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People v. Delgado

Court of Appeals of Colorado, Sixth Division

December 1, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Johnny G. Delgado, Defendant-Appellant.

         Pueblo County District Court No. 13CR286 Honorable Victor I. Reyes, Judge.

         JUDGMENT AND SENTENCE REVERSED AND CASE REMANDED WITH DIRECTIONS

          Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

          Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

          OPINION

          FURMAN JUDGE.

         ¶ 1 The defendant, Johnny G. Delgado, allegedly beat the victim unconscious and took items from his pockets. At trial, a jury convicted Delgado of robbery and theft from the person of another, which he now appeals.

         ¶ 2 We are asked to consider whether simultaneous convictions of robbery (requiring a taking by the use of force) and theft from the person of another (requiring a taking other than by the use of force) for the same act are legally and logically inconsistent and thus require reversal.

         ¶ 3 We agree with Delgado that the verdicts were plainly legally and logically inconsistent. And, because inconsistent verdicts do not allow us to decide what the jury found, we also agree that Delgado should receive a new trial. In reaching this conclusion, we disagree with People v. Beatty, 80 P.3d 847 (Colo.App. 2003), and People v. Lee, 914 P.2d 441 (Colo.App. 1995). We thus reverse the judgment and sentence, and we remand for a new trial.

         I. The Taking

         ¶ 4 The victim spent an evening at a bar, eventually getting drunk. He left around the time the bar closed. Soon after, though, he returned to the bar and banged on the door, trying to get back inside. Hearing this noise, a bar employee called the police, asking for an officer to check on this person.

         ¶ 5 The victim eventually gave up and walked away from the bar. As he did so, he saw two men walking toward him, but he turned his back on them. Moments later, he was attacked from behind; someone hit and kicked him until he collapsed on the sidewalk and lost consciousness.

         ¶ 6 Responding to the bar employee's call, a police officer soon arrived at the bar. He saw Delgado bent over the victim's prone body on the sidewalk, apparently going through the victim's pockets. Then, he saw Delgado stand up, holding items in his hands. This officer was the only eyewitness who testified at trial.

         ¶ 7 The officer shouted at Delgado to stop, but Delgado took off running, tossing aside the victim's wallet, keys, and phone as he went. Backup officers arrived in time to chase, catch, and arrest Delgado. One officer testified that on arrest, Delgado's hands were injured and bloody.

         ¶ 8 When the case went to trial, the prosecution argued that Delgado could be convicted of both robbery and theft from the person of another, and the trial court gave instructions on both.

         ¶ 9 The robbery instruction informed the jury that they could find Delgado guilty if he:

3.knowingly,
4.took anything of value,
5.from the person or presence of another,
6.by the use of force, threats, or intimidation.

(Emphasis added.). See ยง 18-4-301, ...


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