The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 30, 2020
2020COA116
No. 16CA1894, Peo v Lowe — Crimes — Resisting Arrest;
Criminal Law — Prosecution of Multiple Counts for Same Act;
Constitutional Law — Fifth Amendment — Double Jeopardy —
Multiplicity
A division of the court of appeals considers an issue of first
impression in Colorado: the unit of prosecution for the resisting
arrest statute, see § 18-8-103(1), C.R.S. 2019. Based on the plain
language of the statute, the division holds that the unit of
prosecution for resisting arrest is the number of discrete volitional
acts of resisting arrest. Accordingly, the division concludes that
defendant’s resisting arrest convictions must merge.
The division also remands for the district court to disclose
police personnel and internal investigation files and to allow
defendant to attempt to make the requisite showing of prejudicial
error, and to otherwise correct the mittimus as instructed.
COLORADO COURT OF APPEALS 2020COA116
Court of Appeals No. 16CA1894
El Paso County District Court No. 15CR2226
Honorable Lin Billings Vela, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Douglas Lowe,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE FOX
Brown and Rothenberg*, JJ., concur
Announced July 30, 2020
Philip J. Weiser, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Nathaniel E. Deakins, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 Brian Douglas Lowe appeals the judgment of conviction
entered on jury verdicts finding him guilty of two counts of
attempted murder in the second degree, two counts of first degree
assault of a peace officer, two counts of resisting arrest, two counts
of menacing, and prohibited use of a stun gun.
¶2 Lowe claims that the trial court erred by (1) refusing to
disclose police personnel and internal investigation files; (2)
allowing the prosecution’s fingerprint comparison witness to be
qualified as an expert; (3) relying upon Lowe’s prior escape
conviction in adjudicating him a habitual criminal; (4) failing to
merge Lowe’s two resisting arrest convictions; and (5) imposing
consecutive sentences for his first degree assault convictions. We
affirm in part, reverse in part, and remand with instructions.
I. Background
¶3 In May 2015, the El Paso County Sheriff’s Office was asked to
locate and apprehend Lowe after he escaped from parole
supervision and a warrant for his arrest was issued.
¶4 Lieutenant Robert Shane Mitchell and Sergeant Keith Duda
responded to a Hobby Lobby in Colorado Springs after the officers
1
were informed that Lowe was there.1 When the officers approached
Lowe and informed him that he was under arrest, he was using the
floral department’s telephone. When Duda moved to handcuff
Lowe, Lowe resisted. Mitchell attempted to use a taser on Lowe, but
during the struggle, Lowe obtained the taser. Both officers testified
that, during the scuffle, they saw Lowe holding a knife.2 The
altercation ended when Mitchell shot Lowe three times; Mitchell
later testified that he feared Lowe was going to stab Duda, who had
fallen to the ground during the struggle.
¶5 After a June 2016 jury trial, Lowe was found guilty as charged
except the jury acquitted Lowe of two counts of second degree
assault of a peace officer.3 Following the trial, a hearing was held
where Lowe was adjudicated a habitual criminal. At the sentencing
hearing, the court sentenced Lowe to two consecutive
1 In May 2015, Lieutenant Robert Shane Mitchell was a Sergeant
and Sergeant Keith Duda was a Deputy with the El Paso County
Sheriff’s Office.
2 Testimony at trial established that, after the shooting and once
other officers had arrived on scene, Lowe was laying on the ground
handcuffed and near him was a pocketknife with the blade
extended.
3 Lowe was charged with two counts each of first and second degree
assault of a peace officer.
2
sixty-four-year prison terms in the Department of Corrections’
custody for the first degree assault convictions. Lowe was
sentenced concurrently for his remaining convictions. Lowe
appeals.
II. Disclosure of Mitchell’s and Duda’s Personnel Files
¶6 Lowe first argues that the trial court erred by refusing to
disclose Mitchell’s and Duda’s personnel and internal investigation
files. After conducting our own review of the files, we conclude that
certain records from Mitchell’s files should have been disclosed to
Lowe.
A. Additional Background
¶7 Before trial, Lowe’s counsel served a subpoena duces tecum
on the El Paso County Sheriff’s Office to produce “personnel and
internal affairs files” for Duda and Mitchell, including any
allegations of misconduct, mishandling evidence, dishonesty, and
excessive use of force. The Sheriff’s Office provided the court with
Mitchell’s and Duda’s professional and personnel files for in camera
review. The Sheriff’s Office also provided the prosecution certain
records regarding the officers’ use of force to release to the defense
through discovery. Because part of that record involved the use of
3
force on a juvenile, the Sheriff’s Office asked the court to determine
what portion of the record, if any, should be released with a
protection order.
¶8 After conducting an in camera review, the court declined to
release the files. The court ruled that none of the files were relevant
to Lowe’s case, finding that “[a]ny relevancy of the reviewed records
from [the Sheriff’s Office] is remote and speculative at best.” The
court also found that the officers’ privacy expectation outweighed
Lowe’s interest in disclosure; therefore, the court denied the release
of any of Mitchell’s or Duda’s records.
B. Applicable Law and Standard of Review
¶9 There is no general constitutional right to discovery in a
criminal case. People v. Dist. Court, 790 P.2d 332, 338 (Colo. 1990).
