People v. Jeremiah Anthony Tomaske

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
May 19, 2022

2022COA52

No. 19CA1491, People v. Tomaske — Crimes — Disarming a
Police Officer

A division of the court of appeals considers whether a police

baton falls under the disarming a peace officer statute. See § 18-8-

116(1), C.R.S. 2021. Based on the plain language of the statute,

the division holds that a police baton is not a “firearm or self-

defense electronic control device, direct-contact stun device, or

other similar device.” The division therefore vacates the defendant’s

conviction for disarming a peace officer. But the division rejects the

defendant’s remaining challenges and affirms his conviction for

attempt to disarm a peace officer.
COLORADO COURT OF APPEALS 2022COA52

Court of Appeals No. 19CA1491
Montrose County District Court No. 18CR178
Honorable Zachary Martin, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremiah Anthony Tomaske,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART
AND VACATED IN PART

Division V
Opinion by JUDGE DUNN
Welling and Yun, JJ., concur

Announced May 19, 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
¶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.

1 This statute is colloquially known as the “make my day” law.
Though the parties and the trial court refer to it as such, following
the supreme court’s lead, we refer to it as the force-against-
intruders statute. People v. Rau, 2022 CO 3, ¶ 2.

1
¶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

2 Joshua Tomaske is the defendant’s brother. To avoid any
confusion between the brothers, we refer to Joshua Tomaske by his
first name.

2
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

3
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 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

4
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. When interpreting a statute,

we must give effect to the legislature’s intent. People v. Rau, 2022

5
CO 3, ¶ 15. If the statutory language is clear, we interpret the

statute according to its plain and ordinary meaning and apply it as

written. See id.

¶ 17 When considering the sufficiency of the evidence, “we review

the record de novo to determine whether the evidence, when viewed

in the light most favorable to the prosecution,” was sufficient “to

support the conclusion by a reasonable mind” that the defendant

was guilty. People v. Perez, 2016 CO 12, ¶ 8.

B. Police Batons Are Not Included Within the Disarming a Peace
Officer Statute

¶ 18 Recall that the disarming a peace officer statute criminalizes

the removal of an officer’s “firearm or self-defense electronic control

device, direct-contact stun device, or other similar device.” § 18-8-

116(1). The parties agree that a baton is not a firearm, a self-

defense electronic control device, or a direct-contact stun device.

But where they differ is whether a baton falls under “other similar

device.”

¶ 19 We start, as always, with the statutory text. The legislature

used an “or” between “firearm” and the phrase “self-defense

electronic control device, direct-contact stun device, or other similar

6
device.” See § 18-8-116(1). Because the disjunctive word “or” is

assumed to demarcate different categories, see People v. Valenzuela,

216 P.3d 588, 592 (Colo. 2009), we assume the legislature intended

“firearm” to be separate from the other device categories. See id.;

Garcia v. United States, 469 U.S. 70, 73 (1984) (use of the term “or”

indicates an intent to identify separate categories).3 That

interpretation is reinforced by the statute’s evolution. Indeed, the

legislature amended the statute in 2009 to add the phrase “or self-

defense electronic control device, direct-contact stun device, or

other similar device.” Ch. 305, sec. 3, § 18-8-116(1), 2009 Colo.

Sess. Laws 1651. Before that amendment, the statute only

included firearms. See § 18-8-116(1), C.R.S. 2008 (“A person

commits disarming a peace officer if he knowingly . . . removes the

firearm of a peace officer . . . .”). We therefore don’t read “other

similar device” to mean devices similar to firearms.

3 We recognize the phrase “self-defense electronic control device,
direct-contact stun device, or other similar device” itself contains an
“or.” Perhaps because the structure of that phrase indicates the
second “or” is used as part of a series of like devices (separated by
commas), the People don’t argue the second “or” creates an
independent category.

7
¶ 20 Rather, we read “other similar device” to mean devices

“similar” to electronic control and direct-contact stun devices. And

though this interpretation is firmly rooted in the statute’s text, it’s

equally consistent with the principle of ejusdem generis, which

instructs that “[w]here general words follow an enumeration of two

or more things, they apply only to persons or things of the same

general kind or class specifically mentioned.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 199

(2012); see also Winter v. People, 126 P.3d 192, 195 (Colo. 2006)

(applying ejusdem generis to interpret the third degree burglary

statute).

¶ 21 So does a baton fall within the purview of “other similar

device”? To be sure — and as all agree — a baton is an “other”

“device” as those terms are commonly understood. See Webster’s

Third New International Dictionary 1598 (2002) (other means “an

additional one”); id. at 618 (defining device as “a piece of equipment

or a mechanism designed to serve a special purpose or perform a

special function”); see also Cowen v. People, 2018 CO 96, ¶ 14

(“When determining the plain and ordinary meaning of words, we

may consider a definition in a recognized dictionary.”).

