COLORADO COURT OF APPEALS
2016COA113
Court of Appeals No. 14CA2276
Weld County District Court No. 14CR285
Honorable Thomas J. Quammen, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Benjamin Jacob Geisick,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE ASHBY
Webb and Harris, JJ., concur
Announced July 28, 2016
Cynthia H. Coffman, Attorney General, Ethan Zweig, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Kathryn Heffron, Deputy
State Public Defender, Greeley, Colorado, for Defendant-Appellant
¶1 Defendant, Benjamin Jacob Geisick, appeals the judgment of
conviction entered on jury verdicts finding him guilty of resisting
arrest, obstructing a peace officer, and possession of drug
paraphernalia. We affirm.
I. Background
¶2 Geisick got into an argument with his girlfriend in their motel
room. The motel manager overheard the argument, confronted
Geisick, and then called the police. Officer Steinhour was the first
officer to arrive and he contacted the motel manager. While Officer
Steinhour and the manager were talking, the manager saw Geisick
walking away from the motel and pointed Geisick out. Officer
Steinhour followed Geisick on foot and verbally attempted to stop
Geisick so that they could talk. A physical struggle between Officer
Steinhour and Geisick occurred, but it ended quickly and Geisick
ran away. Geisick hid behind a tree as other officers arrived on the
scene and, after trying to escape on foot again, Geisick was
ultimately tackled and arrested by the later responding officers.
¶3 Based on the physical struggle with Officer Steinhour, the
prosecution charged Geisick with second degree assault on a peace
officer and attempting to disarm a peace officer. And because
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officers found a pipe, which Geisick admitted was used to smoke
methamphetamine, and other items in his pockets, the prosecution
also charged Geisick with possession of drug paraphernalia.
¶4 At trial, both Officer Steinhour and Geisick testified and
offered significantly different descriptions of their struggle. Officer
Steinhour testified that Geisick initiated the physical altercation
between the two of them and that Geisick punched him in the face,
hit him in the head with his radio microphone, and attempted to
take his gun. In contrast, Geisick testified that Officer Steinhour
initiated the physical altercation by grabbing him and throwing him
into a wall, and denied that he ever punched the officer, hit him in
the head with the radio microphone, or attempted to take his gun.
Geisick did admit, however, that a physical struggle occurred and
that he ran away from Officer Steinhour and the other officers who
arrived later.
¶5 At the close of evidence, Geisick asked the trial court to
instruct the jury on two lesser nonincluded offenses that the People
did not charge: resisting arrest and obstructing a peace officer. The
trial court, at the request of Geisick, found that there was evidence
to support both of the lesser nonincluded offenses and instructed
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the jury on those offenses. The jury found Geisick not guilty of the
charged offenses of assault on a peace officer and attempting to
disarm an officer, but found him guilty of the uncharged lesser
nonincluded offenses of resisting arrest and obstructing a peace
officer in addition to the charged offense of possession of drug
paraphernalia. The trial court convicted and sentenced Geisick
accordingly.
¶6 Geisick appeals his convictions, arguing that (1) the trial court
erred by denying his challenge for cause to a potential juror; (2) the
trial court erred by admitting inadmissible hearsay testimony; (3)
the evidence was insufficient to support his resisting arrest and
obstruction convictions; and (4) the cumulative effect of these errors
denied him a fair trial. We consider and disagree with each of these
arguments in turn.
II. Challenge for Cause
¶7 Geisick argues that the trial court reversibly erred by denying
his challenge for cause to a potential juror whom he then used a
peremptory challenge to dismiss. We reject this argument because
Geisick fails to explain how this error prejudiced him.
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¶8 As the supreme court explained in People v. Novotny, 2014 CO
18, to obtain relief for an improperly denied challenge for cause a
defendant must establish prejudice by demonstrating a reasonable
probability that the error contributed to the verdict. See id. at ¶ 27;
People v. Wise,
2014 COA 83, ¶ 28 (“[T]he court in Novotny made
clear that the mere loss of a peremptory challenge, standing alone,
is insufficient to require reversal.”). Here, the juror in question did
not sit on the jury and Geisick fails to articulate in his opening brief
how the alleged error prejudiced him or contributed to the verdict.
We therefore reject this argument.
III. Hearsay
¶9 Geisick next argues that the trial court erred by admitting
hearsay testimony about the physical altercation with Officer
Steinhour from an officer who did not witness the altercation. We
review for abuse of discretion. See Compan v. People, 121 P.3d 876,
883 (Colo. 2005). But even if a court abuses its discretion by
admitting hearsay, we will not reverse if the error was harmless.
