Peo v. Mercado

23CA0302 Peo v Mercado 10-23-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0302
Weld County District Court No. 21CR1127
Honorable Allison J. Esser, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Michael Mercado,

Defendant-Appellant.

APPEAL DISMISSED

Division VII
Opinion by JUDGE MOULTRIE
Tow and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 23, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, David Michael Mercado, appeals the judgment of

conviction entered upon a jury verdict finding him guilty of

aggravated robbery. We dismiss the appeal.

I. Background

¶2 The jury heard the following evidence at trial.

¶3 Two officers responded to a disturbance on southbound I-25

near Mead, Colorado. The officers encountered Mercado, who was

walking down the highway. Body camera footage shows Mercado

with face and neck tattoos wearing a white t-shirt and red gym

shorts. Mercado fled. The officers decided not to chase him on foot

but pursued him in their vehicles, eventually losing sight of him

after he walked onto the highway in the northbound lanes.

¶4 At that time, Samuel Blandin was driving northbound on I-25

when traffic came to a stop near the Mead exit. Mercado walked

around the front of Blandin’s truck and got in on the rear passenger

side. Blandin described Mercado as wearing a white tank top and

red gym shorts and having tattoos on his neck. Mercado told

Blandin that he was carjacking him and would shoot him if he

didn’t start driving and do as he was told.

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¶5 Mercado asked to use Blandin’s phone, but Blandin refused.

Mercado then punched Blandin in the face, breaking his glasses

and injuring his nose. Blandin gave Mercado the passcode for his

phone, after which Mercado called a woman and asked her to pick

him up. At one point, Mercado noticed a dashboard camera in the

truck, tried to remove it, and eventually ripped the wires out.

¶6 Per Mercado’s instructions, Blandin got off I-25 and drove to

two gas stations. At one of the gas stations, one of the officers who

had responded to the initial disturbance signaled for Blandin to pull

over, but Blandin kept driving. At the second gas station, Blandin

drove around before Mercado got out, taking Blandin’s phone with

him. Blandin drove home and called 911.

¶7 Blandin identified Mercado as the man who had gotten in his

truck in both a photo lineup the night of the incident and at trial.

¶8 The prosecution charged Mercado with second degree

kidnapping and aggravated robbery.

¶9 The jury was instructed on the elements of second degree

kidnapping. If the jury found Mercado guilty of second degree

kidnapping, it was instructed to answer a special interrogatory:

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Was the person kidnapped also the victim of
another specified crime? (Answer “Yes” or
“No”)

The person kidnapped was also the victim of
another specified crime only if:

1. the person kidnapped was the victim of the
crime of robbery as defined in instruction no.
15.

¶ 10 Jury instruction number fifteen included the following

elements for the crime of robbery:

(1) That the defendant,

(2) in the State of Colorado, at or about the
date and place charged,

(3) knowingly,

(4) took anything of value,

(5) from the person or presence of another,

(6) by the use of force, threats, or
intimidation.

¶ 11 The jury instruction for aggravated robbery listed the same six

elements plus two additional elements:

(1) That the defendant,

(2) in the State of Colorado, at or about the
date and place charged,

(3) knowingly,

(4) took anything of value,

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(5) from the person or presence of another,

(6) by the use of force, threats, or
intimidation, and

(7) during the act of robbery or immediate
flight therefrom,

(8) possessed any article used or fashioned
in a manner to lead any person who was
present reasonably to believe it was a
deadly weapon or represented verbally or
otherwise that he was then and there
armed with a deadly weapon.

¶ 12 In closing argument, the prosecutor told the jury that second

degree kidnapping was a “two-part charge,” consisting of

kidnapping and robbery. The prosecutor argued that the elements

of robbery were met because Mercado took Blandin’s phone and hit

him in the face. And he argued that the elements of aggravated

robbery, “which has more elements than the robbery itself,” were

met by those same facts, plus the evidence that Mercado threatened

to shoot Blandin.

