weapon, courts apply a two-step test: (1) the object must be used or intended to be used as a weapon; and (2) the object must be capable of causing serious bodily injury. Stewart, 55 P.8d at 117.
Under the first step as applicable here, a driver must use or intend to use a motor vehicle as a weapon. Id. Relying on the dictionary definition of "weapon" and case law, the majority concludes that to be a deadly weapon, "an object must be used in connection with assaultive conduct directed toward an intended opponent or adversary."
In my view, this interpretation does not give harmonious, consistent, and sensible effect to the overall statutory scheme.
As noted above, a person commits the crime of second degree reckless assault when he or she recklessly causes serious bodily injury to another person by means of a deadly weapon. 18-3-208(1)(d). Certain objects, such as cars, may be, deadly weapons if the manner in which they are used or capable of being used is capable of producing death or serious bodily injury. 18-1-901(8)(e). A person acts recklessly when he or she "consciously disregards a substantial and unjustifiable risk that a result will occur or that a cireumstance exists." 18-1-501(8), C.R.8.2010 (emphasis added). Reading these three statutes together, I conclude the General Assembly intended that a person using a deadly weapon could be guilty of second degree reckless assault when he or she consciously disregards a substantial and unjustifiable *483risk of causing serious bodily injury without having "an intended opponent or adversary."
Clearly, a person driving a car, intending to use a car as a weapon, may be found guilty of second degree assault. See Stewart, 55 P.3d at 117. However, the General Assembly contemplated that a person who "used" a car, as a deadly weapon, without intending to do so, could also be found guilty of second degree assault. Otherwise, the meaning of "used" as opposed to "intended to use" would be rendered superfluous. See People v. Connors, 230 P.3d 1265, 1266 (Colo.App.2010).
Thus, in my view, a defendant could use an object, such as a car, as a deadly weapon, without intending to use it as a deadly weapon. This interpretation is plausible in' the context of second degree assault, where the mens rea of "recklessly" requires that a person consciously disregard a substantial and unjustifiable risk. Therefore, unlike the majority, I would conclude that a person could use a car as a weapon without having an intended opponent or adversary.
Accordingly, in most cases, whether a defendant "used" an object as a weapon will be a question for the fact finder to determine. As I conclude below, sufficient evidence established that Esparza used his car as a weapon, that the car was capable of producing serious bodily injury, that the car was therefore a deadly weapon, and that Esparza was guilty of second degree assault.
I would reach the same conclusion with regard to third degree assault, which, as charged here, required a mens rea of criminal negligence. Criminal negligence is defined as follows: "A' person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a cireumstance exists." 18-1-501(8), C.R.S.2010. It is even more unlikely with regard to third degree assault and a mens rea of criminal negligence that a defendant would have an intended opponent or adversary when that defendant fails to perceive a substantial and unjustifiable risk of causing bodily injury. Rather, as with second degree assault, the General Assembly recognized that an object not typically considered a weapon could be used as a weapon and also be a "deadly weapon" for purposes of third degree assault, even if the defendant did not intend to use the object as a weapon.
Contrary to the majority's view, I do not believe my analysis conflates the applicable mens rea with the applicable actus reus. As discussed above, the General Assembly intended that one could be found guilty of second and third degree assault when his or her conduct was based on the mens rea of reckless or criminally negligent conduct. The actus reus, in contrast, requires a determination that a person used or intended to use an object as a deadly weapon. While an intent to use an object as a deadly weapon may contemplate the presence of "an intended opponent or adversary," the mere use of an object as a deadly weapon does not. Thus, separate analysis of the mens rea and the actus reus for second and third degree assault is consistent with my statutory analysis.
In sum, I conclude that a defendant may be convicted of second or third degree assault without any requirement that the defendant use a particular object "in connection with assaultive conduct directed toward an intended opponent or adversary."
