     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                          December 13, 2018

                               2018COA171

No. 2016CA138, People v. Rigsby — Crimes — Assault in the
Second Degree — Assault in the Third Degree; Criminal Law —
Mens Rea; Constitutional Law — Fifth Amendment — Double
Jeopardy

     In this direct appeal of convictions for two counts of second

degree assault and one count of third degree assault, a division of

the court of appeals considers the remedy to apply when jury

verdicts are logically and legally inconsistent.

     The division concludes that a defendant cannot stand

convicted of both second degree assault, for having acted

intentionally or recklessly, and third degree assault, for having been

unaware of an attendant risk, for the same act. Thus, the division

rejects the conclusion announced in People v. Zweygardt, 2012 COA

119, 298 P.3d 1018, that the mental state of recklessness

subsumes that of criminal negligence.
     Further, the division determines that legally and logically

inconsistent verdicts require the court to set aside the convictions

to allow a jury to consider charges anew, rejecting the remedy

announced in People v. Beatty, 80 P.3d 847 (Colo. App. 2003), that

inconsistent verdicts must merge.

     Finally, the division concludes that the United States and

Colorado Constitutions protect a defendant from multiple

convictions for the same offense when the relevant statute provides

alternative methods of committing the same offense rather than

prescribing multiple punishments for the same crime.

     Accordingly, the division reverses and remands to the district

court for a new trial.
 COLORADO COURT OF APPEALS                                    2018COA171


Court of Appeals No. 16CA0138
Boulder County District Court No. 14CR1706
Honorable Maria E. Berkenkotter, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Derek Michael Rigsby,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division I
                         Opinion by JUDGE TAUBMAN
                          Terry and Fox, JJ., concur

                        Announced December 13, 2018


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
¶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.


                                    1
¶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.



                                    2
 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.




 1As relevant here, a person commits second degree assault if he or
 she “recklessly causes serious bodily injury to another person by
 means of a deadly weapon,” § 18–3–203(1)(d), C.R.S. 2018, or
 “[w]ith intent to cause bodily injury to another person, he or she
 causes serious bodily injury to that person or another,” § 18–3–
 203(1)(g).


                                    3
                       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,

 2012 COA 119, ¶ 30, 298 P.3d 1018, 1024.

                          B. Applicable Law

¶8    Courts assume verdicts are consistent when each offense

 requires proof of separate and distinct elements; however, this is

 not the case when jury verdicts convict a defendant of multiple

 crimes and the existence of an element of one crime negates the

 existence of a necessary element of another crime. See People v.

 Frye, 898 P.2d 559, 569 n.13 (Colo. 1995) (stating that courts agree

 verdicts are legally and logically inconsistent under these

 circumstances). We cannot sustain legally and logically

                                   4
  inconsistent verdicts. Id.; see also People v. White, 64 P.3d 864,

  875 (Colo. App. 2002).

¶9     While acknowledging that legally and logically inconsistent

  verdicts cannot be sustained, a division of our court stated that,

  when the court encounters inconsistent verdicts, convictions should

  merge to “maximize the effect of the jury’s verdict, retaining as

  many convictions and upholding as many sentences as are legally

  possible.” People v. Beatty, 80 P.3d 847, 853 (Colo. App. 2003); see

  People v. Lee, 914 P.2d 441, 448 (Colo. App. 1995). Therefore, the

  Beatty division held that the proper remedy for inconsistent verdicts

  is to merge and maximize the convictions. 80 P.3d at 853.

  However, more recently, a division of our court reasoned that

  logically and legally inconsistent verdicts require a new trial

  because we cannot reconcile the jury’s findings to determine its

  intent; therefore, we must set aside the convictions and allow a jury

  to make new findings supported by the evidence. See People v.

  Delgado, 2016 COA 174, ¶¶ 32–33, 410 P.3d 697, 702 (rejecting the

  reasoning in Beatty and Lee) (cert. granted Dec. 11, 2017).

¶ 10   The determination of whether verdicts are legally and logically

  inconsistent, and thus negate each other, rests on the language in

                                     5
  the applicable statutes. Id. at ¶ 16, 410 P.3d at 700. Section 18–3–

  203(1)(d) requires a finding that a defendant acted recklessly in

  causing serious bodily injury to convict for second degree assault.

