Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch’s homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE October 19, 2020
2020 CO 76
No. 19SC50, People v. Struckmeyer—Mutually Exclusive Verdicts—Legally Consistent Verdicts—§ 18-1-503(3), C.R.S. (2019).
A jury found the defendant guilty of both child abuse (knowingly or
recklessly), a class 3 felony, and child abuse (criminal negligence), a class 4 felony,
based on the same criminal conduct. A division of the court of appeals concluded
that the verdicts were logically and legally inconsistent and could not be sustained
because the class 3 felony child abuse (knowingly or recklessly) conviction
required the jury to determine that the defendant was aware of the risk of serious
bodily injury to the child victim, while the class 4 felony child abuse (criminal
negligence) conviction required the jury to find that the defendant was unaware
of the risk of serious bodily injury to the child victim. Because the division
believed that the trial court had accepted mutually exclusive guilty verdicts, it
found plain error, reversed the judgment of conviction, and remanded for a new
trial. The supreme court reverses. In People v. Rigsby, 2020 CO 74, ¶ 21, 471 P.3d
1068, the court observed that section 18-1-503(3), C.R.S. (2019), sets up a
hierarchical system of culpable mental states in which: (1) “intentionally” or “with
intent” is the most culpable, “knowingly” is the next most culpable, “recklessly”
is the next most culpable, and “criminal negligence” is the least culpable; and
(2) proving a culpable mental state necessarily establishes any lesser culpable
mental state(s). Following Rigsby, the court now holds that the guilty verdict for
class 3 felony child abuse (knowingly or recklessly) and the guilty verdict for class
4 felony child abuse (criminal negligence), even if logically inconsistent, are not
legally inconsistent. By returning a guilty verdict on child abuse (knowingly or
recklessly), the jury, as a matter of law, necessarily found that he acted with
criminal negligence. Therefore, even if there is a logical inconsistency between
acting knowingly and acting with criminal negligence, and between acting
recklessly and acting with criminal negligence, no legal inconsistency exists in
either scenario based on section 18-1-503(3).
2 The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 19SC50 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA536
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Michael W. Struckmeyer.
Judgment Reversed en banc October 19, 2020
Attorneys for Petitioner: Philip J. Weiser, Attorney General Erin K. Grundy, Senior Assistant Attorney General Denver, Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender Elyse Maranjian, Deputy Public Defender Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court. JUSTICE GABRIEL dissents. ¶1 A jury found Michael W. Struckmeyer guilty of both child abuse (knowingly
or recklessly), a class 3 felony, and child abuse (criminal negligence), a class 4
felony, based on the same criminal conduct. A division of the court of appeals
concluded that the verdicts were logically and legally inconsistent and could not
be sustained because the class 3 felony child abuse (knowingly or recklessly)
conviction required the jury to determine that Struckmeyer was aware of the risk
of serious bodily injury to the child victim, while the class 4 felony child abuse
(criminal negligence) conviction required the jury to find that Struckmeyer was
unaware of the risk of serious bodily injury to the child victim. The division
reasoned that Struckmeyer could not have acted both knowingly or recklessly, on
the one hand, and with criminal negligence, on the other, in the course of a single
criminal act. Because the division believed that the trial court had accepted
mutually exclusive guilty verdicts, it found plain error, reversed the judgment of
conviction, and remanded for a new trial.
¶2 The People then filed a petition for certiorari, which we granted in its
entirety.1 We now reverse.
1 We agreed to review two issues: 1. Whether the court of appeals erred by concluding that the jury’s verdicts finding the defendant guilty of both knowing/reckless child abuse 2 I. Standard of Review and Preservation
¶3 Whether verdicts are mutually exclusive is a question of law. People v.
Delgado, 2019 CO 82, ¶ 13, 450 P.3d 703, 705. We review questions of law de novo.
Id.