The People do not contend that Esparza intended to use his vehicle as a weapon, nor does Esparza dispute that his vehicle was an object capable of causing serious bodily injury. Thus, the dispositive issue, to which I now turn, is whether Esparza used his vehicle as a deadly weapon in the cireumstances of this case.
2. Vehicle Used as a Deadly Weapon
At trial, the primary issue with respect to the second and third degree assault offenses was whether Esparza used his motor vehicle as a deadly weapon.
In reviewing the sufficiency of the evidence, we must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. Sprouse, 983 P.2d at 777. Also, the prosecution must be given the benefit 'of *484every reasonable inference that might fairly be drawn from the evidence. People v. MeIntier, 134 P.3d 467, 471 (Colo.App.2005).
Significantly, during the closing arguments in this case, the prosecutor focused on whether Esparza was using his vehicle as a deadly weapon. The prosecutor argued as follows with regard to the charge of second degree assault:
I think in this day and age, it goes without saying that an automobile can be a deadly weapon, and just assuredly as defendant was pointing a gun that day, he wasn't, but if he was pointing a gun, driving a vehicle in the manner he was driving it, it is like holding a loaded weapon and shooting it, because sooner or later in the 5.7 mile chase, he was going to put one person or many people at risk of death or serious bodily injury. That is a deadly weapon, the way he was driving his car on the day in question, and again, he doesn't even have to intend for that to be the actions. It just has to be used in that manner, and you can think about that when you think about his driving behavior, reckless all the way. 5.7 miles of reckless, high speed driving.
Thus, the prosecutor clearly presented to the jury the question of whether Esparza was using his motor vehicle as a deadly weapon. Just as the majority concludes with respect to first degree assault that the evidence shows that Esparza knowingly engaged in conduct that created a grave risk of death to those around him and ultimately caused a collision that resulted in serious bodily injury to two other people, I would conclude that the evidence clearly supports the jury's finding that Esparza also acted recklessly and with criminal negligence, using his vehicle as a deadly weapon to cause serious bodily injury and bodily injury. Thus, I would conclude that the record supports Esparza's convictions for second and third degree assaults.
3. Equal Protection
Finally, I disagree with the majority's suggestion that affirming Esparza's conviction for second degree reckless assault would result in virtually every reckless driving incident resulting in serious bodily injury or bodily injury subjecting the driver to convietion for second or third degree assault. According to the majority, this interpretation "may well implicate equal protection concerns."
However, in my view, such concerns are unfounded, because the Stewart court squarely rejected the defendant's similar argument there that his right to equal protection was violated because the statutes governing vehicular assault and reckless second degree assault with a deadly weapon proscribed the same conduct but mete out disparate punishments. In part IV.B.1 of my opinion below, discussing one of the merger issues, I set forth the reasons the Stewart court rejected the equal protection contention.
In any event, even if drivers charged with reckless driving will be subject to conviction for second or third degree assault, that result is consistent with the intent of the General Assembly to punish different conduct under each statute. In addition, some reckless driving offenses do not involve serious bodily injury. For example, a person driving a motor vehicle at an excessive rate of speed through a deserted stretch of highway during a time when he or she is unlikely to encounter another person or driver may drive recklessly, but might not commit an assault.
4. Conclusion
Accordingly, I conclude that the evidence at trial was sufficient to prove beyond a reasonable doubt that Esparza committed the crimes of second and third degree assault.
III. Legal Consistency
Because the majority concludes that Es-parza's conviction for third degree assault must be set aside, it does not address his contention that his convictions for third degree assault and vehicular assault on his passenger are legally and logically inconsistent, so that both convictions must be vacated. Even though I have concluded above that there was sufficient evidence to support Esparza's conviction for third degree assault, *485I agree that his convictions for third degree assault and vehicular assault are legally and logically inconsistent. However, I disagree that both convictions must be vacated and would vacate only the third degree assault conviction.
Esparza argues that the different mens rea elements for these two offenses cause them to be legally and logically inconsistent. He contends that he cannot have both a reckless and a negligent mens rea while committing the same act. I agree.
