People v. Snider

491 P.3d 423

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Adam Taft SNIDER, Defendant-Appellant.

Court of Appeals No. 18CA0598

Colorado Court of Appeals, Division I.

Announced February 18, 2021

Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sarah Spears, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 Defendant, Adam Taft Snider, appeals his judgment of conviction entered on jury verdicts finding him guilty of second degree assault, resisting arrest, and obstruction of a peace officer. We affirm Snider's assault and obstruction convictions, but we vacate his conviction for resisting arrest. In doing so, we address two matters of first impression.

¶ 2 First, we conclude that the unit of prosecution for obstruction of a peace officer is legislatively defined in terms of discrete volitional acts, not by the number of officers involved. Thus, we conclude that, as to Snider's obstruction charge, the jury was not required to unanimously agree that he had obstructed a particular peace officer, only that he had obstructed any officer. Accordingly, we reject Snider's contention that he was denied his right to a unanimous verdict.

¶ 3 Second, we conclude that resisting arrest under section 18-8-103(1)(a), C.R.S. 2020, is a lesser included offense of second degree assault under section 18-3-203(1)(c), C.R.S. 2020, which, for ease of reference, we shall call second degree assault on a peace officer.¹ Because the trial court plainly erred by failing to merge Snider's conviction for resisting arrest into the second degree assault on a peace officer conviction, we vacate his resisting arrest conviction.

I. Background

¶ 4 According to the evidence presented at trial, Deputies Lonn Trail and Andrew Martinez were dispatched to Snider's home for a well-being check in response to a report that Snider was threatening to harm himself and others. On the way to the scene, the deputies learned that Snider had an active arrest warrant.

¶ 5 When the deputies arrived at Snider's home, Snider invited them inside. After Snider indicated that he was not suicidal, Deputy Martinez asked Snider to step out of the home. Snider then asked if he was under arrest, at which point Deputy Martinez grabbed Snider's wrist and confirmed that he was being taken into custody. Snider struggled with the deputy, shook free of his grasp, and ran out of the house.

¶ 6 Deputies Trail and Martinez chased after Snider, joined by Sergeant Manuel Aragon, who had arrived at the scene while the deputies were questioning Snider. Deputy Trail followed Snider into a nearby backyard, where he found Snider hiding behind a discarded toilet. He ordered Snider to come out and lie on the ground, and Snider began crawling out from his hiding position.

¶ 7 Instead of complying with Deputy Trail's order, however, Snider lunged toward the deputy's legs in an apparent attempt to tackle him. Deputy Trail dodged Snider, who picked up a wooden post he found lying on the ground. He swung it at Deputy Trail, striking him in the ribs. The deputy was able to pull the post away from Snider, but Snider tackled him to the ground. The two exchanged punches before Snider again began fleeing the deputy.

¶ 8 Snider attempted to climb over a fence, but Deputy Trail pulled him off, causing them both to fall to the ground. Snider climbed on top of the deputy and once more began punching him. Deputy Trail fought back and was eventually able to stand up and pin Snider against the fence. At that point, Sergeant Aragon found Deputy Trail and helped him restrain Snider. Sergeant Aragon struck Snider, who fell to the ground and indicated that he would comply. The officers then placed Snider in handcuffs and took him into custody.

¶ 9 Snider was charged with second degree assault on a peace officer, criminal mischief, resisting arrest, and obstructing a peace officer. At trial, Snider denied punching, kicking, tackling, or otherwise striking any deputy. Instead, he testified that he was beaten by the deputies without provocation and violently arrested. Nonetheless, a jury convicted Snider of second degree assault on a peace officer, resisting arrest, and obstructing a peace officer, although it acquitted him of the criminal mischief count. The trial court sentenced Snider to three years of probation on the assault charge, with the condition that Snider serve sixty days in jail. On the resisting and obstruction charges, Snider was sentenced to sixty days in jail for each count, to be served concurrently with the jail component of his probation sentence.

II. Self-Defense Instruction

¶ 10 Snider contends that the trial court erred by declining to instruct the jury on self-defense as to his second degree assault on a peace officer charge. We disagree.

A. Additional Facts

¶ 11 On the second day of trial, defense counsel asked the court for a jury instruction on self-defense, which Snider had endorsed as a potential defense prior to trial.

