COLORADO COURT OF APPEALS                                      2016COA174


Court of Appeals No. 13CA2024
Pueblo County District Court No. 13CR286
Honorable Victor I. Reyes, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Johnny G. Delgado,

Defendant-Appellant.


                       JUDGMENT AND SENTENCE REVERSED
                      AND CASE REMANDED WITH DIRECTIONS

                                    Division VI
                           Opinion by JUDGE FURMAN
                          Miller and Navarro, JJ., concur

                           Announced December 1, 2016


Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Griffin, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    The defendant, Johnny G. Delgado, allegedly beat the victim

 unconscious and took items from his pockets. At trial, a jury

 convicted Delgado of robbery and theft from the person of another,

 which he now appeals.

¶2    We are asked to consider whether simultaneous convictions of

 robbery (requiring a taking by the use of force) and theft from the

 person of another (requiring a taking other than by the use of force)

 for the same act are legally and logically inconsistent and thus

 require reversal.

¶3    We agree with Delgado that the verdicts were plainly legally

 and logically inconsistent. And, because inconsistent verdicts do

 not allow us to decide what the jury found, we also agree that

 Delgado should receive a new trial. In reaching this conclusion, we

 disagree with People v. Beatty, 80 P.3d 847 (Colo. App. 2003), and

 People v. Lee, 914 P.2d 441 (Colo. App. 1995). We thus reverse the

 judgment and sentence, and we remand for a new trial.

                             I. The Taking

¶4    The victim spent an evening at a bar, eventually getting drunk.

 He left around the time the bar closed. Soon after, though, he

 returned to the bar and banged on the door, trying to get back


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 inside. Hearing this noise, a bar employee called the police, asking

 for an officer to check on this person.

¶5    The victim eventually gave up and walked away from the bar.

 As he did so, he saw two men walking toward him, but he turned

 his back on them. Moments later, he was attacked from behind;

 someone hit and kicked him until he collapsed on the sidewalk and

 lost consciousness.

¶6    Responding to the bar employee’s call, a police officer soon

 arrived at the bar. He saw Delgado bent over the victim’s prone

 body on the sidewalk, apparently going through the victim’s

 pockets. Then, he saw Delgado stand up, holding items in his

 hands. This officer was the only eyewitness who testified at trial.

¶7    The officer shouted at Delgado to stop, but Delgado took off

 running, tossing aside the victim’s wallet, keys, and phone as he

 went. Backup officers arrived in time to chase, catch, and arrest

 Delgado. One officer testified that on arrest, Delgado’s hands were

 injured and bloody.

¶8    When the case went to trial, the prosecution argued that

 Delgado could be convicted of both robbery and theft from the

 person of another, and the trial court gave instructions on both.


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¶9     The robbery instruction informed the jury that they could find

  Delgado guilty if he:

             3. knowingly,

             4. took anything of value,

             5. from the person or presence of another,

             6. by the use of force, threats, or intimidation.

  (Emphasis added.). See § 18-4-301, C.R.S. 2016.

¶ 10   The theft from the person of another instruction informed the

  jury that they could find Delgado guilty if he:

             3. knowingly

             a. obtained or exercised control over,

             b. anything of value,

             c. which was the property of another person,

             d. without authorization or by threat or
             deception, and

             4. with intent to permanently deprive the other
             person of the use or benefit of the thing of
             value, and

             5. the thing of value was taken,

             a. from the person of another,

             b. by means other than the use of force, threats
             or intimidation.

  (Emphasis added.). See § 18-4-401(1), (5), C.R.S. 2016.


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¶ 11   The jury found Delgado guilty of robbery and theft from the

  person of another, but it did not reach a verdict on an assault

  count, and that count was dismissed. Then the trial court

  sentenced Delgado to twelve years in prison on the robbery count

  and a concurrent sentence of 200 days on the theft count, with

  credit for 211 days served.

                     II. Plainly Inconsistent Verdicts

                          A. Standard of Review

¶ 12   Both parties agree that the inconsistent verdict issue is not

  preserved. So, review is for plain error. People v. Sanchez, 253

  P.3d 1260, 1262-63 (Colo. App. 2010). An error is plain if it is

  obvious and “so undermine[s] the fundamental fairness of the trial

  itself so as to cast serious doubt on the reliability of the judgment of

  conviction.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005)

  (quoting People v. Sepulveda, 65 P.3d 1002, 1006 (Colo. 2003)).