Esparza's convictions required two different mens rea findings. His vehicular assault conviction required evidence that he drove a motor vehicle in a reckless manner, 18-3-205(1)(a), C.R.S.2010, while his third degree assault conviction required evidence that he used a deadly weapon in a criminally negligent manner, 18-3-204(1)(a)1
A person acts recklessly when he or she "consciously disregards a substantial and unjustifiable risk that a result will occur or that a cireumstance exists." 18-1-501(8) (emphasis added). That is, a person acts recklessly despite being aware of a risk or cireum-stance. A person acts with criminal negli-genee when, "through a gross deviation from the standard of care that a reasonable person would exercise, he [or she} fuils to perceive a substantial and unjustifiable risk that a result will occur or that a cireumstance exists." 18-1-501(8) (emphasis added). That is, a person acts in a criminally negligent manner when, by virtue of his or her own unreasonable conduct, he or she is unaware of a risk or circumstance. §
Esparza asserts that a person cannot simultaneously perceive a substantial and unjustifiable risk of injuring another person and not perceive that same substantial and unjustifiable risk; thus, it is logically impossible for a person to possess both a reckless and a negligent mens rea at the same time. He contends that because the jury's finding of a reckless mens rea for the vehicular assault negates the criminally negligent mens rea for the third degree assault, the two verdicts are inconsistent. I agree.
A person can be prosecuted for multiple crimes where his or her conduct establishes the commission of more than one crime. People v. Beatty, 80 P.3d 847, 853 (Colo.App.2003). Generally, consistency among verdicts is not necessary; however, where a defendant is found guilty of two crimes and an element of one crime negates an element of another crime, guilty verdicts on both crimes are legally and logically inconsistent and should not be sustained. People v. Frye, 898 P.2d 559, 569 n. 13 (Colo.1995). Inconsistency is generally some logical impossibility which can arise from either factual or legal considerations. Id. at 567 n. 9.
I conclude that a defendant cannot have both a reckless mens rea and a negligent mens rea with respect to the same conduct. Id.
Nevertheless, relying on Candelaria v. People, 148 P.3d 178, 182-83 (Colo.2006), and People v. Sanchez, 253 P.3d 1260, 1264 (Colo.App.2010), the People maintain that convie-tions for two crimes arising from the same act are not necessarily inconsistent solely because each crime requires a different mental state. I conclude that both cases are distinguishable.
In Candelaria, the supreme court concluded that abundant evidence supported the conclusion that the defendant and those in his car specifically intended to kill one individual, thereby supporting a conviction for murder after deliberation, while other evidence supported the conclusion that the defendant and his confederates fired numerous shots in the direction of other individuals. they did not know, thereby supporting the conclusion that the defendant acted with extreme indifference as to those victims. Candelaria, 148 P.3d at 188. Here, in contrast, the reckless and negligent mental states are inconsistent with one another because the conduct was directed at the same victim.
In Sanchez, a division of this court concluded that defendant's convictions for attempted first degree murder and first and *486second degree assault were not inconsistent because an intent to cause serious bodily injury or bodily injury is not necessarily an intent to cause only serious bodily injury or bodily injury. Thus, the division concluded that the defendant could have possessed the intent to cause death, serious bodily harm, and bodily harm at the same time. Sanches, 253 P.3d at 1264. Here, however, Esparza could not have acted recklessly and negligently with respect to the same conduct because the mens reas for those offenses are logically inconsistent.
Having concluded that Esparza's convie-tions for vehicular assault and third degree assault are inconsistent, I next consider the appropriate remedy.