However, the prosecution must provide to the defense any evidence
that is favorable to the accused and material to the guilt or
punishment of the accused. Brady v. Maryland,
373 U.S. 83, 88
(1963).
¶ 10 Under Crim. P. 16, a criminal defendant is entitled to
discovery of material and information in the possession or control of
law enforcement. Crim. P. 16(1)(a)(3); see also People v. Gallegos,
4
644 P.2d 920, 924 (Colo. 1982) (recognizing that Crim. P. 16
embodies a broad standard of disclosure, where information that
would be inadmissible at trial may still be relevant, as long as the
content of the information is relevant to the defense’s conduct).
Specifically, the prosecution must disclose exculpatory evidence to
the defense, meaning evidence that is material: “evidence is
material only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different.” People v. White,
64 P.3d 864, 874 (Colo.
App. 2002) (quoting People v. Wilson,
841 P.2d 337, 339 (Colo. App.
1992)); see also People v. James,
40 P.3d 36, 49 (Colo. App. 2001)
(“Exculpatory evidence includes evidence that bears on the
credibility of a witness the prosecution intends to call at trial.”).
¶ 11 At the same time, our supreme court has recognized that
police officers have a right to privacy in their personnel files. See
People v. Spykstra,
234 P.3d 662, 670 (Colo. 2010). To obtain
disclosure of such files, a defendant must “make a greater showing
of need.”
Id. Thus, a police officer’s expectation of privacy may be
overridden by “the state’s compelling interest in the determination
of the truth and safeguarding of the defendant’s right to exculpatory
5
evidence.” People v. Walker, 666 P.2d 113, 122 (Colo. 1983); see
also Martinelli v. Dist. Court,
199 Colo. 163, 174,
612 P.2d 1083,
1091 (1980) (holding that when a party seeks disclosure of
confidential personal information, the trial court must conduct a
balancing inquiry, asking whether disclosure is required to serve a
“compelling state interest” despite a party’s legitimate privacy
expectation). When conducting an in camera review, a trial court
may not draw a distinction between sustained and unsustained
complaints. Walker,
666 P.2d at 122. And a defendant who is
charged with assaulting a police officer is entitled to disclosure of
complaints charging excessive use of force filed against that officer.
Id. at 121-22.
¶ 12 When a defendant challenges a trial court’s ruling denying
access to records, we conduct an independent review of the records
to determine whether any should have been disclosed. People v.
West,
2019 COA 131, ¶ 31. But, we review a trial court’s resolution
of discovery issues for an abuse of discretion. People in Interest of
A.D.T.,
232 P.3d 313, 316 (Colo. App. 2010).
¶ 13 If the trial court abused its discretion by failing to disclose
certain documents, the proper remedy is to remand the case to the
6
trial court with instructions to provide the documents to the
parties. Zoll v. People, 2018 CO 70, ¶ 12. On remand, the trial
court must allow the defendant an opportunity to “demonstrate a
reasonable probability that, had the documents been disclosed
before trial, the result of the proceeding would have been different.”
Id.
C. Analysis
¶ 14 Lowe contends that the trial court erred by refusing to disclose
any of Duda’s and Mitchell’s files. Because Duda’s and Mitchell’s
testimony was the prosecution’s only evidence that Lowe threatened
the officers with a knife, and the officers’ credibility was central to
Lowe’s defense, he contends that he was prejudiced by the lack of
disclosure. We agree in part.
¶ 15 After reviewing Duda’s sealed personnel and internal
investigation files, we agree with the trial court that Lowe’s interest
in obtaining exculpatory information does not outweigh Duda’s
privacy interest because Duda’s files contain no relevant or material
information. See White, 64 P.3d at 874. However, after reviewing
Mitchell’s sealed files, particularly reviewing for complaints against
Mitchell charging excessive use of force and challenging Mitchell’s
7
credibility, see James, 40 P.3d at 49, we conclude that the following
records relate to Mitchell’s credibility and should have been
disclosed:
(1) documentation from a professional misconduct
investigation initiated in August 2000 based, in part, on
an allegation that Mitchell falsified reports;
(2) documentation from a professional misconduct
investigation based on an October 7, 2000, incident
alleging that Mitchell failed to report the use of force and
then embellished the facts of the incident, and the
complaint was deemed sustained;
(3) documentation from an internal investigation based on
an October 14, 2000, incident and citizen complaint,
where it was determined that Mitchell made false
statements and he failed to fully investigate an incident;
(4) documentation from an internal investigation initiated in
2001 based on a citizen complaint, where Mitchell’s
supervisors stated during a performance review that
Mitchell incorrectly documented incident reports and
embellished facts;
8
(5) documentation from an internal investigation initiated in
2004 for departure from the truth, and the allegation was
deemed unfounded, see Walker, 666 P.2d at 122; and
(6) documentation from an internal investigation initiated in
2010 based on a citizen complaint, where it was alleged
that Mitchell falsified information in an incident report
and the allegation was deemed unfounded, see id.4
¶ 16 Because Lowe disputes Mitchell’s account of his arrest —
mainly, that Lowe threatened the officers with a knife, and the
officers’ testimony was the prosecution’s principle evidence on the
issue — these discoverable files were relevant and material to
Lowe’s defense. See id. at 121-22; White,
64 P.3d at 874; James, 40
4 Examples of such documentation are found on the sealed,
unredacted CD labeled, “Sgt. Shane Mitchell,” on the following pdfs:
“Request to remove corrective action.pdf,” pages 4-7; “01-13
Complete.pdf,” pages 100-01; and “11-64 Complete.pdf,” pages 318-
19. We do not suggest that this list includes all documents falling
within the six identified categories; the district court must conduct
its own review on remand to ensure all relevant documents are
properly disclosed. The source documents for certain investigative
proceedings are not in the files provided to us on appeal. Because
the record contains no information concerning the Sheriff’s
Department’s document retention policies, we cannot speculate
about why certain documents were provided to us and others were
not. We base our disclosure order only on those documents that
are before this division.
