People v. Delgado , 410 P.3d 697 ( 2016 )

COLORADO COURT OF APPEALS 2016COA174
Court of Appeals No. 13CA2024
Pueblo County District Court No. 13CR286
Honorable Victor I. Reyes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Johnny G. Delgado,
Defendant-Appellant.
JUDGMENT AND SENTENCE REVERSED
AND CASE REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FURMAN
Miller and Navarro, JJ., concur
Announced December 1, 2016
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 The defendant, Johnny G. Delgado, allegedly beat the victim
unconscious and took items from his pockets. At trial, a jury
convicted Delgado of robbery and theft from the person of another,
which he now appeals.
¶2 We are asked to consider whether simultaneous convictions of
robbery (requiring a taking by the use of force) and theft from the
person of another (requiring a taking other than by the use of force)
for the same act are legally and logically inconsistent and thus
require reversal.
¶3 We agree with Delgado that the verdicts were plainly legally
and logically inconsistent. And, because inconsistent verdicts do
not allow us to decide what the jury found, we also agree that
Delgado should receive a new trial. In reaching this conclusion, we
disagree with People v. Beatty, 80 P.3d 847 (Colo. App. 2003), and
People v. Lee, 914 P.2d 441 (Colo. App. 1995). We thus reverse the
judgment and sentence, and we remand for a new trial.
I. The Taking
¶4 The victim spent an evening at a bar, eventually getting drunk.
He left around the time the bar closed. Soon after, though, he
returned to the bar and banged on the door, trying to get back
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inside. Hearing this noise, a bar employee called the police, asking
for an officer to check on this person.
¶5 The victim eventually gave up and walked away from the bar.
As he did so, he saw two men walking toward him, but he turned
his back on them. Moments later, he was attacked from behind;
someone hit and kicked him until he collapsed on the sidewalk and
lost consciousness.
¶6 Responding to the bar employee’s call, a police officer soon
arrived at the bar. He saw Delgado bent over the victim’s prone
body on the sidewalk, apparently going through the victim’s
pockets. Then, he saw Delgado stand up, holding items in his
hands. This officer was the only eyewitness who testified at trial.
¶7 The officer shouted at Delgado to stop, but Delgado took off
running, tossing aside the victim’s wallet, keys, and phone as he
went. Backup officers arrived in time to chase, catch, and arrest
Delgado. One officer testified that on arrest, Delgado’s hands were
injured and bloody.
¶8 When the case went to trial, the prosecution argued that
Delgado could be convicted of both robbery and theft from the
person of another, and the trial court gave instructions on both.
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¶9 The robbery instruction informed the jury that they could find
Delgado guilty if he:
3. knowingly,
4. took anything of value,
5. from the person or presence of another,
6. by the use of force, threats, or intimidation.
(Emphasis added.). See § 18-4-301, C.R.S. 2016.
¶ 10 The theft from the person of another instruction informed the
jury that they could find Delgado guilty if he:
3. knowingly
a. obtained or exercised control over,
b. anything of value,
c. which was the property of another person,
d. without authorization or by threat or
deception, and
4. with intent to permanently deprive the other
person of the use or benefit of the thing of
value, and
5. the thing of value was taken,
a. from the person of another,
b. by means other than the use of force, threats
or intimidation.
(Emphasis added.). See § 18-4-401(1), (5), C.R.S. 2016.
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¶ 11 The jury found Delgado guilty of robbery and theft from the
person of another, but it did not reach a verdict on an assault
count, and that count was dismissed. Then the trial court
sentenced Delgado to twelve years in prison on the robbery count
and a concurrent sentence of 200 days on the theft count, with
credit for 211 days served.
II. Plainly Inconsistent Verdicts
A. Standard of Review
¶ 12 Both parties agree that the inconsistent verdict issue is not
preserved. So, review is for plain error. People v. Sanchez, 253
P.3d 1260, 1262-63 (Colo. App. 2010). An error is plain if it is
obvious and “so undermine[s] the fundamental fairness of the trial
itself so as to cast serious doubt on the reliability of the judgment of
conviction.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005)
(quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)).
