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 18, 2021
2021COA19
No. 18CA0598, People v. Snider — Crimes — Obstructing a Peace Officer — Assault in the Second Degree — Resisting Arrest; Criminal Law — Prosecution of Multiple Counts for Same Act — Lesser Included Offenses
A division of the court of appeals holds that the unit of
prosecution for obstruction of a peace officer, § 18-8-104, C.R.S.
2020, is defined in terms of discrete volitional acts, not the number
of officers involved. The division further concludes that resisting
arrest under section 18-8-103(1)(a), C.R.S. 2020, is a lesser
included offense of second degree assault on a peace officer under
section 18-3-203(1)(c), C.R.S. 2020. COLORADO COURT OF APPEALS 2021COA19
Court of Appeals No. 18CA0598 Adams County District Court No. 16CR1763 Honorable Robert W. Kiesnowski, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Adam Taft Snider,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division I Opinion by JUDGE TOW Dailey and Berger, JJ., concur
Announced February 18, 2021
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Sarah Spears, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Adam Taft Snider, appeals his judgment of
conviction entered on jury verdicts finding him guilty of second
degree assault, resisting arrest, and obstruction of a peace officer.
We affirm Snider’s assault and obstruction convictions, but we
vacate his conviction for resisting arrest. In doing so, we address
two matters of first impression.
¶2 First, we conclude that the unit of prosecution for obstruction
of a peace officer is legislatively defined in terms of discrete
volitional acts, not by the number of officers involved. Thus, we
conclude that, as to Snider’s obstruction charge, the jury was not
required to unanimously agree that he had obstructed a particular
peace officer, only that he had obstructed any officer. Accordingly,
we reject Snider’s contention that he was denied his right to a
unanimous verdict.
¶3 Second, we conclude that resisting arrest under section
18-8-103(1)(a), C.R.S. 2020, is a lesser included offense of second
degree assault under section 18-3-203(1)(c), C.R.S. 2020, which, for
ease of reference, we shall call second degree assault on a peace
1 officer.1 Because the trial court plainly erred by failing to merge
Snider’s conviction for resisting arrest into the second degree
assault on a peace officer conviction, we vacate his resisting arrest
conviction.
I. Background
¶4 According to the evidence presented at trial, Deputies Lonn
Trail and Andrew Martinez were dispatched to Snider’s home for a
well-being check in response to a report that Snider was
threatening to harm himself and others. On the way to the scene,
the deputies learned that Snider had an active arrest warrant.
¶5 When the deputies arrived at Snider’s home, Snider invited
them inside. After Snider indicated that he was not suicidal,
Deputy Martinez asked Snider to step out of the home. Snider then
asked if he was under arrest, at which point Deputy Martinez
grabbed Snider’s wrist and confirmed that he was being taken into
1 There are several different subsections of the statute that create some form of the crime of second degree assault on a peace officer. See § 18-3-203(1)(c), (c.5), (f), (f.5), (h), C.R.S. 2020. This case, and particularly our analysis in Part V, involves only subsection (1)(c). We express no opinion regarding whether resisting arrest is a lesser included offense of any other type of second degree assault on a peace officer.
2 custody. Snider struggled with the deputy, shook free of his grasp,
and ran out of the house.
¶6 Deputies Trail and Martinez chased after Snider, joined by
Sergeant Manuel Aragon, who had arrived at the scene while the
deputies were questioning Snider. Deputy Trail followed Snider into
a nearby backyard, where he found Snider hiding behind a
discarded toilet. He ordered Snider to come out and lie on the
ground, and Snider began crawling out from his hiding position.
¶7 Instead of complying with Deputy Trail’s order, however,
Snider lunged toward the deputy’s legs in an apparent attempt to
tackle him. Deputy Trail dodged Snider, who picked up a wooden
post he found lying on the ground. He swung it at Deputy Trail,
striking him in the ribs. The deputy was able to pull the post away
from Snider, but Snider tackled him to the ground. The two
exchanged punches before Snider again began fleeing the deputy.
¶8 Snider attempted to climb over a fence, but Deputy Trail
pulled him off, causing them both to fall to the ground. Snider
climbed on top of the deputy and once more began punching him.
Deputy Trail fought back and was eventually able to stand up and
pin Snider against the fence. At that point, Sergeant Aragon found
3 Deputy Trail and helped him restrain Snider. Sergeant Aragon
struck Snider, who fell to the ground and indicated that he would
comply. The officers then placed Snider in handcuffs and took him
into custody.
¶9 Snider was charged with second degree assault on a peace
officer, criminal mischief, resisting arrest, and obstructing a peace
officer. At trial, Snider denied punching, kicking, tackling, or
otherwise striking any deputy. Instead, he testified that he was
beaten by the deputies without provocation and violently arrested.
Nonetheless, a jury convicted Snider of second degree assault on a
peace officer, resisting arrest, and obstructing a peace officer,
although it acquitted him of the criminal mischief count. The trial
court sentenced Snider to three years of probation on the assault
charge, with the condition that Snider serve sixty days in jail. On
the resisting and obstruction charges, Snider was sentenced to
sixty days in jail for each count, to be served concurrently with the
jail component of his probation sentence.
