     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
                                                                July 30, 2020

                               2020COA116

No. 16CA1894, Peo v Lowe — Crimes — Resisting Arrest;

Criminal Law — Prosecution of Multiple Counts for Same Act;

Constitutional Law — Fifth Amendment — Double Jeopardy —

Multiplicity

     A division of the court of appeals considers an issue of first

impression in Colorado: the unit of prosecution for the resisting

arrest statute, see § 18-8-103(1), C.R.S. 2019. Based on the plain

language of the statute, the division holds that the unit of

prosecution for resisting arrest is the number of discrete volitional

acts of resisting arrest. Accordingly, the division concludes that

defendant’s resisting arrest convictions must merge.

     The division also remands for the district court to disclose

police personnel and internal investigation files and to allow
defendant to attempt to make the requisite showing of prejudicial

error, and to otherwise correct the mittimus as instructed.
COLORADO COURT OF APPEALS                                         2020COA116


Court of Appeals No. 16CA1894
El Paso County District Court No. 15CR2226
Honorable Lin Billings Vela, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Douglas Lowe,

Defendant-Appellant.


             JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                  Division VII
                            Opinion by JUDGE FOX
                       Brown and Rothenberg*, JJ., concur

                           Announced July 30, 2020


Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Nathaniel E. Deakins, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Brian Douglas Lowe appeals the judgment of conviction

 entered on jury verdicts finding him guilty of two counts of

 attempted murder in the second degree, two counts of first degree

 assault of a peace officer, two counts of resisting arrest, two counts

 of menacing, and prohibited use of a stun gun.

¶2    Lowe claims that the trial court erred by (1) refusing to

 disclose police personnel and internal investigation files; (2)

 allowing the prosecution’s fingerprint comparison witness to be

 qualified as an expert; (3) relying upon Lowe’s prior escape

 conviction in adjudicating him a habitual criminal; (4) failing to

 merge Lowe’s two resisting arrest convictions; and (5) imposing

 consecutive sentences for his first degree assault convictions. We

 affirm in part, reverse in part, and remand with instructions.

                           I.    Background

¶3    In May 2015, the El Paso County Sheriff’s Office was asked to

 locate and apprehend Lowe after he escaped from parole

 supervision and a warrant for his arrest was issued.

¶4    Lieutenant Robert Shane Mitchell and Sergeant Keith Duda

 responded to a Hobby Lobby in Colorado Springs after the officers




                                    1
 were informed that Lowe was there.1 When the officers approached

 Lowe and informed him that he was under arrest, he was using the

 floral department’s telephone. When Duda moved to handcuff

 Lowe, Lowe resisted. Mitchell attempted to use a taser on Lowe, but

 during the struggle, Lowe obtained the taser. Both officers testified

 that, during the scuffle, they saw Lowe holding a knife.2 The

 altercation ended when Mitchell shot Lowe three times; Mitchell

 later testified that he feared Lowe was going to stab Duda, who had

 fallen to the ground during the struggle.

¶5    After a June 2016 jury trial, Lowe was found guilty as charged

 except the jury acquitted Lowe of two counts of second degree

 assault of a peace officer.3 Following the trial, a hearing was held

 where Lowe was adjudicated a habitual criminal. At the sentencing

 hearing, the court sentenced Lowe to two consecutive


 1 In May 2015, Lieutenant Robert Shane Mitchell was a Sergeant
 and Sergeant Keith Duda was a Deputy with the El Paso County
 Sheriff’s Office.
 2 Testimony at trial established that, after the shooting and once

 other officers had arrived on scene, Lowe was laying on the ground
 handcuffed and near him was a pocketknife with the blade
 extended.
 3 Lowe was charged with two counts each of first and second degree

 assault of a peace officer.


                                   2
 sixty-four-year prison terms in the Department of Corrections’

 custody for the first degree assault convictions. Lowe was

 sentenced concurrently for his remaining convictions. Lowe

 appeals.

         II.   Disclosure of Mitchell’s and Duda’s Personnel Files

¶6    Lowe first argues that the trial court erred by refusing to

 disclose Mitchell’s and Duda’s personnel and internal investigation

 files. After conducting our own review of the files, we conclude that

 certain records from Mitchell’s files should have been disclosed to

 Lowe.

                       A.   Additional Background

¶7    Before trial, Lowe’s counsel served a subpoena duces tecum

 on the El Paso County Sheriff’s Office to produce “personnel and

 internal affairs files” for Duda and Mitchell, including any

 allegations of misconduct, mishandling evidence, dishonesty, and

 excessive use of force. The Sheriff’s Office provided the court with

 Mitchell’s and Duda’s professional and personnel files for in camera

 review. The Sheriff’s Office also provided the prosecution certain

 records regarding the officers’ use of force to release to the defense

 through discovery. Because part of that record involved the use of


                                     3
  force on a juvenile, the Sheriff’s Office asked the court to determine

  what portion of the record, if any, should be released with a

  protection order.

¶8     After conducting an in camera review, the court declined to

  release the files. The court ruled that none of the files were relevant

  to Lowe’s case, finding that “[a]ny relevancy of the reviewed records

  from [the Sheriff’s Office] is remote and speculative at best.” The

  court also found that the officers’ privacy expectation outweighed

  Lowe’s interest in disclosure; therefore, the court denied the release

  of any of Mitchell’s or Duda’s records.

              B.      Applicable Law and Standard of Review

¶9     There is no general constitutional right to discovery in a

  criminal case. People v. Dist. Court, 790 P.2d 332, 338 (Colo. 1990).

