     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
                                                           February 13, 2020

                                2020COA25

No. 17CA1558, People v. Brooks — Criminal Law — Verdicts or
Findings — Special Interrogatories — Inconsistent Verdicts

     The division applies for the first time a distinction suggested

by the Colorado Supreme Court in People v. Rail, 2019 CO 99, and

concludes that there is a difference in the analysis, and the

potential remedy, between a claim that a single verdict is internally

inconsistent or ambiguous and a claim that two distinct verdicts

are legally inconsistent.
COLORADO COURT OF APPEALS                                          2020COA25


Court of Appeals No. 17CA1558
El Paso County District Court No. 14CR587
Honorable Lin Billings Vela, Judge


The People of the State of Colorado,

Plaintiff-Appellant and Cross-Appellee,

v.

Lorenzo Fondzel Brooks,

Defendant-Appellee and Cross-Appellant.


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

                                  Division II
                           Opinion by JUDGE TOW
                      Bernard, C.J., and Terry, J., concur

                        Announced February 13, 2020


Daniel H. May, District Attorney, Tanya A. Karimi, Deputy District Attorney,
Colorado Springs, Colorado; Philip J. Weiser, Attorney General, Brenna A.
Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellant
and Cross-Appellee

Patrick R. Henson, Alternate Defense Counsel, Colorado, for Defendant-
Appellee and Cross-Appellant
¶1    The People appeal the trial court’s order granting the

 defendant, Lorenzo Fondzel Brooks, a judgment of acquittal for first

 degree burglary. Brooks cross-appeals the judgment of conviction

 entered on a jury verdict finding him guilty of possession of a

 controlled substance, third degree assault, first degree trespassing,

 and two counts of menacing. In resolving this case, we apply for

 the first time a distinction suggested by the Colorado Supreme

 Court in Rail v. People, 2019 CO 99: that there is a difference in the

 analysis of a claim that a single verdict is internally inconsistent

 and a claim that two distinct verdicts are legally inconsistent.

 Further, we consider the proper remedy for a verdict ambiguity

 created by an inconsistent response to a special interrogatory.

 Having done so, we conclude, albeit for slightly different reasons,

 that the trial court correctly determined that the burglary verdict

 was inconsistent with the interrogatory response, but the menacing

 verdicts were not inconsistent. However, we further conclude that

 the trial court imposed the wrong remedy related to the burglary

 verdict. Thus, we affirm in part and reverse in part.




                                    1
                            I.   Background

¶2    According to the evidence presented at trial, M.U. heard a loud

 noise one night that sounded like someone was coming in her front

 door. She testified that she went into the living room and saw

 Brooks trying to enter while holding a gun. She used the couch to

 try and stop him from entering, at which time he dropped the gun.

 She struck Brooks, then fell and struggled with him for the gun.

 During the struggle, M.U.’s boyfriend, Q.L., woke up and also began

 to struggle with Brooks. The gun discharged at some point during

 the struggle. Brooks also bit M.U.’s finger.

¶3    The struggle continued until the police arrived. An officer

 used a Taser on Brooks, who was on the floor and refused to get up.

 Another officer then found a gun underneath Brooks. After

 transporting Brooks in his police vehicle, an officer found a bag of

 cocaine on the backseat.




                                   2
¶4    Brooks was charged with first degree burglary, unlawful

 possession of a controlled substance, two counts of menacing, third

 degree assault, and first degree criminal trespass. 1

¶5    As relevant here, the jury instruction provided to the jury on

 the first degree burglary charge listed the following elements:

           (1)   That the defendant,
           (2)   in the State of Colorado at or about the
                 date and place charged
           (3)   knowingly,
           (4)   entered unlawfully, or remained
                 unlawfully after a lawful or unlawful
                 entry,
           (5)   in a building or occupied structure
           (6)   with intent
           (7)   to commit therein the crime of Menacing
                 and
           (8)   in effecting entry or while in the building
                 or occupied structure or in immediate
                 flight from the building or occupied
                 structure
           (9)   the defendant or another participant in
                 the crime used a deadly weapon or
                 possessed and threatened the use of a
                 deadly weapon, namely a firearm.