4 II. Self-Defense Instruction
¶ 10 Snider contends that the trial court erred by declining to
instruct the jury on self-defense as to his second degree assault on
a peace officer charge. We disagree.
A. Additional Facts
¶ 11 On the second day of trial, defense counsel asked the court for
a jury instruction on self-defense, which Snider had endorsed as a
potential defense prior to trial.
¶ 12 At the close of evidence, however, the People objected to the
jury being instructed on self-defense as to Snider’s second degree
assault on a peace officer charge. They argued that because Snider
never testified to engaging in conduct that could constitute second
degree assault, he was not entitled to raise an affirmative defense to
the charge. Defense counsel countered by arguing that Snider’s
testimony indicated he may have fought back against the deputies.
Thus, defense counsel argued, there was sufficient evidence to
support that Snider acted in self-defense such that a self-defense
instruction was warranted.
¶ 13 The trial court rejected defense counsel’s argument and agreed
with the People. Relying on People v. Whatley, 10 P.3d 668 (Colo.
5 App. 2000), the trial court concluded that, because Snider denied
committing second degree assault, he was not entitled to receive an
affirmative defense instruction as to that charge. Thus, while the
court instructed the jury on self-defense as to Snider’s resisting
arrest and obstruction charges, it refused to do so as to his second
degree assault on a peace officer charge.
B. Standard of Review
¶ 14 We review de novo whether a defendant is entitled to a
requested self-defense jury instruction. See People v. Newell, 2017
COA 27, ¶ 19; Whatley, 10 P.3d at 670. In doing so, we consider
the evidence in the light most favorable to the defendant. People v.
Wakefield, 2018 COA 37, ¶ 8.
C. Applicable Law
¶ 15 A defendant is entitled to a jury instruction on self-defense if
there is “some credible evidence” in the record that tends to support
each element of the defense. See People v. Saavedra-Rodriguez, 971
P.2d 223, 228 (Colo. 1998) (the quantum of evidence necessary to
present an affirmative defense is “[s]ome credible evidence”); People
v. Hendrickson, 45 P.3d 786, 790 (Colo. App. 2001) (“To entitle a
defendant to [an affirmative defense] instruction, the supporting
6 evidence must tend to establish each of the elements of the
defense.”). The “some credible evidence” standard is “‘exceedingly
low,’ making preclusion of an affirmative defense appropriate only
when there is ‘simply no evidence . . . in th[e] record’ [to support
it].” People v. Jacobson, 2017 COA 92, ¶ 15 (quoting People v. Platt,
170 P.3d 802, 806 (Colo. App. 2007)). Indeed, the standard is so
low that “the evidence necessary to justify an affirmative defense
instruction may come solely from the defendant’s testimony, even if
the evidence is improbable.” People v. Johnson, 2013 COA 122,
¶ 35. But supporting evidence “may come from any source, even
from the prosecution.” Newell, ¶ 21 (citing Whatley, 10 P.3d at
670).
¶ 16 However, a defendant is not entitled to an affirmative defense
instruction if he denies committing the charged crime. See, e.g.,
Hendrickson, 45 P.3d at 791 (affirming the trial court’s denial of an
entrapment affirmative defense instruction because the defendant
denied committing the charged offense). Indeed, an affirmative
defense, by its nature, “is a defense that admits conduct leading to
the act charged but seeks to justify, excuse, or mitigate that
conduct.” Whatley, 10 P.3d at 670. Thus, a defendant who testifies
7 must “admit [to] committing acts that would otherwise constitute
an offense before being entitled to assert an affirmative defense.”
Hendrickson, 45 P.3d at 791; see Whatley, 10 P.3d at 670.
D. Analysis
¶ 17 In his testimony at trial, Snider repeatedly denied touching
Deputy Trail. However, he suggests that other parts of his
testimony nonetheless indicated that he may have fought back
against the deputy. Thus, he argues that his testimony, though
contradictory, provided “some credible evidence” that he acted in
self-defense, especially when considered with Deputy Trail’s
account of the incident. Accordingly, he argues, there was
sufficient evidence presented at trial to warrant a self-defense
instruction. But because, in our view, Snider never admitted to
engaging in conduct that could constitute second degree assault,
we disagree that he was entitled to such an instruction. See
Hendrickson, 45 P.3d at 791; Whatley, 10 P.3d at 670.
¶ 18 As an initial matter, our review of the record indicates Snider’s
characterization of his testimony — that he admitted to possibly
fighting back against Deputy Trail — is inaccurate.
8 ¶ 19 In construing his testimony as such, Snider directs us to the
following exchange:
[Prosecutor]: Okay. So I want to talk specifically about you never put your hands on Deputy Trail, correct?
[Snider]: I’m not going to give 100 percent that I didn’t, I don’t think I really tried to blocking [sic]. But it’s possible that my arm tried to block his leg one or two of the kicks out of the many.
He also cites the following response from later in his testimony:
[Prosecutor]: So you never had the opportunity to get on top of him and punch him twice in the face?
