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,
Attorneys 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 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.
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. 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.
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.
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
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 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.
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.
We granted the People's 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.
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)).
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 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").
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
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
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
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).
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.
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
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.
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