A majority of the Colorado Supreme Court decided it was legal to simultaneously convict a man on separate assault convictions, two of which required acting intentionally and the other required his lack of awareness.
“[E]ven if each of the guilty verdicts for second degree assault is logically inconsistent with the guilty verdict for third degree assault,” wrote Justice Carlos A. Samour, Jr. in the opinion released Monday, “no legal inconsistency exists.”
Derek Michael Rigsby went to a bar with his girlfriend and another couple in September 2014. After two other men began speaking to the women on the dance floor, a confrontation erupted in which Rigsby struck the victim in the face with a glass.
Boulder County prosecutors charged Rigsby with three counts of felony second-degree assault, which involved acting recklessly or with intent to cause bodily injury. A jury convicted him on two counts, but on the third they decided he was guilty of third degree assault, a misdemeanor.
In doing so, they acquitted him of the last second-degree assault charge, as the misdemeanor requires “acting with criminal negligence," defined as a failure to perceive risk.
Rigsby appealed, arguing the result was mutually exclusive: he had to act intentionally and be aware of the risk of bodily injury for the felonies, but at the same time be unaware of the same risks under a criminal negligence standard.
In December 2018, a three-member panel of the Court of Appeals agreed with Rigsby and ordered a new trial.
“We cannot determine the jury’s intent because the verdicts are logically and legally inconsistent,” wrote then-Judge Daniel M. Taubman.
Samour disagreed, drawing a diagram to interpret Colorado’s standards for culpable mental state. In his telling, criminal negligence was a common denominator for all higher culpability standards.
“It follows that by returning a guilty verdict on count 1 and finding that Rigsby acted with intent, the jury, as a matter of law, necessarily found that he acted with criminal negligence,” Samour explained, “and by returning a guilty verdict on count 2 and finding that Rigsby acted recklessly, the jury, as a matter of law, necessarily found that he acted with criminal negligence.”
He acknowledged that such a hierarchy was not necessarily logical, but the General Assembly intended for less-culpable mental states to be included in any higher degree of culpability. Samour added that for a verdict to be mutually exclusive, an element of one charge has to negate an element of the other.
Justice Richard L. Gabriel dissented, writing that “although the majority perceives no legal inconsistency in the verdicts at issue, it never explains how a jury can find — either factually or legally — that a defendant both knew of a risk of injury to a victim and did not know of that same risk at the same time and based on the same conduct.”
He pointed to the court’s 2016 decision in a case where the justices reversed a jury’s conviction of a man for both robbery, which requires a use of force, and theft, which requires a lack of force. Gabriel believed that had Rigsby's jury received an instruction on the hierarchy of culpability that Samour outlined, that could have explained the inconsistent verdicts — but they did not.
The majority did side with Risgby in concluding his multiple sentences for the assault charges should be merged so as not to violate constitutional guarantees against double jeopardy. In particular, because the misdemeanor was a lesser offense of second degree assault, Rigsby received more than one punishment for the same criminal conduct. The justices ordered the trial court to merge his sentences into a single, five-year term for felony assault.
Gabriel also disagreed with that finding, maintaining that double jeopardy was not the issue here. Instead, he believed Rigsby’s rights to due process of law, a fair trial and to be found guilty beyond a reasonable doubt were compromised. He indicated he would have upheld the Court of Appeals’ order of a new trial.
The case is People v. Rigsby.