[Snider]: I can’t say that I didn’t. I mean that doesn’t mean I didn’t have the opportunity. I was very injured on the ground. But it’s still possibly [sic] I could have tackled him if I wanted to try.
¶ 20 But in our view — considered even in the light most favorable
to Snider — neither of these statements suggested that he may have
fought back against the arresting deputy. In the first, Snider at
most admitted to possibly touching Deputy Trail with his arm while
attempting to block a kick in a defensive posture. As to the second,
Snider only acknowledged that he may have had an opportunity to
attack the deputy — “if [he] wanted to try” — not that he had
9 actually done so. And Snider’s other responses during the same
line of questioning further support that he was not admitting to
possibly fighting back against Deputy Trail:
[Prosecutor]: Did you ever punch Deputy Trail?
[Snider]: Definitely not.
[Prosecutor]: Did you ever stand above Deputy Trail after you pushed him on the ground?
[Snider]: I never pushed him on the ground.
[Prosecutor]: Did you ever tackle Deputy Trail?
[Snider]: No.
[Prosecutor]: Did you ever pick up a 4X4 at all in the backyard?
¶ 21 More to the point, though, Snider’s testimony did not amount
to an admission that he engaged in conduct that led to his second
degree assault on a peace officer charge — a prerequisite for him to
demand an affirmative defense instruction. See Hendrickson, 45
P.3d at 791; Whatley, 10 P.3d at 670.
¶ 22 Indeed, a person commits second degree assault on a peace
officer if, “[w]ith intent to prevent one whom he or she knows, or
should know, to be a peace officer . . . from performing a lawful
10 duty, he or she intentionally causes bodily injury to any person.”
§ 18-3-203(1)(c). But Snider never testified that he caused bodily
injury to Deputy Trail, an essential element of the charge. See id.
He only acknowledged that it was possible he used his arm to block
the deputy, which, in our view, fell short of an admission to causing
bodily injury. And Snider continually denied punching, pushing,
tackling, or otherwise attacking Deputy Trail so as to cause bodily
injury. Thus, Snider never admitted to engaging in conduct that
could constitute second degree assault on a peace officer and was
thus not entitled to an affirmative defense instruction. See
¶ 23 Our decision finds support in Whatley, a case with
circumstances remarkably similar to those before us. There, a
defendant was charged with second degree assault on a peace
officer, and, like Snider, elected to testify. Whatley, 10 P.3d at 670.
The defendant in Whatley testified that he never hit, pushed,
kicked, or otherwise struck a peace officer, but he did say that he
had “wrestled around” with an officer and “pushed toward” him. Id.
Nonetheless, the trial court rejected the defendant’s request to give
a self-defense instruction, and a division of this court affirmed. Id.
11 The division reasoned that it “[could] not conclude that [the
defendant’s] comments amounted to an admission that defendant
by his conduct he [sic] caused injury to the officer.” Id.
¶ 24 Likewise, here, we cannot conclude that Snider’s testimony
regarding possibly blocking Deputy Trail constituted an admission
to causing bodily injury to the deputy. Thus, Snider was not
entitled to an affirmative defense instruction. See Hendrickson, 45
¶ 25 Snider argues, however, that his failure to admit to second
degree assault did not necessarily preclude him from receiving a
self-defense instruction. He relies on Brown v. People, 239 P.3d
764, 770 (Colo. 2010), for the proposition that “a criminal defendant
who maintains his innocence may receive an inconsistent jury
instruction . . . provided there is a rational basis for the instruction
in the evidentiary record.” Id. But Snider’s reliance on Brown is
misplaced; the holding in Brown does not extend to affirmative
defenses. See People v. Taylor, 2012 COA 91, ¶¶ 34, 35, abrogated
on other grounds as recognized by People v. Folsom, 2017 COA
146M.
12 ¶ 26 In sum, because we conclude Snider was not entitled to an
affirmative defense instruction, we discern no error in the trial
court’s refusal to give such an instruction.
III. Motion for Mistrial
¶ 27 Next, Snider contends that the trial court erred by denying his
motion for a mistrial based on alleged prosecutorial misconduct.
We disagree.
¶ 28 During direct examination of Deputy Martinez, the prosecutor
began questioning him about his initial contact with Snider.
Specifically, the prosecutor asked the deputy to describe Snider’s
demeanor. In response, the deputy testified that Snider was very
cooperative at first and did not show any signs of being stressed.
The prosecutor then began to ask, “Was there any indication to you
that there was illegal narcotics —” Defense counsel objected,
interrupting the prosecutor before he could finish the question.
Deputy Martinez never offered a response to the question.
¶ 29 The trial judge sustained the objection and ordered the parties
to approach. The judge reprimanded the prosecutor for his
attempted question, and defense counsel moved for a mistrial. The
13 judge denied the motion for a mistrial but instructed the jury to
disregard the prosecutor’s question.
B. Standard of Review and Applicable Law
¶ 30 “Prosecutors have a higher ethical responsibility than other
lawyers because of their dual role as both the sovereign’s
representative in the courtroom and as advocates for justice.”