8
¶ 22 But it’s not “similar” to an electronic control or direct-contact

stun device. “Similar” means “having characteristics in common” or

“very much alike in substance or essentials.” Webster’s Third New

International Dictionary 2120 (2002). Electronic control devices

and direct-contact stun devices require an electrical shock to

subdue an individual. See, e.g., § 18-12-101(1)(i.5), C.R.S. 2021 (a

stun gun “means a device capable of temporarily immobilizing a

person by the infliction of an electrical charge”). In contrast,

standard police batons — like the one carried by Officer Roberts —

don’t administer electrical shocks.4 Because police batons don’t

have “characteristics in common” with and aren’t “very much alike

in substance or essentials” an electronic control or direct-contact

stun device, batons aren’t “other similar devices” under the

disarming a peace officer statute.

¶ 23 Despite the plain statutory text, the People urge a broader

construction. According to the People, “other similar device”

includes any weapon carried by a police officer in the course of their

4 The parties don’t dispute that Officer Roberts’ baton had no
electronic features. We express no opinion on batons that may
have electronic features.

9
duties, including batons. But there are a couple of problems with

this unrestrained interpretation. First, it reads “similar” out of the

statute, which we can’t do. See Rau, ¶ 15. Second, it doesn’t

comport with what the statute says. Had the legislature intended

such breadth, it could have simply said “any other device,” “any

other weapon,” or “any other equipment,” as other states have done.

See, e.g., La. Stat. Ann. § 14:34.6(A) (2021) (“takes possession of

any law enforcement equipment”); Mo. Rev. Stat. § 575.153 (2021)

(“[r]emoves a firearm, deadly weapon, or less-lethal weapon, to

include and including any blunt impact, chemical or conducted

energy devices”); N.M. Stat. Ann. § 30-22-27(A) (West 2021)

(“removing a firearm or weapon”); 18 Pa. Cons. Stat. § 5104.1(a)(1)

(2021) (“removes or attempts to remove a firearm, rifle, shotgun or

weapon”); Ky. Rev. Stat. Ann. § 508.160(1)(a) (West 2021)

(“[r]emoves a firearm or other deadly weapon”); cf. § 18-1-901(3)(e),

C.R.S. 2021 (deadly weapon means “[a] knife, bludgeon, or any

other weapon, device, instrument, material, or substance . . .”).

¶ 24 Similarly, had the legislature intended to specifically include

batons in the disarming a peace officer statute, it could’ve added

that piece of equipment or, at the very least, included striking

10
weapons. See § 18-12-101(1)(a.5) (defining “blackjack” as “any

billy, sand club, sandbag, or other hand-operated striking weapon”).

That it didn’t is further evidence that the legislature didn’t intend to

include those types of weapons. See Auman v. People, 109 P.3d

647, 656 (Colo. 2005) (“Just as important as what the statute says

is what the statute does not say.”).

¶ 25 The People next argue that the object of the law — protecting

the safety of peace officers — “weighs in favor of a more expansive

interpretation of the phrase to include items such as batons.” That

may well be the law’s purpose but it’s not what the statute says.

Because we “must presume that a legislature says in a statute what

it means,” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54

(1992), to the extent the plain language doesn’t align with the

underlying purpose, it’s up to the legislature — not us — to modify

the statute, see Pringle v. Valdez, 171 P.3d 624, 627 (Colo. 2007) (“If

our conclusion does not comport with the General Assembly’s

intention, it is the legislature, and not the court, that must rewrite

it.”).

¶ 26 In sum, we hold that police batons do not fall within the

purview of the disarming a peace officer statute. Because no other

11
evidence supported the conviction for disarming a peace officer, we

must vacate that conviction.

III. Force-Against-Intruders Defense

¶ 27 The force-against-intruders statute recognizes that citizens

“have a right to expect absolute safety within their own homes.”

§ 18-1-704.5(1); see Rau, ¶ 3.

¶ 28 Under the statute, a defendant is justified in using any degree

of physical force against another person if four conditions are met:

(1) another person made an unlawful entry
into the defendant’s dwelling;

(2) the defendant had a reasonable belief that
such other person had committed a crime in
the dwelling in addition to the uninvited entry,
or was committing or intended to commit a
crime against a person or property in addition
to the uninvited entry;

(3) the defendant reasonably believed that
such other person might use physical force, no
matter how slight, against any occupant of the
dwelling; and

(4) the defendant used force against the person
who actually made the unlawful entry into the
dwelling.

See People v. Alaniz, 2016 COA 101, ¶ 14 (quoting People v.

Guenther, 740 P.2d 971, 981 (Colo. 1987)); see also Rau, ¶ 21; § 18-

12
1-704.5(2). A defendant may invoke the statute before trial as a bar

to prosecution or at trial as an affirmative defense. See Rau, ¶ 20.