9
P.3d at 49; see also Scherbarth v. Woods, No. 16-CV-2391-KHR,
2018 WL 851344, at *4 (D. Colo. Feb. 13, 2018) (“The court finds
that because Defendants’ credibility is at issue in the excessive
force claim, Plaintiff has shown sufficient need for potential
impeachment evidence from Defendants’ personnel and internal
investigation files to outweigh Defendants’ privacy interest.”); Zoll,
¶ 11 (recognizing that “an appellate court cannot review the
improperly withheld documents with an advocate’s eye,” especially
where “the case turns on the witnesses’ credibility and the
undisclosed information relates directly to the credibility of the
prosecution’s primary witness”). But any incident relating to
insubordination or abuse of authority while off-duty are not subject
to disclosure because Lowe does not dispute that he resisted arrest
or that Mitchell had the right to arrest him. See James,
40 P.3d at
50 (“Our review of the sealed information reveals that the
information was not likely to have exculpated defendant or have
provided impeaching material concerning prosecution witnesses.”).
¶ 17 Accordingly, we conclude that the trial court abused its
discretion by not disclosing to the defense information in Mitchell’s
personnel and internal investigation files where it was found, or
10
alleged, see Walker, 666 P.2d at 122, that Mitchell misreported
information, departed from the truth, or embellished facts, see
People in Interest of A.D.T.,
232 P.3d at 316. In deciding that the
subject materials were discoverable to the defense we do not decide,
however, how the trial court would have ruled on their admissibility
at trial or what protections or redactions the trial court may require
on remand.
¶ 18 We remand for trial court to disclose to Lowe’s counsel the
previously referenced information (subject to any redactions the
court deems appropriate) and any other documentation where it
was alleged or reported that Mitchell misreported information,
departed from the truth, or embellished facts. See Zoll, ¶ 12. On
remand, the trial court should allow Lowe to attempt to make the
requisite showing of prejudicial error. See
id. If the trial court
concludes there is a reasonable probability that the result of the
trial would have been different, then it must grant Lowe a new trial;
but, if the trial court finds no such reasonable probability exists,
then it may leave in place its judgment of conviction, subject to
Lowe’s right to appeal. See
id.
11
III. Habitual Criminal Hearing
¶ 19 Lowe next argues that the trial court erred during the habitual
criminal hearing by (1) allowing the prosecution’s fingerprint
comparison witness to be qualified as an expert and (2) relying on
Lowe’s prior escape conviction in adjudicating him a habitual
criminal.
A. Additional Background
¶ 20 The People’s complaint alleged six habitual criminal counts for
Lowe’s prior felony convictions: escape, aggravated motor vehicle
theft, second degree introduction of contraband, aggravated
robbery, first degree aggravated motor vehicle theft, and vehicular
eluding.5 After Lowe’s jury trial, the court held a habitual criminal
hearing to determine whether Lowe had previously been brought,
tried, and convicted of multiple felony offenses.
¶ 21 During the hearing, the prosecution offered testimony by
Phillip Donner, an investigator for the District Attorney’s Office, and
asked that he be qualified as an expert in fingerprint comparison.
5The complaint alleged six habitual criminal counts, but during the
habitual criminal hearing the prosecution dismissed the habitual
count for Lowe’s prior vehicular eluding conviction.
12
Regarding his training and experience, Donner testified that he had
completed a sixteen-hour class with Jeff Saviano — a fingerprint
examination instructor who attended a fingerprint examination
course hosted by the Federal Bureau of Investigation — over a
month-long period in April 2011. Donner also testified that he had
done at least seventy-three fingerprint comparisons and had been
qualified as an expert in fingerprint comparison thirteen times.
¶ 22 During defense counsel’s voir dire examination, it was
established that, while Donner had attended several informal
training review classes since 2011, he had no nationally recognized
certifications other than his 2011 certification, he had not
published papers related to fingerprint comparisons nor taught
certified courses in forensic fingerprint testing, and he had not been
tested to determine his error rate in fingerprint comparisons.
However, Donner also testified that after he does a fingerprint
comparison, another person does an independent comparison to
verify his finding, and he had never been advised that he had
mismatched fingerprints.
¶ 23 The trial court ruled that Donner could be qualified as a
fingerprint comparison expert under CRE 702 because
13
Donner has had specific technical and
specialized training in the area of fingerprint
analysis consisting of a 16-hour [class
where] . . . Donner learned not only about the
history of fingerprints, the classification of
fingerprints, but more relevant to this case, the
specific ability to make analyses of fingerprint
comparisons based on that training . . .[;] he
has continued to engage in what I will refer to
as peer reviews and continuing to review the
techniques that he was certified in in his 2011
class; [and] the District Attorney’s Office
employs a practice for review of an
investigator’s fingerprint analysis for purposes
of assurance of the process. . . . So the Court
finds based on that this is a reliable, scientific
process; that it is relevant to the identification
issues before the Court; that it would be
helpful for the Court to hear an expert with
regards to fingerprint comparison as to this
one element of the habitual criminal findings
required by the Court.
