COLORADO COURT OF APPEALS                                     2016COA113


Court of Appeals No. 14CA2276
Weld County District Court No. 14CR285
Honorable Thomas J. Quammen, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Benjamin Jacob Geisick,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division II
                           Opinion by JUDGE ASHBY
                          Webb and Harris, JJ., concur

                           Announced July 28, 2016


Cynthia H. Coffman, Attorney General, Ethan Zweig, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Kathryn Heffron, Deputy
State Public Defender, Greeley, Colorado, for Defendant-Appellant
¶1    Defendant, Benjamin Jacob Geisick, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of resisting

 arrest, obstructing a peace officer, and possession of drug

 paraphernalia. We affirm.

                             I. Background

¶2    Geisick got into an argument with his girlfriend in their motel

 room. The motel manager overheard the argument, confronted

 Geisick, and then called the police. Officer Steinhour was the first

 officer to arrive and he contacted the motel manager. While Officer

 Steinhour and the manager were talking, the manager saw Geisick

 walking away from the motel and pointed Geisick out. Officer

 Steinhour followed Geisick on foot and verbally attempted to stop

 Geisick so that they could talk. A physical struggle between Officer

 Steinhour and Geisick occurred, but it ended quickly and Geisick

 ran away. Geisick hid behind a tree as other officers arrived on the

 scene and, after trying to escape on foot again, Geisick was

 ultimately tackled and arrested by the later responding officers.

¶3    Based on the physical struggle with Officer Steinhour, the

 prosecution charged Geisick with second degree assault on a peace

 officer and attempting to disarm a peace officer. And because

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 officers found a pipe, which Geisick admitted was used to smoke

 methamphetamine, and other items in his pockets, the prosecution

 also charged Geisick with possession of drug paraphernalia.

¶4    At trial, both Officer Steinhour and Geisick testified and

 offered significantly different descriptions of their struggle. Officer

 Steinhour testified that Geisick initiated the physical altercation

 between the two of them and that Geisick punched him in the face,

 hit him in the head with his radio microphone, and attempted to

 take his gun. In contrast, Geisick testified that Officer Steinhour

 initiated the physical altercation by grabbing him and throwing him

 into a wall, and denied that he ever punched the officer, hit him in

 the head with the radio microphone, or attempted to take his gun.

 Geisick did admit, however, that a physical struggle occurred and

 that he ran away from Officer Steinhour and the other officers who

 arrived later.

¶5    At the close of evidence, Geisick asked the trial court to

 instruct the jury on two lesser nonincluded offenses that the People

 did not charge: resisting arrest and obstructing a peace officer. The

 trial court, at the request of Geisick, found that there was evidence

 to support both of the lesser nonincluded offenses and instructed

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 the jury on those offenses. The jury found Geisick not guilty of the

 charged offenses of assault on a peace officer and attempting to

 disarm an officer, but found him guilty of the uncharged lesser

 nonincluded offenses of resisting arrest and obstructing a peace

 officer in addition to the charged offense of possession of drug

 paraphernalia. The trial court convicted and sentenced Geisick

 accordingly.

¶6    Geisick appeals his convictions, arguing that (1) the trial court

 erred by denying his challenge for cause to a potential juror; (2) the

 trial court erred by admitting inadmissible hearsay testimony; (3)

 the evidence was insufficient to support his resisting arrest and

 obstruction convictions; and (4) the cumulative effect of these errors

 denied him a fair trial. We consider and disagree with each of these

 arguments in turn.

                        II. Challenge for Cause

¶7    Geisick argues that the trial court reversibly erred by denying

 his challenge for cause to a potential juror whom he then used a

 peremptory challenge to dismiss. We reject this argument because

 Geisick fails to explain how this error prejudiced him.



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¶8    As the supreme court explained in People v. Novotny, 2014 CO

 18, to obtain relief for an improperly denied challenge for cause a

 defendant must establish prejudice by demonstrating a reasonable

 probability that the error contributed to the verdict. See id. at ¶ 27;

 People v. Wise, 2014 COA 83, ¶ 28 (“[T]he court in Novotny made

 clear that the mere loss of a peremptory challenge, standing alone,

 is insufficient to require reversal.”). Here, the juror in question did

 not sit on the jury and Geisick fails to articulate in his opening brief

 how the alleged error prejudiced him or contributed to the verdict.

 We therefore reject this argument.

                               III. Hearsay

¶9    Geisick next argues that the trial court erred by admitting

 hearsay testimony about the physical altercation with Officer

 Steinhour from an officer who did not witness the altercation. We

 review for abuse of discretion. See Compan v. People, 121 P.3d 876,

 883 (Colo. 2005). But even if a court abuses its discretion by

 admitting hearsay, we will not reverse if the error was harmless.

