Opinion by JUDGE TAUBMAN
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 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. ¶ 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. 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), 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.
As 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).
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 ¶ 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. See Delgado, ¶ 31, 410 P.3d at 702.
"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).
"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).
Because 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.
C. Analysis
¶ 14 We agree with the remedy announced in Delgado that convictions based on inconsistent mentes reae cannot stand. Thus, 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). The convictions must be set aside to allow a jury to consider the charges against Rigsby anew.
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.
The decisions of other divisions of our court are not binding on our division. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008).
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.
III. Double Jeopardy
¶ 20 Rigsby contends, the People concede, 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.
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). --------
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 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 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.