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People v. Delgado

Supreme Court of Colorado, En Banc

September 30, 2019

The People of the State of Colorado, Petitioner
v.
Johnny Guillermo Delgado. Respondent

          Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 13CA2024

          Attorneys for Petitioner: Philip J. Weiser, Attorney General Kevin E. McReynolds, Assistant Attorney General Denver, Colorado

          Attorneys for Respondent: Megan A. Ring, Public Defender Elizabeth Griffin, Deputy Public Defender Denver, Colorado

          OPINION

          HOOD JUSTICE

         ¶1 Unable to gain access to a closed bar by banging on the door, R.B. headed elsewhere. He didn't 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.

         ¶2 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.

         ¶3 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. It's 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.

         ¶4 So, what's 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.

         ¶5 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 jury's intent, the proper remedy is a new trial. Accordingly, we affirm the judgment of the court of appeals.

         I. Facts and Procedural History

         ¶6 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.

         ¶7 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.

         ¶8 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.)

         ¶9 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 because "force" has the same definition in both the robbery and theft-from-a-person statutes, Delgado couldn't 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.

         ¶10 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 jury's 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 couldn't 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 Delgado's 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.

         ¶11 We granted the People's petition for certiorari.[1]

         II. Analysis

         ¶12 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

         ¶13 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

         ¶14 This court has not yet directly confronted how to analyze mutually exclusive guilty verdicts. We made it clear in Frye that it isn't 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 that "courts are generally uniform in their agreement" that mutually exclusive guilty verdicts "should not be sustained").

         ¶15 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 assault. Id.

         ¶16 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. at 565.

If the jury had believed that Frye used a gun to cause Doe's 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 didn't believe Doe's 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.

         ¶17 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 "general agreement" that legally and logically inconsistent guilty verdicts "should not be sustained." Id.

         ¶18 This dicta has taken root. We have at least alluded to it in a subsequent opinion, see Candelaria v. People, 148 P.3d 178, 183 (Colo. 2006), and the court of appeals has applied it, see, e.g., People v. Weare, 155 P.3d 527, 529 (Colo.App. 2006). Moreover, a majority of other states still apply the same or a similar rule. See, e.g., State v. Chyung, 157 A.3d 628, 636, 643 (Conn. 2017) (holding that convictions of reckless manslaughter and specific intent murder were inconsistent and thus had to be vacated); State v. Owens, 766 S.E.2d 66, 71 (Ga. 2014) (concluding that felony murder and felony involuntary manslaughter were mutually exclusive and remanding for a new trial); Commonwealth v. Medeiros, 921 N.E.2d 98, 103 (Mass. 2010) (remarking that Massachusetts sets aside mutually exclusive verdicts); State v. Speckman, 391 S.E.2d 165, 167–68 ( N.C. 1990) (reasoning that convictions for embezzlement and false pretenses were "mutually exclusive" and required a new trial).

         ¶19 Still, the People contend that in Frye we simply conducted a factual analysis to assess whether two verdicts are irreconcilable. They ask us to do the same here. Because Delgado allegedly knocked R.B. unconscious before he took R.B.'s personal belongings, the People contend that the jury could have reasonably concluded that there was both a theft from a person and a robbery. But, because both parties agree that there was only one taking, this seems, at best, implausible. We would have to assume that the jury believed that Delgado knocking R.B. unconscious was somehow the robbery, and the taking of R.B.'s items was the theft. Yet, the robbery could not have occurred without the taking, and the theft could not have occurred through the use of force. And, in any event, this would be exactly the type of "speculation into a jury's thought processes that courts generally eschew." Frye, 898 P.2d at 566. So, the People's argument fails on its own terms.

         ¶20 Moreover, Frye suggests an elemental approach to evaluating whether the remaining guilty verdicts are irreconcilable. There, we stated that, for mutually exclusive guilty verdicts, "where the existence of an element of one of the crimes negates the existence of a necessary element of the other crime . . . [, ] the verdicts are legally and logically inconsistent and should not be sustained." Id. at 569 n.13 (emphases added).

         ¶21 But why, exactly, is it that mutually exclusive guilty verdicts aren't permitted? The answer lies in a defendant's right to have each element of a crime proven beyond a reasonable doubt.

         ¶22 The prosecution's responsibility to prove each element of a charged offense beyond a reasonable doubt is embedded within the Fifth and Fourteenth Amendments' due process protections and the Sixth Amendment's right to trial by jury. See Sullivan v. Louisiana, 508 U.S. 275, 278 (1993) ("[T]he jury verdict required by the Sixth Amendment is a jury verdict of guilty beyond a reasonable doubt."); In re Winship, 397 U.S. 358, 364 (1970) ("[T]he Due Process Clause protects the accused against ...


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