¶ 29 Though Tomaske didn’t file a pretrial motion to dismiss under

the force-against-intruders statute, he moved to dismiss the

charges under the statute as part of his motion for judgment of

acquittal. After the trial court denied the motion to dismiss,

Tomaske raised the statute again as an affirmative defense in

closing argument, asserting that the prosecution hadn’t met its

burden to disprove the defense beyond a reasonable doubt.

¶ 30 In its written order, the trial court agreed that the prosecution

had not disproved three of the four conditions required to disprove

the force-against-intruders affirmative defense. But it found that

the prosecution had disproved the second condition “beyond a

reasonable doubt.” Specifically, the court found that Tomaske “did

not have a reasonable belief” that Officer Roberts had “committed a

crime in the dwelling in addition to the uninvited entry, or was

committing or intended to commit a crime in addition to the

uninvited entry.”

13
¶ 31 Tomaske now contends the court erred because the

prosecution presented insufficient evidence to disprove his force-

against-intruders affirmative defense.

A. Standard of Review

¶ 32 Tomaske first argues that because the trial was to the bench,

we should apply a “modified sufficiency-of-the-evidence standard.”

But sufficiency challenges after a bench trial are no different than

those after a jury trial. See Kogan v. People, 756 P.2d 945, 950

(Colo. 1988), abrogated on other grounds by Erickson v. People, 951

P.2d 919 (Colo. 1998); People in Interest of D.C., 2019 COA 22, ¶ 4.

We review a sufficiency challenge de novo to determine whether any

rational fact finder could accept the evidence as sufficient to

support a finding of guilt beyond a reasonable doubt. Kogan, 756

P.2d at 950.

¶ 33 In doing so, we give the prosecution — as well as the trial

court — the benefit of every reasonable inference that might fairly

be drawn from the evidence. Id.; see Adler v. Adler, 167 Colo. 145,

148, 445 P.2d 906, 907 (1968) (noting that in trials to the bench,

it’s the duty of appellate courts “to search the record for evidence

most favorable” to the trial court’s judgment). And we defer to the

14
fact finder’s credibility determinations and its resolution of

“conflicts, inconsistencies, and disputes in the evidence.” Kogan,

756 P.2d at 950. We may not set aside a trial court’s verdict when

it’s sufficiently supported by the evidence, even if the “evidence may

be in conflict,” Stewart v. People, 175 Colo. 304, 307, 487 P.2d 371,

373 (1971), or even if we may have drawn a different conclusion

from the same evidence, see Kogan, 756 P.2d at 950; accord People

v. Johnson, 653 P.2d 737, 740 (Colo. 1982).

B. The Prosecution Presented Sufficient Evidence to Disprove the
Force-Against-Intruders Affirmative Defense

¶ 34 Officer Roberts testified at trial that he was investigating a

reported crime when he encountered Tomaske. He explained that

he was in uniform, identified himself as law enforcement, and

displayed no weapons. Officer Roberts testified that after a brief

interaction, Tomaske “turned and fled inside the residence.” In

response, Officer Roberts said that he followed Tomaske into the

house because he “believed that [Tomaske] was the suspect that

[he] was supposed to be looking for.” See § 18-1-707(1), C.R.S.

2021 (permitting officers to use physical force if “nonviolent means

15
would be ineffective in effecting an arrest” or “preventing an

escape”).

¶ 35 Viewing this evidence in the light most favorable to the trial

court’s verdict, it sufficiently supports the court’s finding that the

prosecution disproved Tomaske had “a reasonable belief” that the

officers had committed, were committing, or intended to commit a

crime (other than the trespass). See People v. Moore, 2021 CO 26,

¶ 48 (the reasonableness of a defendant’s belief in the necessity of

defensive action is determined by the trier of fact); see also People v.

McNeese, 892 P.2d 304, 313 (Colo. 1995) (“The inquiry for the

second requirement [of the force-against-intruders defense] focuses

on the reasonable belief of the occupant. It does not center on the

actual conduct of the intruder.”).

¶ 36 Tomaske doesn’t dispute this evidence. Rather, he argues that

the trial court erred by concluding “as a matter of law” that Officer

Roberts “did not commit a crime no matter how excessive his use of

force.” But even assuming that’s a sufficiency challenge, it’s not

what the trial court said. In fact, the trial court rejected the

prosecution’s argument that Officer Roberts’ status as “a law

enforcement officer means that he cannot ever be held to have

16
committed crimes.” And it recognized that in certain

circumstances, excessive force could be a crime. It just found that

“under the facts as developed at trial,” Tomaske’s belief that Officer

Roberts had committed or would commit a crime wasn’t reasonable

in this case. Because the finding has record support, we may not

set it aside. See Kogan, 756 P.2d at 950.