In Candelaria, the supreme court noted that because it had concluded that the jury findings there were neither logically, nor legally inconsistent, it did not need to decide the appropriate remedy for a jury's special findings that could not logically be based on the same evidence. Candelaria, 148 P.3d at 183. In Frye, the supreme court noted that when verdicts are found to be logically and legally inconsistent, they "should not be sustained." Frye, 898 P.2d at 569 n. 18. However, the Frye court did not explain what the appropriate remedy would be in such cireum-stances. Instead, the court cited numerous cases in which different remedies had been provided. Compare Thomas v. United States, 314 F.2d 936, 939 (5th Cir.1963) (only one guilty verdict will be sustained), and People v. Atkins, 844 P.2d 1196, 1202 (Colo.App.1992) (facially inconsistent convictions cannot result in the conviction of more than a single offense or the imposition of more than a single punishment), abrogated by Candelaria, 148 P.3d at 183, with United States v. Daigle, 149 F.Supp. 409, 414 (D.D.C.) (two inconsistent guilty verdicts may not stand), aff'd, 248 F.2d 608 (D.C.Cir.1957), and State v. Speckman, 326 N.C. 576, 580, 391 S.E.2d 165, 168 (1990) (where there are inconsistent verdicts, case must be remanded for new trial on both charges).
Nevertheless, I conclude that it is significant that both the supreme court and court of appeals in Candelaria cited People v. Glover, 893 P.2d 1311 (Colo.1995), where the supreme court held that when multiple convictions against a defendant may not stand, certain convictions should be vacated in a manner that will maximize the defendant's sentence in order to give the most effect to the jury's verdict. Here, I would reach that result by affirming Esparza's conviction for vehicular assault and vacating his conviction for third degree assault, since the former conviction resulted in a six-year sentence, while the latter resulted in a two-year sentence. This conclusion is supported by the record, which shows that there was sufficient evidence that Esparza drove his vehicle in a reckless manner, thereby causing his passenger serious bodily injury.
Accordingly, I would affirm Esparza's conviction of vehicular assault, while I would vacate his conviction for third degree assault on the basis that it is legally and logically inconsistent.
IV. Merger
Esparza next contends that the trial court erred when it failed to vacate five lesser offense convictions under the doctrine of merger. As noted above, I agree with the analysis of the two merger issues addressed by the majority in part III of its opinion. However, because I would not reverse Es-parza's convictions for second and third degree assault, I address two of his three other merger contentions. Specifically, I reject his contention that his vehicular assault convietion regarding one victim should, merge into his second degree reckless assault conviction regarding the same victim, and I reject his contention that his second degree reckless assault conviction should merge into his first degree extreme indifference assault conviction. Finally, I would not reach his contention that his third degree assault conviction regarding the passenger in his car should merge into his vehicular assault conviction regarding the same person because I would vacate the third degree assault conviction, as discussed above in part III of my opinion.
A. Standard of Review
I agree with the majority that we review de novo whether merger applies to criminal offenses because it is an issue of statutory *487interpretation. People v. Torres, 224 P.3d 268, 275 (Colo.App.2009). I also agree with the majority's recitation of the applicable substantive law.
B. Analysis
1. Second Degree Reckless Assault and Vehicular Assault
Esparza asserts that his vehicular assault conviction regarding the victim driving the other car should merge into his second degree reckless assault conviction regarding the same victim. I disagree.
A person commits second degree reckless assault when he or she (1) recklessly (2) causes injury to any person (8) by means of a deadly weapon. 18-3-203(1)(d). As relevant here, second degree reckless assault is a class four felony. 18-8-208(2)(b),
As noted, a person commits the erime of vehicular assault when he or she (1) recklessly operates or drives a motor vehicle and (2) is the proximate cause of serious bodily injury to another. 18-8-205(1)(a). Vehicular assault is a class five felony. 18-8-205(1)(c), C.R.8.2010.
