Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Rigsby

Court of Appeals of Colorado, First Division

December 13, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Derek Michael Rigsby, Defendant-Appellant.

          Boulder County District Court No. 14CR1706 Honorable Maria E. Berkenkotter, Judge

          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

          OPINION

          TAUBMAN JUDGE

         ¶ 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.

         ¶ 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. 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.

         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, 20 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.