  However, the prosecution must provide to the defense any evidence

  that is favorable to the accused and material to the guilt or

  punishment of the accused. Brady v. Maryland, 373 U.S. 83, 88

  (1963).

¶ 10   Under Crim. P. 16, a criminal defendant is entitled to

  discovery of material and information in the possession or control of

  law enforcement. Crim. P. 16(1)(a)(3); see also People v. Gallegos,


                                     4
  644 P.2d 920, 924 (Colo. 1982) (recognizing that Crim. P. 16

  embodies a broad standard of disclosure, where information that

  would be inadmissible at trial may still be relevant, as long as the

  content of the information is relevant to the defense’s conduct).

  Specifically, the prosecution must disclose exculpatory evidence to

  the defense, meaning evidence that is material: “evidence is

  material only if there is a reasonable probability that, had the

  evidence been disclosed to the defense, the result of the proceeding

  would have been different.” People v. White, 64 P.3d 864, 874 (Colo.

  App. 2002) (quoting People v. Wilson, 841 P.2d 337, 339 (Colo. App.

  1992)); see also People v. James, 40 P.3d 36, 49 (Colo. App. 2001)

  (“Exculpatory evidence includes evidence that bears on the

  credibility of a witness the prosecution intends to call at trial.”).

¶ 11   At the same time, our supreme court has recognized that

  police officers have a right to privacy in their personnel files. See

  People v. Spykstra, 234 P.3d 662, 670 (Colo. 2010). To obtain

  disclosure of such files, a defendant must “make a greater showing

  of need.” Id. Thus, a police officer’s expectation of privacy may be

  overridden by “the state’s compelling interest in the determination

  of the truth and safeguarding of the defendant’s right to exculpatory


                                      5
  evidence.” People v. Walker, 666 P.2d 113, 122 (Colo. 1983); see

  also Martinelli v. Dist. Court, 199 Colo. 163, 174, 612 P.2d 1083,

  1091 (1980) (holding that when a party seeks disclosure of

  confidential personal information, the trial court must conduct a

  balancing inquiry, asking whether disclosure is required to serve a

  “compelling state interest” despite a party’s legitimate privacy

  expectation). When conducting an in camera review, a trial court

  may not draw a distinction between sustained and unsustained

  complaints. Walker, 666 P.2d at 122. And a defendant who is

  charged with assaulting a police officer is entitled to disclosure of

  complaints charging excessive use of force filed against that officer.

  Id. at 121-22.

¶ 12   When a defendant challenges a trial court’s ruling denying

  access to records, we conduct an independent review of the records

  to determine whether any should have been disclosed. People v.

  West, 2019 COA 131, ¶ 31. But, we review a trial court’s resolution

  of discovery issues for an abuse of discretion. People in Interest of

  A.D.T., 232 P.3d 313, 316 (Colo. App. 2010).

¶ 13   If the trial court abused its discretion by failing to disclose

  certain documents, the proper remedy is to remand the case to the


                                     6
  trial court with instructions to provide the documents to the

  parties. Zoll v. People, 2018 CO 70, ¶ 12. On remand, the trial

  court must allow the defendant an opportunity to “demonstrate a

  reasonable probability that, had the documents been disclosed

  before trial, the result of the proceeding would have been different.”

  Id.

                               C.    Analysis

¶ 14    Lowe contends that the trial court erred by refusing to disclose

  any of Duda’s and Mitchell’s files. Because Duda’s and Mitchell’s

  testimony was the prosecution’s only evidence that Lowe threatened

  the officers with a knife, and the officers’ credibility was central to

  Lowe’s defense, he contends that he was prejudiced by the lack of

  disclosure. We agree in part.

¶ 15    After reviewing Duda’s sealed personnel and internal

  investigation files, we agree with the trial court that Lowe’s interest

  in obtaining exculpatory information does not outweigh Duda’s

  privacy interest because Duda’s files contain no relevant or material

  information. See White, 64 P.3d at 874. However, after reviewing

  Mitchell’s sealed files, particularly reviewing for complaints against

  Mitchell charging excessive use of force and challenging Mitchell’s


                                      7
credibility, see James, 40 P.3d at 49, we conclude that the following

records relate to Mitchell’s credibility and should have been

disclosed:

     (1)     documentation from a professional misconduct

             investigation initiated in August 2000 based, in part, on

             an allegation that Mitchell falsified reports;

     (2)     documentation from a professional misconduct

             investigation based on an October 7, 2000, incident

             alleging that Mitchell failed to report the use of force and

             then embellished the facts of the incident, and the

             complaint was deemed sustained;

     (3)     documentation from an internal investigation based on

             an October 14, 2000, incident and citizen complaint,

             where it was determined that Mitchell made false

             statements and he failed to fully investigate an incident;

     (4)     documentation from an internal investigation initiated in

             2001 based on a citizen complaint, where Mitchell’s

             supervisors stated during a performance review that

             Mitchell incorrectly documented incident reports and

             embellished facts;


                                     8
       (5)   documentation from an internal investigation initiated in

             2004 for departure from the truth, and the allegation was

             deemed unfounded, see Walker, 666 P.2d at 122; and

       (6)   documentation from an internal investigation initiated in

             2010 based on a citizen complaint, where it was alleged

             that Mitchell falsified information in an incident report

             and the allegation was deemed unfounded, see id.4

¶ 16   Because Lowe disputes Mitchell’s account of his arrest —

  mainly, that Lowe threatened the officers with a knife, and the

  officers’ testimony was the prosecution’s principle evidence on the

  issue — these discoverable files were relevant and material to

  Lowe’s defense. See id. at 121-22; White, 64 P.3d at 874; James, 40

  4 Examples of such documentation are found on the sealed,
  unredacted CD labeled, “Sgt. Shane Mitchell,” on the following pdfs:
  “Request to remove corrective action.pdf,” pages 4-7; “01-13
  Complete.pdf,” pages 100-01; and “11-64 Complete.pdf,” pages 318-
  19. We do not suggest that this list includes all documents falling
  within the six identified categories; the district court must conduct
  its own review on remand to ensure all relevant documents are
  properly disclosed. The source documents for certain investigative
  proceedings are not in the files provided to us on appeal. Because
  the record contains no information concerning the Sheriff’s
  Department’s document retention policies, we cannot speculate
  about why certain documents were provided to us and others were
  not. We base our disclosure order only on those documents that
  are before this division.