¶ 13   We note that Delgado’s reliance on a number of cases for the

  proposition that inconsistent verdicts are structural errors is

  misplaced because none addressed inconsistent jury verdicts. See

  Sullivan v. Louisiana, 508 U.S. 275, 277, 281 (1993) (concluding

  that it is structural error for a court to give an incorrect definition of


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  “reasonable doubt”); Sanchez v. People, 2014 CO 29, ¶¶ 14, 20

  (concluding that it is structural error for a court to convict a

  defendant for a crime for which the jury did not find him guilty of

  every element); Medina v. People, 163 P.3d 1136, 1138, 1141 (Colo.

  2007) (concluding that it is structural error for a court to sentence a

  defendant for a crime for which he was not convicted).

                       B. Inconsistent Verdict Law

¶ 14   We start our discussion with two Supreme Court cases that

  involved both an acquittal and a conviction. The Supreme Court

  determined in Dunn v. United States, 284 U.S. 390, 393-94 (1932),

  that, as a rule, verdicts are not inconsistent when a defendant is

  acquitted of one crime and convicted of another crime that is

  inconsistent with the acquittal. It later noted, in United States v.

  Powell, 469 U.S. 57, 65 (1984), that this kind of inconsistent verdict

  “should not necessarily be interpreted as a windfall to the

  Government at the defendant’s expense,” because it is “possible

  that the jury, convinced of guilt, properly . . . through mistake,

  compromise, or lenity, arrived at an inconsistent conclusion.”




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¶ 15   In People v. Frye, 898 P.2d 559 (Colo. 1995), our supreme

  court explained an exception to the rule from Dunn that applies in

  Delgado’s case:

            [In] those cases where a jury has returned
            verdicts convicting a defendant of two or more
            crimes, where the existence of an element of
            one of the crimes negates the existence of a
            necessary element of the other crime[,] courts
            are generally uniform in their agreement that
            the verdicts are legally and logically
            inconsistent and should not be sustained.

  Id. at 569 n.13 (emphasis added); see People v. Weare, 155 P.3d

  527, 529 (Colo. App. 2006) (applying this exception); see also

  Candelaria v. People, 148 P.3d 178, 183 (Colo. 2006) (citing Frye

  favorably for this proposition). Some states refer to such verdicts as

  “mutually exclusive” verdicts. See State v. Owens, 766 S.E.2d 66,

  71 (Ga. 2014); Martinez v. State, 989 So. 2d 1143, 1150 (Ala. Crim.

  App. 2006).

¶ 16   When we apply this exception for inconsistent verdicts, we

  consider whether an element of one offense negates an essential

  element of the other. Weare, 155 P.3d at 529. And, when deciding

  whether elements negate each other, we must compare the

  language in the relevant statutes. See id. at 529-30. In doing so,



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  we are guided by common rules of statutory interpretation. We

  must determine the intent of the General Assembly. Mason v.

  Adams, 961 P.2d 540, 543 (Colo. App. 1997). To discern intent, we

  look to the statutory language, giving words and phrases their plain

  and ordinary meanings. Swieckowski v. City of Fort Collins, 934

  P.2d 1380, 1384-85 (Colo. 1997). When we give words their plain

  meanings, the rule of consistent usage requires that, absent a

  “manifest indication to the contrary, the meaning attributed to the

  words or phrases in one part of the statute should be ascribed to

  the same words or phrases found elsewhere in the statute.” Colo.

  Common Cause v. Meyer, 758 P.2d 153, 161 (Colo. 1988); see

  United States v. Castleman, 572 U.S. __, __, 134 S. Ct. 1405, 1417

  (2014).

                                C. Analysis

¶ 17   We conclude in Delgado’s case that (1) the force elements of

  robbery and theft from the person of another negate each other and,

  thus, guilty verdicts on both are legally and logically inconsistent;

  and (2) the error is plain.