In Stewart, 55 P.8d at 117-18, the Colorado Supreme Court addressed two issues related to second degree reckless assault and reckless vehicular assault, but did not address the issue of merger. First, the court held that the offenses of second degree reckless assault with a deadly weapon, when the deadly weapon is a car, and reckless vehicular assault do not prosecribe identical conduct and therefore conviction of both offenses did not violate the defendant's right to equal protection. Id. The court reasoned that the two statutes target different conduct and contain different elements of causation. Id. at 116. Second, the court held that the legislature did not intend to limit prosecution to the specific statute of vehicular assault in place of the general statute of second degree reckless assault. Id. at 118.
Comparing the elements of the statutes, the court made three distinctions. First, the court held that vehicular assault requires the defendant to drive or operate a motor vehicle, while second degree assault lacks any such requirement. Id. at 115-16. Second, the court differentiated vehicular assault's "proximate cause" requirement from second degree reckless assault's element of "causing" serious bodily injury. Id. at 116. Third, another primary difference between the statutes is "the means by which the defendant allegedly caused serious bodily injury." Id. Specifically, the court held that for vehicular assault, the defendant's reckless driving or operation of a motor vehicle must have proximately caused serious bodily injury, while second degree assault requires a defendant to use a "deadly weapon," and according to the court, a motor vehicle is not always a deadly weapon. Id. at 116-17.
The Stewart court did not discuss the issue of merger, but I do so now.
Employing the strict elements test, see People v. Garcia, 251 P.3d 1152, 1161 (Colo.App.2010), I conclude that vehicular assault is not a lesser included offense of second degree reckless assault. Second degree assault, as charged here, consists of three elements: (1) a reckless act; (2) causing injury to another person; (3) by means of a deadly weapon. 18-3-208(1)(d). Vehicular assault consists of (1) a reckless act; (2) proximately causing serious bodily injury to another person; (8) by means of operating or driving a motor vehicle. 18-8-205(1)(a).
Thus, vehicular assault requires the actor to operate or drive a motor vehicle, while second degree reckless assault as charged here did not require Esparza to use a motor vehicle. Also, second degree assault requires the use of a deadly weapon, while vehicular assault does not. As a result, each offense contains an element distinet from the other, and therefore, the strict elements test is not satisfied. Accordingly, vehicular assault is not a lesser included offense of see-ond degree reckless assault.
2. First Degree Assault with Extreme Indifference and Second Degree Reckless Assault
Esparza next argues that his second degree reckless assault conviction should merge into his first degree extreme indifference assault conviction. I disagree.
*488A person commits the crime of assault in the first degree with extreme indifference when (1) under circumstances manifesting extreme indifference to the value of human life, (2) he or she engages in conduct which creates a grave risk of death to another person and (8) thereby causes serious bodily injury to any person. 18-3-202(1)(c), C.R.S. 2010. First degree assault with extreme indifference is a class three felony. 18-3-202(2)(b), C.R.S.2010.
A person commits the crime of second degree reckless assault when he or she (1) recklessly causes serious bodily injury to another person (2) by means of a deadly weapon. 18-3-203(1)(d). As relevant here, second degree reckless assault is a class four felony. 18-8-208(2)(b).
A conviction for first degree assault with extreme indifference does not establish every element of second degree reckless assault. Second degree reckless assault requires the actor to use a deadly weapon, but first degree assault with extreme indifference does not have this requirement. Also, first degree assault with extreme indifference requires the actor to act under cireamstances manifesting extreme indifference to the value of human life, while second degree reckless assault lacks this element. Thus, each crime requires proof of a fact that the other does not, and, therefore, the two offenses do not merge.
V. Sentencing
As I noted above, because the majority reverses Esparza's conviction for second degree assault, it does not address his contention that the trial court abused its discretion when it imposed a sentence for a second degree assault conviction to run consecutively to his sentence for his first degree assault conviction. I address and reject that contention.
A. Standard of Review
An appellate court reviews for an abuse of discretion a trial court's decision to impose consecutive sentences based on a finding that separate evidence supports each conviction. People v. Bass, 155 P.3d 547, 554 (Colo.App.2006).