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) (citing
People v. Pautler, 35 P.3d 571, 579 (Colo. O.P.D.J. 2001)). Because
of their unique role, they must “scrupulously avoid comments that
could mislead or prejudice the jury.” Id.
¶ 31 Determining whether a prosecutor’s actions constitute
misconduct “is generally a matter left to the trial court’s discretion.”
Id. Similarly, the trial court has considerable discretion to
determine whether a mistrial is warranted. People v. Tillery, 231
P.3d 36, 43 (Colo. App. 2009) (citing People v. James, 117 P.3d 91,
95 (Colo. App. 2004)), aff’d sub nom. People v. Simon, 266 P.3d
1099 (Colo. 2011). Thus, we will not disturb the trial court’s denial
of a motion for mistrial “absent a clear showing of abuse of
discretion and prejudice to the defendant.” People v. Ortega, 899
P.2d 236, 238 (Colo. App. 1994). The prejudice to the defendant
14 must be “so substantial that its effect on the jury cannot be
remedied by any other means.” Tillery, 231 P.3d at 43. If the trial
court gives the jury a curative instruction to remedy possible
prejudice, we presume, absent contrary evidence, that the jury
understood and followed the instruction. People v. Tibbels, 2019
COA 175, ¶ 18 (cert. granted June 29, 2020).
C. Analysis
¶ 32 Snider contends that the prosecutor’s question constituted
prosecutorial misconduct that caused him sufficient prejudice to
warrant a mistrial. We are not persuaded.
¶ 33 The People concede, as they must, that the prosecutor’s
attempted question was improper. Nevertheless, as noted, the
prosecutor was unable to complete his question over defense
counsel’s objection. And the witness never offered a response.
Consequently, contrary to Snider’s suggestion, it cannot be said
that the prosecutor’s question elicited any information, let alone
prejudicial information.
¶ 34 Still, Snider argues that the question nonetheless prejudiced
him because it invited the jury to speculate as to whether he used
illegal narcotics. He also asserts that any prejudice was
15 compounded by the fact that the jury could interpret counsel’s
objection, and the bench conference that followed, as an effort to
hide facts from the jury. However, in our view, the possible
prejudice Snider alludes to — which is speculative in nature — is
not substantial enough to warrant a mistrial. See People v. Ned,
923 P.2d 271, 275 (Colo. App. 1996) (“Speculation of prejudice is
insufficient to warrant reversal of a trial court’s denial of a motion
for mistrial.”). And in any event, Snider does not assert that the
jury failed to understand or follow the court’s curative instruction to
disregard the prosecutor’s question. Thus, we presume the jury
followed the instruction, curing any potential prejudice. Tibbels, ¶
18.2
¶ 35 Because Snider has therefore failed to show that the
prosecutor’s attempted question “so prejudiced the jury’s verdict as
to affect the fundamental fairness” of his trial, we cannot conclude
2 Snider points out that curative instructions may not always be sufficient to remedy possible prejudice. See, e.g., People v. Lee, 630 P.2d 583 (Colo. 1981). But that is true “only when . . . improper testimony or statements are so prejudicial that, but for the exposure, the jury might not have found the defendant guilty.” People v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009), aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011). Such is not the case here.
16 the prosecutor’s misconduct warrants reversal of his conviction.
Domingo-Gomez, 125 P.3d at 1053.
IV. Right to a Unanimous Verdict
¶ 36 Snider also contends that the trial court violated his right to a
unanimous verdict as to the charges of resisting arrest and
obstruction. We disagree.
¶ 37 The complaint and information set forth the following as to
Snider’s resisting arrest charge:
On or about May 27, 2016, Adam Taft Snider unlawfully and knowingly prevented or attempted to prevent Deputy Lonn Trail, a peace officer, acting under the color of his official authority, from effecting the arrest of defendant by using or threatening to use physical force or violence against the peace officer or another; in violation of section 18-8- 103, C.R.S.
¶ 38 As to Snider’s obstruction charge, the complaint stated as
follows:
On or about May 27, 2016, Adam Taft Snider, by using or threatening to use violence, force, physical interference, or an obstacle, unlawfully and knowingly obstructed, impaired, or hindered the enforcement of the penal law or the preservation of the peace by Deputy Andrew Martinez, a peace officer,
17 acting under color of his official authority; in violation of section 18-8-104(1)(a), C.R.S. [2020].
¶ 39 Thus, the complaint specified that Snider’s actions toward
Deputy Trail were the basis of his resisting arrest charge, and his
actions toward Deputy Martinez were the basis for obstruction.
However, at trial, the court did not identify any particular deputy
when instructing the jury on either charge. Instead, it instructed
the jury on each crime as follows:
The elements of the crime of resisting arrest are:
1. That the defendant,
2. in the State of Colorado, at about the date and place charged,
3. knowingly,
4. prevented or attempted to prevent a peace officer, acting under color of his official authority, from effecting an arrest of the defendant or another,
5. by using or threatening to use physical force or violence against the peace officer or another[,]
18 6. and that the defendant’s conduct was not legally authorized by the affirmative defense in Instruction 17.3
The elements of the crime of obstructing a peace officer are:
2. in the State of Colorado, at about the date and place charged,
4. by using or threatening to use violence, force, physical interference, or an obstacle,
5. obstructed, impaired, or hindered,
6. the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his official authority, and
7. the defendant’s conduct was not legally authorized by the affirmative defense in Instruction 17.