¶ 37 Tomaske also points to some potential ambiguity in the trial

court’s findings that the prosecution disproved the force-against-

intruders affirmative defense but didn’t disprove the affirmative

defense of self-defense (as to the obstruction charge). Specifically,

for purposes of self-defense, the court found that a reasonable

person in Tomaske’s position could conclude that Officer Roberts

“used excessive or unreasonable force when he initiated a physical

confrontation by chasing [Tomaske] into the home, and tackling

him from behind.” See People v. Barrus, 232 P.3d 264, 269 (Colo.

App. 2009) (“[S]elf-defense is an available defense against the

charge of obstructing a peace officer when a defendant reasonably

believes that unreasonable or excessive force is being used by the

peace officer.”). And, as already explained, for purposes of the

force-against-intruders defense, the court found that Tomaske “did

17
not have a reasonable belief” that Officer Roberts had “committed a

crime in the dwelling in addition to the uninvited entry, or was

committing or intended to commit a crime in addition to the

uninvited entry.”

¶ 38 But, again, though framed as a sufficiency challenge, this

contention doesn’t go to the sufficiency of the evidence. To the

extent the challenge is instead aimed at the adequacy of the trial

court’s findings, that’s different from whether sufficient evidence

supports the verdict. See People v. Shifrin, 2014 COA 14, ¶ 90

(“[T]he adequacy of a trial court’s findings, as contrasted with the

sufficiency of the evidence to support them, is tested by whether an

appellate court can discern the lower court’s rationale . . . .”); see

also R.B. v. L.B., 2014 UT App 270, ¶ 21, 339 P.3d 137, 145 (noting

a challenge to the adequacy of the court’s findings is different from

a sufficiency challenge). And to the extent Tomaske’s issue is with

the consistency of the trial court’s findings, he doesn’t argue the

verdicts are legally or logically inconsistent.

¶ 39 Because Tomaske doesn’t otherwise explain how the potential

ambiguity in the court’s findings undermines the sufficiency of the

18
evidence supporting his conviction for attempting to disarm a peace

officer, we reject Tomaske’s sufficiency challenge.

IV. Erroneous Legal Conclusion

¶ 40 Tomaske alternatively contends that the trial court premised

its force-against-intruders analysis on the erroneous “conclusion of

law that a peace officer’s use of excessive force is not necessarily a

crime.” This error, Tomaske argues, requires us to reverse and

remand to the trial court to reconsider his force-against-intruders

defense using the correct legal standard. We are unpersuaded for a

couple of reasons.

¶ 41 First, as the People point out, excessive use of force is not,

standing alone, a substantive crime.5 Rather, subject to section 18-

1-707 (which sets forth rules on use of force in making an arrest),

“a peace officer who uses excessive force in pursuance of such

officer’s law enforcement duties shall be subject to the criminal laws

of this state to the same degree as any other citizen.” § 18-8-803,

C.R.S. 2021 (emphasis added). This statute “establishes a public

policy that law enforcement officers have no immunity from

5Tomaske agreed at oral argument that excessive use of force is not
a stand-alone crime.

19
criminal prosecution nor are they accorded any special status with

respect to the use of force except in making an arrest.” Bourie v.

Dep’t of Higher Educ., 929 P.2d 18, 21 (Colo. App. 1996). But

there’s “no indication in [this] statute[] that a public entity is

required to file a criminal complaint against a peace officer for the

use of excessive force.” Id.

¶ 42 Second, we disagree with Tomaske that the trial court

premised its analysis exclusively on the statement that excessive

use of force is not necessarily a crime. Rather, in its force-against-

intruders findings, the trial court stated that “[h]owever mistaken or

excessive the actions of [Officer] Roberts may have been, the court

does not find that they were crimes, or that Tomaske had a

reasonable belief that Officer Roberts was committing or intended to

commit a crime.”

¶ 43 The court then outlined the evidence it relied on to find that

Tomaske didn’t have a reasonable belief that the “officers had

committed, were committing, or intended to commit a crime” in

Tomaske’s house. Because the trial court rejected Tomaske’s force-

against-intruders defense based on the evidence presented, we

20
disagree with Tomaske that we must remand the case to the trial

court to reconsider that defense.

¶ 44 Finally, Tomaske suggests the trial court legally erred by not

considering whether Officer Roberts knew he wasn’t authorized to

arrest Tomaske when he tackled Tomaske inside the house. But

Tomaske points us to no authority — and we aren’t aware of any —

requiring the court to consider that under the force-against-

intruders statute. See § 18-1-704.5(2); see also Rau, ¶ 21.

V. Conclusion

¶ 45 We vacate the conviction for disarming a peace officer and

affirm the conviction for attempt to disarm a peace officer.

JUDGE WELLING and JUDGE YUN concur.

21