  Section 18–3–203(1)(g) requires a finding that a defendant intended

  to cause, and actually caused, bodily injury to the victim to convict

  for second degree assault. In contrast, section 18–3–204(1)(a), as

  applicable here, required the jury to find that Rigsby acted with

  criminal negligence in causing bodily injury with a deadly weapon

  to convict for third degree assault.

¶ 11   A defendant acts recklessly2 or with intent3 when he or she

  knows that certain actions could result in bodily injury and

  disregards the risk or has a conscious objective to cause bodily

  injury. See § 18–1–501(5), (8), C.R.S. 2018. A defendant acts with

  criminal negligence when he or she “fails to perceive a substantial

  and unjustifiable risk that a result will occur or that a circumstance

  exists.” § 18–1–501(3).

  2 “A person acts recklessly when he consciously disregards a
  substantial and unjustifiable risk that a result will occur or that a
  circumstance exists.” § 18–1–501(8), C.R.S. 2018 (emphasis
  added).
  3 “A person acts . . . ‘with intent’ when his conscious objective is to

  cause the specific result proscribed by the statute defining the
  offense.” § 18–1–501(5) (emphasis added).
                                      6
¶ 12   The Beatty division concluded, and we agree, that a finding of

  an intentional mens rea subsumes a reckless mens rea.

  Accordingly, a finding of intentional conduct does not negate a

  reckless mens rea. Beatty, 80 P.3d at 853–54; see § 18–1–503(3),

  C.R.S. 2018. Thus, if a defendant is convicted of one offense for

  acting recklessly and another for acting intentionally with regard to

  the same conduct, the convictions are consistent.

¶ 13   However, to act recklessly or with intent requires that a

  defendant act with knowledge of a result, or potential result, while

  to act with criminal negligence requires that a defendant act

  without knowledge of a result. Therefore, separate convictions for

  both knowing and negligent mental states for the same act cannot

  be sustained because a defendant cannot consciously act and also

  fail to perceive a risk simultaneously.4 See Delgado, ¶ 31, 410 P.3d

  at 702.

                              C. Analysis

¶ 14   We agree with the remedy announced in Delgado that

  convictions based on inconsistent mentes reae cannot stand. Thus,

  4Because it was not raised, we do not address whether criminally
  negligent homicide may be treated as a lesser included or lesser
  nonincluded offense of reckless or intentional homicide.
                                    7
  we reject the remedy set forth in Beatty that inconsistent verdicts

  should be remedied by vacating one conviction so as to maximize

  the jury’s verdict.5 Rigsby’s convictions of two counts of second

  degree assault and one count of third degree assault are based on

  legally and logically inconsistent verdicts. Therefore, they cannot be

  sustained. Delgado, ¶ 32, 410 P.3d at 702. The jury convicted

  Rigsby based on three mental states for the same criminal act —

  hitting Mohrman in the face with a glass. While the convictions on

  the two counts of second degree assault are not inconsistent, we

  conclude that Rigsby could not have simultaneously acted with

  knowledge — intentionally or recklessly — to cause bodily injury

  while also acting without knowledge, unaware of the risk of causing

  bodily injury.

¶ 15   We recognize that the Zweygardt division reached the opposite

  conclusion, determining that “proof that a defendant was reckless

  necessarily establishes that he or she acted with criminal

  negligence.” Zweygardt, ¶ 33, 298 P.3d at 1025. Thus, the


  5 Though the author judge concurred with the division’s decision in
  People v. Beatty, 80 P.3d 847 (Colo. App. 2003), he is persuaded by
  the court’s later reasoning in People v. Delgado, 2016 COA 174, 410
  P.3d 697, regarding the remedy for inconsistent verdicts.
                                    8
  Zweygardt division concluded that the mental states of recklessness

  and criminal negligence do not negate each other. Id. We disagree

  with this conclusion because it effectively eviscerates the Frye

  court’s holding that legally and logically inconsistent verdicts

  cannot stand.6 The plain language of section 18–1–501(8) — the

  statute defining recklessness — requires a court fact finder to

  determine that a defendant was aware of a certain risk, while

  section 18–1–501(3) — the statute defining criminal negligence —

  requires a fact finder to determine the defendant was unaware of a

  certain risk. While a defendant may be charged on both theories of

  recklessness and negligence, we conclude, contrary to the analysis

  in Zweygardt, that a defendant’s convictions based on both theories

  are legally and logically inconsistent. Id.; see Frye, 898 P.2d at 569

  n.13.