¶ 24 As the People’s expert, Donner testified that he obtained
Lowe’s fingerprints on a fingerprint card and then compared that
card with fingerprint cards previously taken from Lowe in
connection with his prior felony convictions, and the fingerprints
matched.
¶ 25 After the prosecution’s evidence presentation, the trial court
found that the People had proved beyond a reasonable doubt that
Lowe had five prior felony convictions, including a prior escape
14
conviction. Thus, the court concluded that Lowe would be
sentenced as a habitual criminal.
B. Expert Testimony
1. Preservation and Standard of Review
¶ 26 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Relaford, 2016 COA 99, ¶ 25. An abuse of
discretion occurs when a trial court’s ruling was manifestly
arbitrary, unreasonable, or unfair, or if it misapplied the law.
Id.
¶ 27 After the defense’s voir dire of Donner, Lowe’s counsel objected
to his testimony, albeit not on specific grounds. Generously
construing Lowe’s objection, we review for harmless error. See
Yusem v. People,
210 P.3d 458, 469 (Colo. 2009). Under this
standard, any erroneous admission of evidence requires reversal
unless there is no reasonable probability that it contributed to
Lowe’s conviction by substantially influencing the verdict or
impairing the fairness of the trial. Id.
2. Law and Analysis
¶ 28 CRE 702 governs the admissibility of expert testimony and
allows qualified experts to testify at trial when their “specialized
knowledge will assist the trier of fact to understand the evidence or
15
to determine a fact in issue.” See also People in Interest of
Strodtman, 293 P.3d 123, 129-30 (Colo. App. 2011) (recognizing
that under CRE 702’s “broad” and “liberal” standard, a trial court
may admit expert testimony “if the witness can offer ‘appreciable’
assistance on a subject beyond the understanding of an ‘untrained
layman’”) (citation omitted). And a trial court has broad discretion
to determine the admissibility of expert testimony. Golob v. People,
180 P.3d 1006, 1011 (Colo. 2008); see also People v. Williams,
790
P.2d 796, 798 (Colo. 1990) (“This deference reflects the superior
opportunity of the trial judge to gauge both the competence of the
expert and the extent to which his opinion would be helpful to the
jury.”) (citation omitted). When an expert’s testimony is scientific in
nature, the evidence must be relevant and reliable to be admitted.
People v. Ramirez,
155 P.3d 371, 378 (Colo. 2007). A trial court
must make specific findings concerning reliability and relevance
before admitting CRE 702 testimony. Ruibal v. People,
2018 CO 93,
¶ 13.
¶ 29 Lowe argues that the trial court abused its discretion by
qualifying Donner as an expert because Donner had (1) minimal
training, comprised of one class held years before his testimony; (2)
16
undergone no formal testing after April 2011; (3) no nationally
recognized certification or specialized licensing for fingerprint
examiners; (4) neither published nor taught classes on fingerprint
comparison; and (5) never been tested to determine his error rate in
fingerprint comparisons outside of the April 2011 class and test.6
¶ 30 We conclude that the trial court did not abuse its discretion by
qualifying Donner as an expert, and we reject Lowe’s comparison to
Williams, 790 P.2d at 798 (affirming the trial court’s refusal to
qualify the defense’s witness as an expert in analytical chemistry
and firearms identification).
¶ 31 While Lowe contends that Donner’s training was insufficient
for him to be qualified as an expert, he fails to identify a specific
national certification or specialized license that fingerprint
comparison experts are expected to possess. Cf.
id. at 800 (defense
witness testified that he was not recognized by the only national
organization that recognizes qualified experts in the field of firearms
6 Lowe does not argue that the scientific principles underlying the
expert’s testimony were not reliable, nor that the testimony was not
helpful. See People v. Rector,
248 P.3d 1196, 1200 (Colo. 2011).
Rather, he only argues that Donner was not qualified to opine on
fingerprint comparison.
17
identification). Rather, Donner testified that he completed a
sixteen-hour class with Saviano over a month-long period only five
years earlier, and he had attended several informal training review
classes since 2011. Cf. id. at 798 (defense witness’s training
consisted of only one course that he audited about twenty years
prior to his testimony, he was unable to remember the name of the
course or the instructor’s name, he did not receive a grade in the
course, and he could not remember taking any examinations in the
course). These trainings allowed Donner to conduct at least
seventy-three fingerprint comparisons, and he was previously
qualified as an expert in fingerprint comparison thirteen times. Cf.
id. at 799 (defense witness testified that he had previously been
qualified as an expert in ten cases, but he also testified that the last
time he was qualified as an expert in firearms identification was
approximately five years before he testified in the present case).
Donner also testified that after he does a fingerprint comparison,
another person does an independent comparison to verify his
finding, and he had never been advised that he had mismatched
fingerprints. Cf. id. at 799 (defense witness admitted that no one
supervised the comparisons he did).
18
¶ 32 Accordingly, it was well within the trial court’s discretion to
allow Donner to testify as an expert and to weigh that testimony.
