CO 6 – 20SC758, Garcia v. People

 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 6Supreme Court Case No. 20SC758
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 18CA38
Petitioner:
Nicholas Leonel Garcia, Jr.,
v.
Respondent:
The People of the State of Colorado.
Judgment Reversed
en banc
February 7, 2022
Attorneys for Petitioner:
Megan A. Ring, Public Defender
Jud Lohnes, Deputy Public Defender
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Ellen Michaels, Senior Assistant Attorney General
Denver, Colorado
JUSTICE BERKENKOTTER delivered the Opinion of the Court, in which
CHIEF JUSTICE BOATRIGHT, JUSTICE MÁRQUEZ, JUSTICE HOOD,
JUSTICE GABRIEL, JUSTICE HART, and JUSTICE SAMOUR joined.
JUSTICE BERKENKOTTER delivered the Opinion of the Court.
¶1 We review a division of the court of appeals’ split decision in People v. Garcia,
No. 18CA38 (Aug. 6, 2020), affirming Nicholas Leonel Garcia, Jr.’s conviction for
second degree kidnapping. In doing so, we consider whether the trial court erred
by instructing the jury that the phrase “seizes and carries,” as used in the second
degree kidnapping statute, § 18-3-302(1), C.R.S. (2021), means “any movement,
however short in distance.” Because the trial court’s instruction allowed the jury
to convict Garcia without finding that he seized the victim or moved the victim
from “one place to another,” id., as required by the statute, we hold that the trial
court committed reversible error. Accordingly, we reverse the judgment of the
division below with directions to remand to the trial court for a new trial.
I. Facts and Procedural History
¶2 In the early morning hours on April 1, 2016, Daniel Troy Kaehne made a 911
call from a stranger’s home in Denver, claiming that he had been abducted,
robbed, and assaulted by a group of four men. That is one of the few facts about
which Garcia and Kaehne agree.
¶3 When interviewed by the police, Kaehne described several different
versions of the events that evening. Initially, he claimed he was abducted at gun-
and knifepoint by four Black men who accosted him outside a casino in Blackhawk
and forced him into their car. When he testified at trial, however, Kaehne told the
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jury that he voluntarily left the casino with four men (only one of whom is Black)—
Garcia, Mario Llanos-Citron, and Garcia’s adult sons, Josiah and Gerald. Kaehne
explained that when he was unable to locate a cemetery where they all planned to
smoke marijuana together, the men became angry and robbed and assaulted him
for wasting their time. One of the men, Llanos-Citron, who was sitting next to
Kaehne in the back seat, put him in a headlock, and they forced him to ride with
them to Denver. Once there, according to Kaehne, the car stopped in an alley, and
the four men exited the car to discuss what they should do with him. Kaehne
testified that he started honking the car’s horn to get attention, and then he
escaped. The men caught him and returned him to the car. Later, the men
reentered the car and drove away. A few blocks later, while the car was still
moving, Kaehne managed to open the car door and jump out. He ran to a nearby
stranger’s house and called the police.
¶4 Garcia painted a markedly different picture of the events that evening.
Relying on the testimony of his two sons, Garcia argued that Kaehne lied about
being kidnapped and robbed to cover up what really happened that night: a drug
deal gone bad. Garcia claimed that after the group couldn’t find the cemetery,
Kaehne asked Garcia to purchase methamphetamine for him. Kaehne then
willingly accompanied the group to Denver to buy meth. Once in Denver, they
stopped so Garcia could purchase the drugs for Kaehne, but after Garcia gave
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them to Kaehne, Kaehne quickly became agitated because he thought that Garcia
shorted him. Kaehne then punched Garcia in the face. Gerald and Llanos-Citron
joined the fight, and, after Josiah stopped the car, the fight continued in an
alleyway. The group then left Kaehne in the alley.
¶5 The police eventually arrested the four men and charged them with second
degree kidnapping, robbery, third degree assault, and menacing. Garcia and
Llanos-Citron entered pleas of not guilty and exercised their right to a trial by jury.
They were tried together as co-defendants with separate counsel.