 1 Brooks was also charged with possession of a weapon by a
 previous offender (POWPO). The trial on this count was bifurcated
 from the other charges. After receiving the jury’s verdicts on the
 other charges, including the finding that Brooks did not possess a
 weapon during the burglary, the prosecution dismissed the POWPO
 count.

                                    3
¶6    The prosecution had charged first degree burglary as a crime

 of violence under section 18-1.3-406, C.R.S. 2019. Accordingly, the

 jury was also given a special interrogatory related to that charge:

           Did the defendant use, or possess and
           threaten the use of, a deadly weapon?
                ....
           The defendant used, or possessed and
           threatened the use of, a deadly weapon only if:
           (1) the defendant used, or possessed and
                threatened the use of, a deadly weapon,
           (2) during the commission of, attempted
                 commission of, conspiracy to commit
                 First Degree Burglary, or in the
                 immediate flight therefrom.

¶7    The jury instruction for the menacing charges listed the

 following elements:

           (1)   That the defendant
           (2)   in the State of Colorado, at or about the
                 date and place charged,
           (3)   knowingly,
           (4)   by any threat or physical action,
           (5)   placed or attempted to place another
                 person in fear of imminent serious bodily
                 injury,
           (6)   by use of a deadly weapon or any article
                 used or fashioned in a manner to cause a
                 person to reasonably believe that the
                 article was a deadly weapon,
           (7)   and was not acting in self-defense[.]

¶8    The jury found Brooks guilty of each of the charges. However,

 in the first degree burglary special interrogatory, the jury found that


                                    4
  Brooks did not use, or threaten the use of, a deadly weapon during

  the burglary.

¶9     Brooks moved for a judgment of acquittal on the burglary and

  menacing convictions, asserting they were inconsistent. The court

  found that the two verdicts were not inconsistent but acknowledged

  that “the jury’s answers to interrogatories indicate the jury did not

  find the prosecution proved that Mr. Brooks used or possessed a

  firearm.” The court further observed that “in answering ‘no’ to the

  interrogatory question whether the defendant used, or possessed a

  deadly weapon in the commission of first degree burglary, the jury

  negated element #9 of the first degree burglary instruction.” Then

  the court entered a judgment of acquittal on the first degree

  burglary count and sentenced Brooks to three years in the custody

  of the Department of Corrections on the remaining charges.

¶ 10   The People appeal and Brooks cross-appeals, separately

  contesting the trial court’s conclusions regarding the consistency of

  the jury verdicts. Specifically, the People argue that the trial court

  erred by concluding that the jury verdict for first degree burglary

  was inconsistent with the special interrogatory. Brooks contends

  that the trial court erred by concluding that the jury verdicts for two


                                     5
  counts of menacing were consistent with the special interrogatory

  for burglary. We address, and reject, each contention in turn. The

  People also contend that the trial court imposed the wrong remedy

  for the inconsistency. On this point, we agree with the People.

   II.    Inconsistent Jury Verdicts: Legal Principles and Standard of
                                    Review

                            A.   Applicable Law

¶ 11     “A verdict in a criminal case should be certain and devoid of

  ambiguity.” Yeager v. People, 170 Colo. 405, 410, 462 P.2d 487,

  489 (1969). The verdict must “convey beyond a reasonable doubt

  the meaning and intention of the jury.” People v. Durre, 690 P.2d

  165, 173 (Colo. 1984) (quoting Yeager, 170 Colo. at 410, 462 P.2d

  at 489).

¶ 12     But consistency in verdicts is not a necessity. People v. Frye,

  898 P.2d 559, 571 (Colo. 1995). Inconsistent guilty and not guilty

  verdicts based on the same conduct, for example, may be the result

  of lenity toward the defendant by the jury, and thus do not warrant

  reversal. United States v. Powell, 469 U.S. 57, 66 (1984).