See Golob, 180 P.3d at 1011; People in Interest of Strodtman,
293
P.3d at 129-30.
C. Prior Escape Conviction
1. Preservation and Standard of Review
¶ 33 Lowe preserved his contention that the trial court could not
rely on a prior escape conviction in adjudicating Lowe a habitual
criminal. Regardless, a defendant may raise a claim that his
sentence is unauthorized at any time. People v. Stellabotte, 2016
COA 106, ¶ 42, aff’d on other grounds,
2018 CO 66.
¶ 34 We review the legality of Lowe’s sentence de novo. See People
v. Rice,
2015 COA 168, ¶ 10; see also People v. Phillips,
2012 COA
176, ¶ 17 (we review a trial court’s application of sentencing
statutes de novo).
2. Law and Analysis
¶ 35 The parties agree that the trial court erred by relying on Lowe’s
prior escape felony conviction in adjudicating him a habitual
criminal. See § 18-1.3-801(5), C.R.S. 2019 (A “prior conviction for
escape, as described in section 18-8-208(1), (2), or (3)[, C.R.S.
19
2019,] . . . may not be used for the purpose of adjudicating a person
an habitual criminal[.]”). However, the People argue that, while the
trial court erred, no remand is necessary because the error was
harmless. We disagree.
¶ 36 We recognize that Lowe would have been adjudicated a
habitual criminal even without the prior escape conviction. The
trial court found that the prosecution had proved beyond a
reasonable doubt that Lowe had four other prior felony convictions,
and section 18-1.3-801(2)(a)(I) only requires three prior convictions
to be adjudged a habitual criminal. Nonetheless, because the plain
language of section 18-1.3-801(5) explicitly forbids the use of a
prior escape conviction to support a habitual criminal adjudication,
we remand for correction of the mittimus to strike the reference to
Lowe’s prior escape conviction. Of course, the habitual
adjudication and resulting sentence otherwise stands.7
7Count 12 was Lowe’s prior felony escape conviction. The People
asserted that Lowe had been convicted on October 22, 2007, in El
Paso County, case number 2007CR2500, of escape in violation of
section 18-8-208(3), C.R.S. 2019.
20
IV. Multiplicity of Resisting Arrest Convictions
¶ 37 Lowe next argues that his two resisting arrest convictions
should merge. We agree.
A. Preservation, Standard of Review, and Applicable Law
¶ 38 We review de novo a claim that a defendant’s conviction
violates his constitutional protection against double jeopardy.
People v. Arzabala, 2012 COA 99, ¶ 19; see also People v.
Denhartog,
2019 COA 23, ¶ 73 (“Whether convictions for different
offenses merge is a question of law that we review de novo.”).
Because Lowe did not preserve this issue for appeal, we review his
double jeopardy claim for plain error. See Reyna-Abarca v. People,
2017 CO 15, ¶ 47. But even when unpreserved, courts have
generally concluded that when a defendant’s double jeopardy rights
have been violated, he is entitled to the appropriate relief on appeal.
Friend v. People,
2018 CO 90, ¶ 45.
¶ 39 The United States and Colorado Constitutions protect an
accused from being twice placed in jeopardy for the same crime.
U.S. Const. amend. V; Colo. Const. art. II, § 18; see also Arzabala,
¶ 20. Specifically, the Double Jeopardy Clauses protect defendants
from multiplicity, meaning the charging of multiple counts and the
21
imposition of multiple punishments for the same criminal conduct.
Arzabala, ¶ 20; see also Denhartog, ¶ 74 (“Multiplicity may arise
‘where a defendant is charged with and convicted of multiple counts
under a single criminal statute, and the statute does not create
more than one offense but, rather, provides for alternative ways of
committing the same offense.’” (quoting People v. Barry, 2015 COA
4, ¶ 95)). However, the Double Jeopardy Clauses do not prevent a
defendant from being subjected to multiple punishments based
upon the same criminal conduct as long as such punishments are
“specifically authorized” by the General Assembly. Patton v. People,
35 P.3d 124, 129 (Colo. 2001) (citation omitted).
¶ 40 We determine whether multiple punishments are permissible
by looking to the legislatively prescribed unit of prosecution. People
v. McMinn,
2013 COA 94, ¶ 20. The unit of prosecution is the
manner in which a criminal statute allows a defendant’s conduct to
be divided into discrete acts for purposes of prosecuting multiple
offenses.
Id. “To determine the unit of prosecution, we look
exclusively to the statute.” Arzabala, ¶ 23. In construing a statute,
we must determine and effectuate the intent of the General
22
Assembly, which we discern when possible from the plain and
ordinary meaning of the statutory language. Id.
¶ 41 A statute that prescribes a single unit of prosecution does not
immunize a defendant from being punished separately for
successive commissions of the same offense. Friend, ¶ 21.
Accordingly, after identifying the unit of prosecution, we next
examine the evidence to determine whether the defendant’s conduct
constituted factually distinct offenses. McMinn, ¶ 22; see also § 18-
1-408(1)(e), C.R.S. 2019 (A defendant may not be convicted of more
than one offense if the “offense is defined as a continuing course of
conduct and the defendant’s course of conduct was uninterrupted,
unless the law provides that specific periods or instances of such
conduct constitute separate offenses.”).