¶ 40 Similarly, the verdict forms did not specify which particular
officer Snider was alleged to have resisted or obstructed. Thus, the
jury never indicated whether it agreed as to which particular officer
Snider resisted or obstructed.
3 The affirmative defense in Instruction 17, self-defense, is not relevant to the issues on appeal.
19 B. Preservation and Standard of Review
¶ 41 We review de novo whether the trial court violated a
defendant’s right to a unanimous verdict. See People v. Simmons,
973 P.2d 627, 629-30 (Colo. App. 1998) (reviewing the issue de
novo). However, Snider concedes, and the record supports, that
this issue was not preserved. Thus, if we discern error, we will
reverse only if the error is plain. Hagos v. People, 2012 CO 63,
¶ 14.
¶ 42 “[P]lain error occurs when there is (1) an error, (2) that is
obvious, and (3) that so undermines the fundamental fairness of the
trial itself as to cast serious doubt on the reliability of the judgment
of conviction.” Cardman v. People, 2019 CO 73, ¶ 19. The
defendant has the burden of establishing each component. People
v. Boykins, 140 P.3d 87, 95 (Colo. App. 2005).
¶ 43 An error is obvious if, at the time the issue arose, “it was so
clear cut and so obvious that a trial judge should have been able to
avoid it without benefit of objection.” People v. Conyac, 2014 COA
8M, ¶ 54; accord Cardman, ¶ 34; Scott v. People, 2017 CO 16, ¶ 16.
“For an error to be this obvious, the action challenged on
appeal ordinarily ‘must contravene (1) a clear statutory command;
20 (2) a well-settled legal principle; or (3) Colorado case law.’” Scott,
¶ 16 (quoting People v. Pollard, 2013 COA 31M, ¶ 40).
¶ 44 An error so undermines the fairness of the trial such that
reversal is warranted if “a reasonable possibility exists that [the
error] . . . contributed to [the] conviction.” Cardman, ¶ 39 (quoting
People v. Lozano-Ruiz, 2018 CO 86, ¶ 5). Yet “the error must impair
the reliability of the judgment of conviction to a greater degree than
under harmless error,” Hagos, ¶ 14, as we will only reverse to
correct particularly egregious errors. See id. (“[The plain error]
standard was formulated to permit an appellate court to correct
‘particularly egregious errors . . . .’” (quoting Wilson v. People, 743
P.2d 415, 420 (Colo. 1987))).
C. Applicable Law and Analysis
¶ 45 In Colorado, a “person who is accused of an offense other than
a noncriminal traffic infraction or offense” is entitled to a jury trial.
§ 16-10-101, C.R.S. 2020. Further, such a defendant is entitled to
a unanimous jury verdict. § 16-10-108, C.R.S. 2020; Crim. P.
21 23(a)(8); Crim. P. 31(a)(3).4 Snider contends that his right to
unanimity was violated because neither the elemental instructions
nor the verdict form given by the trial court required the jury to
agree as to which particular officer he resisted or obstructed.
¶ 46 “Unanimity means only that each juror agrees that each
element of the crime charged has been proved to that juror’s
satisfaction beyond a reasonable doubt.” People v. Linares-Guzman,
195 P.3d 1130, 1134 (Colo. App. 2008). Thus, we consider whether
the prosecution was required to prove that Snider resisted or
obstructed a particular officer.
¶ 47 The question turns on how the units of prosecution for the
crimes of resisting arrest and obstruction of a peace officer are
legislatively defined. “The unit of prosecution is the manner in
which a criminal statute permits a defendant’s conduct to be
4 Days after briefing in this appeal was completed, the United States Supreme Court held that a defendant charged in state court with a “serious offense” is constitutionally entitled to a unanimous jury verdict. Ramos v. Louisiana, 590 U.S. ___, ___, 140 S. Ct. 1390, 1397 (2020). Neither party filed a notice of supplemental authority, and thus neither addresses whether the charges relevant to this claim are “serious” for purposes of Ramos. Because Colorado law already provided that Snider was entitled to a unanimous verdict, we do not address the impact of Ramos on this issue.
22 divided into discrete acts . . . .” Woellhaf v. People, 105 P.3d 209,
215 (Colo. 2005). “To determine the unit of prosecution, we look
exclusively to the statute.” People v. Arzabala, 2012 COA 99, ¶ 23.
“In construing a statute, we must determine and effectuate the
intent of the General Assembly, which we discern when possible
from the plain and ordinary meaning of the statutory language.”
People v. Lowe, 2020 COA 116, ¶ 40.
¶ 48 As to the crime of resisting arrest under section 18-8-103(1), a
division of this court has determined that the unit of prosecution is
defined in terms of discrete volitional acts of resistance. Lowe,
¶ 45.