                                     9
  P.3d at 49; see also Scherbarth v. Woods, No. 16-CV-2391-KHR,

  2018 WL 851344, at *4 (D. Colo. Feb. 13, 2018) (“The court finds

  that because Defendants’ credibility is at issue in the excessive

  force claim, Plaintiff has shown sufficient need for potential

  impeachment evidence from Defendants’ personnel and internal

  investigation files to outweigh Defendants’ privacy interest.”); Zoll,

  ¶ 11 (recognizing that “an appellate court cannot review the

  improperly withheld documents with an advocate’s eye,” especially

  where “the case turns on the witnesses’ credibility and the

  undisclosed information relates directly to the credibility of the

  prosecution’s primary witness”). But any incident relating to

  insubordination or abuse of authority while off-duty are not subject

  to disclosure because Lowe does not dispute that he resisted arrest

  or that Mitchell had the right to arrest him. See James, 40 P.3d at

  50 (“Our review of the sealed information reveals that the

  information was not likely to have exculpated defendant or have

  provided impeaching material concerning prosecution witnesses.”).

¶ 17   Accordingly, we conclude that the trial court abused its

  discretion by not disclosing to the defense information in Mitchell’s

  personnel and internal investigation files where it was found, or


                                     10
  alleged, see Walker, 666 P.2d at 122, that Mitchell misreported

  information, departed from the truth, or embellished facts, see

  People in Interest of A.D.T., 232 P.3d at 316. In deciding that the

  subject materials were discoverable to the defense we do not decide,

  however, how the trial court would have ruled on their admissibility

  at trial or what protections or redactions the trial court may require

  on remand.

¶ 18   We remand for trial court to disclose to Lowe’s counsel the

  previously referenced information (subject to any redactions the

  court deems appropriate) and any other documentation where it

  was alleged or reported that Mitchell misreported information,

  departed from the truth, or embellished facts. See Zoll, ¶ 12. On

  remand, the trial court should allow Lowe to attempt to make the

  requisite showing of prejudicial error. See id. If the trial court

  concludes there is a reasonable probability that the result of the

  trial would have been different, then it must grant Lowe a new trial;

  but, if the trial court finds no such reasonable probability exists,

  then it may leave in place its judgment of conviction, subject to

  Lowe’s right to appeal. See id.




                                    11
                     III.   Habitual Criminal Hearing

¶ 19   Lowe next argues that the trial court erred during the habitual

  criminal hearing by (1) allowing the prosecution’s fingerprint

  comparison witness to be qualified as an expert and (2) relying on

  Lowe’s prior escape conviction in adjudicating him a habitual

  criminal.

                       A.    Additional Background

¶ 20   The People’s complaint alleged six habitual criminal counts for

  Lowe’s prior felony convictions: escape, aggravated motor vehicle

  theft, second degree introduction of contraband, aggravated

  robbery, first degree aggravated motor vehicle theft, and vehicular

  eluding.5 After Lowe’s jury trial, the court held a habitual criminal

  hearing to determine whether Lowe had previously been brought,

  tried, and convicted of multiple felony offenses.

¶ 21   During the hearing, the prosecution offered testimony by

  Phillip Donner, an investigator for the District Attorney’s Office, and

  asked that he be qualified as an expert in fingerprint comparison.



  5The complaint alleged six habitual criminal counts, but during the
  habitual criminal hearing the prosecution dismissed the habitual
  count for Lowe’s prior vehicular eluding conviction.


                                    12
  Regarding his training and experience, Donner testified that he had

  completed a sixteen-hour class with Jeff Saviano — a fingerprint

  examination instructor who attended a fingerprint examination

  course hosted by the Federal Bureau of Investigation — over a

  month-long period in April 2011. Donner also testified that he had

  done at least seventy-three fingerprint comparisons and had been

  qualified as an expert in fingerprint comparison thirteen times.

¶ 22   During defense counsel’s voir dire examination, it was

  established that, while Donner had attended several informal

  training review classes since 2011, he had no nationally recognized

  certifications other than his 2011 certification, he had not

  published papers related to fingerprint comparisons nor taught

  certified courses in forensic fingerprint testing, and he had not been

  tested to determine his error rate in fingerprint comparisons.

  However, Donner also testified that after he does a fingerprint

  comparison, another person does an independent comparison to

  verify his finding, and he had never been advised that he had

  mismatched fingerprints.

¶ 23   The trial court ruled that Donner could be qualified as a

  fingerprint comparison expert under CRE 702 because


                                    13
             Donner has had specific technical and
             specialized training in the area of fingerprint
             analysis consisting of a 16-hour [class
             where] . . . Donner learned not only about the
             history of fingerprints, the classification of
             fingerprints, but more relevant to this case, the
             specific ability to make analyses of fingerprint
             comparisons based on that training . . .[;] he
             has continued to engage in what I will refer to
             as peer reviews and continuing to review the
             techniques that he was certified in in his 2011
             class; [and] the District Attorney’s Office
             employs a practice for review of an
             investigator’s fingerprint analysis for purposes
             of assurance of the process. . . . So the Court
             finds based on that this is a reliable, scientific
             process; that it is relevant to the identification
             issues before the Court; that it would be
             helpful for the Court to hear an expert with
             regards to fingerprint comparison as to this
             one element of the habitual criminal findings
             required by the Court.

