People v. Rigsby

• Decision Date: 14 September 2020
• Docket Number: Supreme Court Case No. 18SC923
• Citation: 471 P.3d 1068
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Derek Michael RIGSBY, Respondent.
• Court: Colorado Supreme Court

471 P.3d 1068

The PEOPLE of the State of Colorado, Petitioner,

v.Derek Michael RIGSBY, Respondent.

Supreme Court Case No. 18SC923

Supreme Court of Colorado.

September 14, 2020

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent: Megan A. Ring, Public Defender, Jessica Sommer, Deputy Public Defender, Denver, Colorado

En Banc

JUSTICE SAMOUR delivered the Opinion of the Court.

¶1 The People charged Derek Michael Rigsby with three felony counts of second degree assault for smashing a glass into someone's face during a bar fight. The three charges represented alternative methods of committing the same crime. The jury found Rigsby guilty as charged on the first two counts: (1) second degree assault (acting with intent to cause bodily injury and causing serious bodily injury); and (2) second degree assault (acting recklessly and causing serious bodily injury with a deadly weapon). On the third count, second degree assault (acting with intent to cause bodily injury and causing bodily injury with a deadly weapon), the jury returned a guilty verdict on the lesser included offense of third degree assault (acting with criminal negligence and causing bodily injury with a deadly weapon), a misdemeanor; in so doing, the jury necessarily acquitted Rigsby of the charged offense on that count.

¶2 Concluding that the guilty verdicts for second degree assault, on the one hand, and the guilty verdict for third degree assault, on the other, were mutually exclusive, a division of the court of appeals reversed the judgment of conviction and remanded for a new trial. The division determined that the guilty verdicts could not be reconciled because the second degree assault convictions required the jury to find that Rigsby acted intentionally and recklessly and was thus aware of the risk of bodily injury, while the third degree assault conviction required the jury to find that Rigsby acted with criminal negligence and was thus unaware of the risk of bodily injury. In the division's view, the guilty verdicts for second degree assault negated the guilty verdict for third degree assault and vice versa.

¶3 The People concede that the judgment of conviction entered by the trial court was defective, but argue that the error was one of multiplicity, not mutually exclusive verdicts, and that it should be corrected by merging the three guilty verdicts. We agree.

¶4 Pursuant to section 18-1-503(3), C.R.S. (2019), proving the mental state required for each of the second degree assault convictions ("intentionally" or "with intent" for one and "recklessly" for the other) necessarily established the mental state required for the third degree assault conviction ("criminal negligence"). Therefore, even if each of the guilty verdicts for second degree assault is logically inconsistent with the guilty verdict for third degree assault, no legal inconsistency exists. Accordingly, the division was mistaken in determining that the trial court accepted mutually exclusive verdicts.

¶5 We nevertheless conclude that the trial court erred by entering multiplicitous convictions, which violated Rigsby's right to be free from double jeopardy. We thus remand to the court of appeals with instructions to return the case to the trial court to merge all of the convictions into a single conviction for second degree assault and to leave in place only one sentence (one of the two concurrent five-year prison sentences imposed).

I. Facts and Procedural History

¶6 Rigsby, his girlfriend, and two of their friends (a man and a woman) went to a bar. While Rigsby's girlfriend and her female friend stood on the dance floor, Nathan Mohrman and his male friend began talking to them. What followed was disputed at trial. However, there was no disagreement that a confrontation ensued shortly thereafter between Rigsby and Mohrman during which Rigsby struck Mohrman in the face with the glass Rigsby was holding in his hand. Mohrman's resulting injury required several stitches.

¶7 The People subsequently charged Rigsby with second degree assault, a felony. Because they proceeded under three alternative theories of liability, however, they filed three separate charges: count 1, second degree assault (acting with intent to cause bodily injury and causing serious bodily injury); count 2, second degree assault (acting recklessly and causing serious bodily injury with a deadly weapon); and count 3, second degree assault (acting with intent to cause bodily injury and causing bodily injury with a deadly weapon). On the first two counts, the jury found Rigsby guilty as charged. On count 3, the jury acquitted Rigsby of the charged offense, but returned a guilty verdict on the lesser included offense of third degree assault (acting with criminal negligence and causing bodily injury with a deadly weapon).¹ The trial court later sentenced Rigsby to five years in prison on each of the two felonies and to sixty-six days in jail on the misdemeanor, with all of the sentences to be served concurrently.