 See Crider v. People, 186 P.3d 39, 42 (Colo. 2008). An error is

 harmless if there is no reasonable probability that it contributed to



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  the defendant’s conviction. Id. at 44. We conclude that any error in

  admitting the testimony was harmless.

¶ 10   Officer Steinhour testified in detail about what happened

  before, during, and after the struggle with Geisick. In addition to

  this testimony, the People elicited testimony from the officer who

  interviewed Officer Steinhour about the struggle but did not witness

  it himself. The interviewing officer testified extensively about the

  struggle based on what Officer Steinhour told him in the interview.

¶ 11   Geisick objected to this testimony on the ground that it was

  hearsay. The trial court agreed that the testimony was potentially

  inadmissible hearsay because the interviewing officer was testifying

  to the truth of Officer Steinhour’s statement about the struggle

  based only on having heard the statement, not having actually

  witnessed the struggle. See CRE 801(c). But the trial court

  overruled the objection and admitted the interviewing officer’s

  testimony on two alternative hearsay exception grounds: (1) Officer

  Steinhour’s statement to the interviewing officer was an excited

  utterance, rendering the interviewing officer’s testimony about it

  admissible under CRE 803(2); and (2) Officer Steinhour’s statement

  was a prior consistent statement as defined by CRE 801(d)(1).

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¶ 12   We question both of the trial court’s alternative rulings

  admitting the testimony. First, there is little in the record to

  support a conclusion that Officer Steinhour’s entire statement to

  the interviewing officer was an excited utterance. Although the

  interviewing officer testified that Officer Steinhour appeared to be

  coming down from an adrenaline rush at the time of the interview,

  the interview took place after Officer Steinhour had left the site of

  the struggle, chased Geisick for several blocks, returned to the site

  of the struggle, and collected items that he had lost from his duty

  belt during the struggle. Very little in the record suggests that

  Officer Steinhour’s statement was a spontaneous reaction to an

  event so startling that it continued to render his capacity for

  reflective thought inoperative. See Compan, 121 P.3d at 882 (For a

  statement relating to an event to qualify as an excited utterance,

  “the event or condition must be sufficiently startling to render

  normal reflective thought processes of the declarant inoperative,

  and the statement must be a spontaneous reaction to the event

  rather than the result of reflective thought.”). To the contrary, the

  interviewing officer testified that he had waited until “everything

  calmed down” to interview Officer Steinhour.

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¶ 13   Second, we question whether Officer Steinhour’s entire

  statement qualified as nonhearsay under CRE 801(d)(1). As

  relevant here, this rule provides that a statement is not hearsay if

  “the declarant testifies at the trial . . . and is subject to cross-

  examination concerning the statement, and the statement is . . .

  consistent with his testimony and is offered to rebut an express or

  implied charge against him of recent fabrication or improper

  influence or motive.” CRE 801(d)(1). Although Officer Steinhour

  was cross-examined extensively about the struggle itself, his cross-

  examination barely, if at all, addressed the statement he gave to the

  interviewing officer.

¶ 14   But even if we assume that the trial court erred by admitting

  the interviewing officer’s testimony, we conclude that the error was

  harmless. The interviewing officer’s testimony was not that of an

  eyewitness; the jury was aware that the interviewing officer was

  testifying only about what Officer Steinhour said in the interview.

  And because Officer Steinhour himself described the incident in

  detail, it is unlikely that another officer’s testimony about Officer

  Steinhour’s earlier description of the incident had a significant

  impact on the jury — especially because the prosecutor did not

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  argue that the consistency of Officer Steinhour’s descriptions of the

  incident made them more believable. Indeed, the jury apparently

  did not believe large parts of Officer Steinhour’s descriptions of the

  incident because it found Geisick not guilty of the assault and

  attempting to disarm charges.

                     IV. Sufficiency of the Evidence

¶ 15   Geisick also argues that the evidence was insufficient to

  support his convictions for resisting arrest and obstructing a peace

  officer. We conclude that Geisick waived this argument and

  therefore do not address its merits.

¶ 16   Waiver occurs when a party intentionally relinquishes a

  known right. See United States v. Olano, 507 U.S. 725, 733 (1993).

  When a party specifically removes issues from a trial court’s

  consideration, the party has waived those issues and we may not

  review them on appeal. See People v. Rediger, 2015 COA 26, ¶ 54

  (cert. granted Feb. 16, 2016).