¶4 Where, as here, a defendant fails to preserve an error, we must decide
whether there was “an intentional relinquishment of a known right or privilege”
or merely a “failure to make the timely assertion of a right.” People v. Rediger,
2018 CO 32, ¶ 40, 416 P.3d 893, 902 (quoting United States v. Olano, 507 U.S. 725,
733 (1993)). If it’s the former, the error is waived and appellate review is
extinguished. Id. If it’s the latter, the error is deemed forfeited and this court
reviews for plain error. Id. “An error is plain if it is obvious and substantial and
so undermines the fundamental fairness of the trial itself as to cast serious doubt
on the reliability of the judgment of conviction.” Id. at ¶ 48, 416 P.3d at 903.
¶5 The People argue that Struckmeyer waived any error regarding verdict
inconsistency because he failed to raise the issue in the district court. We find this
resulting in serious bodily injury and criminally negligent child abuse resulting in serious bodily injury were inconsistent verdicts. 2. Whether the court of appeals erred by reversing for a new trial for inconsistent jury verdicts, instead of maximizing the jury verdicts by affirming the most serious conviction and merging the lesser offense. 3 contention puzzling because the People expressly agreed at the court of appeals
that the issue was reviewable for plain error. “It is unclear . . . why the People
believe that they can concede [reviewability] of an issue in the court of appeals and
then take the opposite position in this court (apparently not recognizing the irony
of their asserting a waiver when they themselves arguably waived such an
assertion).” People v. Rigsby, 2020 CO 74, ¶ 47, 471 P.3d 1068 (Gabriel, J.,
dissenting). Accordingly, we reject the People’s contention and review for plain
error.
II. Analysis
¶6 Just last month we observed in People v. Rigsby, 2020 CO 74, ¶ 21, 471 P.3d
1068, that section 18-1-503(3), C.R.S. (2019), sets up a hierarchical system of
culpable mental states in which: (1) “intentionally” or “with intent” is the most
culpable, “knowingly” is the next most culpable, “recklessly” is the next most
culpable, and “criminal negligence” is the least culpable; and (2) proving a
culpable mental state necessarily establishes any lesser culpable mental state(s).
Consequently, we explained that: (1) by returning a guilty verdict on count 1
(second degree assault) and finding that Rigsby acted with intent, the jury, as a
matter of law, necessarily found that he acted with criminal negligence for
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Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Judicial Branch’s homepage at http://www.courts.state.co.us. Opinions are also posted on the Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE October 19, 2020
2020 CO 76
No. 19SC50, People v. Struckmeyer—Mutually Exclusive Verdicts—Legally Consistent Verdicts—§ 18-1-503(3), C.R.S. (2019).
A jury found the defendant guilty of both child abuse (knowingly or
recklessly), a class 3 felony, and child abuse (criminal negligence), a class 4 felony,
based on the same criminal conduct. A division of the court of appeals concluded
that the verdicts were logically and legally inconsistent and could not be sustained
because the class 3 felony child abuse (knowingly or recklessly) conviction
required the jury to determine that the defendant was aware of the risk of serious
bodily injury to the child victim, while the class 4 felony child abuse (criminal
negligence) conviction required the jury to find that the defendant was unaware
of the risk of serious bodily injury to the child victim. Because the division
believed that the trial court had accepted mutually exclusive guilty verdicts, it
found plain error, reversed the judgment of conviction, and remanded for a new
trial. The supreme court reverses. In People v. Rigsby, 2020 CO 74, ¶ 21, 471 P.3d
1068, the court observed that section 18-1-503(3), C.R.S. (2019), sets up a
hierarchical system of culpable mental states in which: (1) “intentionally” or “with
intent” is the most culpable, “knowingly” is the next most culpable, “recklessly”
is the next most culpable, and “criminal negligence” is the least culpable; and
(2) proving a culpable mental state necessarily establishes any lesser culpable
mental state(s). Following Rigsby, the court now holds that the guilty verdict for
class 3 felony child abuse (knowingly or recklessly) and the guilty verdict for class
4 felony child abuse (criminal negligence), even if logically inconsistent, are not
legally inconsistent. By returning a guilty verdict on child abuse (knowingly or
recklessly), the jury, as a matter of law, necessarily found that he acted with
criminal negligence. Therefore, even if there is a logical inconsistency between
acting knowingly and acting with criminal negligence, and between acting
recklessly and acting with criminal negligence, no legal inconsistency exists in
either scenario based on section 18-1-503(3).