¶ 42 In determining whether offenses are factually distinct, we look
to all of the evidence introduced at trial and may consider (1)
whether the acts occurred at different times and were separated by
intervening events; (2) whether there were separate volitional acts in
the defendant’s course of conduct; and (3) factors such as temporal
proximity, the location of the victim, the defendant’s intent as
indicated by his conduct and utterances, and the number of
23
victims. McMinn, ¶ 22. If we conclude that the convictions are not
based on factually distinct offenses, then the convictions merge. Id.
at ¶ 23.
¶ 43 As relevant here, a person commits resisting arrest when he
knowingly “attempts to prevent a peace officer, acting under color of
his official authority, from effecting an arrest” by
(a) Using or threatening to use physical force
or violence against the peace officer or another;
or
(b) Using any other means which creates a
substantial risk of causing bodily injury to the
peace officer or another.
§ 18-8-103(1), C.R.S. 2019.
B. Analysis
¶ 44 Lowe argues that his two resisting arrest convictions should
merge because the unit of prosecution for resisting arrest is based
upon the number of arrests that are resisted, not the number of
officers present. Therefore, he reasons that because he only
resisted a single arrest, the two resisting arrest convictions violate
his constitutional protection against double jeopardy. We agree in
part.
24
¶ 45 This appears to be an issue of first impression in Colorado.
We agree with Lowe that the unit of prosecution for resisting arrest
is not based on the number of victim-officers resisted. However, we
disagree that the unit of prosecution is based upon the number of
arrests resisted. Based on the plain language of the statute, see
§ 18-8-103(1); Arzabala, ¶ 23, we conclude that the unit of
prosecution for resisting arrest is the number of discrete volitional
acts of resisting arrest, see McMinn, ¶ 26 (“[T]he unit of prosecution
for vehicular eluding must be defined not in terms of the number of
officers involved, but in terms of discrete volitional acts of eluding
that have endangered the public.”); Arzabala, ¶ 26 (“Based on our
interpretation of the plain language of the [leaving the scene of the
accident resulting in serious bodily injury] statute, we conclude that
the legislatively prescribed unit of prosecution is the number of
accident scenes, not the number of victims involved in the
accident.”); see also Purnell v. State, 827 A.2d 68, 80 (Md. 2003)
(“Having determined that the two resisting arrest counts charged by
the State are the same for double jeopardy purposes and that the
petitioner’s conduct in resisting the officers’ attempt to arrest him
constituted one continuous act, we hold that the petitioner is guilty
25
of but one charge of resisting arrest, notwithstanding that there
were two officers attempting to make the arrest.”).
¶ 46 Accordingly, we must next determine whether Lowe’s
convictions are based on distinct volitional acts of resistance or
whether his actions constituted one continuous act of resistance
requiring his convictions to merge. See McMinn, ¶ 31 (“[W]e
conclude that a defendant may be charged with multiple offenses of
eluding a police officer arising from a single criminal episode when
he or she has performed discrete acts of eluding, each constituting
a new volitional departure in the defendant’s course of conduct.”).
¶ 47 When Lowe was charged with two counts of resisting arrest
from the May 2015 altercation in Hobby Lobby, the prosecution
alleged that Lowe knowingly prevented Mitchell and Duda from
arresting him by using physical force. After reviewing the evidence
presented at trial, see id. at ¶ 22, we cannot conclude that Lowe’s
actions can support two resisting arrest convictions. Rather, we
conclude that Lowe’s resistance was a continuous course of action
to avoid a single arrest that did not end until he was shot by
Mitchell. Because Lowe was never subdued, the attempt to arrest
26
him was never re-initiated. Therefore, we hold that the two
resisting arrest convictions should merge. See id. at ¶ 23.
¶ 48 There was no intervening event during the arrest. The People
contend that when Duda first sought to place Lowe in handcuffs
and Lowe broke free, this action constituted an intervening event.
But, we disagree given that Duda and Mitchell sought, at the same
time, to effectuate one arrest. Instead, from Lowe’s initial act of
resistance, he continually refused to cooperate and resisted and
was not subdued until the officers quickly escalated their use of
force.
¶ 49 Our conclusion is further supported by the fact that the
altercation occurred over a brief period of time at a single location.
The officers initially attempted to arrest Lowe while he was speaking
on the phone at a desk in the floral department, and he was later
arrested in the same floral department, where the entire altercation
occurred. See id. at ¶ 22; cf. People v. Gingles, 2014 COA 163, ¶ 42
(“Here, as in McMinn, the two counts of eluding involved separate
offenses because they involved separate acts of eluding committed
by defendant at different times and places. Defendant initially
eluded both officers until, as in McMinn, only one of the two officers
27
could continue the pursuit. . . . Defendant’s avoidance of the one
deputy’s attempt to stop him constituted a ‘new volitional departure
in the defendant’s course of conduct,’ separate from his earlier,
initial act of eluding both of the deputies.”).
¶ 50 Accordingly, we conclude that the trial court plainly erred by
not merging Lowe’s two resisting arrest convictions and remand for
the trial court to amend the mittimus to reflect the merger of the
resisting arrest convictions.
V. Consecutive Sentencing
¶ 51 Lowe last argues that the trial court erred when it found that
consecutive sentencing was required for his two first degree assault
convictions. Rather, Lowe contends that the court retained its
discretion to impose concurrent or consecutive sentences; therefore,
a remand is required. See Rice, ¶ 9 (“[W]hen the court
misapprehends the scope of its discretion in imposing a sentence,
the sentence must be vacated and the defendant must be
re-sentenced using the correct range.”). We disagree.