¶ 13     However, the Colorado Supreme Court has recognized that in

  some circumstances a verdict inconsistency may result in an infirm



                                      6
  conviction. For example, a defendant cannot be simultaneously

  acquitted of a substantive offense and convicted of conspiracy to

  commit that same offense where the evidence of the substantive

  offense is the same as the evidence of the conspiracy. People v.

  Robles, 160 Colo. 297, 301, 417 P.2d 232, 234 (1966).

¶ 14   Nor can a defendant be convicted of two distinct offenses

  “when essential elements of [the] two guilty verdicts logically negate

  each other.” People v. Delgado, 2019 CO 82, ¶ 12. In Delgado, the

  defendant was convicted of both robbery and theft from person. Id.

  at ¶ 2. The first conviction requires proof that the defendant

  unlawfully took an item with force; the second conviction requires

  proof that the defendant unlawfully took an item without force. Id.

  Because the prosecution could not have proven beyond a

  reasonable doubt that the defendant acted both with force and

  without it, both convictions could not stand. Id. at ¶ 46.

¶ 15   Recently, our supreme court addressed the possibility of a

  third scenario in which an inconsistent verdict problem may arise:

  where the jury’s answer to a special interrogatory negates an

  element of the substantive offense to which the special interrogatory

  relates. Rail, 2019 CO 99. In Rail, the defendant was charged with


                                    7
  sexual assault on a child as a pattern of abuse and sexual assault

  on a child by one in a position of trust. Id. at ¶ 3. The jury

  convicted the defendant of sexual assault on a child. Id. at ¶ 11. In

  addition, the jury indicated in a special interrogatory for the pattern

  of abuse allegation that the prosecution had proven all of the

  incidents described by the victim. Id. However, in a separate

  unanimity special interrogatory that by its terms applied to both the

  sexual assault on a child and the position of trust charges, the jury

  indicated that the same incidents listed on the pattern interrogatory

  were “[n]ot [p]roved.” Id.

¶ 16   Significantly, the court began its analysis by distinguishing

  the scenario before it from cases in which two guilty verdicts were

  mutually exclusive. Id. at ¶¶ 25-26. The court noted that the issue

  before it was instead whether the jury’s unanimity interrogatory

  responses nullified its verdict finding the defendant guilty of sexual

  assault on a child as a pattern of abuse. Id. at ¶ 27. Ultimately,

  however, the court did not resolve whether an inconsistent

  interrogatory answer can create an ambiguity in a verdict such that

  the verdict cannot stand.




                                     8
¶ 17   Because the issue had not been preserved, the court reviewed

  for plain error. Id. at ¶¶ 45-46. The supreme court assumed that

  the trial court’s entry of the judgment of conviction was both

  erroneous and obviously so but noted that any error was mitigated

  by the fact that the jury was polled and each juror reaffirmed his or

  her guilty verdict. Id. at ¶ 46. As a result, the court declined to

  reverse the conviction. Id.

¶ 18   Nevertheless, our supreme court’s pointed distinction between

  the scenario before it and a case involving two conflicting guilty

  verdicts strongly suggests that the two claims are to be analyzed

  differently.

                        B.      Standard of Review

¶ 19   “Whether verdicts are mutually exclusive is a question of law.

  Therefore, we review this issue de novo.” Delgado, ¶ 13. Though

  the supreme court in Rail did not address the standard of review,

  we note that the determination of whether a special interrogatory

  response conflicts with the general verdict form to which it is

  attached involves considerations similar to those presented by

  mutually exclusive verdicts. In Kreiser v. People, 199 Colo. 20, 604

  P.2d 27 (1979), the supreme court considered a challenge that a


                                      9
  verdict was ambiguous because its title did not accurately describe

  the crime. Specifically, the verdict identified the crime of second

  degree assault as “with intent to cause bodily injury” rather than

  “with intent to cause serious bodily injury.” Id. at 21, 604 P.2d at

  28. Though the supreme court did not specifically identify the

  standard of review, it appears to have reviewed the issue de novo.