¶ 24   As the People’s expert, Donner testified that he obtained

  Lowe’s fingerprints on a fingerprint card and then compared that

  card with fingerprint cards previously taken from Lowe in

  connection with his prior felony convictions, and the fingerprints

  matched.

¶ 25   After the prosecution’s evidence presentation, the trial court

  found that the People had proved beyond a reasonable doubt that

  Lowe had five prior felony convictions, including a prior escape



                                    14
  conviction. Thus, the court concluded that Lowe would be

  sentenced as a habitual criminal.

                          B.   Expert Testimony

                1.   Preservation and Standard of Review

¶ 26   We review a trial court’s evidentiary rulings for an abuse of

  discretion. People v. Relaford, 2016 COA 99, ¶ 25. An abuse of

  discretion occurs when a trial court’s ruling was manifestly

  arbitrary, unreasonable, or unfair, or if it misapplied the law. Id.

¶ 27   After the defense’s voir dire of Donner, Lowe’s counsel objected

  to his testimony, albeit not on specific grounds. Generously

  construing Lowe’s objection, we review for harmless error. See

  Yusem v. People, 210 P.3d 458, 469 (Colo. 2009). Under this

  standard, any erroneous admission of evidence requires reversal

  unless there is no reasonable probability that it contributed to

  Lowe’s conviction by substantially influencing the verdict or

  impairing the fairness of the trial. Id.

                          2.   Law and Analysis

¶ 28   CRE 702 governs the admissibility of expert testimony and

  allows qualified experts to testify at trial when their “specialized

  knowledge will assist the trier of fact to understand the evidence or


                                     15
  to determine a fact in issue.” See also People in Interest of

  Strodtman, 293 P.3d 123, 129-30 (Colo. App. 2011) (recognizing

  that under CRE 702’s “broad” and “liberal” standard, a trial court

  may admit expert testimony “if the witness can offer ‘appreciable’

  assistance on a subject beyond the understanding of an ‘untrained

  layman’”) (citation omitted). And a trial court has broad discretion

  to determine the admissibility of expert testimony. Golob v. People,

  180 P.3d 1006, 1011 (Colo. 2008); see also People v. Williams, 790

  P.2d 796, 798 (Colo. 1990) (“This deference reflects the superior

  opportunity of the trial judge to gauge both the competence of the

  expert and the extent to which his opinion would be helpful to the

  jury.”) (citation omitted). When an expert’s testimony is scientific in

  nature, the evidence must be relevant and reliable to be admitted.

  People v. Ramirez, 155 P.3d 371, 378 (Colo. 2007). A trial court

  must make specific findings concerning reliability and relevance

  before admitting CRE 702 testimony. Ruibal v. People, 2018 CO 93,

  ¶ 13.

¶ 29      Lowe argues that the trial court abused its discretion by

  qualifying Donner as an expert because Donner had (1) minimal

  training, comprised of one class held years before his testimony; (2)


                                      16
  undergone no formal testing after April 2011; (3) no nationally

  recognized certification or specialized licensing for fingerprint

  examiners; (4) neither published nor taught classes on fingerprint

  comparison; and (5) never been tested to determine his error rate in

  fingerprint comparisons outside of the April 2011 class and test.6

¶ 30   We conclude that the trial court did not abuse its discretion by

  qualifying Donner as an expert, and we reject Lowe’s comparison to

  Williams, 790 P.2d at 798 (affirming the trial court’s refusal to

  qualify the defense’s witness as an expert in analytical chemistry

  and firearms identification).

¶ 31   While Lowe contends that Donner’s training was insufficient

  for him to be qualified as an expert, he fails to identify a specific

  national certification or specialized license that fingerprint

  comparison experts are expected to possess. Cf. id. at 800 (defense

  witness testified that he was not recognized by the only national

  organization that recognizes qualified experts in the field of firearms


  6 Lowe does not argue that the scientific principles underlying the
  expert’s testimony were not reliable, nor that the testimony was not
  helpful. See People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011).
  Rather, he only argues that Donner was not qualified to opine on
  fingerprint comparison.


                                     17
identification). Rather, Donner testified that he completed a

sixteen-hour class with Saviano over a month-long period only five

years earlier, and he had attended several informal training review

classes since 2011. Cf. id. at 798 (defense witness’s training

consisted of only one course that he audited about twenty years

prior to his testimony, he was unable to remember the name of the

course or the instructor’s name, he did not receive a grade in the

course, and he could not remember taking any examinations in the

course). These trainings allowed Donner to conduct at least

seventy-three fingerprint comparisons, and he was previously

qualified as an expert in fingerprint comparison thirteen times. Cf.

id. at 799 (defense witness testified that he had previously been

qualified as an expert in ten cases, but he also testified that the last

time he was qualified as an expert in firearms identification was

approximately five years before he testified in the present case).

Donner also testified that after he does a fingerprint comparison,

another person does an independent comparison to verify his

finding, and he had never been advised that he had mismatched

fingerprints. Cf. id. at 799 (defense witness admitted that no one

supervised the comparisons he did).


                                   18
¶ 32   Accordingly, it was well within the trial court’s discretion to

  allow Donner to testify as an expert and to weigh that testimony.