A. Additional Background
¶ 52 Relying on the habitual criminal and crime of violence
sentencing enhancers, the trial court imposed consecutive
28
sixty-four-year sentences for Lowe’s first degree assault convictions.
At the sentencing hearing, the trial court disagreed with Lowe’s
counsel that it was within the court’s discretion to impose
consecutive or concurrent sentences. Rather, the court found that
consecutive sentencing was required because the convictions were
based on separate crimes of violence:
in the course of the incident, the evidence
showed that [Lowe] separately struggled with
each deputy, swung the knife at each of them,
along with an additional incident where
Lieutenant Mitchell described Lowe [as] still
armed . . . [and as] “stalking his partner”
before Lieutenant Mitchell fired his service
weapon. Thus, the Court finds that these
separately charged and brought and separately
found verdicts of guilty arise out of the same
incident requiring the Court to impose
consecutive sentences pursuant to [section]
18-1.3-406.
¶ 53 Although the court found consecutive sentencing mandatory,
it further noted that even if it could have exercised its discretion in
sentencing, it nonetheless would have imposed consecutive
sentences for Lowe’s first degree assault convictions. The court
stated,
Due to the serious nature of these charges that
law enforcement, in the attempt to perform
their duties, which was execute an arrest
29
warrant for Mr. Lowe who was on escape
status, were confronted quickly, aggressively
by Mr. Lowe. . . . Lieutenant Mitchell testified
that this was a nightmare experience in his 18
years of service with the El Paso County
Sheriff’s Department. He’s only had seven
arrests go as poorly and nearly deadly as this
one did. So for purposes of appeal, even if a
reviewing court were to disagree with the
Court’s analysis under [section] 18-1.3-406
that these incidents did qualify for mandatory
consecutive sentencing as I found . . . due to
the grave and serious nature of this offense
committed against law enforcement officers,
the Court does not find that concurrent
sentences would be appropriate. It diminishes
the seriousness of the offense. It diminishes
the risk that law enforcement was placed in
during the course of the performance of their
duties.
B. Preservation and Standard of Review
¶ 54 Although Lowe failed to object at sentencing on the grounds
now raised on appeal, a defendant may raise a claim that his
sentence is unauthorized by law at any time. Stellabotte, ¶ 42. We
review the legality of Lowe’s sentence de novo. See Rice, ¶ 10; see
also Phillips, ¶ 17.
C. Law and Analysis
¶ 55 First degree assault is a class 3 felony and subject to the crime
of violence sentence enhancer, see § 18-3-202(2)(b)-(c), C.R.S. 2019,
30
which increases the presumptive sentencing range for a class 3
felony, see § 18-1.3-406(1)(a), C.R.S. 2019. Additionally, because
Lowe’s first degree assault convictions are class 3 felonies classified
as crimes of violence, the extraordinary risk sentencing enhancer
also applies; thus, the maximum sentence in the presumptive range
was sixteen years. See § 18-1.3-401(10)(b)(XII), C.R.S. 2019.
Finally, because the trial court found that Lowe had at least three
previous felony convictions, he was adjudicated a habitual criminal
pursuant to section 18-1.3-801, which provides a sentencing
enhancer for a term of four times the maximum of the presumptive
range, see § 18-1.3-801(2)(a)(I)(A). Accordingly, Lowe was sentenced
to sixty-four years for each first degree assault conviction.
¶ 56 Lowe does not dispute that his first degree assault convictions
are crimes of violence nor that they are considered extraordinary
risk crimes, and he agrees that the trial court properly calculated
sixty-four years as the appropriate sentence for his first degree
assault convictions. However, he argues that the trial court erred
when it found that consecutive sixty-four-year terms were
mandatory. While Lowe acknowledges that the crime of violence
statute mandates consecutive sentencing for separate crimes of
31
violence, see § 18-1.3-406(1)(a), he argues that the habitual
criminal statute preempts the crime of violence statute, see People
v. Apodaca, 58 P.3d 1126, 1131 (Colo. App. 2002) (“[T]he habitual
criminal sentencing statute has been interpreted as preempting any
otherwise applicable sentencing statute that would result in a less
severe sentence[.]”); People v. Hoefer,
961 P.2d 563, 569 (Colo. App.
1998) (“[W]e conclude that the crime of violence sentencing
provisions are inapplicable to persons, such as defendant, who are
adjudicated as habitual criminals.”). Because Lowe contends that
section 18-1.3-406(1)(a), mandating consecutive sentencing for
separate crimes of violence, was preempted by the habitual criminal
statute, he argues that the trial court misapprehended whether it
had discretion in sentencing and therefore a remand is necessary.
See Rice, ¶ 9.
¶ 57 While we agree that Apodaca and Hoefer concluded that the
habitual criminal statute preempted the crime of violence statute in
those cases, we also recognize that their holdings were limited to
ensure that the defendant served a longer sentence. See Apodaca,
58 P.3d at 1131 (The habitual criminal sentencing statute was
“enacted for the purpose of increasing the punishment for repeat
32
offenders,” and to be consistent with this purpose, the habitual
criminal sentencing statute only preempts an “otherwise applicable
sentencing statute that would result in a less severe sentence. . . .