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                           1. Inconsistent Verdicts

¶ 18   We initially point out that neither party disputes that there

  was only one taking, nor does any evidence support a finding of

  more than one taking — for example, there is no evidence that

  Delgado took objects from the victim, left, and then returned later to

  take more. The trial court agreed with this proposition when it

  stated that “the same evidence” supports both the robbery and theft

  counts.

¶ 19   Now, we turn to the language of the statutes. As stated above,

  the trial court read the robbery and theft instructions to the jury.

  On the one hand, robbery requires that a person take “by the use of

  force.” § 18-4-301(1). On the other, theft from the person of

  another requires that a person take “by means other than the use of

  force.” § 18-4-401(5).

¶ 20   Because these provisions are in the same article of the

  Colorado statutes, we apply the rule of consistent usage and give

  the word “force” the same meaning in both parts of the statute. See

  Meyer, 758 P.2d at 161. We may do so because the General

  Assembly has not shown a “manifest indication to the contrary.” Id.

  Rather, it enacted the theft from the person of another provision “to


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  cover those situations that would otherwise constitute robbery, but

  for the lack of force, threats, or intimidation,” People v. Warner, 801

  P.2d 1187, 1191 (Colo. 1990) (footnote omitted), thus showing that

  it contemplated that “force” has the same meaning in both statutes.

¶ 21   And, because the General Assembly intended that both

  statutes use the same definition of “force,” the jury’s findings that

  Delgado both took “by the use of force” and “by means other than

  the use of force” for the same act negate each other. Thus, the

  verdicts are legally and logically inconsistent. See Weare, 155 P.3d

  at 529.

                              2. Plain Error

¶ 22   We agree with Delgado that this error is plain because it is

  obvious and casts serious doubt on the reliability of the conviction.

  See Miller, 113 P.3d at 750.

¶ 23   The error is obvious because the proposition that a defendant

  may not be convicted on charges that are legally and logically

  inconsistent is well-established, and such an inconsistency is

  manifest in this case. See Weare, 155 P.3d at 529. It is obvious

  that taking by “force” is the opposite of taking “by means other than




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  the use of force.” There can be no clearer example of inconsistency.

  See Warner, 801 P.2d at 1191.

¶ 24   And, this error casts serious doubt on the reliability of the

  convictions because it makes a conviction of both robbery and theft

  from the person of another for the same act legally impossible.

¶ 25   The People’s reliance on People v. Simpson, 93 P.3d 551 (Colo.

  App. 2004), for the proposition that a jury can recognize a temporal

  distinction between criminal acts is misplaced. In Simpson, a

  division of this court recognized that a defendant can

  simultaneously intend to menace and take substantial steps toward

  causing death. Id. at 555. This holding has no bearing on whether

  a defendant can commit one taking both with and without force.

¶ 26   Additionally, the People’s reliance on the course of transaction

  doctrine to contend that “Delgado used force to effectuate a robbery

  (by beating the victim unconscious) and then physically took [the

  victim’s] property from his pockets without using force” misses the

  point. See People v. Fox, 928 P.2d 820, 821 (Colo. App. 1996)

  (upholding a conviction for robbery against two victims based on

  the course of transaction doctrine); see also People v. Villalobos, 159

  P.3d 624, 627 (Colo. App. 2006). Once the jury actually found that


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  the taking was accomplished by beating the victim unconscious, the

  jury could not legally or logically find that the taking was “by means

  other than the use of force,” even if it believed that no force was

  used to remove items from the unconscious victim’s pockets. See

  Frye, 898 P.2d at 565-66 (disapproving of a strained and

  unpersuasive “speculation into [the] jury’s thought processes” to

  find a way the verdicts could be viewed as consistent).

                               III. Remedy

¶ 27   The People contend that the proper remedy for the

  inconsistent verdicts is to vacate the theft from the person of

  another conviction and sentence, which has the lesser punishment,

  but affirm the robbery conviction and sentence in order to

  “maximize” the jury’s verdict. In support of this, they rely on

  Beatty, 80 P.3d 847, and Lee, 914 P.2d 441. We disagree with the

  People and the other divisions of this court because (1) the cases on

  which Beatty and Lee rely for this remedy did not address

  inconsistent guilty verdicts and (2) inconsistent guilty verdicts

  express irreconcilable findings that can only be resolved through a

  new trial. See People in Interest of S.N-V., 300 P.3d 911, 914 (Colo.