  See Golob, 180 P.3d at 1011; People in Interest of Strodtman, 293

  P.3d at 129-30.

                        C.        Prior Escape Conviction

               1.      Preservation and Standard of Review

¶ 33   Lowe preserved his contention that the trial court could not

  rely on a prior escape conviction in adjudicating Lowe a habitual

  criminal. Regardless, a defendant may raise a claim that his

  sentence is unauthorized at any time. People v. Stellabotte, 2016

  COA 106, ¶ 42, aff’d on other grounds, 2018 CO 66.

¶ 34   We review the legality of Lowe’s sentence de novo. See People

  v. Rice, 2015 COA 168, ¶ 10; see also People v. Phillips, 2012 COA

  176, ¶ 17 (we review a trial court’s application of sentencing

  statutes de novo).

                             2.      Law and Analysis

¶ 35   The parties agree that the trial court erred by relying on Lowe’s

  prior escape felony conviction in adjudicating him a habitual

  criminal. See § 18-1.3-801(5), C.R.S. 2019 (A “prior conviction for

  escape, as described in section 18-8-208(1), (2), or (3)[, C.R.S.


                                         19
  2019,] . . . may not be used for the purpose of adjudicating a person

  an habitual criminal[.]”). However, the People argue that, while the

  trial court erred, no remand is necessary because the error was

  harmless. We disagree.

¶ 36   We recognize that Lowe would have been adjudicated a

  habitual criminal even without the prior escape conviction. The

  trial court found that the prosecution had proved beyond a

  reasonable doubt that Lowe had four other prior felony convictions,

  and section 18-1.3-801(2)(a)(I) only requires three prior convictions

  to be adjudged a habitual criminal. Nonetheless, because the plain

  language of section 18-1.3-801(5) explicitly forbids the use of a

  prior escape conviction to support a habitual criminal adjudication,

  we remand for correction of the mittimus to strike the reference to

  Lowe’s prior escape conviction. Of course, the habitual

  adjudication and resulting sentence otherwise stands.7




  7Count 12 was Lowe’s prior felony escape conviction. The People
  asserted that Lowe had been convicted on October 22, 2007, in El
  Paso County, case number 2007CR2500, of escape in violation of
  section 18-8-208(3), C.R.S. 2019.


                                    20
            IV.   Multiplicity of Resisting Arrest Convictions

¶ 37   Lowe next argues that his two resisting arrest convictions

  should merge. We agree.

       A.   Preservation, Standard of Review, and Applicable Law

¶ 38   We review de novo a claim that a defendant’s conviction

  violates his constitutional protection against double jeopardy.

  People v. Arzabala, 2012 COA 99, ¶ 19; see also People v.

  Denhartog, 2019 COA 23, ¶ 73 (“Whether convictions for different

  offenses merge is a question of law that we review de novo.”).

  Because Lowe did not preserve this issue for appeal, we review his

  double jeopardy claim for plain error. See Reyna-Abarca v. People,

  2017 CO 15, ¶ 47. But even when unpreserved, courts have

  generally concluded that when a defendant’s double jeopardy rights

  have been violated, he is entitled to the appropriate relief on appeal.

  Friend v. People, 2018 CO 90, ¶ 45.

¶ 39   The United States and Colorado Constitutions protect an

  accused from being twice placed in jeopardy for the same crime.

  U.S. Const. amend. V; Colo. Const. art. II, § 18; see also Arzabala,

  ¶ 20. Specifically, the Double Jeopardy Clauses protect defendants

  from multiplicity, meaning the charging of multiple counts and the


                                    21
  imposition of multiple punishments for the same criminal conduct.

  Arzabala, ¶ 20; see also Denhartog, ¶ 74 (“Multiplicity may arise

  ‘where a defendant is charged with and convicted of multiple counts

  under a single criminal statute, and the statute does not create

  more than one offense but, rather, provides for alternative ways of

  committing the same offense.’” (quoting People v. Barry, 2015 COA

  4, ¶ 95)). However, the Double Jeopardy Clauses do not prevent a

  defendant from being subjected to multiple punishments based

  upon the same criminal conduct as long as such punishments are

  “specifically authorized” by the General Assembly. Patton v. People,

  35 P.3d 124, 129 (Colo. 2001) (citation omitted).

¶ 40   We determine whether multiple punishments are permissible

  by looking to the legislatively prescribed unit of prosecution. People

  v. McMinn, 2013 COA 94, ¶ 20. The unit of prosecution is the

  manner in which a criminal statute allows a defendant’s conduct to

  be divided into discrete acts for purposes of prosecuting multiple

  offenses. Id. “To determine the unit of prosecution, we look

  exclusively to the statute.” Arzabala, ¶ 23. In construing a statute,

  we must determine and effectuate the intent of the General




                                    22
  Assembly, which we discern when possible from the plain and

  ordinary meaning of the statutory language. Id.

¶ 41   A statute that prescribes a single unit of prosecution does not

  immunize a defendant from being punished separately for

  successive commissions of the same offense. Friend, ¶ 21.

  Accordingly, after identifying the unit of prosecution, we next

  examine the evidence to determine whether the defendant’s conduct

  constituted factually distinct offenses. McMinn, ¶ 22; see also § 18-

  1-408(1)(e), C.R.S. 2019 (A defendant may not be convicted of more

  than one offense if the “offense is defined as a continuing course of

  conduct and the defendant’s course of conduct was uninterrupted,

  unless the law provides that specific periods or instances of such

  conduct constitute separate offenses.”).