  See id. at 24, 604 P.2d at 30 (“We have carefully examined the

  authorities relied on by the People in support of the contention that

  the verdict was not ambiguous. We have concluded, however, that

  the verdict in this case is too uncertain to be legally sufficient.”).

¶ 20   We note that no court has explicitly identified the standard by

  which we are to review this issue. However, because on the

  circumstances before us the standard of review would make no

  difference in the outcome, we assume without deciding that

  whether a verdict is internally inconsistent and thus ambiguous is

  also a question of law that we review de novo.

                III.   Brooks’s Inconsistent Verdict Claims

¶ 21   Unlike the defendant in Rail, Brooks challenged the verdicts as

  inconsistent in the trial court. And his challenge was partially

  successful, in that the trial court concluded that the ambiguous


                                      10
  first degree burglary verdict could not stand. Thus, resolution of

  the People’s appeal requires us to address the issues that our

  supreme court left unresolved in Rail: how is a claim of an

  internally inconsistent, and thus arguably ambiguous, verdict

  analyzed and, if the verdict is found to be inconsistent, what is the

  remedy? Resolution of Brooks’s claim, on the other hand, requires

  us to determine whether the burglary and menacing verdicts are

  mutually exclusive.

                 A.     The First Degree Burglary Verdict

                1.    The Jury’s Verdict Was Ambiguous

¶ 22   The jury was instructed that to convict Brooks of first degree

  burglary it had to find that he used, or possessed and threatened to

  use, a deadly weapon, namely a firearm, during the burglary. By

  marking the verdict form guilty, the jury indicated it had done so.

  But on the special interrogatory form affiliated with that verdict, the

  jury explicitly found that he did not use, or possess and threaten to

  use, a deadly weapon during the burglary.

¶ 23   The People argue that, read together, the verdict and the

  interrogatory response merely mean that the jury rejected the

  prosecution’s theory of the case that the deadly weapon used was a


                                    11
  firearm. But, the People assert, the jury could have concluded that

  Brooks used a different deadly weapon, such as a body part. True,

  the jury asked during deliberations whether “hands, feet, physical

  presence[, or] size” could be a deadly weapon. But the People’s

  argument ignores the specific language of the elemental instruction

  given to the jury — that the jury must find that Brooks “used a

  deadly weapon or possessed and threatened the use of a deadly

  weapon, namely a firearm.” (Emphasis added.)

¶ 24   We cannot reconcile the jury’s finding on the guilty verdict

  that Brooks committed the burglary with “a deadly weapon, namely

  a firearm,” with the special interrogatory response that Brooks did

  not commit the burglary with a deadly weapon. In other words, we

  cannot say that the verdict expresses the jury’s meaning and intent

  beyond a reasonable doubt. Durre, 690 P.2d at 173.

¶ 25   By negating an element of first degree burglary, the special

  interrogatory response rendered the verdict on that charge

  ambiguous. The verdict is therefore infirm and cannot stand.

  Yeager, 170 Colo. at 410, 462 P.2d at 489.




                                   12
                 2.   Acquittal Was the Wrong Remedy

¶ 26   The People contend that, even if the verdict cannot stand, the

  proper remedy was not acquittal, but entry of a conviction for

  second degree burglary. We agree.

¶ 27   First, the court erred by entering a judgment of acquittal.

  Even though the special interrogatory response negated the ninth

  element of the first degree burglary offense, the jury did not acquit

  Brooks; it found him guilty. Thus, acquittal was not appropriate.

  See Delgado, ¶ 43 (holding acquittal on both charges is not the

  proper remedy for inconsistent verdicts because the jury did not

  actually acquit the defendant).