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  App. 2011) (stating that one division of the court of appeals is not

  bound by decision of another division).

             A. Beatty, Lee, and Their Foundational Cases

¶ 28   The divisions in Beatty and Lee each concluded that the guilty

  verdicts involved were legally and logically inconsistent. Beatty, 80

  P.3d at 852; Lee, 914 P.2d at 446. We take no issue with this part

  of either holding.

¶ 29   But, the divisions then concluded that the proper remedy in

  such situations is to maximize the jury verdicts by vacating the

  conviction of the lesser offense. See Beatty, 80 P.3d at 853; Lee,

  914 P.2d at 448. In reaching this conclusion, the divisions relied

  on the reasoning of two Colorado Supreme Court cases which

  concluded that verdicts should be maximized: People v. Glover, 893

  P.2d 1311, 1314 (Colo. 1995), and People v. Bartowsheski, 661 P.2d

  235, 246-47 (Colo. 1983).

¶ 30   But, these two foundational cases, Glover and Bartowsheski,

  did not involve inconsistent verdicts. In Glover, 893 P.2d at 1314-

  15, the defendant was convicted on two counts of first degree

  murder, even though he only committed one murder. And, in

  Bartowsheski, 661 P.2d at 245, the trial court convicted and


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  sentenced the defendant based on a greater felony murder offense

  and a lesser included robbery offense. Neither case addressed, nor

  even mentioned, inconsistent verdicts. Thus, the cases on which

  Lee and Beatty relied are not applicable to inconsistent verdicts.

                               B. New Trial

¶ 31   Not only are Glover and Bartowsheski factually inapplicable,

  but the reasoning underlying them is not persuasive in Delgado’s

  case. In both Glover and Bartowsheski, the elements of one of the

  offenses necessarily included the same elements as the other, and

  thus the evidence supported both convictions. In contrast, where

  verdicts are inconsistent, the evidence supports each conviction

  individually, but not both at the same time because an element in

  each negates an element in the other.

¶ 32   So, when guilty verdicts are inconsistent, we cannot know

  what the jury actually found because it expressed irreconcilable

  findings. Cf. Milanovich v. United States, 365 U.S. 551, 555-56

  (1961) (“[T]here is no way of knowing [what] a properly instructed

  jury would have found.”). Because the verdicts are so plainly

  inconsistent, it is not possible to discern the jury’s intent.




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¶ 33   We thus conclude that the proper remedy when guilty verdicts

  are legally and logically inconsistent is to remand for a new trial so

  that a jury can make new findings and decide which conviction the

  evidence supports. See Owens, 766 S.E.2d at 71 (“[T]he remedy for

  a judgment entered on convictions based on mutually exclusive

  verdicts is to reverse the judgment, set aside the verdicts at issue,

  and remand for a new trial.”); People v. Williams, 688 N.E.2d 320,

  324 (Ill. App. Ct. 1997) (“[T]he convictions must be reversed and the

  cause remanded for a new trial on the involuntary manslaughter

  and aggravated discharge of a firearm charges.”); State v.

  Speckman, 391 S.E.2d 165, 168 (N.C. 1990) (“[T]here is a

  ‘reasonable possibility’ that a different result would have been

  reached at trial as to both charges . . . . Therefore, the defendant is

  entitled to a new trial on both charges.”).

¶ 34   Accordingly, we also disagree with Delgado’s contention that

  he was acquitted of both crimes because, as he contends, “[e]ach

  verdict included an affirmative jury finding that effected an

  acquittal on the other count.” By this reasoning, we could

  conversely conclude that each verdict includes an affirmative

  finding that effected a conviction. We will not apply this reasoning.


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                            IV. Conclusion

¶ 35   The judgment and sentence are reversed, and the case is

  remanded to the trial court. The prosecution may choose to retry

  Delgado on either the robbery count or the theft from the person of

  another count, or both. But, if the prosecution elects to submit

  both counts to the jury, such submission must be accompanied by

  an instruction that the jury may convict of either the robbery count

  or the theft from the person of another count, but not both.

       JUDGE MILLER and JUDGE NAVARRO concur.




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