¶ 16      The People argue that, when we determine verdicts are

  inconsistent, we should maximize the effect of the jury’s verdicts by

  employing the approach that yields the longest sentence. See



  6The decisions of other divisions of our court are not binding on
  our division. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App.
  2008).
                                     9
  People v. Vigil, 251 P.3d 442, 450 (Colo. App. 2010); see also Beatty,

  80 P.3d at 853. We disagree.

¶ 17   Following this logic, the People contend that the two second

  degree assault counts should merge, resulting in Rigsby being

  convicted of recklessly causing serious bodily injury by means of a

  deadly weapon. The People further argue that recklessness

  inherently encompasses criminal negligence, so there is no legal or

  logical inconsistency between the second and third degree assault

  convictions, and therefore, a new trial is unnecessary. See People v.

  Hall, 999 P.2d 207, 219–20 (Colo. 2000).

¶ 18   However, we do not read Hall as the People do. In fact, Hall

  distinguishes negligence from recklessness by asserting “even if [he

  or] she should be, a person who is not actually aware that [his or]

  her conduct creates a substantial and unjustifiable risk is not

  acting recklessly.” Id. at 220.

¶ 19   Thus, we disagree with the People’s contention that a new trial

  is unnecessary and that Rigsby’s three convictions should merge.

  We cannot determine the jury’s intent because the verdicts are

  logically and legally inconsistent. Further, requiring a new trial

  here is not an academic exercise because the second degree assault

                                    10
  convictions are class 4 felonies (with a five-year sentence) but the

  third degree assault conviction is a class 1 misdemeanor (with a

  sixty-six day sentence). 7 The convictions must be set aside to allow

  a jury to consider the charges against Rigsby anew.

                          III. Double Jeopardy

¶ 20   Rigsby contends, the People concede,8 and we agree that

  Rigsby’s three convictions must merge because they are

  multiplicitous and violate the Double Jeopardy Clause. We address

  this issue because it could arise on remand.

                           A. Applicable Law

¶ 21   The United States and Colorado Constitutions preclude a

  defendant from being convicted and punished twice for the same

  crime. U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18. If the

  legislature intended to provide multiple punishments for the same

  criminal conduct, the prosecution may charge a defendant with

  separate counts based on alternative methods of committing a

  7 Class 4 felonies carry a presumptive sentencing range of two to
  six years imprisonment. § 18–1.3–401(1)(a)(V)(A), C.R.S. 2018.
  Class 1 misdemeanors carry a presumptive sentencing range of six
  to eight months imprisonment. § 18–1.3–501(1)(a), C.R.S. 2018.
  8 We rely on our own legal interpretations and are not bound by the

  concessions of the parties. See People v. Backus, 952 P.2d 846, 850
  (Colo. App. 1998).
                                    11
  single offense. People v. Abiodun, 111 P.3d 462, 467 (Colo. 2005).

  However, a defendant is constitutionally protected from multiple

  convictions for the same offense when the relevant statute does not

  create separate offenses for the same criminal conduct. See id.

                               B. Analysis

¶ 22   If, on remand, the jury again convicts Rigsby of both second

  degree assault counts, the convictions must merge as discussed

  above. Because the second degree assault statute provides

  alternative methods of committing the same offense, it cannot

  prescribe multiple punishments for the same criminal conduct.

  Because the third degree assault conviction is for a lesser included

  offense, the People concede that Rigsby may not be convicted on

  remand of both second and third degree assault based on the same

  act. See Page v. People, 2017 CO 88, ¶ 9, 402 P.3d 468, 470 (“A

  conviction for an offense that is a lesser included offense of a

  greater offense must merge into the conviction for the greater

  offense.”).

                        IV. Exclusion of Evidence

¶ 23   Since we reverse the convictions and remand for a new trial,

  we need not address whether the district court properly exercised

                                    12
  its discretion in precluding prior consistent statements offered by

  Rigsby. This prior ruling shall not bind any party at retrial.

                             V. Conclusion

¶ 24   Accordingly, the convictions are reversed, and the case is

  remanded to the district court for a new trial.

       JUDGE TERRY and JUDGE FOX concur.




                                    13
