Certiorari to the Colorado Court of Appeals, Court
of Appeals Case No. 13CA2024
for Petitioner: Philip J. Weiser, Attorney General, Kevin E.
McReynolds, Assistant Attorney General, Denver, Colorado
for Respondent: Megan A. Ring, Public Defender, Elizabeth
Griffin, Deputy Public Defender, Denver, Colorado
Unable to gain access to a closed bar by banging on the door,
R.B. headed elsewhere. He didnt get far. As he began to
leave, he was knocked unconscious from behind. He awoke with
his belongings gone and the police in pursuit of a man seen
fleeing the scene. That man was Johnny Delgado.
The police caught Delgado, who was eventually convicted of
both theft from a person and robbery based on a single
taking. But theft from a person is the unlawful taking of an
item without force, and robbery is the unlawful
taking of an item with force. Thus, based on the
elements, it appears that Delgado was both convicted and
absolved of taking R.B.s belongings without force.
And he was both convicted and absolved of taking R.B.s
belongings with force.
Can these verdicts be legally and logically reconciled? Like
the division of the court of appeals below, we conclude that
they cannot. Elements of the two convictions are mutually
exclusive. Its impossible for Delgado to have unlawfully
taken items from R.B. by force and also by means other than
force when there was only one taking alleged.
So, whats the remedy? The People argue that, even if the
verdicts are mutually exclusive, the cure is to maximize the
convictions by throwing out the lesser theft-from-a-person
conviction. Delgado counters that double jeopardy requires
striking both convictions. The division below took a middle
ground and concluded that, here, the solution is a new trial.
Again we agree with the division. We hold that, because the
elements of theft from a person and robbery negate each other
when they are based on a single taking, a defendant may not
be convicted of both offenses. Because such mutually
exclusive convictions leave us without a meaningful way to
discern the jurys intent, the proper remedy is a new trial.
Accordingly, we affirm the judgment of the court of appeals.
I. Facts and Procedural History
Late one evening, R.B. banged on the door of a closed bar,
apparently to gain entry. While unsuccessful, he managed to
disturb the staff inside the bar. They called the police.
Shortly after banging on the door, R.B. was attacked from
behind, and he lost consciousness.
Within minutes, an officer arrived at the bar. As he arrived,
that officer saw a man— later discovered to be
Delgado— rummaging through the pockets of R.B., who was
lying down. Delgado stood and walked away carrying several
items. The officer yelled for Delgado to stop, but Delgado
bolted down an alley instead. Other officers gave chase.
During the chase, Delgado dropped several items. The officers
quickly caught and arrested Delgado, and they found R.B.s
phone, wallet, and keys on the ground nearby.
Delgado was subsequently charged with robbery and theft from
a person. A jury convicted him on both counts. (The jury was
unable to reach a verdict as to a misdemeanor assault charge,
so the district attorney dismissed that charge.)
A division of the court of appeals reversed. Seizing on
language from our decision in People v. Frye, 898
P.2d 559 (Colo. 1995), it reasoned that essential elements of
robbery and theft from a person logically negate each other.
People v. Delgado, 2016 COA 174, ¶¶ 19-21, 410 P.3d
697, 700. More specifically, the division reasoned that
"force" has the same definition in both the robbery
and theft-from-a-person statutes, Delgado couldnt have taken
R.B.s belongings both "by the use of force" (as
required for robbery) and "by means other than the use
of force" (as required for theft from a person).
See id. at ¶ 21, 410 P.3d at 700. The
division additionally concluded that the error was plain
because the rule preventing mutually exclusive convictions is
"well-established" and there could "be no
clearer example of inconsistency" than between these
elements of theft from a person and robbery. Id. at
¶ 23, 410 P.3d at 701.
As for the remedy, the division disagreed with both the
People and Delgado. See id. at ¶¶ 24, 27,
410 P.3d at 701-02. The People asked the division to maximize
the jurys verdicts by sustaining the robbery conviction,
id. at ¶ 27, 410 P.3d at 701, while Delgado
requested that the division throw out both convictions,
id. at ¶ 34, 410 P.3d at 702. The division reasoned
that it couldnt possibly know what the jury was thinking
because it "expressed irreconcilable findings,"
making maximization inappropriate. Id. at ¶ 32, 410
P.3d at 702. And it equally disagreed with Delgados
contention that he was acquitted of both crimes because each
verdict contained an affirmative finding that necessitated
acquittal on the other count. Id. at ¶ 34, 410 P.3d
at 702. Rather, the division noted that such reasoning could
just as easily lead it to conclude that both verdicts
included findings of conviction, rather than acquittal.