2 The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 19SC50 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA536
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Michael W. Struckmeyer.
Judgment Reversed en banc October 19, 2020
Attorneys for Petitioner: Philip J. Weiser, Attorney General Erin K. Grundy, Senior Assistant Attorney General Denver, Colorado
Attorneys for Respondent: Megan A. Ring, Public Defender Elyse Maranjian, Deputy Public Defender Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court. JUSTICE GABRIEL dissents. ¶1 A jury found Michael W. Struckmeyer guilty of both child abuse (knowingly
or recklessly), a class 3 felony, and child abuse (criminal negligence), a class 4
felony, based on the same criminal conduct. A division of the court of appeals
concluded that the verdicts were logically and legally inconsistent and could not
be sustained because the class 3 felony child abuse (knowingly or recklessly)
conviction required the jury to determine that Struckmeyer was aware of the risk
of serious bodily injury to the child victim, while the class 4 felony child abuse
(criminal negligence) conviction required the jury to find that Struckmeyer was
unaware of the risk of serious bodily injury to the child victim. The division
reasoned that Struckmeyer could not have acted both knowingly or recklessly, on
the one hand, and with criminal negligence, on the other, in the course of a single
criminal act. Because the division believed that the trial court had accepted
mutually exclusive guilty verdicts, it found plain error, reversed the judgment of
conviction, and remanded for a new trial.
¶2 The People then filed a petition for certiorari, which we granted in its
entirety.1 We now reverse.
1 We agreed to review two issues: 1. Whether the court of appeals erred by concluding that the jury’s verdicts finding the defendant guilty of both knowing/reckless child abuse 2 I. Standard of Review and Preservation
¶3 Whether verdicts are mutually exclusive is a question of law. People v.
Delgado, 2019 CO 82, ¶ 13, 450 P.3d 703, 705. We review questions of law de novo.
Id.
¶4 Where, as here, a defendant fails to preserve an error, we must decide
whether there was “an intentional relinquishment of a known right or privilege”
or merely a “failure to make the timely assertion of a right.” People v. Rediger,
2018 CO 32, ¶ 40, 416 P.3d 893, 902 (quoting United States v. Olano, 507 U.S. 725,
733 (1993)). If it’s the former, the error is waived and appellate review is
extinguished. Id. If it’s the latter, the error is deemed forfeited and this court
reviews for plain error. Id. “An error is plain if it is obvious and substantial and
so undermines the fundamental fairness of the trial itself as to cast serious doubt
on the reliability of the judgment of conviction.” Id. at ¶ 48, 416 P.3d at 903.
¶5 The People argue that Struckmeyer waived any error regarding verdict
inconsistency because he failed to raise the issue in the district court. We find this
resulting in serious bodily injury and criminally negligent child abuse resulting in serious bodily injury were inconsistent verdicts. 2. Whether the court of appeals erred by reversing for a new trial for inconsistent jury verdicts, instead of maximizing the jury verdicts by affirming the most serious conviction and merging the lesser offense. 3 contention puzzling because the People expressly agreed at the court of appeals
that the issue was reviewable for plain error. “It is unclear . . . why the People
believe that they can concede [reviewability] of an issue in the court of appeals and
then take the opposite position in this court (apparently not recognizing the irony
of their asserting a waiver when they themselves arguably waived such an
assertion).” People v. Rigsby, 2020 CO 74, ¶ 47, 471 P.3d 1068 (Gabriel, J.,
dissenting). Accordingly, we reject the People’s contention and review for plain
error.
II. Analysis
¶6 Just last month we observed in People v. Rigsby, 2020 CO 74, ¶ 21, 471 P.3d
1068, that section 18-1-503(3), C.R.S. (2019), sets up a hierarchical system of
culpable mental states in which: (1) “intentionally” or “with intent” is the most
culpable, “knowingly” is the next most culpable, “recklessly” is the next most
culpable, and “criminal negligence” is the least culpable; and (2) proving a
culpable mental state necessarily establishes any lesser culpable mental state(s).