¶ 13 We note that Delgado’s reliance on a number of cases for the
proposition that inconsistent verdicts are structural errors is
misplaced because none addressed inconsistent jury verdicts. See
Sullivan v. Louisiana, 508 U.S. 275, 277, 281 (1993) (concluding
that it is structural error for a court to give an incorrect definition of
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“reasonable doubt”); Sanchez v. People, 2014 CO 29, ¶¶ 14, 20
(concluding that it is structural error for a court to convict a
defendant for a crime for which the jury did not find him guilty of
every element); Medina v. People, 163 P.3d 1136, 1138, 1141 (Colo.
2007) (concluding that it is structural error for a court to sentence a
defendant for a crime for which he was not convicted).
B. Inconsistent Verdict Law
¶ 14 We start our discussion with two Supreme Court cases that
involved both an acquittal and a conviction. The Supreme Court
determined in Dunn v. United States, 284 U.S. 390, 393-94 (1932),
that, as a rule, verdicts are not inconsistent when a defendant is
acquitted of one crime and convicted of another crime that is
inconsistent with the acquittal. It later noted, in United States v.
Powell, 469 U.S. 57, 65 (1984), that this kind of inconsistent verdict
“should not necessarily be interpreted as a windfall to the
Government at the defendant’s expense,” because it is “possible
that the jury, convinced of guilt, properly . . . through mistake,
compromise, or lenity, arrived at an inconsistent conclusion.”
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¶ 15 In People v. Frye, 898 P.2d 559 (Colo. 1995), our supreme
court explained an exception to the rule from Dunn that applies in
Delgado’s case:
[In] those cases where a jury has returned
verdicts convicting a defendant of two or more
crimes, where the existence of an element of
one of the crimes negates the existence of a
necessary element of the other crime[,] courts
are generally uniform in their agreement that
the verdicts are legally and logically
inconsistent and should not be sustained.
Id. at 569 n.13 (emphasis added); see People v. Weare, 155 P.3d
527, 529 (Colo. App. 2006) (applying this exception); see also
Candelaria v. People, 148 P.3d 178, 183 (Colo. 2006) (citing Frye
favorably for this proposition). Some states refer to such verdicts as
“mutually exclusive” verdicts. See State v. Owens, 766 S.E.2d 66,
71 (Ga. 2014); Martinez v. State, 989 So. 2d 1143, 1150 (Ala. Crim.
App. 2006).
¶ 16 When we apply this exception for inconsistent verdicts, we
consider whether an element of one offense negates an essential
element of the other. Weare, 155 P.3d at 529. And, when deciding
whether elements negate each other, we must compare the
language in the relevant statutes. See id. at 529-30. In doing so,
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we are guided by common rules of statutory interpretation. We
must determine the intent of the General Assembly. Mason v.
Adams, 961 P.2d 540, 543 (Colo. App. 1997). To discern intent, we
look to the statutory language, giving words and phrases their plain
and ordinary meanings. Swieckowski v. City of Fort Collins, 934
P.2d 1380, 1384-85 (Colo. 1997). When we give words their plain
meanings, the rule of consistent usage requires that, absent a
“manifest indication to the contrary, the meaning attributed to the
words or phrases in one part of the statute should be ascribed to
the same words or phrases found elsewhere in the statute.” Colo.
Common Cause v. Meyer, 758 P.2d 153, 161 (Colo. 1988); see
United States v. Castleman, 572 U.S. __, __, 134 S. Ct. 1405, 1417
(2014).
C. Analysis
¶ 17 We conclude in Delgado’s case that (1) the force elements of
robbery and theft from the person of another negate each other and,
thus, guilty verdicts on both are legally and logically inconsistent;
and (2) the error is plain.
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1. Inconsistent Verdicts
¶ 18 We initially point out that neither party disputes that there
was only one taking, nor does any evidence support a finding of
more than one taking — for example, there is no evidence that
Delgado took objects from the victim, left, and then returned later to
take more. The trial court agreed with this proposition when it
stated that “the same evidence” supports both the robbery and theft
counts.