Id. So, it concluded that the correct remedy is a
new trial. Id. at ¶ 33, 410 P.3d at 702.
We granted the Peoples petition for
After briefly discussing the standard of review, we address
the proper framework for dealing with mutually exclusive
guilty verdicts. We conclude that, when essential elements of
two guilty verdicts logically negate each other, they are
mutually exclusive. Here, the robbery and theft-from-a-person
convictions do exactly that. Therefore, Delgado may not be
convicted of both. We then analyze whether this error was
plain. We conclude that it was, given the stark differences
between the elements of theft from a person and robbery.
Finally, we examine the proper remedy for mutually exclusive
guilty verdicts. Because it is impossible to know exactly
what the jury intended, the remedy is a new trial.
A. Standard of Review
Whether verdicts are mutually exclusive is a question of law.
Therefore, we review this issue de novo. See
Lucero v. People, 2012 CO 7, ¶ 19, 272 P.3d 1063,
1065 (citing Montez v. People, 2012 CO 6, ¶ 7, 269
P.3d 1228, 1230). Unpreserved constitutional errors, such as
the one here, are reviewed for plain error. See
People v. Miller, 113 P.3d 743, 748-49 (Colo. 2005).
An error is plain when it is "obvious and
substantial," id. at 750 (quoting People v.
Stewart, 55 P.3d 107, 120 (Colo. 2002)), and "so
undermine[s] the fundamental fairness of the trial itself as
to cast serious doubt on the reliability of the judgment of
conviction," Hagos v. People, 2012 CO 63, ¶ 18,
288 P.3d 116, 120 (quoting Wilson v. People, 743
P.2d 415, 420 (Colo. 1987)).
B. Mutually Exclusive Guilty Verdicts
This court has not yet directly confronted how to analyze
mutually exclusive guilty verdicts. We made it clear in
Frye that it isnt necessary for a guilty verdict
and a not -guilty verdict to be consistent.
See 898 P.2d at 571 (holding that "consistency
in [guilty and not-guilty] verdicts is unnecessary").
But as the parties and division below note, in Frye,
we at least suggested how cases such as the one before us now
might be handled. See id. at 569 n.13 (observing
"courts are generally uniform in their agreement"
that mutually exclusive guilty verdicts "should not be
The facts of Frye, though disturbing, are
straightforward. Ronald Frye raped the victim, referred to as
Doe, while pointing a gun at her head. Id. at 561.
Frye was charged with first degree burglary, second degree
burglary, sexual assault in the first degree, and menacing
with a deadly weapon. Id. at 560-61. Before the jury
deliberated, the trial court instructed the jury on the
lesser included offense of second degree sexual assault.
Id. at 564. The jury ultimately found Frye guilty of
that offense and menacing with a deadly weapon, which implied
that Frye was not guilty of first degree sexual
The problem was that sexual assault in the first degree and
menacing with a deadly weapon included similar elements.
Sexual assault in the first degree required causing the
submission of the victim "through the actual application
of physical force, physical violence, or ... by threat of
imminent death, serious bodily injury, [or] extreme
pain." Id. at 563. Menacing with a deadly
weapon required placing the victim in "fear of imminent
serious bodily injury." Id. We concluded
"that only by a most strained analysis could the two
guilty verdicts be held to be consistent." Id.
If the jury had believed that Frye used a gun to cause Does
submission, it would logically have found him guilty of first
degree sexual assault. Therefore, a verdict of not guilty of
first degree sexual assault but guilty of second degree
sexual assault suggests that the jury found that Frye did not
use a gun to cause Doe to submit. Such a finding would be at
odds with the guilty verdict for menacing with a deadly
weapon because there is no evidence that Frye used the gun
other than in the course of the sexual assault.
Id. (citation omitted). To find consistency in the
two verdicts, we noted that we would have had to determine
that the jury didnt believe Does testimony that Frye used a
gun during the commission of the sexual assault, but did
believe that Frye used it at some other point. See
id. at 566. We rejected such an "implausible
explanation" and concluded that the verdicts were
inconsistent. Id. Despite this, we followed the
federal rule and allowed both verdicts to stand so long as
the evidence supported both convictions because it was
impossible to determine why the jury convicted on one count
and acquitted on the other. Id. at 570-71.
The People argue that we should analyze the inconsistency
here the same way. But Frye arose in a different
setting: inconsistent guilty and not-guilty verdicts, not
mutually exclusive guilty verdicts. See id. at
564-66. In fact, we stated explicitly that Frye was
not a case where a defendant had been convicted of
two crimes, certain elements of which are mutually exclusive.
See id. at 569 n.13. Instead, we noted a