¶6 Garcia’s sons agreed to plead guilty to all counts except for the kidnapping
charges. As part of their plea agreements, they stipulated to factual bases that
largely mirrored the version of events that Kaehne testified to at trial. During the
trial, however, both sons disavowed the stipulated factual bases and testified in a
manner that was largely consistent with an earlier proffer Josiah had made to the
District Attorney’s Office and that largely corroborated Garcia’s theory of the case.
¶7 After closing arguments, the jury deliberated for three hours before
submitting a question to the court. The jury asked: “What are the parameters of
kidnapping? Is it considered kidnapping if a person is put back in a car? Is it
kidnapping if they are dumped and left behind?” The trial court asked counsel
how they thought the court should respond. The three attorneys asked that the
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court not provide further guidance but, instead, simply refer the jury back to the
evidence presented, the elements of the law, or the jury instructions.
¶8 The trial court, however, felt bound by appellate court precedent, which
requires a trial court to educate the jury if the jury indicates it is confused about
the law. The court, relying on People v. Bondsteel, 2015 COA 165, ¶ 95, 442 P.3d 880,
898, and People v. Rogers, 220 P.3d 931, 936 (Colo. App. 2008), drafted the following
response:
Your question concerns the meaning of the phrase, “seized and
carried any person from one place to another,” which is element
no. 3(a) of the elements of the crime of Second Degree Kidnapping.
The phrase, “seizing and carrying” is defined as “any movement,
however short in distance.”
¶9 Llanos-Citron’s defense counsel objected to the instruction, arguing that the
instruction was an erroneous statement of the law and that the court should
respond that the “parameters of kidnapping” were the elements of the crime,
which had already been provided to the jury in its instructions. Additionally,
Llanos-Citron’s counsel asserted that, by giving the instruction, the court was
improperly “express[ing] an opinion upon the factual matters that the jury should
determine” and that the court was not answering the actual question that the jury
asked. Garcia’s counsel joined in the objection.
¶10 The trial court noted the attorneys’ objections and responded: “It’s simply a
statement of the law, and I believe that this statement of the law is correct, based
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on the authorities I have.” The court then answered the jury’s questions with its
proposed supplemental instruction, and the jury convicted Garcia of all charges.
¶11 Garcia appealed his conviction for second degree kidnapping, arguing, as
pertinent here, that the trial court erred in providing this supplemental instruction.
Specifically, Garcia argued that the instruction was erroneous because it omitted
both the requirement that the defendant seize the victim and the requirement that
the defendant carry the victim “from one place to another” from the crime of
second degree kidnapping. A split division of the court of appeals affirmed his
conviction. Garcia, ¶ 25. Like the trial court, the majority relied on Rogers and
Bondsteel to stand for the proposition that the definition of “seized and carried”
was “any movement, however short in distance.” Id. at ¶ 12.
¶12 Judge Brown saw things differently, concluding that the trial court’s
instruction was erroneous because it included an incomplete definition of “seized
and carried” and because it did not include the statutory requirement that “the
defendant moved the victim ‘from place to place.’” Id. at ¶¶ 40–43 (Brown, J.,
concurring in part and dissenting in part). Accordingly, she would have reversed
Garcia’s conviction for second degree kidnapping and remanded for a new trial.
Id. at ¶ 45.
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¶13 Garcia petitioned this court for certiorari review, which we granted.1
II. Analysis
¶14 We begin by outlining the applicable law and standards of review. Then we
examine and compare the second degree kidnapping statute and the supplemental
jury instruction to determine if the instruction contained a proper statement of the
law. Because the trial court’s instruction did not accurately define the elements of
second degree kidnapping, we conclude by considering whether the errors were
harmless beyond a reasonable doubt and determine that they were not.
A. Applicable Law and Standards of Review
¶15 Both the United States Constitution and the Colorado Constitution
guarantee criminal defendants the right to be presumed innocent until a jury finds
that the prosecution has proven every element of the charged offense beyond a
reasonable doubt. Griego v. People, 19 P.3d 1, 7 (Colo. 2001); Martinez v. People,
470 P.2d 26, 30 (Colo. 1970). To give this guarantee effect, we require trial courts
1 We granted Garcia’s petition for certiorari review of the following issue:
Whether the division erred in upholding the trial court’s
supplemental jury instruction defining “seizes and carries,” as that
phrase is used in section 18-3-302(1), C.R.S. (2020), as “any movement,
however short in distance.”