¶ 28   As Delgado makes clear, if this issue were analyzed in the

  same way as a claim of mutually exclusive verdicts, the proper

  remedy would be retrial. Id. at ¶ 45. But this is because in

  entering the mutually exclusive verdicts, the jury essentially says

  that the defendant did not commit crime one because he committed

  crime two, and also that the defendant did not commit crime two

  because he committed crime one. In other words, “it’s impossible to

  know what exactly the jury intended.” Id. at ¶ 42. As the court




                                    13
  noted in Delgado, “[t]he only finding that we can be sure of is that

  Delgado unlawfully took items.” Id.

¶ 29   Deciding on the remedy is where the distinction between a

  single internally inconsistent verdict and two mutually exclusive

  guilty verdicts is most significant. Unlike mutually exclusive

  verdicts, when an inconsistency within a single verdict negates an

  element, the remaining elements may nevertheless support a guilty

  verdict. This distinction enables us to discern to a far greater

  degree what the jury found.

¶ 30   As noted, the response to the special interrogatory negated the

  ninth element of the burglary offense. However, there is no

  inconsistency between the interrogatory and any other jury finding.

  Thus, the jury unanimously, unambiguously, and beyond a

  reasonable doubt, found the following: (1) that Brooks (2) in the

  State of Colorado at or about the date and place charged (3)

  knowingly (4) entered unlawfully, or remained unlawfully after a

  lawful or unlawful entry, (5) in a building or occupied structure (6)




                                    14
  with intent (7) to commit therein the crime of menacing. 2 These

  seven elements establish the crime of second degree burglary, a

  class 4 felony. § 18-4-203, C.R.S. 2019. The jury also found that

  Brooks had committed menacing. 3

¶ 31   Rather than acquittal or retrial, the proper remedy for an

  ambiguous verdict in this circumstance is to enter a conviction to

  the lesser offense encompassed by the unchallenged jury findings.

  The supreme court has done just that in a different ambiguous

  verdict scenario. In Kreiser, upon concluding that the verdict for

  second degree assault was ambiguous, the supreme court

  remanded the case with instructions to enter a judgment of

  conviction for third degree assault. 199 Colo. at 24, 604 P.2d at 30.

¶ 32   Nor does entry of a conviction for the lesser burglary offense

  raise due process concerns. In Lucero v. People, 2012 CO 7, after


  2 The trial court concluded that the interrogatory response
  necessarily contradicted, and thus negated, proof that Brooks
  intended to commit felony menacing at the time of his trespass.
  See Cooper v. People, 973 P.2d 1234, 1239 (Colo. 1999),
  disapproved of on other grounds, Griego v. People, 19 P.3d 1 (Colo.
  2007). Whether Brooks actually possessed a firearm at the time of
  entry has no bearing on what his intent was upon entering the
  home.
  3 We address, and reject, Brooks’s challenge to the menacing

  convictions below.

                                   15
  vacating a first degree burglary conviction due to insufficient proof

  of a deadly weapon, the supreme court remanded for entry of

  conviction and sentencing on the lesser included offense of second

  degree burglary, despite the fact that the jury was apparently not

  instructed on the lesser offense. Id. at ¶ 29. The court explained

  that “[e]ven if the jury is not instructed as to a lesser included

  offense, the defendant is on notice of the charge and has his chance

  to defend against it.” Id.

¶ 33   Nor is Brooks’s protection against double jeopardy implicated.

             [A]n appellate court, upon reversing a trial
             court’s order granting a judgment of acquittal
             notwithstanding a jury verdict of guilty, may
             remand the case to the trial court with
             directions to reinstate the jury verdict without
             violating the constitutional prohibition against
             twice placing the defendant in jeopardy for the
             same offense.

  People v. Brassfield, 652 P.2d 588, 593-94 (Colo. 1982) (citing

  People v. Rivas, 197 Colo. 131, 591 P.2d 83 (1979)). “[T]he entry of

  a judgment of conviction upon a jury verdict already returned does

  not require the successive trial that the Double Jeopardy Clause

  was designed to prevent.” Id. at 594. Here, given that Brooks’s

  motion was the functional equivalent of a motion for judgment



                                     16
  notwithstanding the verdict, entry of a conviction on the lesser

  offense than the one reflected in the guilty verdict is appropriate.

