COLORADO COURT OF APPEALS

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

1 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

2 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.

3 ¶8 As the supreme court explained in People v. Novotny,

, 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,

(“[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,

(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,

(Colo. 2008). An error is

harmless if there is no reasonable probability that it contributed to

4 the defendant’s conviction.

. 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).

5 ¶ 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,

(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.

6 ¶ 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

7 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,

(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,

, ¶ 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

8 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,

,

¶ 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,

(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. 9 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,

, ¶ 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,

(Colo. 2002)). By requesting a lesser nonincluded

instruction, the defendant asks only that the jury receive that

10 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

11 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,

(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

12 ¶ 25 The judgment of conviction is affirmed.

JUDGE WEBB and JUDGE HARRIS concur.

13