¶ 12 At the close of evidence, however, the People objected to the jury being instructed on self-defense as to Snider's second degree assault on a peace officer charge. They argued that because Snider never testified to engaging in conduct that could constitute second degree assault, he was not entitled to raise an affirmative defense to the charge. Defense counsel countered by arguing that Snider's testimony indicated he may have fought back against the deputies. Thus, defense counsel argued, there was sufficient evidence to support that Snider acted in self-defense such that a self-defense instruction was warranted.

¶ 13 The trial court rejected defense counsel's argument and agreed with the People. Relying on People v. Whatley , 10 P.3d 668 (Colo. App. 2000), the trial court concluded that, because Snider denied committing second degree assault, he was not entitled to receive an affirmative defense instruction as to that charge. Thus, while the court instructed the jury on self-defense as to Snider's resisting arrest and obstruction charges, it refused to do so as to his second degree assault on a peace officer charge.

B. Standard of Review

¶ 14 We review de novo whether a defendant is entitled to a requested self-defense jury instruction. See People v. Newell , 2017 COA 27, ¶ 19, 395 P.3d 1203 ; Whatley , 10 P.3d at 670. In doing so, we consider the evidence in the light most favorable to the defendant. People v. Wakefield , 2018 COA 37, ¶ 8, 428 P.3d 639.

C. Applicable Law

¶ 15 A defendant is entitled to a jury instruction on self-defense if there is "some credible evidence" in the record that tends to support each element of the defense. See People v. Saavedra-Rodriguez , 971 P.2d 223, 228 (Colo. 1998) (the quantum of evidence necessary to present an affirmative defense is "[s]ome credible evidence"); People v. Hendrickson , 45 P.3d 786, 790 (Colo. App. 2001) ("To entitle a defendant to [an affirmative defense] instruction, the supporting evidence must tend to establish each of the elements of the defense."). The "some credible evidence" standard is " ‘exceedingly low,’ making preclusion of an affirmative defense appropriate only when there is ‘simply no evidence ... in th[e] record’ [to support it]." People v. Jacobson , 2017 COA 92, ¶ 15, 474 P.3d 1222 (quoting People v. Platt , 170 P.3d 802, 806 (Colo. App. 2007) ). Indeed, the standard is so low that "the evidence necessary to justify an affirmative defense instruction may come solely from the defendant's testimony, even if the evidence is improbable." People v. Johnson , 2013 COA 122, ¶ 35, 327 P.3d 305. But supporting evidence "may come from any source, even from the prosecution." Newell , ¶ 21 (citing Whatley , 10 P.3d at 670 ).

¶ 16 However, a defendant is not entitled to an affirmative defense instruction if he denies committing the charged crime. See, e.g. , Hendrickson , 45 P.3d at 791 (affirming the trial court's denial of an entrapment affirmative defense instruction because the defendant denied committing the charged offense). Indeed, an affirmative defense, by its nature, "is a defense that admits conduct leading to the act charged but seeks to justify, excuse, or mitigate that conduct." Whatley , 10 P.3d at 670. Thus, a defendant who testifies must "admit [to] committing acts that would otherwise constitute an offense before being entitled to assert an affirmative defense." Hendrickson , 45 P.3d at 791 ; see Whatley , 10 P.3d at 670.

D. Analysis

¶ 17 In his testimony at trial, Snider repeatedly denied touching Deputy Trail. However, he suggests that other parts of his testimony nonetheless indicated that he may have fought back against the deputy. Thus, he argues that his testimony, though contradictory, provided "some credible evidence" that he acted in self-defense, especially when considered with Deputy Trail's account of the incident. Accordingly, he argues, there was sufficient evidence presented at trial to warrant a self-defense instruction. But because, in our view, Snider never admitted to engaging in conduct that could constitute second degree assault, we disagree that he was entitled to such an instruction. See Hendrickson , 45 P.3d at 791 ; Whatley , 10 P.3d at 670.

¶ 18 As an initial matter, our review of the record indicates Snider's characterization of his testimony — that he admitted to possibly fighting back against Deputy Trail — is inaccurate.

¶ 19 In construing his testimony as such, Snider directs us to the following exchange:

[Prosecutor]: Okay. So I want to talk specifically about you never put your hands on Deputy Trail, correct?

[Snider]: I'm not going to give 100 percent that I didn't, I don't think I really tried to blocking [sic]. But it's possible that my arm tried to block his leg one or two of the kicks out of the many.

He also cites the following response from later in his testimony:

[Prosecutor]: So you

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