¶8 Rigsby appealed his convictions. As relevant here, he contended that the verdicts were mutually exclusive because counts 1 and 2 required the jury to determine that he acted intentionally and recklessly and was thus aware of the risk of bodily injury, but the lesser included offense on count 3 required the jury to determine that he acted with criminal negligence and was thus unaware of the risk of bodily injury. In a published opinion, the division unanimously agreed with Rigsby. People v. Rigsby , 2018 COA 171, ¶ 1, ––– P.3d ––––. It held that, while the convictions for second degree assault were consistent with each other, Rigsby could not simultaneously stand convicted of those offenses, which required proof that he acted intentionally and recklessly, and of third degree assault, which required proof that he acted with criminal negligence. Id. at ¶ 14. Elaborating, the division explained that to act intentionally or recklessly 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 such knowledge. Id. at ¶ 13. The division reasoned that "separate convictions for both knowing and negligent mental states for the same act"—hitting Mohrman in the face with a glass—could not be sustained because someone cannot concomitantly "consciously act" despite being aware of the risk and "fail to perceive [that] risk." Id.

¶9 Believing the guilty verdicts for second degree assault, on the one hand, and the guilty verdict for third degree assault, on the other, to be mutually exclusive, the division found that the former negated the latter and vice versa. Id. at ¶ 15. Addressing the proper remedy, the division ruled that it had to set aside the convictions and remand the case for a new trial because there was no way to discern the jury's intent. Id. at ¶¶ 16–19.

¶10 The People timely petitioned our court for certiorari. And we granted their petition.²

II. Standard of Review

¶11 Whether verdicts are mutually exclusive is a question of law. People v. Delgado , 2019 CO 82, ¶ 13, 450 P.3d 703, 705. We review questions of law de novo. Id.

¶12 The People maintain that even if we find, as the division did, that the trial court accepted mutually exclusive verdicts, we should determine that the error wasn't plain and doesn't require reversal. The plain error standard of reversal applies, according to the People, because Rigsby failed to preserve his claim. We disagree with the People's preservation contention.

¶13 Immediately after the jury returned its verdicts and was discharged, Rigsby moved for a new trial on the ground that the culpable mental states required for the guilty verdicts were mutually exclusive. In the court of appeals, the People explicitly agreed that Rigsby preserved this claim. The People do not explain why they now take a diametrically opposed position. And the record supports the People's earlier concession.

¶14 In any event, preservation is of no moment because the error that did occur was one of multiplicity, which violates the Double Jeopardy Clauses of the federal and state constitutions and requires a remedy. See Reyna-Abarca v. People , 2017 CO 15, ¶ 81, 390 P.3d 816, 828. Hence, even if Rigsby had failed to preserve his claim, he would still be entitled to relief. See id.

III. Analysis

A. The Verdicts Are Not Mutually Exclusive

¶15 Courts have historically given deference to the jury's fact-finding authority. See, e.g. , People v. Frye , 898 P.2d 559, 567 (Colo. 1995). In line with such deference, some eighty-eight years ago, both the Supreme Court and our court held that a defendant who is convicted on one count may not attack that conviction on the ground that it is inconsistent with the verdict of acquittal on another count. See Dunn v. United States , 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932) (holding that consistency in verdicts is not necessary); Crane v. People , 91 Colo. 21, 11 P.2d 567, 568–69 (1932) (adopting the holding in Dunn ). In 1984, the Supreme Court reaffirmed the rule in Dunn as "rest[ing] on a sound rationale," United States v. Powell , 469 U.S. 57, 64, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), and eleven years later, we reaffirmed the rule in Crane as being aligned with "the federal rule ... articulated in ... Powell ," Frye , 898 P.2d at 571.³

¶16 But the Court in Powell cautioned that it was not resolving a situation where a defendant is convicted of two crimes and a guilty verdict on one count excludes a finding of guilt on the other. Powell , 469 U.S. at 69 n.8, 105 S.Ct. 471. And we took note of this limitation in Frye . 898 P.2d at 569 & n.13. In such situations, we observed, "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.

¶17 Just last term, we were confronted with the type...