¶ 19 Now, we turn to the language of the statutes. As stated above,
the trial court read the robbery and theft instructions to the jury.
On the one hand, robbery requires that a person take “by the use of
force.” § 18-4-301(1). On the other, theft from the person of
another requires that a person take “by means other than the use of
force.” § 18-4-401(5).
¶ 20 Because these provisions are in the same article of the
Colorado statutes, we apply the rule of consistent usage and give
the word “force” the same meaning in both parts of the statute. See
Meyer, 758 P.2d at 161. We may do so because the General
Assembly has not shown a “manifest indication to the contrary.” Id.
Rather, it enacted the theft from the person of another provision “to
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cover those situations that would otherwise constitute robbery, but
for the lack of force, threats, or intimidation,” People v. Warner, 801
P.2d 1187, 1191 (Colo. 1990) (footnote omitted), thus showing that
it contemplated that “force” has the same meaning in both statutes.
¶ 21 And, because the General Assembly intended that both
statutes use the same definition of “force,” the jury’s findings that
Delgado both took “by the use of force” and “by means other than
the use of force” for the same act negate each other. Thus, the
verdicts are legally and logically inconsistent. See Weare, 155 P.3d
at 529.
2. Plain Error
¶ 22 We agree with Delgado that this error is plain because it is
obvious and casts serious doubt on the reliability of the conviction.
See Miller, 113 P.3d at 750.
¶ 23 The error is obvious because the proposition that a defendant
may not be convicted on charges that are legally and logically
inconsistent is well-established, and such an inconsistency is
manifest in this case. See Weare, 155 P.3d at 529. It is obvious
that taking by “force” is the opposite of taking “by means other than
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the use of force.” There can be no clearer example of inconsistency.
See Warner, 801 P.2d at 1191.
¶ 24 And, this error casts serious doubt on the reliability of the
convictions because it makes a conviction of both robbery and theft
from the person of another for the same act legally impossible.
¶ 25 The People’s reliance on People v. Simpson, 93 P.3d 551 (Colo.
App. 2004), for the proposition that a jury can recognize a temporal
distinction between criminal acts is misplaced. In Simpson, a
division of this court recognized that a defendant can
simultaneously intend to menace and take substantial steps toward
causing death. Id. at 555. This holding has no bearing on whether
a defendant can commit one taking both with and without force.
¶ 26 Additionally, the People’s reliance on the course of transaction
doctrine to contend that “Delgado used force to effectuate a robbery
(by beating the victim unconscious) and then physically took [the
victim’s] property from his pockets without using force” misses the
point. See People v. Fox, 928 P.2d 820, 821 (Colo. App. 1996)
(upholding a conviction for robbery against two victims based on
the course of transaction doctrine); see also People v. Villalobos, 159
P.3d 624, 627 (Colo. App. 2006). Once the jury actually found that
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the taking was accomplished by beating the victim unconscious, the
jury could not legally or logically find that the taking was “by means
other than the use of force,” even if it believed that no force was
used to remove items from the unconscious victim’s pockets. See
Frye, 898 P.2d at 565-66 (disapproving of a strained and
unpersuasive “speculation into [the] jury’s thought processes” to
find a way the verdicts could be viewed as consistent).
III. Remedy
¶ 27 The People contend that the proper remedy for the
inconsistent verdicts is to vacate the theft from the person of
another conviction and sentence, which has the lesser punishment,
but affirm the robbery conviction and sentence in order to
“maximize” the jury’s verdict. In support of this, they rely on
Beatty, 80 P.3d 847, and Lee, 914 P.2d 441. We disagree with the
People and the other divisions of this court because (1) the cases on
which Beatty and Lee rely for this remedy did not address
inconsistent guilty verdicts and (2) inconsistent guilty verdicts
express irreconcilable findings that can only be resolved through a
new trial. See People in Interest of S.N-V., 300 P.3d 911, 914 (Colo.