¶ 49 However, as to obstruction of a peace officer under section
18-8-104(1)(a), the unit of prosecution has yet to be identified.
¶ 50 As relevant here, a person commits obstruction of a peace
officer if, “by using or threatening to use violence, force, physical
interference, or an obstacle, such person knowingly obstructs,
impairs, or hinders the enforcement of the penal law or the
preservation of the peace by a peace officer, acting under color of
his or her official authority.” § 18-8-104(1)(a). Notably, to be
convicted of obstruction of a peace officer, one does not necessarily
23 need to harm, or even threaten to harm, a peace officer. Thus, the
plain language of the statute indicates that its primary purpose is
not to shield peace officers from possible harm, but to facilitate the
performance of their duties. And the statute’s placement in article
8 of title 18, entitled “Offenses — Governmental Operations,”
further clarifies that the intent of the statute is to protect
governmental operations, not individual peace officers. See People
v. Hickman, 988 P.2d 628, 645-46 (Colo. 1999) (considering a
statute’s placement within title 18 as evidence of the legislature’s
intent). Therefore, like resisting arrest, the unit of prosecution for
obstruction must be defined not in terms of the number of officers
involved, but in terms of discrete volitional acts of obstruction that
interfere with governmental operations. See People v. McMinn, 2013
COA 94, ¶ 26.
¶ 51 In sum, then, neither resisting arrest nor obstruction of a
peace officer is a victim-based crime, as the unit of prosecution for
each is defined in terms of discrete volitional acts rather than the
number of officers involved. Thus, even if a defendant’s act of
resistance or obstruction is directed at multiple officers, a
defendant can only be convicted of one count for each act.
24 Therefore, it follows that to sustain a conviction for either crime, the
prosecution only must prove that the defendant committed an act of
resistance or obstruction, respectively — to whom the act was
directed is irrelevant.
¶ 52 So, as it pertains to Snider’s right to unanimity, the People
were not required to prove that Snider resisted or obstructed a
particular officer, just that he resisted or obstructed any officer.
That means the jury was not required to unanimously agree on
which officer was the target or recipient of his actions. Linares-
Guzman, 195 P.3d at 1134. Accordingly, even if the jury may not
have been in agreement on the matter, Snider’s right to unanimity
was not implicated.
¶ 53 Simmons, to which Snider directs us, does not persuade us
otherwise. There, a division of this court held that the trial court
erroneously instructed the jury on the elements of felony menacing
because the instructions did not identify a specific victim.
Simmons, 973 P.2d at 630. The instructional error, it reasoned,
permitted the jury to convict the defendant of felony menacing
without agreement as to who the victim was, which the division
concluded violated his right to unanimity. Id. However, unlike the
25 offenses with which Snider was charged, the prohibition against
menacing is meant to protect victims from harm; thus, the unit of
prosecution for menacing is defined in terms of the number of
victims. See People v. Borghesi, 66 P.3d 93, 103 n.17 (Colo. 2003)
(“[S]eparate victims can form the basis of multiple counts and
convictions for the crimes of menacing and reckless
endangerment.”). We are aware of no authority holding that the
jury must unanimously agree that a crime was directed toward a
particular victim where, as here, the offense’s unit of prosecution is
defined not by the identity of the victim (or victims), but by discrete
volitional acts.
¶ 54 Still, because neither the jury nor the People identified specific
deputies as “victims” of each crime consistent with the charged
complaint, Snider argues that a simple variance occurred. See
People v. Rice, 198 P.3d 1241, 1245 (Colo. App. 2008) (“A simple
variance occurs when the charged elements are unchanged, but the
evidence proves facts materially different from those alleged in the
charging instrument.”). Thus, he argues, reversal of his convictions
is nonetheless warranted. Because Snider raises this argument for
the first time on appeal, we review only for plain error. Hagos, ¶ 14.
26 And even if we assume, arguendo, that a simple variance occurred,
Snider has offered no explanation as to why it cast serious doubt on
the reliability of his conviction. See Cardman, ¶ 19 (An error is
plain if it “so undermines the fundamental fairness of the trial itself
as to cast serious doubt on the reliability of the judgment of
conviction.”). Thus, we cannot conclude that Snider has met his
burden to establish plain error. See People v. Vigil, 127 P.3d 916,
929-30 (Colo. 2006) (the defendant “bears the burden of
persuasion” that there was plain error (citing United States v. Olano,
507 U.S. 725, 734 (1993))).
V. Double Jeopardy
¶ 55 Finally, Snider contends that resisting arrest under section
18-8-103(1)(a) is a lesser included offense of second degree assault
on a peace officer. He argues that the trial court plainly erred by
failing to merge his resisting arrest conviction into his second
degree assault conviction in violation of his double jeopardy rights.
We agree. Thus, we vacate the resisting arrest conviction.
A. Standard of Review and Applicable Law
¶ 56 The United States and Colorado Constitutions prohibit
imposing multiple punishments on a defendant for the same offense
27 unless specifically authorized by the General Assembly. Page v.
People, 2017 CO 88, ¶ 8 (citing Woellhaf, 105 P.3d at 214).