¶ 13 Defense counsel argued that the prosecution had failed to

prove that Mercado was the individual who got in Blandin’s truck.

¶ 14 A jury found Mercado guilty of both aggravated robbery and

second degree kidnapping. However, in the special interrogatory for

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second degree kidnapping, the jury found that Mercado didn’t

commit the crime of robbery against Blandin.

¶ 15 The trial court sentenced Mercado to twenty years in prison for

aggravated robbery concurrent with twelve years in prison for

second degree kidnapping.

II. Waiver

¶ 16 For the first time on appeal, Mercado contends that the jury’s

unanimous special interrogatory finding that he didn’t commit

robbery against the kidnapped victim was legally and logically

inconsistent with its guilty verdict that he committed aggravated

robbery. He reasons that the interrogatory finding negates at least

one of the substantive elements of aggravated robbery, and

therefore the aggravated robbery verdict is infirm. He requests

vacatur of his aggravated robbery conviction for structural error, or

in the alternative, reversal for plain error and remand for a new

trial.1

¶ 17 Although the parties agree that Mercado didn’t preserve his

argument for appeal, they dispute whether appellate review is

1 Mercado does not appeal his second degree kidnapping conviction.

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appropriate based on waiver. We agree with the People that

Mercado waived his claim.

A. Additional Facts

¶ 18 After the jury returned its verdicts, the trial court read the

verdicts aloud, including the special interrogatory answer. The

court then polled the jury, and all jurors confirmed the verdicts.

Defense counsel didn’t object.

¶ 19 At sentencing, the trial court noted the jury’s guilty verdicts

and interrogatory response:

THE COURT: With regard to the kidnapping,
it’s listed in the PS[I] as a Class 2 felony. The
jury — when they were asked the question,
although, I acknowledge it’s somewhat in
conflict with their other finding — the jury did
not find that any conditions under [section
18-3-302(3)(b), C.R.S. 2025] existed. They
were not asked to make any findings under
[section 18-3-302(4)]. And so, I think that
pursuant [section 18-3-302(5)], the second
degree kidnapping charge would be a Class 4
felony, subject to mandatory aggravation. So,
looking at a range of 4 to 12. Do the People
agree with that?

[PROSECUTOR]: I would agree with that, Your
Honor.

THE COURT: Okay. [Defense counsel]?

[DEFENSE COUNSEL]: That’s what I believe.

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THE COURT: Okay. And, I think — I don’t
often do this, but I want to make sure that the
Department of Corrections is classifying this
correctly, so I think I may issue a written
ruling just finding that based on their findings,
it should be a Class 4 felony, rather than a
Class 2 felony.

[DEFENSE COUNSEL]: That’s correct. And, I
think would be made explicit on [the
mittimus].2

¶ 20 The trial court then imposed concurrent sentences because

“although, the jury did not convict for kidnapping, where the victim

is also a robbery — which again, . . . I think is somewhat

confusing, . . . these really are the same actions.” Again, defense

counsel didn’t object.

B. Applicable Law

¶ 21 Waiver is “the intentional relinquishment of a known right or

privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (quoting Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984)). We indulge

every reasonable presumption against waiver. Id.

2 Mercado was charged with second degree kidnapping under

section 18-3-302(1), (3), C.R.S. 2025. Section 18-3-302(3)(b) says
that second degree kidnapping is a class 2 felony if the person
kidnapped was a victim of robbery. And section 18-3-302(5) says
that second degree kidnapping is a class 4 felony “except as
provided in subsections (3) and (4) of this section.”

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¶ 22 “A waiver may be explicit, as, for example, when a party

expressly abandons an existing right or privilege, or it may be

implied, as when a party engages in conduct that manifests an

intent to relinquish a right or privilege or acts inconsistently with its

assertion.” Forgette v. People, 2023 CO 4, ¶ 28. But “the mere

failure to raise an issue neither amounts to the type of unequivocal

act indicative of a waiver nor constitutes the type of conduct that

clearly manifests any intent to relinquish the claim.” Phillips v.