¶ 17   At the close of evidence, Geisick requested that the trial court

  instruct the jury on two lesser offenses — resisting arrest and

  obstructing a peace officer — that were not lesser included offenses

  of those that the People charged. Before a court grants a

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  defendant’s request for an instruction on a lesser nonincluded

  offense, the defendant “must show an evidentiary basis upon which

  the jury could rationally acquit on the greater but convict on the

  lesser offense.” People v. Medrano-Bustamante, 2013 COA 139,

  ¶ 90. Thus, by requesting the lesser nonincluded instructions and

  verdict forms, Geisick necessarily argued that based on the

  evidence, a jury could rationally convict him of resisting arrest and

  obstruction instead of, or in addition to, the charged offenses.1

¶ 18   Successfully challenging the sufficiency of the evidence on

  appeal requires exactly the opposite showing: that the evidence

  could not have supported a rational conclusion that the defendant

  was guilty of the offense beyond a reasonable doubt. See People v.

  Harper, 205 P.3d 452, 455 (Colo. App. 2008). Indeed, now on

  appeal, Geisick argues that the evidence was such that a jury could

  not have rationally concluded that he was guilty of resisting arrest

  and obstructing a peace officer. But by arguing to the trial court

  that the evidence permitted a rational conclusion that he had

  committed the lesser nonincluded offenses in order to persuade the

  1We also note that Geisick never moved for a judgment of acquittal
  on the lesser nonincluded offenses nor did he ever suggest that the
  evidence was insufficient to support his conviction of those offenses.
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  trial court to give the instructions, he waived the argument he now

  makes on appeal that the evidence was insufficient.

¶ 19   We are aware that another division of this court recently

  analyzed this issue and applied the doctrine of invited error, rather

  than waiver, to conclude that the defendant was barred from

  challenging the sufficiency of the evidence on appeal. See People v.

  Riley, 2016 COA 76, ¶ 14. In Riley, the division concluded that by

  requesting a lesser nonincluded instruction at trial, the defendant

  invited the potential error that he would be convicted of the lesser

  nonincluded offense based on insufficient evidence. Id. at ¶ 15.

¶ 20   Although we agree with the Riley division that a defendant is

  precluded from challenging his or her conviction of a lesser

  nonincluded offense on which the defendant requested an

  instruction, we disagree that such a challenge is precluded because

  it is invited error. Invited error “prevents a party from inducing an

  inappropriate or erroneous [ruling] and then later seeking to profit

  from that error.” Rediger, ¶ 52 (quoting Horton v. Suthers, 43 P.3d

  611, 618 (Colo. 2002)). By requesting a lesser nonincluded

  instruction, the defendant asks only that the jury receive that



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  instruction, not that the jury find him or her guilty of the lesser

  nonincluded offense.

¶ 21   For these reasons, the only error that a defendant can possibly

  induce is that of giving the instruction, not that of the jury finding

  the defendant guilty of the offense. Indeed, as the division in Riley

  acknowledged, even if the defendant requests that the jury be

  instructed on a lesser nonincluded offense, he does not concede

  that he is guilty of that offense and is free to argue that the jury

  should find him not guilty. See Riley, ¶ 15.

¶ 22   A defendant’s request for the instruction does, however,

  affirmatively represent to the trial court that the evidence is

  sufficient to support a rational finding that the defendant is guilty

  of the lesser nonincluded offense beyond a reasonable doubt. In

  other words, the defendant represents that there is sufficient

  evidence on which the jury could convict him of the lesser

  nonincluded offense. And this affirmative representation, just like

  when defense counsel affirmatively assents to a proposed

  instruction or ruling, waives the defendant’s right to argue the

  opposite on appeal. See Rediger, ¶ 60 (defense counsel’s indication



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  that the instructions were proper waived defendant’s right to argue

  that the instructions were improper on appeal).

¶ 23   Ultimately, the distinction between strategic invited error and

  waiver in this case is one without a functional difference. Although

  we think that waiver is the proper doctrine to apply under these

  circumstances, applying invited error would similarly preclude our

  review of Geisick’s substantive argument that the evidence was

  insufficient to support his conviction of the lesser nonincluded

  offenses.

                           V. Cumulative Error

¶ 24   Finally, Geisick argues that the cumulative effect of the alleged

  errors deprived him of a fair trial. Even if we assume that the trial

  court erred by denying his challenge for cause and admitting the

  interviewing officer’s testimony, we do not perceive that these errors

  prejudiced Geisick’s right to a fair trial. See People v. Conyac, 2014

  COA 8M, ¶ 152 (concluding, without analysis, that “although we

  have found some errors, because we do not perceive that they

  substantially prejudiced defendant’s right to a fair trial, there is no

  reversible cumulative error”).

                              VI. Conclusion

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¶ 25   The judgment of conviction is affirmed.

       JUDGE WEBB and JUDGE HARRIS concur.




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