People v. Rigsby
| Decision Date | 13 December 2018 |
| Docket Number | Court of Appeals No. 16CA0138 |
| Citation | 474 P.3d 119 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Derek Michael RIGSBY, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
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.
Opinion by JUDGE TAUBMAN
¶ 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.
¶ 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.
¶ 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. 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.
¶ 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.
¶ 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.
¶ 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) (). We cannot sustain legally and logically 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 () (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 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).
¶ 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.
¶ 14 We agree with the remedy announced in Delgado that convictions based on inconsistent mentes reae cannot stand. Thus, 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 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,...
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