¶ 42   In determining whether offenses are factually distinct, we look

  to all of the evidence introduced at trial and may consider (1)

  whether the acts occurred at different times and were separated by

  intervening events; (2) whether there were separate volitional acts in

  the defendant’s course of conduct; and (3) factors such as temporal

  proximity, the location of the victim, the defendant’s intent as

  indicated by his conduct and utterances, and the number of


                                    23
  victims. McMinn, ¶ 22. If we conclude that the convictions are not

  based on factually distinct offenses, then the convictions merge. Id.

  at ¶ 23.

¶ 43      As relevant here, a person commits resisting arrest when he

  knowingly “attempts to prevent a peace officer, acting under color of

  his official authority, from effecting an arrest” by

               (a) Using or threatening to use physical force
               or violence against the peace officer or another;
               or

               (b) Using any other means which creates a
               substantial risk of causing bodily injury to the
               peace officer or another.

  § 18-8-103(1), C.R.S. 2019.

                                B.   Analysis

¶ 44      Lowe argues that his two resisting arrest convictions should

  merge because the unit of prosecution for resisting arrest is based

  upon the number of arrests that are resisted, not the number of

  officers present. Therefore, he reasons that because he only

  resisted a single arrest, the two resisting arrest convictions violate

  his constitutional protection against double jeopardy. We agree in

  part.




                                      24
¶ 45    This appears to be an issue of first impression in Colorado.

  We agree with Lowe that the unit of prosecution for resisting arrest

  is not based on the number of victim-officers resisted. However, we

  disagree that the unit of prosecution is based upon the number of

  arrests resisted. Based on the plain language of the statute, see

  § 18-8-103(1); Arzabala, ¶ 23, we conclude that the unit of

  prosecution for resisting arrest is the number of discrete volitional

  acts of resisting arrest, see McMinn, ¶ 26 (“[T]he unit of prosecution

  for vehicular eluding must be defined not in terms of the number of

  officers involved, but in terms of discrete volitional acts of eluding

  that have endangered the public.”); Arzabala, ¶ 26 (“Based on our

  interpretation of the plain language of the [leaving the scene of the

  accident resulting in serious bodily injury] statute, we conclude that

  the legislatively prescribed unit of prosecution is the number of

  accident scenes, not the number of victims involved in the

  accident.”); see also Purnell v. State, 827 A.2d 68, 80 (Md. 2003)

  (“Having determined that the two resisting arrest counts charged by

  the State are the same for double jeopardy purposes and that the

  petitioner’s conduct in resisting the officers’ attempt to arrest him

  constituted one continuous act, we hold that the petitioner is guilty


                                     25
  of but one charge of resisting arrest, notwithstanding that there

  were two officers attempting to make the arrest.”).

¶ 46   Accordingly, we must next determine whether Lowe’s

  convictions are based on distinct volitional acts of resistance or

  whether his actions constituted one continuous act of resistance

  requiring his convictions to merge. See McMinn, ¶ 31 (“[W]e

  conclude that a defendant may be charged with multiple offenses of

  eluding a police officer arising from a single criminal episode when

  he or she has performed discrete acts of eluding, each constituting

  a new volitional departure in the defendant’s course of conduct.”).

¶ 47   When Lowe was charged with two counts of resisting arrest

  from the May 2015 altercation in Hobby Lobby, the prosecution

  alleged that Lowe knowingly prevented Mitchell and Duda from

  arresting him by using physical force. After reviewing the evidence

  presented at trial, see id. at ¶ 22, we cannot conclude that Lowe’s

  actions can support two resisting arrest convictions. Rather, we

  conclude that Lowe’s resistance was a continuous course of action

  to avoid a single arrest that did not end until he was shot by

  Mitchell. Because Lowe was never subdued, the attempt to arrest




                                    26
  him was never re-initiated. Therefore, we hold that the two

  resisting arrest convictions should merge. See id. at ¶ 23.

¶ 48   There was no intervening event during the arrest. The People

  contend that when Duda first sought to place Lowe in handcuffs

  and Lowe broke free, this action constituted an intervening event.

  But, we disagree given that Duda and Mitchell sought, at the same

  time, to effectuate one arrest. Instead, from Lowe’s initial act of

  resistance, he continually refused to cooperate and resisted and

  was not subdued until the officers quickly escalated their use of

  force.

¶ 49   Our conclusion is further supported by the fact that the

  altercation occurred over a brief period of time at a single location.

  The officers initially attempted to arrest Lowe while he was speaking

  on the phone at a desk in the floral department, and he was later

  arrested in the same floral department, where the entire altercation

  occurred. See id. at ¶ 22; cf. People v. Gingles, 2014 COA 163, ¶ 42

  (“Here, as in McMinn, the two counts of eluding involved separate

  offenses because they involved separate acts of eluding committed

  by defendant at different times and places. Defendant initially

  eluded both officers until, as in McMinn, only one of the two officers


                                    27
  could continue the pursuit. . . . Defendant’s avoidance of the one

  deputy’s attempt to stop him constituted a ‘new volitional departure

  in the defendant’s course of conduct,’ separate from his earlier,

  initial act of eluding both of the deputies.”).

¶ 50   Accordingly, we conclude that the trial court plainly erred by

  not merging Lowe’s two resisting arrest convictions and remand for

  the trial court to amend the mittimus to reflect the merger of the

  resisting arrest convictions.

                       V.   Consecutive Sentencing

¶ 51   Lowe last argues that the trial court erred when it found that

  consecutive sentencing was required for his two first degree assault

  convictions. Rather, Lowe contends that the court retained its

  discretion to impose concurrent or consecutive sentences; therefore,

  a remand is required. See Rice, ¶ 9 (“[W]hen the court

  misapprehends the scope of its discretion in imposing a sentence,

  the sentence must be vacated and the defendant must be

  re-sentenced using the correct range.”). We disagree.