¶ 57 As relevant here, our legislature has determined that a
defendant may not be convicted of two offenses for the same
conduct if the lesser offense is included in the greater.
§ 18-1-408(1)(a), C.R.S. 2020. Thus, if a defendant is convicted of
both a greater offense and a lesser included offense for the same
conduct, the conviction of the lesser must merge into that of the
greater. See Page, ¶ 9. “Whether convictions for different offenses
merge is a question of law that we review de novo.” Id. at ¶ 6.
¶ 58 Snider argues that resisting arrest is a lesser included offense
of second degree assault on a peace officer under two different
theories — the “strict elements test” and the test set forth in section
18-1-408(5)(c).
¶ 59 Our supreme court articulated the “strict elements test” to
which Snider refers in Reyna-Abarca v. People: “[A]n offense is a
lesser included offense of another offense if the elements of the
lesser offense are a subset of the elements of the greater offense,
such that the lesser offense contains only elements that are also
included in the elements of the greater offense.” 2017 CO 15, ¶ 64.
28 Importantly, though, the supreme court later clarified in People v.
Rock that “[t]o the extent that a lesser offense is statutorily defined
in disjunctive terms, effectively providing alternative ways of being
committed, any set of elements sufficient for commission of that
lesser offense that is necessarily established by establishing the
statutory elements of a greater offense constitutes an included
offense.” 2017 CO 84, ¶ 16. Thus, to be an included offense, not
every alternative way of committing a lesser offense must be
contained in the statutory definition of the greater offense; “it is
enough that any particular set of elements sufficient for conviction
of that offense be so contained.” Id.
¶ 60 Under section 18-8-103(1)(a), a person commits resisting
arrest if he or she (1) knowingly (2) prevents or attempts to prevent
a peace officer, acting under color of his official authority, from
effecting an arrest of the actor or another, by either (3) using or
threatening to use physical force or violence against the peace
officer or another.
¶ 61 And, under section 18-3-203(1)(c), a person commits second
degree assault if, (1) with intent to prevent one whom he or she
knows, or should know, to be a peace officer from performing a
29 lawful duty, he or she (2) intentionally (3) causes bodily injury to
any person.
B. Analysis
1. Resisting Arrest is a Lesser Included Offense of Second Degree Assault on a Peace Officer
¶ 62 Comparing the elements of resisting arrest and second degree
assault on a peace officer, we agree that the former is a lesser
included offense of the latter under the “strict elements test.”
¶ 63 First, we address the differing mental states required in each
offense. A defendant must act “knowingly” to resist arrest, but the
commission of second degree assault on a peace officer requires
acting with the specific intent to prevent a peace officer from
performing a lawful duty. “If acting knowingly suffices to establish
an element, that element also is established if a person acts
intentionally.” § 18-1-503(3), C.R.S. 2020. In other words, if one
has acted “with intent,” one has necessarily acted “knowingly.” See
§ 18-1-501(5), C.R.S. 2020 (the terms “with intent” and
“intentionally” are interchangeable). Therefore, if a defendant
commits second degree assault on a peace officer, he has not only
30 acted “with intent” in trying to prevent an officer’s performance of a
lawful duty, but he has “knowingly” done so.
¶ 64 Second, we note that effecting an arrest is merely a specific
example of a peace officer’s performance of a lawful duty. In other
words, preventing a peace officer from “effecting an arrest”
necessarily prevents that officer from “performing a lawful duty.”
See Page, ¶ 10 (“[A] lesser offense is included in the greater offense
when there are multiple ways to commit the greater and proof of the
commission of at least one of which necessarily proves commission
of the lesser.”). Therefore, preventing a peace officer from effecting
an arrest is a subset of preventing the officer from performing a
lawful duty.
¶ 65 Notably, to commit resisting arrest, a defendant need not
actually prevent an officer from effecting an arrest, he must only
attempt to do so. Indeed, Snider was unsuccessful in his efforts to
prevent his arrest here. The term “attempt” is not defined,5 but —
5 When the elements of a crime include the term “attempt,” the definition of the inchoate offense of criminal attempt, § 18-2-101, C.R.S. 2020, may not apply. Compare People v. Knox, 2019 COA 152, ¶ 34 (applying a dictionary definition instead of the definition from section 18-2-101 to the term “attempt” in the crime of attempt
31 under any reasonable definition of the term — an attempt to resist
arrest is encompassed within the broader concept contained within
the second degree assault statute of an act taken “with intent to
prevent a peace officer” from performing a lawful duty.
¶ 66 And third, we turn to the final element of resisting arrest: the
use or threatened use of physical force against the peace officer. To
commit second degree assault on a peace officer, one must
“intentionally cause[] bodily injury to any person.” § 18-3-203(1)(c).
Obviously, to do so necessarily requires using physical force or
violence against the person. Thus, proof that Snider used or
threatened the use of physical force against the peace officer is a
subset of proving that he intentionally injured the officer.
