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ADVANCE SHEET HEADNOTE October 19, 2020

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,

,

, 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,

,

, 705. We review questions of law de novo.

¶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,

,

(quoting United States v. Olano,

(1993)). If it’s the former, the error is waived and appellate review is

extinguished.

If it’s the latter, the error is deemed forfeited and this court

reviews for plain error.

“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,

.

¶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,

,

(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,

,

, 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,

,

(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.

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.

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.

at ¶¶ 49–52, 66.

¶12 Accordingly, I respectfully dissent.

2