8, People v. Rigsby , 2018 COA 171 ( 2018 )

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
December 13, 2018
2018COA171
No. 2016CA138, People v. Rigsby — Crimes — Assault in the
Second Degree — Assault in the Third Degree; Criminal Law —
Mens Rea; Constitutional Law — Fifth Amendment — Double
Jeopardy
In this direct appeal of convictions for two counts of second
degree assault and one count of third degree assault, a division of
the court of appeals considers the remedy to apply when jury
verdicts are logically and legally inconsistent.
The division concludes that a defendant cannot stand
convicted of both second degree assault, for having acted
intentionally or recklessly, and third degree assault, for having been
unaware of an attendant risk, for the same act. Thus, the division
rejects the conclusion announced in People v. Zweygardt, 2012 COA
119, 298 P.3d 1018, that the mental state of recklessness
subsumes that of criminal negligence.
Further, the division determines that legally and logically
inconsistent verdicts require the court to set aside the convictions
to allow a jury to consider charges anew, rejecting the remedy
announced in People v. Beatty, 80 P.3d 847 (Colo. App. 2003), that
inconsistent verdicts must merge.
Finally, the division concludes that the United States and
Colorado Constitutions protect a defendant from multiple
convictions for the same offense when the relevant statute provides
alternative methods of committing the same offense rather than
prescribing multiple punishments for the same crime.
Accordingly, the division reverses and remands to the district
court for a new trial.
COLORADO COURT OF APPEALS 2018COA171
Court of Appeals No. 16CA0138
Boulder County District Court No. 14CR1706
Honorable Maria E. Berkenkotter, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Derek Michael Rigsby,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Terry and Fox, JJ., concur
Announced December 13, 2018
Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Derek Michael Rigsby, appeals his judgment of
conviction of two counts of second degree assault and one count of
third degree assault arising from his involvement in a bar fight.
Rigsby contends that (1) the district court erred in precluding prior
consistent statements; (2) his convictions are logically and legally
inconsistent because they relate to the same conduct yet
contemplate separate mental states of culpability; and (3) his
multiple convictions for second degree assault based on the same
criminal act violate the Double Jeopardy Clause. Because we agree
with his second contention, we reverse and remand to the district
court for a new trial.
I. Background
¶2 In September 2014, Rigsby, along with his girlfriend, Leah
Lusk, and two of their friends, Katie Pace and Jordan Kinnett, went
to a bar. Lusk and Pace left the company of Rigsby and Kinnett to
go to the dance floor, where Nathan Mohrman and Benjamin
Galloway began talking to the women. Rigsby testified that Pace
looked uncomfortable and annoyed, and he received a text from
Lusk directing him to act like Pace’s boyfriend.
1
¶3 The following events were disputed at trial. Rigsby testified
that he stepped between Mohrman and Pace, stating that “she’s not
interested.” He testified that Mohrman initially backed away but
then grabbed Rigsby by the shoulder and began yelling at him,
forcing Rigsby to use his elbow to push Mohrman away. Rigsby
recalled that, at this point, he was attacked from behind and
received multiple blows to the head before, fearing for his life, he
swung at his attacker. He testified that he failed to realize that he
was holding a glass in his hand and did not notice his hand was
bleeding until bar staff escorted him out of the bar. He went home
without contacting police.
¶4 Mohrman testified that he spoke to Lusk and Pace for about
five minutes before he and Galloway stepped away to stand by
themselves. He stated that, after moving away, Rigsby knocked into
him, causing Mohrman to spill his drink. He and Galloway
asserted that, as Mohrman reached out to tap Rigsby on the
shoulder, Rigsby rapidly turned around and struck Mohrman in the
face with a glass. A bystander reported that Rigsby hit Mohrman in
the face with a glass, and it seemed unprovoked by Mohrman.
2
Mohrman immediately went to the hospital and received several
stitches.