                       A.    Additional Background

¶ 52   Relying on the habitual criminal and crime of violence

  sentencing enhancers, the trial court imposed consecutive


                                     28
  sixty-four-year sentences for Lowe’s first degree assault convictions.

  At the sentencing hearing, the trial court disagreed with Lowe’s

  counsel that it was within the court’s discretion to impose

  consecutive or concurrent sentences. Rather, the court found that

  consecutive sentencing was required because the convictions were

  based on separate crimes of violence:

             in the course of the incident, the evidence
             showed that [Lowe] separately struggled with
             each deputy, swung the knife at each of them,
             along with an additional incident where
             Lieutenant Mitchell described Lowe [as] still
             armed . . . [and as] “stalking his partner”
             before Lieutenant Mitchell fired his service
             weapon. Thus, the Court finds that these
             separately charged and brought and separately
             found verdicts of guilty arise out of the same
             incident requiring the Court to impose
             consecutive sentences pursuant to [section]
             18-1.3-406.

¶ 53   Although the court found consecutive sentencing mandatory,

  it further noted that even if it could have exercised its discretion in

  sentencing, it nonetheless would have imposed consecutive

  sentences for Lowe’s first degree assault convictions. The court

  stated,

             Due to the serious nature of these charges that
             law enforcement, in the attempt to perform
             their duties, which was execute an arrest


                                     29
             warrant for Mr. Lowe who was on escape
             status, were confronted quickly, aggressively
             by Mr. Lowe. . . . Lieutenant Mitchell testified
             that this was a nightmare experience in his 18
             years of service with the El Paso County
             Sheriff’s Department. He’s only had seven
             arrests go as poorly and nearly deadly as this
             one did. So for purposes of appeal, even if a
             reviewing court were to disagree with the
             Court’s analysis under [section] 18-1.3-406
             that these incidents did qualify for mandatory
             consecutive sentencing as I found . . . due to
             the grave and serious nature of this offense
             committed against law enforcement officers,
             the Court does not find that concurrent
             sentences would be appropriate. It diminishes
             the seriousness of the offense. It diminishes
             the risk that law enforcement was placed in
             during the course of the performance of their
             duties.

                B.       Preservation and Standard of Review

¶ 54   Although Lowe failed to object at sentencing on the grounds

  now raised on appeal, a defendant may raise a claim that his

  sentence is unauthorized by law at any time. Stellabotte, ¶ 42. We

  review the legality of Lowe’s sentence de novo. See Rice, ¶ 10; see

  also Phillips, ¶ 17.

                             C.   Law and Analysis

¶ 55   First degree assault is a class 3 felony and subject to the crime

  of violence sentence enhancer, see § 18-3-202(2)(b)-(c), C.R.S. 2019,



                                      30
  which increases the presumptive sentencing range for a class 3

  felony, see § 18-1.3-406(1)(a), C.R.S. 2019. Additionally, because

  Lowe’s first degree assault convictions are class 3 felonies classified

  as crimes of violence, the extraordinary risk sentencing enhancer

  also applies; thus, the maximum sentence in the presumptive range

  was sixteen years. See § 18-1.3-401(10)(b)(XII), C.R.S. 2019.

  Finally, because the trial court found that Lowe had at least three

  previous felony convictions, he was adjudicated a habitual criminal

  pursuant to section 18-1.3-801, which provides a sentencing

  enhancer for a term of four times the maximum of the presumptive

  range, see § 18-1.3-801(2)(a)(I)(A). Accordingly, Lowe was sentenced

  to sixty-four years for each first degree assault conviction.

¶ 56   Lowe does not dispute that his first degree assault convictions

  are crimes of violence nor that they are considered extraordinary

  risk crimes, and he agrees that the trial court properly calculated

  sixty-four years as the appropriate sentence for his first degree

  assault convictions. However, he argues that the trial court erred

  when it found that consecutive sixty-four-year terms were

  mandatory. While Lowe acknowledges that the crime of violence

  statute mandates consecutive sentencing for separate crimes of


                                    31
  violence, see § 18-1.3-406(1)(a), he argues that the habitual

  criminal statute preempts the crime of violence statute, see People

  v. Apodaca, 58 P.3d 1126, 1131 (Colo. App. 2002) (“[T]he habitual

  criminal sentencing statute has been interpreted as preempting any

  otherwise applicable sentencing statute that would result in a less

  severe sentence[.]”); People v. Hoefer, 961 P.2d 563, 569 (Colo. App.

  1998) (“[W]e conclude that the crime of violence sentencing

  provisions are inapplicable to persons, such as defendant, who are

  adjudicated as habitual criminals.”). Because Lowe contends that

  section 18-1.3-406(1)(a), mandating consecutive sentencing for

  separate crimes of violence, was preempted by the habitual criminal

  statute, he argues that the trial court misapprehended whether it

  had discretion in sentencing and therefore a remand is necessary.

  See Rice, ¶ 9.

¶ 57   While we agree that Apodaca and Hoefer concluded that the

  habitual criminal statute preempted the crime of violence statute in

  those cases, we also recognize that their holdings were limited to

  ensure that the defendant served a longer sentence. See Apodaca,

  58 P.3d at 1131 (The habitual criminal sentencing statute was

  “enacted for the purpose of increasing the punishment for repeat


                                   32
  offenders,” and to be consistent with this purpose, the habitual

  criminal sentencing statute only preempts an “otherwise applicable

  sentencing statute that would result in a less severe sentence. . . .