People, 2019 CO 72, ¶ 21 (citation modified).

¶ 23 Whether a claim has been waived depends on the particular

circumstances of a case. People v. Garcia, 2024 CO 41M, ¶ 45

(citing People in Interest of A.G., 262 P.3d 646, 652 (Colo. 2011)).

The supreme court has been willing to find implied waiver “when

the record demonstrates that counsel was aware of the grounds for

an objection but failed to raise it.” Id. at ¶ 46. And in some cases,

the supreme court’s willingness to find an implied waiver has been

strengthened if there is “a concern that a defendant could

intentionally forego objecting to an error ‘as a strategic parachute to

preserve an avenue of attack on appeal.’” Id. at ¶ 47 (quoting

Stackhouse v. People, 2015 CO 48, ¶ 17).

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¶ 24 Waiver extinguishes error and therefore appellate review.

Rediger, ¶ 40.

C. Analysis

¶ 25 The People argue that Mercado waived his inconsistent verdict

argument by failing to contemporaneously object when the trial

court read the verdict and polled the jury, and at sentencing when

the trial court noted that the verdicts were “somewhat in conflict”

and “somewhat confusing.” Specifically, they assert that defense

counsel didn’t object after the verdict was read despite it being

“obvious” that the interrogatory finding seemed inconsistent with

the jury’s finding of guilt for aggravated robbery. They also assert

that Mercado had “strategic reasons” to forgo objecting: (1) if

defense counsel had objected before the jury was discharged, the

trial court could have required the jury “to reread the jury

instructions and fill out new verdict forms, exposing Mercado to

conviction for an F2 and an F3 rather than the F3 and F4 reflected

in the existing verdicts”; and (2) by not objecting, Mercado

strategically preserved an avenue of attack on appeal, namely, the

attack he asserts now with a request to have his aggravated robbery

conviction vacated. The People also cite People v. Tee, 2018 COA

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84, ¶ 23, to argue that “the trial court and defense counsel were

involved in an ongoing, interactive exchange” at sentencing relevant

to the alleged inconsistency, and we should therefore infer waiver

from defense counsel’s lack of objection.

¶ 26 Mercado counters that the record shows no evidence that

defense counsel was aware of the alleged verdict inconsistency or

had any strategic reasons to stay silent when the verdicts were

read. He further asserts that, at sentencing, the trial court and

defense counsel only had a limited exchange regarding the mittimus

and the class of felony for kidnapping, which “does not provide

sufficient evidence that defense counsel knew of legal grounds for

objecting to the inconsistent aggravated robbery verdict and, for

strategic reasons, intentionally chose not to do so.”

¶ 27 We conclude that Mercado indeed waived his argument by not

contemporaneously objecting when the trial court read the verdicts

aloud and at sentencing. After the court read the verdicts, as the

People point out, it was obvious that there was a possible ambiguity

between the aggravated robbery verdict and the special

interrogatory finding. See People v. Forgette, 2021 COA 21, ¶ 30

(“Forgette’s defense counsel was aware that a juror was asleep

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during the presentation of evidence but chose to remain mute

regarding a remedy. The juror’s closed eyes in this case were as

apparent to defense counsel as the closed doors of the courtroom in

Stackhouse.”), aff’d in part, vacated in part on other grounds, 2023

CO 4. And at sentencing, the court put defense counsel on notice

that the verdicts were “somewhat in conflict” and “somewhat

confusing.” Yet, counsel didn’t object at either instance.

Furthermore, counsel was “involved in an ongoing, interactive

exchange” with the court at sentencing regarding whether the

kidnapping conviction would be a class 2 or class 4 felony based on

the interrogatory finding. Tee, ¶ 23. Counsel fully agreed with the

court that it should enter a conviction for a class 4 felony. Based

on this record, it is apparent that “counsel was aware of the

grounds for an objection but failed to raise it.” Garcia, ¶ 46.

