2022 COA 52
Colo. Ct. App.2022Background
- Police responded to a reported stolen car, chased defendant Jeremiah Tomaske into his house, and tackled him face down.
- While restrained, Tomaske removed an officer’s baton from the officer’s duty belt and grabbed (but did not remove) the officer’s holstered firearm; the officer suffered an eye injury.
- Tomaske was tried in a bench trial and convicted of disarming a peace officer (§ 18-8-116(1)) and attempt to disarm a peace officer; acquitted of second-degree assault and obstruction.
- Tomaske argued (1) a baton is not covered by the disarming statute; (2) the prosecution failed to disprove his force-against-intruders affirmative defense; and (3) the trial court relied on an incorrect legal conclusion about excessive force requiring remand.
- The Court of Appeals vacated the disarming conviction (holding a standard baton is not a “firearm or self-defense electronic control device, direct-contact stun device, or other similar device”) and affirmed the attempt conviction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a police baton is a device covered by the disarming-a-peace-officer statute | Statute protects officer safety and should be read to include officer weapons such as batons | A baton is not a firearm, electronic control device, or similar to stun devices; statute’s “other similar device” is limited | Baton is not within the statutory categories; disarming conviction vacated |
| Whether the prosecution presented sufficient evidence to disprove Tomaske’s force-against-intruders affirmative defense | Officer acted lawfully entering and pursuing suspect; evidence disproved defendant’s reasonable belief that officer committed a crime | Tomaske reasonably believed officers committed or intended to commit a crime inside the dwelling | Evidence was sufficient to disprove the affirmative defense (trial court’s factual finding upheld) |
| Whether the trial court’s alleged legal error (stating excessive force is not necessarily a crime) requires remand | Trial court’s finding turned on facts, not an absolute legal rule; no remand needed | Court premised denial of the defense on incorrect legal statement, requiring reconsideration | No reversible legal error; trial court relied on record, not an erroneous law-based ruling |
| Sufficiency of evidence for attempt to disarm (grabbing the holstered gun) | Circumstantial and testimonial evidence supports attempt conviction | Defendant contends actions were reflexive and justified; insufficient evidence of criminal intent | Conviction for attempt to disarm affirmed; sufficiency challenge rejected |
Key Cases Cited
- People v. Valenzuela, 216 P.3d 588 (Colo. 2009) (use of “or” indicates separate statutory categories)
- Garcia v. United States, 469 U.S. 70 (U.S. 1984) (interpretive guidance on disjunctive wording)
- Winter v. People, 126 P.3d 192 (Colo. 2006) (application of ejusdem generis)
- People v. Guenther, 740 P.2d 971 (Colo. 1987) (framework for force-against-intruders statute)
- Kogan v. People, 756 P.2d 945 (Colo. 1988) (sufficiency standard after bench trial)
- People v. McNeese, 892 P.2d 304 (Colo. 1995) (reasonableness inquiry for defensive belief)
- Conn. Nat’l Bank v. Germain, 503 U.S. 249 (U.S. 1992) (presumption that legislature says what it means)