County District Court No. 13CR286 Honorable Victor I. Reyes,
AND SENTENCE REVERSED AND CASE REMANDED WITH DIRECTIONS
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Elizabeth
Griffin, Deputy State Public Defender, Denver, Colorado, for
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.
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
9 The robbery instruction informed the jury that they could
find Delgado guilty if he:
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 § 18-4-301, ...