¶5 The following day, Rigsby contacted police and recounted the
night’s events to a detective. The district attorney charged Rigsby
with three counts of second degree assault based on his act of
hitting Mohrman in the face with a glass. The jury convicted him of
two counts of second degree assault, pursuant to section 18–3–
203(1)(d), (g),1 C.R.S. 2018, and one count of third degree assault, a
lesser included offense under section 18–3–204(1)(a), C.R.S. 2018.
The trial court sentenced him to five years in the custody of the
Department of Corrections for the second degree assault convictions
and sixty-six days in jail for the third degree assault conviction,
with all sentences running concurrently. Rigsby now appeals his
convictions and requests a new trial.
1As relevant here, a person commits second degree assault if he or
she “recklessly causes serious bodily injury to another person by
means of a deadly weapon,” § 18–3–203(1)(d), C.R.S. 2018, or
“[w]ith intent to cause bodily injury to another person, he or she
causes serious bodily injury to that person or another,” § 18–3–
203(1)(g).
3
II. Inconsistent Verdicts
¶6 Rigsby contends that the jury verdicts are logically and legally
inconsistent because the second degree assault convictions
required the jury to determine he was aware of the risk of bodily
injury, and thus acted with intent or recklessly, while the third
degree assault conviction required the jury to find he was unaware
of the risk of bodily injury. We agree.
A. Standard of Review
¶7 We review de novo whether a conviction must be set aside
based on inconsistency in the jury’s verdicts. People v. Zweygardt,
2012 COA 119, ¶ 30, 298 P.3d 1018, 1024.
B. Applicable Law
¶8 Courts assume verdicts are consistent when each offense
requires proof of separate and distinct elements; however, this is
not the case when jury verdicts convict a defendant of multiple
crimes and the existence of an element of one crime negates the
existence of a necessary element of another crime. See People v.
Frye, 898 P.2d 559, 569 n.13 (Colo. 1995) (stating that courts agree
verdicts are legally and logically inconsistent under these
circumstances). We cannot sustain legally and logically
4
inconsistent verdicts. Id.; see also People v. White, 64 P.3d 864,
875 (Colo. App. 2002).
¶9 While acknowledging that legally and logically inconsistent
verdicts cannot be sustained, a division of our court stated that,
when the court encounters inconsistent verdicts, convictions should
merge to “maximize the effect of the jury’s verdict, retaining as
many convictions and upholding as many sentences as are legally
possible.” People v. Beatty, 80 P.3d 847, 853 (Colo. App. 2003); see
People v. Lee, 914 P.2d 441, 448 (Colo. App. 1995). Therefore, the
Beatty division held that the proper remedy for inconsistent verdicts
is to merge and maximize the convictions. 80 P.3d at 853.
However, more recently, a division of our court reasoned that
logically and legally inconsistent verdicts require a new trial
because we cannot reconcile the jury’s findings to determine its
intent; therefore, we must set aside the convictions and allow a jury
to make new findings supported by the evidence. See People v.
Delgado, 2016 COA 174, ¶¶ 32–33, 410 P.3d 697, 702 (rejecting the
reasoning in Beatty and Lee) (cert. granted Dec. 11, 2017).
¶ 10 The determination of whether verdicts are legally and logically
inconsistent, and thus negate each other, rests on the language in
5
the applicable statutes. Id. at ¶ 16, 410 P.3d at 700. Section 18–3–
203(1)(d) requires a finding that a defendant acted recklessly in
causing serious bodily injury to convict for second degree assault.
Section 18–3–203(1)(g) requires a finding that a defendant intended
to cause, and actually caused, bodily injury to the victim to convict
for second degree assault. In contrast, section 18–3–204(1)(a), as
applicable here, required the jury to find that Rigsby acted with
criminal negligence in causing bodily injury with a deadly weapon
to convict for third degree assault.