¶ 67 In sum, the elements of resisting arrest are “a subset of the
elements” of second degree assault on a peace officer. See Reyna-
to influence a public servant, § 18-8-306, C.R.S. 2020), with People v. Tucker, 232 P.3d 194, 200-01 (Colo. App. 2009) (applying the definition in section 18-2-101 to the same offense). We are unaware of any statute or case law that defines “attempt” in the context of the crime of resisting arrest. Nor have the parties addressed this issue. We need not, and do not, resolve this question here.
32 Abarca, ¶ 77. Moreover, comparing the above-described elements
demonstrates that resisting arrest “contains only elements that are
also included in the elements” of second degree assault on a peace
officer. See id. at ¶ 78. Consequently, we conclude that resisting
arrest is a lesser included offense of second degree assault on a
peace officer.6
2. Plain Error
¶ 68 Because Snider’s double jeopardy claim was not preserved, we
review only for plain error. Hagos, ¶ 14. Thus, having concluded
that resisting arrest is a lesser included offense of second degree
assault on a peace officer, we turn to whether the trial court plainly
erred by failing to merge Snider’s convictions for each offense. We
conclude that it did.
¶ 69 Neither this court nor our supreme court has addressed the
specific issue presented here — that is, whether resisting arrest is a
lesser included offense of second degree assault on a peace officer.
6 As noted above, Snider also argues that resisting arrest is a lesser included offense under the test set forth in section 18-1-408(5)(c), C.R.S. 2020. However, because we have already determined that resisting arrest is a lesser included offense by applying the “strict elements test,” we need not also conduct an analysis under section 18-1-408(5)(c).
33 And if an appellate court has not decided an issue, appellate courts
usually conclude that a trial court’s error in failing to recognize and
resolve it was not obvious. See Conyac, ¶ 54 (An error is obvious if
“it was so clear cut and so obvious that a trial judge should have
been able to avoid it without benefit of objection.”); People v. Oliver,
2020 COA 97, ¶ 67 (an error was not obvious where an appellate
court had not yet resolved the issue presented); People v. Robles,
302 P.3d 269, 283 (Colo. App. 2011) (Webb, J., specially
concurring) (an error was not obvious where it involved an issue of
first impression and the jurisprudence in the area was conflicting),
aff’d, 2013 CO 24.
¶ 70 That being said, in Reyna-Abarca, the supreme court
nonetheless found plain error under the same circumstances before
us. Reyna-Abarca, ¶¶ 80-83. There, the court determined, as a
matter of first impression, that driving under the influence (DUI) is
a lesser included offense of vehicular assault-DUI and vehicular
homicide-DUI. Id. at ¶ 76. But despite the fact that those issues
had never before been addressed by any appellate court, it
concluded that the trial courts in four different cases plainly erred
by failing to merge the defendants’ convictions for DUI into
34 convictions for vehicular assault-DUI and vehicular homicide-DUI.
Id. at ¶¶ 80-86.
¶ 71 In doing so, however, the supreme court did not expressly
analyze obviousness. See id. Instead, it simply stated that “[i]n
both our own jurisprudence and in case law nationally, courts have
invariably concluded that when a defendant’s double jeopardy
rights are violated for failure to merge a lesser included offense into
a greater offense, such a violation requires a remedy.” Id. at ¶ 81.
And curiously, the supreme court appeared — without explanation
— to place the burden on the prosecution to prove the error was not
plain. See id. at ¶ 82 (“[T]he People have presented no compelling
arguments as to why any double jeopardy errors that may have
been committed here did not rise to the level of plain error.”).
Contra Vigil, 127 P.3d at 929-30 (noting that the defendant bears
the burden of persuasion that plain error occurred).
¶ 72 Ultimately, we need not decide whether the error here was
obvious due to the lack of a prior clear statement of law regarding
the underlying issue before us. The People simply do not make that
argument. See Reyna-Abarca, ¶ 82 (looking to the prosecution’s
35 arguments in determining whether a double jeopardy violation rises
to the level of plain error).
¶ 73 Instead, the People argue that the trial court did not plainly
err because it was not obvious that Snider’s convictions were
factually indistinct. To that end, the People contend that the
actions Snider took to elude Deputy Trail — specifically, running
and hiding — could support a resisting arrest charge. Then, when
Snider attacked Deputy Trail after being discovered, they argue,
Snider committed a factually distinct second degree assault.
However, the People’s argument must fail because simply running
and hiding cannot establish the elements of resisting arrest. See
§ 18-8-103(1)(a).
¶ 74 Accordingly, the People have not offered a persuasive
argument as to why the trial court’s failure to merge Snider’s
convictions did not rise to the level of plain error. Therefore, we
conclude that the trial court plainly erred, and we thus vacate
Snider’s resisting arrest conviction. See Reyna-Abarca, ¶¶ 81-82;
People v. Jamison, 2018 COA 121, ¶ 62.
36 VI. Conclusion
¶ 75 We affirm the judgment of conviction for second degree assault
on a peace officer and obstruction of a peace officer. However, we
vacate the conviction for resisting arrest, and we remand to the trial
court to correct the mittimus to reflect the merger.
JUDGE DAILEY and JUDGE BERGER concur.