                       B.   The Menacing Verdicts

¶ 34   Brooks contends that the special interrogatory response also

  negates an element of his menacing convictions. But Brooks

  misapprehends the nature of mutually exclusive verdicts.

¶ 35   As a threshold issue, we note that the verdicts are not

  irreconcilable. The special interrogatory merely means that the jury

  was not convinced beyond a reasonable doubt that Brooks used a

  deadly weapon “during the commission of the burglary.” A burglary

  occurs when an individual commits a trespass to a building and, at

  that same time, the person has the intent to commit a crime inside.

  Cooper v. People, 973 P.2d 1234, 1239 (Colo. 1999), disapproved of

  on other grounds, Griego v. People, 19 P.3d 1 (Colo. 2007). Based on

  the evidence at trial, the jury could well have determined that,

  though Brooks did not have a weapon when he entered the home,

  once inside he obtained the weapon from somewhere inside the

  home and then threatened the victim with it.

¶ 36   In any event, as the court noted in Delgado, to be mutually

  exclusive, two guilty verdicts must necessarily conflict in such a


                                    17
  way that an essential element of one crime necessarily negates

  proof of an essential element of the other crime. Delgado, ¶¶ 2-3.

  But the response to the special interrogatory regarding the burglary

  did not negate any element of the offense of menacing, nor vice

  versa. There is no irreconcilable conflict in the two crimes such

  that proof of all of the elements of first degree burglary necessarily

  means a failure to prove all of the elements of menacing.

¶ 37   Rather than pointing to two mutually exclusive guilty verdicts,

  Brooks is actually attacking a perceived conflict between a not guilty

  verdict on the crime of violence and the guilty verdict on the felony

  menacing charges. But, again, a guilty verdict and a not guilty

  verdict need not be consistent. Frye, 898 P.2d 559. Frye illustrates

  why Brooks’s claim fails.

¶ 38   In Frye, the defendant was accused of sexually assaulting the

  victim at gunpoint. Id. at 560-61. He was charged with, among

  other things, first degree sexual assault and menacing with a

  deadly weapon. Id. The jury was also instructed on the lesser

  offense of second degree sexual assault. Id. at 564. The difference

  between the two types of sexual assault was that the original charge

  included as an element that the submission of the victim was


                                    18
  caused through the application of physical force or physical

  violence, or by threat of imminent death, serious bodily injury,

  extreme pain, or kidnapping, while the lesser offense did not

  include this element. Id. at 563-64. The menacing charge also

  required proof that the defendant placed or attempted to place

  another person in fear of imminent serious bodily injury. Id. at

  563.

¶ 39     The jury convicted the defendant of the lesser offense and also

  convicted him of menacing with a deadly weapon. Id. at 564. As

  the court in Delgado noted, the conviction for second degree sexual

  assault “implied that [the defendant] was not guilty of first degree

  sexual assault.” Delgado, ¶ 15. Nevertheless, though

  acknowledging that the verdicts were factually in conflict, the court

  let both convictions stand. Frye, 898 P.2d at 570-71.

¶ 40     Here, once the ambiguity in the burglary verdict is resolved,

  the conviction for second degree burglary is essentially an implied

  finding of not guilty on the first degree burglary charge. But just as

  in Frye, any inconsistency there may be between the two

  convictions is not fatal because such consistency is not required.




                                     19
                            IV.   Conclusion

¶ 41   The judgment of conviction entered on the menacing counts is

  affirmed. The judgment of acquittal on the first degree burglary

  count is reversed and the matter is remanded with instructions to

  enter a judgment of conviction for second degree burglary, a class 4

  felony, and for sentencing on that count.

       CHIEF JUDGE BERNARD and JUDGE TERRY concur.




                                   20