B. Analysis
When a defendant is convicted of multiple offenses, a sentencing court has discretion to impose consecutive or concurrent sentences. People v. Jurado, 30 P.3d 769, 772 (Colo.App.2001). However, section 18-1-408(8), C.R.S. 2010, mandates that a trial court impose concurrent sentences for offenses committed against a single victim when the counts are based on the same act or series of acts arising from the same criminal episode and the evidence supporting the counts is identical. Jurado, 30 P.3d at 772-78 (citing Qureshi v. Dist. Court, 727 P.2d 45 (Colo.1986)). Where multiple victims are involved, the court may, within its discretion, impose consecutive sentences. 18-1-408(8).
Evidence supporting different crimes is considered identical for purposes of section 18-1-408(8) when the same act or acts gave rise to both charges. People v. Dixon, 950 P.2d 686, 689 (Colo.App.1997). Whether evidence supporting multiple offenses is identical turns on "whether the charges result from the same act, so that the evidence of the act is identical, or from two or more acts fairly considered to be separate acts, so that the evidence is different." Juhl v. People, 172 P.3d 896, 902 (Colo.2007). The court must analyze the evidence to determine if the separate convictions were based on more than one distinct act, and if so, whether multiple acts were separated by time and place. Id. at 901. Further, the trial court must consider whether multiple victims were involved. 18-1-408(8).
Here, the jury returned one verdict form finding Esparza guilty of first degree assault for two victims. The jury also returned one verdict form finding Esparza guilty of second degree assault regarding the victim driving the other car. Esparza received consecutive sentences of twenty-four years for the count of first degree assault and six years for the count of second degree assault.
At the sentencing hearing, the trial court addressed Esparza's request for concurrent sentences regarding the two counts, and stated, "By law, I do not think I can do that for two reasons. First ... a person convicted of *489two or more separate crimes of violence arising out of the same incident shall be sentenced for such crimes so that the sentences are served consecutively rather than concurrently." The trial court further found that "count one [first degree assault] contains an additional vietim and therefore ... Juhl! does not apply" and "[the two counts] must be considered sentenced separately-consecutively."
I agree with the trial court that section 18-1-408(8) required consecutive sentences. Crimes of violence are "separate" and thus require consecutive sentencing when the evidence supporting the convictions is not identical within the meaning of section 18-1 408(8). Jurado, 30 P.8d at T73.
Here, the counts of first degree assault and second degree assault are not supported by identical evidence. First degree assault with extreme indifference requires the elements of extreme indifference to the value of human life, knowingly engaging in conduct which creates a grave risk of death to another person, and thereby causing serious bodily injury to any person." 18-8-202(1)(c). See-ond degree reckless assault requires the elements of recklessly causing serious bodily injury to any person by means of a deadly weapon. 18-3-208(1)(d). Here, identical evidence may support most elements of both offenses, but proof of the element of serious bodily injury requires separate evidence for each victim. Accordingly, I would conclude the trial court did not abuse its discretion when it determined that section 18-1-408(8) required it to impose consecutive sentencing.
VI. Conclusion
- Accordingly, while I agree with the majority's conclusion that sufficient evidence supports Esparza's conviction for first degree assault and its resolution of the two merger issues it addresses, the jury instruction issue, and the need to correct the mittimus, I respectfully dissent in part because I would affirm Esparza's conviction for second degree assault as supported by sufficient evidence and vacate his conviction for third degree assault as legally and logically inconsistent with his conviction for vehicular assault. Because of my disagreement with the majority, I would also address and reject two of Espar-za's three other merger arguments, as well as his contention that the trial court abused its discretion in imposing consecutive sentences for his convictions for first and second degree assault.
. A person commits the crime of vehicular assault when he or she (1) recklessly operates or drives a motor vehicle; and (2) is the proximate cause of serious bodily injury to another. 18-3-205(1)(a). Vehicular assault is a class five felony. 18-3-205(1)(c), C.R:S.2010.