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to properly instruct juries on all of the statutory elements of the charged crimes.
Griego, 19 P.3d at 7.
¶16 On review, we consider jury instructions de novo to determine if they are
correct recitations of the law and “accurately inform[] the jury of the governing
law.” Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011). We review not only whether
the jury instructions faithfully track the law but also whether the instructions are
confusing or may mislead the jury. People v. Janes, 982 P.2d 300, 303–04 (Colo.
1999). In order to evaluate whether jury instructions properly state the law or are
misleading, we also must consider the criminal statutes themselves. We review
issues of statutory interpretation de novo. McCoy v. People, 2019 CO 44, ¶ 37,
442 P.3d 379, 389.
¶17 “[O]ur primary purpose [when interpreting statutes] is to ascertain and give
effect to the legislature’s intent.” Id. We do so by looking to the statutory language
and “giving its words and phrases their plain and ordinary meanings.” Id.Additionally, we read statutes “as a whole, giving consistent, harmonious, and
sensible effect to all of [their] parts, and we must avoid constructions that would
render any words or phrases superfluous or lead to illogical or absurd results.” Id.
at ¶ 38, 442 P.3d at 389. If the statute is unambiguous, our work is done. Id. If,
however, the statute can reasonably be interpreted in multiple ways, we may look
to other aids of statutory construction. Id.
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¶18 Assuming the jury instructions were correct statements of the law, we
review a trial court’s decision to give those instructions for an abuse of discretion.
Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011). Otherwise, if we determine that
the jury instructions were incorrect or misleading, we will review the trial court’s
error under the constitutional harmless error standard as long as the objecting
party properly preserved the issue, as Garcia did here.2 Griego, 19 P.3d at 8; see also
Hagos v. People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119. If the instructions were
incorrect or misleading, we will reverse a conviction unless the prosecution can
prove that the error was harmless beyond a reasonable doubt—that is, that the
error did not contribute to the conviction. Hagos, ¶ 11, 288 P.3d at 119. If there is
even a “reasonable possibility that the error might have contributed to the
conviction,” we must reverse. Id. (quoting Chapman v. California, 386 U.S 18, 24
(1967) (alteration omitted)).
¶19 We now apply these principles to the facts before us.
2 Though the People expressly conceded in their briefing before the division below
that Garcia preserved the jury instruction issue, they now argue before this court
that he failed to preserve the issue. We expressly and strongly disapproved of this
practice just last year in People v. Struckmeyer, 2020 CO 76, ¶ 5, 474 P.3d 57, 58. It
is unclear why, in light of this admonition, the People consider it appropriate to
try to walk back their concession before the division. A prosecutor’s ultimate goal
is justice, which is not always synonymous with victory. Domingo-Gomez v. People,
125 P.3d 1043, 1049 (Colo. 2005).
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B. Application
¶20 The second degree kidnapping statute, section 18-3-302(1), reads: “Any
person who knowingly seizes and carries any person from one place to another,
without his consent and without lawful justification, commits second degree
kidnapping.” The plain language of the statute requires, as pertinent here, that
the prosecution, when charging a defendant with second degree kidnapping, must
convince the jury beyond a reasonable doubt that the defendant (1) seized the
victim and (2) carried the victim “from one place to another.” Id. Though we have
discussed the carrying requirement, also known as the asportation element, of
section 18-3-302(1) at length, see, e.g., People v. Harlan, 8 P.3d 448, 476 (Colo. 2000),
overruled on other grounds by People v. Miller, 113 P.3d 743, 749 (Colo. 2005);
Apodaca v. People, 712 P.2d 467, 475 (Colo. 1985), we have not yet had the
opportunity to discuss the seizure requirement in detail. Here, we examine the
seizure and asportation requirements and conclude that the trial court’s
supplemental instruction was erroneous as to both. We then go on to consider the
impact a grammatical error had on the accuracy of the supplemental instruction.
