People v. Tomaske

• Decision Date: 19 May 2022
• Docket Number: Court of Appeals No. 19CA1491
• Citation: 516 P.3d 534,2022 COA 52
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jeremiah Anthony TOMASKE, Defendant-Appellant.
• Court: Colorado Court of Appeals

516 P.3d 534
2022 COA 52

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Jeremiah Anthony TOMASKE, Defendant-Appellant.

Court of Appeals No. 19CA1491

Colorado Court of Appeals, Division V.

Announced May 19, 2022
Rehearing Denied June 2, 2022

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE DUNN

516 P.3d 536

¶ 1 While investigating a reported car theft, police officers chased defendant, Jeremiah Anthony Tomaske, into his home and tackled him. Face down, Tomaske struggled against an officer and ultimately removed the baton from the officer's duty belt. He also grabbed—but didn't remove—the officer's holstered firearm. For this conduct, the trial court convicted Tomaske of disarming a peace officer and attempt to disarm a peace officer.

¶ 2 Tomaske now challenges his convictions, arguing that (1) police batons do not fall under the disarming a peace officer statute, § 18-8-116(1), C.R.S. 2021; (2) the prosecution presented insufficient evidence to disprove his affirmative defense under section 18-1-704.5, C.R.S. 2021 (force-against-intruders statute);¹ and, alternatively; (3) even if the prosecution presented sufficient evidence to disprove that defense, we must still reverse and remand the case to allow the trial court to reconsider the defense because it relied on an incorrect conclusion of law.

¶ 3 We agree with Tomaske that police batons don't fall under the disarming a peace officer statute and thus vacate his conviction for disarming a peace officer. But we reject Tomaske's remaining challenges and affirm his conviction for attempt to disarm a peace officer.

I. Background

¶ 4 Early one morning in May 2018, three Montrose police officers responded to Tomaske's house after receiving a report about a stolen car. Dispatch reported that the suspect's name was "Joshua Tomaske" and "a male was in the [backyard]."² When they arrived, the officers encountered Tomaske in the backyard. The officers asked Tomaske if he was Joshua, and Tomaske replied, "[N]o, that's my brother." Tomaske then told the officers that they had no authority to be there and he had "a right to go home," before bolting inside his house. With Officer Jonathan Roberts leading, the officers chased Tomaske into the house. While it's clear that the chase ended with Tomaske face down on the ground with Officer Roberts on him, witnesses disputed how that happened. The trial court ultimately found that Officer Roberts tackled Tomaske from behind.

¶ 5 Tomaske testified that after the tackle, Officer Roberts was on his lower back, causing Tomaske excruciating pain due to his spinal stenosis and herniated disks. As a result, Tomaske said that he reached behind him to try and pull Officer Roberts "higher onto [his] back" to relieve his back pain. He denied that he intended to "do anything specific with [his] hands" or tried to disarm Officer Roberts.

¶ 6 Officer Roberts recalled things differently. He testified that Tomaske reached back and removed the baton from his duty belt. Officer Roberts said that after he knocked the baton away, Tomaske then grabbed for his gun (though he didn't remove it).

¶ 7 During the melee, Officer Roberts suffered an eye injury. Meanwhile, the officers punched and tased Tomaske, eventually subduing him.

¶ 8 Based on this series of events, the prosecution charged Tomaske with second degree assault (for the injury to Officer Roberts’ eye), § 18-3-203(1)(c), C.R.S. 2021; disarming a peace officer (for removing the baton from the duty belt), § 18-8-116(1) ; attempt to disarm a peace officer (for grabbing the gun), §§ 18-8-116, 18-2-101, C.R.S. 2021; and obstructing a peace officer (for the overall encounter), § 18-8-104(1)(a), C.R.S. 2021.

¶ 9 After Tomaske waived his right to a jury trial, the court held a bench trial at which Tomaske, Officer Roberts, and other witnesses testified. Tomaske defended on multiple theories, including that he didn't intentionally grab Officer Roberts’ baton or gun, he acted in self-defense, and his actions

516 P.3d 537

were justified under the force-against-intruders statute.

¶ 10 The trial court acquitted Tomaske of second degree assault and obstructing a peace officer but convicted him of disarming a peace officer and attempt to disarm a peace officer. After the trial, the court issued a lengthy order explaining its verdict.

¶ 11 The court later sentenced Tomaske to a controlling three-year prison sentence.

II. Disarming a Peace Officer

¶ 12 "A person commits disarming a peace officer if he ... knowingly, without justification and without consent, removes the firearm or self-defense electronic control device, direct-contact stun device, or other similar device of a peace officer who is acting under color of his ... official authority." § 18-8-116(1).

¶ 13 During trial, Tomaske moved for judgment of acquittal on the disarming a peace officer charge, arguing that a baton is not a "firearm or self-defense electronic control device, direct-contact stun device, or other similar device" under the statute. Because he removed only Officer Roberts’ baton, Tomaske argued no evidence supported that charge.

¶ 14 The trial court disagreed, concluding that a baton falls into the "same general grouping" as a "firearm, self-defense electronic control device, direct-contact stun device or other similar device."

¶ 15 Tomaske says the trial court misinterpreted the statute because the phrase "other similar device" doesn't include police batons. And, he maintains, because the evidence showed that he removed only Officer Roberts’ baton, insufficient evidence supports his conviction for disarming a peace officer.

A. Standard of Review and Legal Standards

¶ 16 We review questions of statutory interpretation de novo. McCoy v. People , 2019 CO 44, ¶ 27, 442 P.3d 379. When interpreting a...