  We are unaware of any decision interpreting the habitual criminal

  sentencing statute as establishing the maximum possible sentence

  where the defendant is also subject to sentencing under a second

  statute authorizing a greater maximum sentence. We decline to

  adopt such a construction in this case because it would flout the

  central purpose of the habitual criminal sentencing statute.”);

  Hoefer, 961 P.2d at 569 (holding that the crime of violence statute

  was inapplicable to the defendant, who was also adjudicated a

  habitual criminal, because the habitual criminal sentence imposed

  three times the maximum sentence, whereas the crime of violence

  statute would only allow the defendant to be sentenced to not more

  than twice the maximum, which “would result in nonsensical

  results whereby those convicted of crimes of violence could avoid

  sentencing as habitual criminals”).

¶ 58   Thus, Apodaca and Hoefer hold that the habitual criminal

  statute preempts the crime of violence statute only in regards to

  imposing the greater sentence on the defendant. Accordingly, Lowe


                                    33
fails to identify Colorado law supporting his proposition that section

18-1.3-406(1)(a) is preempted when a defendant is also adjudicated

a habitual criminal.8 Indeed, previous divisions of this court have

rejected similar arguments and instead held that the crime of

violence statute’s mandatory consecutive sentencing provision was

not preempted by the habitual criminal statute. See People v.

Chavez, 2020 COA 80, ¶ 13 (“The habitual criminal statute says

nothing about whether multiple habitual criminal sentences should

be imposed consecutively or concurrently. . . . Because the crime of

violence statute’s consecutive sentencing requirement does not

conflict with the habitual criminal statute, we must give effect to

both.”); People v. Pena, 794 P.2d 1070, 1071-72 (Colo. App. 1990)

(recognizing that while the habitual criminal statute preempts an

otherwise applicable sentencing statute to ensure that a trial court

may not impose a lesser sentence, the division concluded that “the

preemptive scope of the habitual criminal statute does not extend

so far as to preclude the mandatory consecutive sentencing

requirement for multiple crimes of violence arising out of the same

8The habitual criminal statute is silent as to whether a court has
discretion to, or must, impose consecutive or concurrent sentences.


                                  34
  incident”), overruled on other grounds by Robles v. People, 811 P.2d

  804 (Colo. 1991). Given the habitual criminal statute’s emphasis

  on increasing punishment, see Apodaca, 58 P.3d at 1131; Hoefer,

  961 P.2d at 569; see also Arzabala, ¶ 23, we find Pena and Chavez

  persuasive and therefore reject Lowe’s argument that the crime of

  violence mandatory consecutive sentencing provision is preempted

  by the habitual criminal statute.

¶ 59   We also agree with the trial court that consecutive sentencing

  was required under the crime of violence statute because Lowe’s

  first degree assault convictions were separate crimes of violence

  that were not based on identical evidence.9 See § 18-1.3-406(1)(a);

  People v. O’Shaughnessy, 275 P.3d 687, 697 (Colo. App. 2010)

  (“Crimes of violence are ‘separate’ if not based on identical


  9 We conclude that Lowe’s actions can support only one resisting
  arrest conviction because his actions constituted a continuous act
  of resistance rather than factually distinct, volitional acts of
  resistance. We reached such a conclusion because Lowe’s
  resistance occurred over a brief period of time, in a single location,
  with no intervening event. See People v. McMinn, 2013 COA 94,
  ¶ 22. But, we conclude that Lowe’s actions were separate crimes of
  violence for purposes of his first degree assault convictions because
  we must consider his actions under a narrower standard: whether
  Lowe’s first degree assault convictions, against different victims,
  were based on identical evidence.


                                      35
  evidence[.]”), aff’d but criticized by 2012 CO 9. Because Lowe was

  convicted of separately threatening two different victims, we cannot

  conclude that the convictions were based on identical evidence. See

  People v. Espinoza, 2020 CO 43, ¶ 21 (“[O]ffenses defined in terms

  of their victimization of another and committed against different

  victims are not capable of being proved by identical evidence[.]”).

¶ 60   Thus, because we agree with the trial court that Lowe’s first

  degree assault convictions were not based on identical evidence,

  and we conclude that the habitual criminal statute does not

  preempt section 18-1.3-406(1)(a), we hold that the trial court did

  not err in finding that consecutive sentencing was required.

                     VI.   Correction of the Mittimus

¶ 61   The parties agree that Lowe’s case should be remanded to

  correct the mittimus to reflect one sentence for counts 1 and 18,

  and one sentence for counts 2 and 19, because those counts

  merged. The mittimus incorrectly reflects a sentence for each

  count. We agree that the mittimus must be corrected to reflect the

  accurate sentence.




                                    36
                                VII. Conclusion

¶ 62   We remand to the trial court for it to disclose the specified

  parts of Mitchell’s personnel and internal investigation files and to

  allow Lowe to attempt to make the requisite showing of prejudicial

  error. If the trial court concludes there is a reasonable probability

  that the result of the trial would have been different, then it must

  grant Lowe a new trial; but, if the trial court finds no such

  reasonable probability exists, then it may leave in place its

  judgment of conviction, subject to Lowe’s right to appeal.

¶ 63   We also remand so the trial court can amend the mittimus to

  reflect the merger of Lowe’s resisting arrest convictions and to

  otherwise correct the mittimus as instructed. We affirm the

  remaining judgments of conviction and sentence subject to the

  possibility of a new trial.

       JUDGE BROWN and JUDGE ROTHENBERG concur.




                                      37