See Crider v. People,
186 P.3d 39, 42 (Colo. 2008). An error is
harmless if there is no reasonable probability that it contributed to
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the defendant’s conviction. Id. at 44. We conclude that any error in
admitting the testimony was harmless.
¶ 10 Officer Steinhour testified in detail about what happened
before, during, and after the struggle with Geisick. In addition to
this testimony, the People elicited testimony from the officer who
interviewed Officer Steinhour about the struggle but did not witness
it himself. The interviewing officer testified extensively about the
struggle based on what Officer Steinhour told him in the interview.
¶ 11 Geisick objected to this testimony on the ground that it was
hearsay. The trial court agreed that the testimony was potentially
inadmissible hearsay because the interviewing officer was testifying
to the truth of Officer Steinhour’s statement about the struggle
based only on having heard the statement, not having actually
witnessed the struggle. See CRE 801(c). But the trial court
overruled the objection and admitted the interviewing officer’s
testimony on two alternative hearsay exception grounds: (1) Officer
Steinhour’s statement to the interviewing officer was an excited
utterance, rendering the interviewing officer’s testimony about it
admissible under CRE 803(2); and (2) Officer Steinhour’s statement
was a prior consistent statement as defined by CRE 801(d)(1).
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¶ 12 We question both of the trial court’s alternative rulings
admitting the testimony. First, there is little in the record to
support a conclusion that Officer Steinhour’s entire statement to
the interviewing officer was an excited utterance. Although the
interviewing officer testified that Officer Steinhour appeared to be
coming down from an adrenaline rush at the time of the interview,
the interview took place after Officer Steinhour had left the site of
the struggle, chased Geisick for several blocks, returned to the site
of the struggle, and collected items that he had lost from his duty
belt during the struggle. Very little in the record suggests that
Officer Steinhour’s statement was a spontaneous reaction to an
event so startling that it continued to render his capacity for
reflective thought inoperative. See Compan, 121 P.3d at 882 (For a
statement relating to an event to qualify as an excited utterance,
“the event or condition must be sufficiently startling to render
normal reflective thought processes of the declarant inoperative,
and the statement must be a spontaneous reaction to the event
rather than the result of reflective thought.”). To the contrary, the
interviewing officer testified that he had waited until “everything
calmed down” to interview Officer Steinhour.
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¶ 13 Second, we question whether Officer Steinhour’s entire
statement qualified as nonhearsay under CRE 801(d)(1). As
relevant here, this rule provides that a statement is not hearsay if
“the declarant testifies at the trial . . . and is subject to cross-
examination concerning the statement, and the statement is . . .
consistent with his testimony and is offered to rebut an express or
implied charge against him of recent fabrication or improper
influence or motive.” CRE 801(d)(1). Although Officer Steinhour
was cross-examined extensively about the struggle itself, his cross-
examination barely, if at all, addressed the statement he gave to the
interviewing officer.
¶ 14 But even if we assume that the trial court erred by admitting
the interviewing officer’s testimony, we conclude that the error was
harmless. The interviewing officer’s testimony was not that of an
eyewitness; the jury was aware that the interviewing officer was
testifying only about what Officer Steinhour said in the interview.
And because Officer Steinhour himself described the incident in
detail, it is unlikely that another officer’s testimony about Officer
Steinhour’s earlier description of the incident had a significant
impact on the jury — especially because the prosecutor did not
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argue that the consistency of Officer Steinhour’s descriptions of the
incident made them more believable. Indeed, the jury apparently
did not believe large parts of Officer Steinhour’s descriptions of the
incident because it found Geisick not guilty of the assault and
attempting to disarm charges.
IV. Sufficiency of the Evidence
¶ 15 Geisick also argues that the evidence was insufficient to
support his convictions for resisting arrest and obstructing a peace
officer. We conclude that Geisick waived this argument and
therefore do not address its merits.
¶ 16 Waiver occurs when a party intentionally relinquishes a
known right. See United States v. Olano, 507 U.S. 725, 733 (1993).
When a party specifically removes issues from a trial court’s
consideration, the party has waived those issues and we may not
review them on appeal. See People v. Rediger,
2015 COA 26, ¶ 54
(cert. granted Feb. 16, 2016).