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App. 2011) (stating that one division of the court of appeals is not
bound by decision of another division).
A. Beatty, Lee, and Their Foundational Cases
¶ 28 The divisions in Beatty and Lee each concluded that the guilty
verdicts involved were legally and logically inconsistent. Beatty, 80
P.3d at 852; Lee, 914 P.2d at 446. We take no issue with this part
of either holding.
¶ 29 But, the divisions then concluded that the proper remedy in
such situations is to maximize the jury verdicts by vacating the
conviction of the lesser offense. See Beatty, 80 P.3d at 853; Lee,
914 P.2d at 448. In reaching this conclusion, the divisions relied
on the reasoning of two Colorado Supreme Court cases which
concluded that verdicts should be maximized: People v. Glover, 893
P.2d 1311, 1314 (Colo. 1995), and People v. Bartowsheski, 661 P.2d
235, 246-47 (Colo. 1983).
¶ 30 But, these two foundational cases, Glover and Bartowsheski,
did not involve inconsistent verdicts. In Glover, 893 P.2d at 1314-
15, the defendant was convicted on two counts of first degree
murder, even though he only committed one murder. And, in
Bartowsheski, 661 P.2d at 245, the trial court convicted and
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sentenced the defendant based on a greater felony murder offense
and a lesser included robbery offense. Neither case addressed, nor
even mentioned, inconsistent verdicts. Thus, the cases on which
Lee and Beatty relied are not applicable to inconsistent verdicts.
B. New Trial
¶ 31 Not only are Glover and Bartowsheski factually inapplicable,
but the reasoning underlying them is not persuasive in Delgado’s
case. In both Glover and Bartowsheski, the elements of one of the
offenses necessarily included the same elements as the other, and
thus the evidence supported both convictions. In contrast, where
verdicts are inconsistent, the evidence supports each conviction
individually, but not both at the same time because an element in
each negates an element in the other.
¶ 32 So, when guilty verdicts are inconsistent, we cannot know
what the jury actually found because it expressed irreconcilable
findings. Cf. Milanovich v. United States, 365 U.S. 551, 555-56
(1961) (“[T]here is no way of knowing [what] a properly instructed
jury would have found.”). Because the verdicts are so plainly
inconsistent, it is not possible to discern the jury’s intent.
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¶ 33 We thus conclude that the proper remedy when guilty verdicts
are legally and logically inconsistent is to remand for a new trial so
that a jury can make new findings and decide which conviction the
evidence supports. See Owens, 766 S.E.2d at 71 (“[T]he remedy for
a judgment entered on convictions based on mutually exclusive
verdicts is to reverse the judgment, set aside the verdicts at issue,
and remand for a new trial.”); People v. Williams, 688 N.E.2d 320,
324 (Ill. App. Ct. 1997) (“[T]he convictions must be reversed and the
cause remanded for a new trial on the involuntary manslaughter
and aggravated discharge of a firearm charges.”); State v.
Speckman, 391 S.E.2d 165, 168 (N.C. 1990) (“[T]here is a
‘reasonable possibility’ that a different result would have been
reached at trial as to both charges . . . . Therefore, the defendant is
entitled to a new trial on both charges.”).
¶ 34 Accordingly, we also disagree with Delgado’s contention that
he was acquitted of both crimes because, as he contends, “[e]ach
verdict included an affirmative jury finding that effected an
acquittal on the other count.” By this reasoning, we could
conversely conclude that each verdict includes an affirmative
finding that effected a conviction. We will not apply this reasoning.
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IV. Conclusion
¶ 35 The judgment and sentence are reversed, and the case is
remanded to the trial court. The prosecution may choose to retry
Delgado on either the robbery count or the theft from the person of
another count, or both. But, if the prosecution elects to submit
both counts to the jury, such submission must be accompanied by
an instruction that the jury may convict of either the robbery count
or the theft from the person of another count, but not both.
JUDGE MILLER and JUDGE NAVARRO concur.
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