1. The Seizure Element
¶21 Recall that when the jury asked about the “parameters of kidnapping,” the
trial court instructed the jury that “[t]he phrase ‘seizing and carrying’ is defined as
‘any movement, however short in distance.’” Garcia asserts that this instruction
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allows a conviction even if the defendant has not seized the victim. More
specifically, he asserts that the instruction lowers the bar for the prosecution
because it makes “any movement” of the victim kidnapping. The People concede
that the instruction omits the seizure requirement but contend the instruction is
still accurate because the term “seizes” is necessarily subsumed within the word
“carries.” We are not persuaded.
¶22 As a starting point, we decline to read the statute in a way that renders the
term “seize” superfluous, noting we must strive to give it meaning as the General
Assembly intended. McCoy, ¶ 38, 442 P.3d at 389. We also cannot disregard the
fact that the statute lists the term “seizes” and the term “carries” separately and
connects them with the conjunctive “and,” which denotes that they are distinct
elements of the crime.
¶23 We evaluate the People’s contention that the elements are not distinct by
examining the specific meanings of these two terms in the context of the second
degree kidnapping statute. Because the statute does not define the terms “seizes”
or “carries,” “we may consider a definition in a recognized dictionary.” Cowen v.
People, 2018 CO 96, ¶ 14, 431 P.3d 215, 218–19. Dictionaries define “seize” to mean
“to take possession of” or “to take hold of.” Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/seize [https://perma.cc/RGG5-
8X6W]; see also, e.g., Seize, Black’s Law Dictionary (11th ed. 2019) (defining “seize”
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as “[t]o place (someone) in possession”). “Possession,” in turn, means “the act of
having or taking into control.” Merriam-Webster Dictionary, https://merriam-
webster.com/dictionary/possession [https://perma.cc/F3DU-VGRF]. The plain
language of the second degree kidnapping statute, thus, requires that the
defendant knowingly took possession of or had control over the victim.
¶24 Dictionaries define the term “carries” to denote movement or
transportation. See, e.g., Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/carry [https://perma.cc/Z87R-H2BT] (defining carry as
“to move while supporting” and “to transfer from one place (such as a column) to
another”). And while the term often implies possession, this is not always the case.
For instance, if Ann bumps into or pushes Tomas, she has moved him, but she may
or may not have had possession or control over him. Thus, the People’s argument
that the term “seizes” is necessarily subsumed within the word “carries” is
unavailing.
¶25 And here, by completely omitting the concept of seizure, the trial court’s
instruction can be understood to mean that a defendant completes the act of
“seizing and carrying” by any and every act that displaces another person without
consent or lawful justification, regardless of whether the defendant exercised or
took control over that person. That is an incorrect statement of the law.
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¶26 Guided by this erroneous instruction, the jury could have convicted Garcia
of second degree kidnapping even if it believed his sons’ testimony suggesting
that Garcia never had control over Kaehne. More specifically, the jury could have
convicted Garcia even if it believed Kaehne voluntarily travelled to Denver and
was pushed or dumped out of the car after he punched Garcia. Put another way,
when the jury asked: “Is it kidnapping if [the victim is] dumped and left behind,”
the trial court’s erroneous supplemental instruction effectively told the jury that
they could answer this question “yes.”
2. The Asportation Element
¶27 The supplemental instruction was also incorrect as to the asportation
element because the trial court omitted half of the definition of asportation. As
noted, the plain language of section 18-3-302(1) requires that the defendant
(1) seized the victim and (2) carried the victim “from one place to another.” The
supplemental instruction omits “from one place to another.” Garcia argues that
the supplemental instruction accordingly allows a conviction even if the defendant
does not carry the victim from one place to another. More specifically, he again
asserts that the instruction makes “any movement” of the victim kidnapping. We
agree that the supplemental instruction misstates the asportation element.
¶28 We carry out our duty to discern legislative intent through the plain
language of the kidnapping statute by giving the phrase “from one place to
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another” effect. In doing so, we, again, avoid reading the statute in a manner that
would render the phrase superfluous. See McCoy, ¶ 38, 442 P.3d at 389. As “[w]e
have consistently held[,] . . . the asportation element of second degree kidnapping
is that the defendant moved the victim from one place to another.” Harlan, 8 P.3d
at 476–77. To be sure, “substantial movement of the victim is not required” to
satisfy the asportation element. People v. Fuller, 791 P.2d 702, 706 (Colo. 1990).