¶ 11 A defendant acts recklessly2 or with intent3 when he or she
knows that certain actions could result in bodily injury and
disregards the risk or has a conscious objective to cause bodily
injury. See § 18–1–501(5), (8), C.R.S. 2018. A defendant acts with
criminal negligence when he or she “fails to perceive a substantial
and unjustifiable risk that a result will occur or that a circumstance
exists.” § 18–1–501(3).
2 “A person acts recklessly when he consciously disregards a
substantial and unjustifiable risk that a result will occur or that a
circumstance exists.” § 18–1–501(8), C.R.S. 2018 (emphasis
added).
3 “A person acts . . . ‘with intent’ when his conscious objective is to
cause the specific result proscribed by the statute defining the
offense.” § 18–1–501(5) (emphasis added).
6
¶ 12 The Beatty division concluded, and we agree, that a finding of
an intentional mens rea subsumes a reckless mens rea.
Accordingly, a finding of intentional conduct does not negate a
reckless mens rea. Beatty, 80 P.3d at 853–54; see § 18–1–503(3),
C.R.S. 2018. Thus, if a defendant is convicted of one offense for
acting recklessly and another for acting intentionally with regard to
the same conduct, the convictions are consistent.
¶ 13 However, to act recklessly or with intent requires that a
defendant act with knowledge of a result, or potential result, while
to act with criminal negligence requires that a defendant act
without knowledge of a result. Therefore, separate convictions for
both knowing and negligent mental states for the same act cannot
be sustained because a defendant cannot consciously act and also
fail to perceive a risk simultaneously.4 See Delgado, ¶ 31, 410 P.3d
at 702.
C. Analysis
¶ 14 We agree with the remedy announced in Delgado that
convictions based on inconsistent mentes reae cannot stand. Thus,
4Because it was not raised, we do not address whether criminally
negligent homicide may be treated as a lesser included or lesser
nonincluded offense of reckless or intentional homicide.
7
we reject the remedy set forth in Beatty that inconsistent verdicts
should be remedied by vacating one conviction so as to maximize
the jury’s verdict.5 Rigsby’s convictions of two counts of second
degree assault and one count of third degree assault are based on
legally and logically inconsistent verdicts. Therefore, they cannot be
sustained. Delgado, ¶ 32, 410 P.3d at 702. The jury convicted
Rigsby based on three mental states for the same criminal act —
hitting Mohrman in the face with a glass. While the convictions on
the two counts of second degree assault are not inconsistent, we
conclude that Rigsby could not have simultaneously acted with
knowledge — intentionally or recklessly — to cause bodily injury
while also acting without knowledge, unaware of the risk of causing
bodily injury.
¶ 15 We recognize that the Zweygardt division reached the opposite
conclusion, determining that “proof that a defendant was reckless
necessarily establishes that he or she acted with criminal
negligence.” Zweygardt, ¶ 33, 298 P.3d at 1025. Thus, the
5 Though the author judge concurred with the division’s decision in
People v. Beatty, 80 P.3d 847 (Colo. App. 2003), he is persuaded by
the court’s later reasoning in People v. Delgado, 2016 COA 174, 410
P.3d 697, regarding the remedy for inconsistent verdicts.
8
Zweygardt division concluded that the mental states of recklessness
and criminal negligence do not negate each other. Id. We disagree
with this conclusion because it effectively eviscerates the Frye
court’s holding that legally and logically inconsistent verdicts
cannot stand.6 The plain language of section 18–1–501(8) — the
statute defining recklessness — requires a court fact finder to
determine that a defendant was aware of a certain risk, while
section 18–1–501(3) — the statute defining criminal negligence —
requires a fact finder to determine the defendant was unaware of a
certain risk. While a defendant may be charged on both theories of
recklessness and negligence, we conclude, contrary to the analysis
in Zweygardt, that a defendant’s convictions based on both theories
are legally and logically inconsistent. Id.; see Frye, 898 P.2d at 569
n.13.