¶ 17 At the close of evidence, Geisick requested that the trial court
instruct the jury on two lesser offenses — resisting arrest and
obstructing a peace officer — that were not lesser included offenses
of those that the People charged. Before a court grants a
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defendant’s request for an instruction on a lesser nonincluded
offense, the defendant “must show an evidentiary basis upon which
the jury could rationally acquit on the greater but convict on the
lesser offense.” People v. Medrano-Bustamante, 2013 COA 139,
¶ 90. Thus, by requesting the lesser nonincluded instructions and
verdict forms, Geisick necessarily argued that based on the
evidence, a jury could rationally convict him of resisting arrest and
obstruction instead of, or in addition to, the charged offenses.1
¶ 18 Successfully challenging the sufficiency of the evidence on
appeal requires exactly the opposite showing: that the evidence
could not have supported a rational conclusion that the defendant
was guilty of the offense beyond a reasonable doubt. See People v.
Harper,
205 P.3d 452, 455 (Colo. App. 2008). Indeed, now on
appeal, Geisick argues that the evidence was such that a jury could
not have rationally concluded that he was guilty of resisting arrest
and obstructing a peace officer. But by arguing to the trial court
that the evidence permitted a rational conclusion that he had
committed the lesser nonincluded offenses in order to persuade the
1We also note that Geisick never moved for a judgment of acquittal
on the lesser nonincluded offenses nor did he ever suggest that the
evidence was insufficient to support his conviction of those offenses.
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trial court to give the instructions, he waived the argument he now
makes on appeal that the evidence was insufficient.
¶ 19 We are aware that another division of this court recently
analyzed this issue and applied the doctrine of invited error, rather
than waiver, to conclude that the defendant was barred from
challenging the sufficiency of the evidence on appeal. See People v.
Riley, 2016 COA 76, ¶ 14. In Riley, the division concluded that by
requesting a lesser nonincluded instruction at trial, the defendant
invited the potential error that he would be convicted of the lesser
nonincluded offense based on insufficient evidence. Id. at ¶ 15.
¶ 20 Although we agree with the Riley division that a defendant is
precluded from challenging his or her conviction of a lesser
nonincluded offense on which the defendant requested an
instruction, we disagree that such a challenge is precluded because
it is invited error. Invited error “prevents a party from inducing an
inappropriate or erroneous [ruling] and then later seeking to profit
from that error.” Rediger, ¶ 52 (quoting Horton v. Suthers,
43 P.3d
611, 618 (Colo. 2002)). By requesting a lesser nonincluded
instruction, the defendant asks only that the jury receive that
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instruction, not that the jury find him or her guilty of the lesser
nonincluded offense.
¶ 21 For these reasons, the only error that a defendant can possibly
induce is that of giving the instruction, not that of the jury finding
the defendant guilty of the offense. Indeed, as the division in Riley
acknowledged, even if the defendant requests that the jury be
instructed on a lesser nonincluded offense, he does not concede
that he is guilty of that offense and is free to argue that the jury
should find him not guilty. See Riley, ¶ 15.
¶ 22 A defendant’s request for the instruction does, however,
affirmatively represent to the trial court that the evidence is
sufficient to support a rational finding that the defendant is guilty
of the lesser nonincluded offense beyond a reasonable doubt. In
other words, the defendant represents that there is sufficient
evidence on which the jury could convict him of the lesser
nonincluded offense. And this affirmative representation, just like
when defense counsel affirmatively assents to a proposed
instruction or ruling, waives the defendant’s right to argue the
opposite on appeal. See Rediger, ¶ 60 (defense counsel’s indication
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that the instructions were proper waived defendant’s right to argue
that the instructions were improper on appeal).
¶ 23 Ultimately, the distinction between strategic invited error and
waiver in this case is one without a functional difference. Although
we think that waiver is the proper doctrine to apply under these
circumstances, applying invited error would similarly preclude our
review of Geisick’s substantive argument that the evidence was
insufficient to support his conviction of the lesser nonincluded
offenses.
V. Cumulative Error
¶ 24 Finally, Geisick argues that the cumulative effect of the alleged
errors deprived him of a fair trial. Even if we assume that the trial
court erred by denying his challenge for cause and admitting the
interviewing officer’s testimony, we do not perceive that these errors
prejudiced Geisick’s right to a fair trial. See People v. Conyac, 2014
COA 8M, ¶ 152 (concluding, without analysis, that “although we
have found some errors, because we do not perceive that they
substantially prejudiced defendant’s right to a fair trial, there is no
reversible cumulative error”).
VI. Conclusion
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¶ 25 The judgment of conviction is affirmed.
JUDGE WEBB and JUDGE HARRIS concur.
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