Rather, we have upheld convictions with even minimal movement, as long as that
movement was “from one place to another,” as required by the statute. See, e.g.,
Apodaca, 712 P.2d at 475; Yescas v. People, 593 P.2d 358, 359–60 (Colo. 1979).
¶29 Certainly, evidence that the defendant moved a victim will often fulfill the
requirement that the defendant also moved the victim from one place to another.
See, e.g., People v. Abbott, 690 P.2d 1263, 1270 (Colo. 1984) (explaining that
movement of the victims from the front of a store to a trailer behind the store
fulfilled the requirement of movement from one place to another). But proof that
a defendant moved a victim does not always also constitute proof that the
defendant moved the victim from one place to another. See, e.g., Harlan, 8 P.3d at
477 (explaining that “[i]n some cases, the factual circumstances presented at trial
do not make it clear whether the defendant moved the victim from one place to
another,” even when it is clear that the defendant did move the victim).
14
¶30 Again, this case illustrates the point because the erroneous supplemental
instruction would have allowed the jury to convict Garcia—even if it believed his
sons’ testimony—simply because Kaehne somehow “moved, however short in
distance” from inside the car to the alley. That is not second degree kidnapping.
3. The Grammar Problem
¶31 Finally, the supplemental instruction suffered from a significant
grammatical error. In its effort to provide useful guidance to the jury, the trial
court pared its definition—“any movement, however short in distance”—down to
the point that it omits a subject (i.e., the person committing the seizing and the
carrying) and an object (i.e., the person being seized and carried). As a result, the
trial court’s definition did not require either. It also included no verbs, even
though it purports to explain the meaning of two verbs. The instruction was
consequently misleading and confusing because, without a subject, object, or any
verb, the jury may not have understood what actus reus was required.
¶32 Though a trial court has an affirmative obligation to give a supplemental
jury instruction when a jury “affirmatively indicates that it has a fundamental
misunderstanding of an instruction it has been given,” Leonardo v. People, 728 P.2d
1252, 1255 (Colo. 1986) (emphasis added), trial courts must exercise caution in
determining if a fundamental misunderstanding actually exists and, if so, take care
to respond to the actual misunderstanding. An instruction that tracks the
15
language of the statute is presumed to be clear and understood by the jury. Id. at
1254–55.
¶33 The trial court’s error with respect to both the seizure element and the
asportation element was compounded here because it appears to have
misapprehended the jury’s question. The jury asked the trial court about the
“parameters of kidnapping.” The jury did not ask a question about a particular
element, nor did it mention any specific word or phrase. And, even though the
jury asked about the parameters of the entire crime of kidnapping, the trial court
effectively instructed the jury to replace the phrase “seized and carried” in the
elemental instruction with “any movement, however short in distance.”
Significantly, the jury was not instructed to use the supplemental instruction in
addition to the elemental instruction.
¶34 We agree with trial counsel that under these circumstances it would have
been appropriate for the trial court to simply refer the jury back to the elemental
instruction for the crime of second degree kidnapping because that instruction
described the parameters of the entire crime and, thus, appropriately responded
to the question the jury actually asked.
¶35 For these reasons, we now hold that a trial court commits error when it
presents the jury with a jury instruction that defines the phrase “seizes and
carries,” in the second degree kidnapping statute, § 18-3-302(1), as “any
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movement, however short in distance.” Such an instruction is impermissibly
misleading because it constitutes a partial definition of asportation and eliminates
the seizure requirement from the second degree kidnapping statute entirely. And,
because—as used here—it includes no object, no subject, and no verb, the
instruction also risks leading the jury to mistakenly believe the crime has no actus
reus or to supply its own, incorrect, actus reus.
¶36 To the extent that People v. Owens, 97 P.3d 227, 237 (Colo. App. 2004); Rogers,
220 P.3d at 936–37; and Bondsteel, ¶¶ 109, 118, 442 P.2d at 900, 901, are contrary to
this opinion, they are now overruled.
4. Harmlessness
¶37 Next, we turn to the question of harmlessness. Under the circumstances
presented here, we cannot say that the prosecution has proven that any of these
errors were harmless beyond a reasonable doubt. We begin by noting that the
second degree kidnapping charge was hotly contested at trial, with both the
prosecution and the defense presenting evidence in support of their markedly
different theories of the case. And there is a reasonable possibility that the trial
court’s error resulted in Garcia’s conviction on this charge.