¶ 28 Moreover, Mercado had potential strategic motives for not

objecting to the allegedly ambiguous verdicts. As evidenced by the

colloquy between the trial court and defense counsel, he evaded a

class 2 felony conviction in favor of a class 4 felony. If counsel had

objected when the verdicts were read, there is a possibility that the

court would have required the jury to return to deliberations to

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resolve the ambiguity, thereby exposing Mercado to a class 2 felony

kidnapping conviction. And by not objecting at trial or at

sentencing, counsel preserved Mercado’s current attack on appeal,

in which he requests that his aggravated robbery conviction be

vacated.

¶ 29 Importantly, we view supreme court precedent where waiver

was not found as distinguishable from Mercado’s case. In Rediger,

the People argued that Rediger waived his objection to a

constructive amendment of the complaint when his counsel stated

that counsel was “satisfied” with the jury instructions. Rediger,

¶ 41. The supreme court found no waiver because the record

contained no evidence that Rediger (1) “intended to relinquish his

right to be tried in conformity with the charges set forth in his

charging document when he generally acquiesced to the jury

instructions,” or (2) “knew of the discrepancy between the People’s

tendered jury instructions and the charging document.” Id. at

¶¶ 42-44.

¶ 30 In Phillips, the supreme court concluded that the “mere

failure” of defense counsel to include Phillips’s unpreserved

appellate contentions in a motion to suppress didn’t, by itself,

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constitute waiver. Phillips, ¶ 38. Likening the case to Rediger, the

court determined that the record was “barren of any indication that

defense counsel considered raising the unpreserved contentions

before the trial court but then, for a strategic or any other reason,

discarded the idea.” Id. at ¶ 22.

¶ 31 Finally, in People v. Turner, 2022 CO 50, the supreme court

discussed whether Turner waived his challenge to the trial court’s

closure of the courtroom to his codefendant’s wife by failing to join

in the codefendant’s objection or lodge his own objection. Turner,

¶ 9. The court concluded there was no waiver because “strategic

choice does not appear to be what happened here.” Id. at ¶ 13. The

court reasoned that defense counsel knew of the right to a public

trial but didn’t “know enough about the underlying incident to

object to [the wife’s] exclusion.” Id.

¶ 32 Contrary to this line of cases, the record here clearly evidences

that defense counsel was aware of the alleged inconsistency

between the aggravated robbery verdict and the special

interrogatory response. At trial, the trial court read aloud the

verdicts and the interrogatory response. At sentencing, the court

noted that the verdicts were “somewhat in conflict” and “somewhat

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confusing,” and defense counsel engaged in a colloquy with the

court regarding whether the court should enter a class 2 or class 4

felony conviction for second degree kidnapping based on the

interrogatory response. Furthermore, as we have concluded,

Mercado’s counsel had potential strategic reasons for not objecting

at the trial level.

¶ 33 Because (1) defense counsel was made aware of the alleged

ambiguity between the aggravated robbery verdict and the special

interrogatory finding but failed to object, and (2) by failing to object,

defense counsel preserved his current attack on appeal, we

conclude that Mercado waived his inconsistent verdict argument.

See Garcia, ¶ 51 (finding waiver and noting the “perverse incentive”

inherent in a scenario where defense counsel knew of the grounds

for a judge’s statutory disqualification but failed to raise the issue);

Stackhouse, ¶ 16 (“Allowing a defense attorney who stands silent

during a known [courtroom] closure to then seek invalidation of an

adverse verdict on that basis would encourage gamesmanship, and

any ‘new trial would be a “windfall” for the defendant . . . .’”);

Forgette, 2023 CO 4, ¶ 34 (because defense counsel was fully aware

of a sleeping juror but did not object or ask the trial court to take

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any action, the defendant intentionally relinquished his known right

and therefore waived any objection on appeal).

¶ 34 And because waiver extinguishes error, there is nothing for us

to review. See Rediger, ¶ 40.

III. Disposition

¶ 35 The appeal is dismissed.

JUDGE TOW and JUDGE LUM concur.

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