8, People v. Rigsby

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
December 13, 2018

2018COA171

No. 2016CA138, People v. Rigsby — 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.
COLORADO COURT OF APPEALS 2018COA171

Court of Appeals No. 16CA0138
Boulder County District Court No. 14CR1706
Honorable Maria E. Berkenkotter, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Derek Michael Rigsby,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TAUBMAN
Terry and Fox, JJ., concur

Announced December 13, 2018

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
¶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.

1
¶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.

2
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.

1As 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).

3
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

4
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 (rejecting the

reasoning in Beatty and Lee) (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

5
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).

2 “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).
3 “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).
6
¶ 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.

C. Analysis

¶ 14 We agree with the remedy announced in Delgado that

convictions based on inconsistent mentes reae cannot stand. Thus,

4Because 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.
7
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

5 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.
8
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, when we determine verdicts are

inconsistent, we should maximize the effect of the jury’s verdicts by

employing the approach that yields the longest sentence. See

6The decisions of other divisions of our court are not binding on
our division. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App.
2008).
9
People v. Vigil, 251 P.3d 442, 450 (Colo. App. 2010); see also Beatty,

80 P.3d at 853. We disagree.

¶ 17 Following this logic, the People contend that the two second

degree assault counts should merge, resulting in Rigsby being

convicted of recklessly causing serious bodily injury by means of a

deadly weapon. The People further argue that recklessness

inherently encompasses criminal negligence, so there is no legal or

logical inconsistency between the second and third degree assault

convictions, and therefore, a new trial is unnecessary. See People v.

Hall, 999 P.2d 207, 219–20 (Colo. 2000).

¶ 18 However, we do not read Hall as the People do. In fact, Hall

distinguishes negligence from recklessness by asserting “even if [he

or] she should be, a person who is not actually aware that [his or]

her conduct creates a substantial and unjustifiable risk is not

acting recklessly.” Id. at 220.

¶ 19 Thus, we disagree with the People’s contention that a new trial

is unnecessary and that Rigsby’s three convictions should merge.

We cannot determine the jury’s intent because the verdicts are

logically and legally inconsistent. Further, requiring a new trial

here is not an academic exercise because the second degree assault

10
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). 7 The convictions must be set aside to allow

a jury to consider the charges against Rigsby anew.

III. Double Jeopardy

¶ 20 Rigsby contends, the People concede,8 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.

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

7 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.
8 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).
11
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

12
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.

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