¶38 First, the trial court’s omission of the seizure requirement in the
supplemental instruction was not constitutionally harmless. Without the seizure
requirement, the jury could have convicted Garcia of second degree kidnapping
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even if it believed his sons’ testimony because it did not have to consider if Garcia
had control over or possession of Kaehne when the fight moved from the car to
the alley. And since the seizure element is not necessarily subsumed within the
asportation element, the testimony that the fight moved from the car to the alley
is not, as a matter of law, an admission that Garcia seized Kaehne. As noted,
seizure requires a degree of control over a person that is greater than simply the
force required to move that person. Here, because the instruction allowed the jury
to convict Garcia without finding that he seized Kaehne, Garcia’s conviction must
be reversed.
¶39 Second, by providing only half of the definition of asportation, the trial court
eliminated the prosecution’s burden to prove beyond a reasonable doubt that
Garcia moved Kaehne from one place to another. And, with an incomplete
definition to guide it, the jury could have convicted Garcia of second degree
kidnapping even if it believed his sons’ testimony regarding how Kaehne moved
from the car to the alley. Because of this, Garcia’s conviction cannot stand.
¶40 Third, because the supplemental instruction contained no subject and no
object, the jury could have erroneously concluded that Kaehne’s movement,
however small, in and of itself—without any consideration of Garcia’s role in
effecting that movement—was a sufficient basis for conviction. This is yet another
reason the supplemental instruction can be read as improperly directing the jury
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that “any movement” of the victim is kidnapping. This instruction is completely
at odds with the second degree kidnapping statute and is an incorrect definition
of the elements of the crime. It also relieves the prosecution of the burden of
proving each element of the offense beyond a reasonable doubt. Because there is
a reasonable possibility that this error, alone or in combination with the other
errors, contributed to Garcia’s conviction, the error was not harmless. Thus, by
providing this instruction, the trial court violated Garcia’s right to due process and
right to a jury trial under the United States and Colorado constitutions.
5. Substantially Increased Risk of Harm
¶41 Finally, we hold that the trial court did not err when it defined the
asportation element without referencing whether the movement “substantially
increased the risk of harm to the victim.” Harlan, 8 P.3d at 477. As we have noted
before, and now reiterate, that standard is not an element of second degree
kidnapping. See Id. at 477–78. There is no requirement that a defendant’s
movement of the victim must substantially increase the risk of harm to the victim
in order for a jury to find the defendant guilty of second degree kidnapping. The
statutory requirement is that the movement be from “one place to another.” We
do not, and in fact may not, “encroach upon the prerogative of the General
Assembly to define the elements of an offense.” Id. at 477. Because the standard is
neither an element nor a legal definition of one of the statutory elements, a trial
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court does not err when it tenders second degree kidnapping jury instructions
without this language.
¶42 Substantial risk of harm to the victim is, however, a factor that appellate
courts may consider when evaluating a challenge to the sufficiency of the evidence
in a second degree kidnapping case. That is, when the issue is whether there was
sufficient evidence to show that the victim was moved from one place to another,
a reviewing court may consider whether that movement resulted in a
“demonstrable increase in risk of harm to the victim.” Apodaca, 712 P.2d at 475.
The standard is, therefore, only one manner in which appellate courts may resolve
the question of whether the prosecution has produced enough evidence to
convince a reasonable juror that the defendant’s movement of the victim was from
one place to another. Because this inquiry is a legal question that we review de
novo, see McCoy, ¶¶ 19–20, 442 P.3d at 385, the standard which we use to answer
that question on appeal is not a necessary instruction for a jury sitting as finder of
fact.
III. Conclusion
¶43 Two of the cornerstones of our criminal justice system are that defendants
are presumed innocent until found guilty by a jury of their peers and that the
prosecution has the burden of proving each and every element of the offense
beyond a reasonable doubt. Because the jury instruction allowed the jury to
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convict Garcia of second degree kidnapping without first finding all of the
statutory elements of the crime, Garcia’s right to due process and right to a trial by
jury were violated. Accordingly, we reverse the decision of the division below and
remand the case for further proceedings consistent with this opinion.
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