¶ 16 The People argue that, when we determine verdicts are
inconsistent, we should maximize the effect of the jury’s verdicts by
employing the approach that yields the longest sentence. See
6The decisions of other divisions of our court are not binding on
our division. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App.
2008).
9
People v. Vigil, 251 P.3d 442, 450 (Colo. App. 2010); see also Beatty,
80 P.3d at 853. We disagree.
¶ 17 Following this logic, the People contend that the two second
degree assault counts should merge, resulting in Rigsby being
convicted of recklessly causing serious bodily injury by means of a
deadly weapon. The People further argue that recklessness
inherently encompasses criminal negligence, so there is no legal or
logical inconsistency between the second and third degree assault
convictions, and therefore, a new trial is unnecessary. See People v.
Hall, 999 P.2d 207, 219–20 (Colo. 2000).
¶ 18 However, we do not read Hall as the People do. In fact, Hall
distinguishes negligence from recklessness by asserting “even if [he
or] she should be, a person who is not actually aware that [his or]
her conduct creates a substantial and unjustifiable risk is not
acting recklessly.” Id. at 220.
¶ 19 Thus, we disagree with the People’s contention that a new trial
is unnecessary and that Rigsby’s three convictions should merge.
We cannot determine the jury’s intent because the verdicts are
logically and legally inconsistent. Further, requiring a new trial
here is not an academic exercise because the second degree assault
10
convictions are class 4 felonies (with a five-year sentence) but the
third degree assault conviction is a class 1 misdemeanor (with a
sixty-six day sentence). 7 The convictions must be set aside to allow
a jury to consider the charges against Rigsby anew.
III. Double Jeopardy
¶ 20 Rigsby contends, the People concede,8 and we agree that
Rigsby’s three convictions must merge because they are
multiplicitous and violate the Double Jeopardy Clause. We address
this issue because it could arise on remand.
A. Applicable Law
¶ 21 The United States and Colorado Constitutions preclude a
defendant from being convicted and punished twice for the same
crime. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. If the
legislature intended to provide multiple punishments for the same
criminal conduct, the prosecution may charge a defendant with
separate counts based on alternative methods of committing a
7 Class 4 felonies carry a presumptive sentencing range of two to
six years imprisonment. § 18–1.3–401(1)(a)(V)(A), C.R.S. 2018.
Class 1 misdemeanors carry a presumptive sentencing range of six
to eight months imprisonment. § 18–1.3–501(1)(a), C.R.S. 2018.
8 We rely on our own legal interpretations and are not bound by the
concessions of the parties. See People v. Backus, 952 P.2d 846, 850
(Colo. App. 1998).
11
single offense. People v. Abiodun, 111 P.3d 462, 467 (Colo. 2005).
However, a defendant is constitutionally protected from multiple
convictions for the same offense when the relevant statute does not
create separate offenses for the same criminal conduct. See id.B. Analysis
¶ 22 If, on remand, the jury again convicts Rigsby of both second
degree assault counts, the convictions must merge as discussed
above. Because the second degree assault statute provides
alternative methods of committing the same offense, it cannot
prescribe multiple punishments for the same criminal conduct.
Because the third degree assault conviction is for a lesser included
offense, the People concede that Rigsby may not be convicted on
remand of both second and third degree assault based on the same
act. See Page v. People, 2017 CO 88, ¶ 9, 402 P.3d 468, 470 (“A
conviction for an offense that is a lesser included offense of a
greater offense must merge into the conviction for the greater
offense.”).
IV. Exclusion of Evidence
¶ 23 Since we reverse the convictions and remand for a new trial,
we need not address whether the district court properly exercised
12
its discretion in precluding prior consistent statements offered by
Rigsby. This prior ruling shall not bind any party at retrial.
V. Conclusion
¶ 24 Accordingly, the convictions are reversed, and the case is
remanded to the district court for a new trial.
JUDGE TERRY and JUDGE FOX concur.
13