Consequently, we explained that: (1) by returning a guilty verdict on count 1
(second degree assault) and finding that Rigsby acted with intent, the jury, as a
matter of law, necessarily found that he acted with criminal negligence for
purposes of count 3 (third degree assault); and (2) by returning a guilty verdict on
count 2 (second degree assault) and finding that Rigsby acted recklessly, the jury,
4 as a matter of law, necessarily found that he acted with criminal negligence for
purposes of count 3 (third degree assault). Id. at ¶ 23. Hence, we determined that
even if each of the guilty verdicts on counts 1 and 2 was logically inconsistent with
the guilty verdict on count 3, no legal inconsistency existed and a new trial was not
necessary. Id.
¶7 Following our decision in Rigsby, we hold that the guilty verdict for child
abuse (knowingly or recklessly) and the guilty verdict for child abuse (criminal
negligence), even if logically inconsistent, are not legally inconsistent. By proving
that Struckmeyer acted knowingly or recklessly, the People necessarily established
that he acted with criminal negligence. It follows that by returning a guilty verdict
on child abuse (knowingly or recklessly), the jury, as a matter of law, necessarily
found that he acted with criminal negligence. Therefore, even if there is a logical
inconsistency between acting knowingly and acting with criminal negligence, and
between acting recklessly and acting with criminal negligence, no legal
inconsistency exists in either scenario based on section 18-1-503(3). After all,
inasmuch as criminal negligence is subsumed within knowingly and within
recklessly, acting with criminal negligence cannot be legally inconsistent with
acting knowingly or acting recklessly. And guilty verdicts that are legally
consistent are not mutually exclusive and do not require a new trial.
5 ¶8 Because the trial court did not accept legally inconsistent guilty verdicts, it
did not err, much less plainly err. And because the trial court merged the class 4
felony child abuse (criminal negligence) conviction into the class 3 felony child
abuse (knowingly or recklessly) conviction, there are no multiplicity concerns or
double jeopardy issues.
III. Conclusion
¶9 For all the foregoing reasons, we reverse. We remand the matter to the court
of appeals to reinstate Struckmeyer’s judgment of conviction.
JUSTICE GABRIEL dissents.
6 JUSTICE GABRIEL, dissenting.
¶10 Apparently perceiving this case principally to involve an issue of
multiplicity and merger, and not one of legally and logically inconsistent verdicts,
the majority reverses the judgment of the division below. Maj. op. ¶¶ 8–9. The
majority reaches this conclusion notwithstanding the fact that upholding Michael
Struckmeyer’s convictions for child abuse (knowingly or recklessly) and child
abuse (criminal negligence) necessarily means that the jury found that
Struckmeyer was aware of the risk of serious bodily injury to the child victim
presented by his conduct and unaware of that same risk at the very same time.
¶11 For the reasons set forth in my dissenting opinion in People v. Rigsby, 2020
CO 74, ¶ 65, 471 P.3d 1068 (Gabriel, J., dissenting), I do not believe that this case
presents an issue of multiplicity and merger, which implicates double jeopardy
concerns. Rather, this case involves different constitutional principles, namely, a
criminal defendant’s rights to due process and to have a jury find beyond a
reasonable doubt every element of the crimes charged. Id. Moreover, for the
reasons that I developed at some length in my dissent in Rigsby, which I will not
repeat here, I believe, contrary to the majority’s view, that it is both legally and
logically inconsistent for the jury to have found that Struckmeyer was aware of the
risk of injury to the child victim and unaware of that same risk at the same time
based on the same conduct. Id. at ¶¶ 49–65. I would thus conclude that reasonable
1 doubt inheres in the jury’s verdicts and that Struckmeyer is therefore entitled to a
new trial. Id. at ¶¶ 49–52, 66.
¶12 Accordingly, I respectfully dissent.