We are unaware of any decision interpreting the habitual criminal
sentencing statute as establishing the maximum possible sentence
where the defendant is also subject to sentencing under a second
statute authorizing a greater maximum sentence. We decline to
adopt such a construction in this case because it would flout the
central purpose of the habitual criminal sentencing statute.”);
Hoefer, 961 P.2d at 569 (holding that the crime of violence statute
was inapplicable to the defendant, who was also adjudicated a
habitual criminal, because the habitual criminal sentence imposed
three times the maximum sentence, whereas the crime of violence
statute would only allow the defendant to be sentenced to not more
than twice the maximum, which “would result in nonsensical
results whereby those convicted of crimes of violence could avoid
sentencing as habitual criminals”).
¶ 58 Thus, Apodaca and Hoefer hold that the habitual criminal
statute preempts the crime of violence statute only in regards to
imposing the greater sentence on the defendant. Accordingly, Lowe
33
fails to identify Colorado law supporting his proposition that section
18-1.3-406(1)(a) is preempted when a defendant is also adjudicated
a habitual criminal.8 Indeed, previous divisions of this court have
rejected similar arguments and instead held that the crime of
violence statute’s mandatory consecutive sentencing provision was
not preempted by the habitual criminal statute. See People v.
Chavez, 2020 COA 80, ¶ 13 (“The habitual criminal statute says
nothing about whether multiple habitual criminal sentences should
be imposed consecutively or concurrently. . . . Because the crime of
violence statute’s consecutive sentencing requirement does not
conflict with the habitual criminal statute, we must give effect to
both.”); People v. Pena,
794 P.2d 1070, 1071-72 (Colo. App. 1990)
(recognizing that while the habitual criminal statute preempts an
otherwise applicable sentencing statute to ensure that a trial court
may not impose a lesser sentence, the division concluded that “the
preemptive scope of the habitual criminal statute does not extend
so far as to preclude the mandatory consecutive sentencing
requirement for multiple crimes of violence arising out of the same
8The habitual criminal statute is silent as to whether a court has
discretion to, or must, impose consecutive or concurrent sentences.
34
incident”), overruled on other grounds by Robles v. People, 811 P.2d
804 (Colo. 1991). Given the habitual criminal statute’s emphasis
on increasing punishment, see Apodaca,
58 P.3d at 1131; Hoefer,
961 P.2d at 569; see also Arzabala, ¶ 23, we find Pena and Chavez
persuasive and therefore reject Lowe’s argument that the crime of
violence mandatory consecutive sentencing provision is preempted
by the habitual criminal statute.
¶ 59 We also agree with the trial court that consecutive sentencing
was required under the crime of violence statute because Lowe’s
first degree assault convictions were separate crimes of violence
that were not based on identical evidence.9 See § 18-1.3-406(1)(a);
People v. O’Shaughnessy,
275 P.3d 687, 697 (Colo. App. 2010)
(“Crimes of violence are ‘separate’ if not based on identical
9 We conclude that Lowe’s actions can support only one resisting
arrest conviction because his actions constituted a continuous act
of resistance rather than factually distinct, volitional acts of
resistance. We reached such a conclusion because Lowe’s
resistance occurred over a brief period of time, in a single location,
with no intervening event. See People v. McMinn,
2013 COA 94,
¶ 22. But, we conclude that Lowe’s actions were separate crimes of
violence for purposes of his first degree assault convictions because
we must consider his actions under a narrower standard: whether
Lowe’s first degree assault convictions, against different victims,
were based on identical evidence.
35
evidence[.]”), aff’d but criticized by 2012 CO 9. Because Lowe was
convicted of separately threatening two different victims, we cannot
conclude that the convictions were based on identical evidence. See
People v. Espinoza,
2020 CO 43, ¶ 21 (“[O]ffenses defined in terms
of their victimization of another and committed against different
victims are not capable of being proved by identical evidence[.]”).
¶ 60 Thus, because we agree with the trial court that Lowe’s first
degree assault convictions were not based on identical evidence,
and we conclude that the habitual criminal statute does not
preempt section 18-1.3-406(1)(a), we hold that the trial court did
not err in finding that consecutive sentencing was required.
VI. Correction of the Mittimus
¶ 61 The parties agree that Lowe’s case should be remanded to
correct the mittimus to reflect one sentence for counts 1 and 18,
and one sentence for counts 2 and 19, because those counts
merged. The mittimus incorrectly reflects a sentence for each
count. We agree that the mittimus must be corrected to reflect the
accurate sentence.
36
VII. Conclusion
¶ 62 We remand to the trial court for it to disclose the specified
parts of Mitchell’s personnel and internal investigation files and to
allow Lowe to attempt to make the requisite showing of prejudicial
error. If the trial court concludes there is a reasonable probability
that the result of the trial would have been different, then it must
grant Lowe a new trial; but, if the trial court finds no such
reasonable probability exists, then it may leave in place its
judgment of conviction, subject to Lowe’s right to appeal.
¶ 63 We also remand so the trial court can amend the mittimus to
reflect the merger of Lowe’s resisting arrest convictions and to
otherwise correct the mittimus as instructed. We affirm the
remaining judgments of conviction and sentence subject to the
possibility of a new trial.
JUDGE BROWN and JUDGE ROTHENBERG concur.
37
