Boulder County District Court No. 14CR1706 Honorable Maria E.
Cynthia H. Coffman, Attorney General, Jillian J. Price,
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Jessica Sommer,
Deputy State Public Defender, Denver, Colorado, for
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.
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
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),
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.
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.
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 ...