2021 COA 19
Colo. Ct. App.2021Background:
- Deputies Lonn Trail and Andrew Martinez responded to a welfare check at Adam Snider’s home and discovered an active arrest warrant; Snider invited them in, then resisted when told he was under arrest.
- After fleeing and hiding in a backyard, Snider lunged at Deputy Trail, struck him with a wooden post, tackled and punched the deputy; Sergeant Aragon assisted and officers ultimately cuffed Snider.
- Snider testified he was beaten and denied striking deputies; a jury convicted him of second-degree assault on a peace officer, resisting arrest, and obstruction of a peace officer (acquitted of criminal mischief).
- The trial court refused a self-defense instruction for the assault charge (but gave self-defense instructions for resisting and obstruction), denied a mistrial after the prosecutor began an improper question implying drug use, and instructed/returned verdict forms that did not identify which officer was the target of resisting/obstruction.
- On appeal the court affirmed assault and obstruction convictions, held the unit of prosecution for obstruction is discrete volitional acts (not victim-based), and vacated the resisting-arrest conviction as it is a lesser included offense of second-degree assault.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Snider was entitled to a jury instruction on self-defense for second-degree assault | People: Snider denied committing assault, so no entitlement to an affirmative-defense instruction | Snider: his testimony provided “some credible evidence” he fought back, so self-defense instruction required | Court: Affirmed trial court — no instruction for assault because defendant did not admit conduct sufficient to invoke affirmative defense (Whatley/Hendrickson line) |
| Whether prosecutor’s interrupted question warranted a mistrial | People: Question was improper but no answer was given; curative instruction cured any harm | Snider: Question invited jury to infer drug use and prejudiced him, requiring mistrial | Court: Denied mistrial — no response elicited, curative instruction sufficient; any prejudice speculative |
| Whether jury unanimity was violated for resisting and obstruction because instructions/verdic t forms didn’t identify which officer was targeted | People: Unit of prosecution for resisting and obstruction is discrete volitional acts, so prosecution need not prove a particular officer | Snider: Jury must unanimously agree on which officer was resisted/obstructed per charging instruments | Court: Held unit of prosecution is act-based (not victim-based) for both offenses; no unanimity violation |
| Whether resisting arrest must merge into second-degree assault on a peace officer (double jeopardy) | People: Convictions were factually distinct; no merger required | Snider: Resisting arrest is a lesser included offense of second-degree assault and must merge | Court: Resisting arrest is a lesser included offense under the strict-elements test; trial court plainly erred by not merging — resisting conviction vacated |
Key Cases Cited
- People v. Whatley, 10 P.3d 668 (Colo. App. 2000) (defendant must admit conduct constituting offense to merit affirmative-defense instruction)
- Saavedra-Rodriguez v. People, 971 P.2d 223 (Colo. 1998) ("some credible evidence" standard for affirmative defenses)
- People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001) (denial of affirmative defense instruction where defendant denied committing charged offense)
- People v. Platt, 170 P.3d 802 (Colo. App. 2007) (discussion of quantum of evidence for affirmative defenses)
- Brown v. People, 239 P.3d 764 (Colo. 2010) (inconsistent jury instructions may be permitted, but does not extend to affirmative defenses)
- Domingo-Gomez v. People, 125 P.3d 1043 (Colo. 2005) (prosecutor’s heightened ethical responsibility and avoidance of prejudicial comments)
- People v. Tillery, 231 P.3d 36 (Colo. App. 2009) (mistrial standard; prejudice must be substantial and irremediable)
- People v. Simon, 266 P.3d 1099 (Colo. 2011) (appellate review of mistrial/misconduct issues)
- People v. Ned, 923 P.2d 271 (Colo. App. 1996) (speculative prejudice insufficient for reversal)
- People v. Linares-Guzman, 195 P.3d 1130 (Colo. App. 2008) (unanimity requires jurors agree elements were proved, not necessarily identity of recipient when statute is act-based)
- Woellhaf v. People, 105 P.3d 209 (Colo. 2005) (unit of prosecution defined as discrete acts)
- People v. Borghesi, 66 P.3d 93 (Colo. 2003) (victim-based statutes allow multiple counts for multiple victims)
- People v. Rice, 198 P.3d 1241 (Colo. App. 2008) (simple variance doctrine)