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People v. Snider.

2021 COA 19. No. 18CA0598.  Criminal Law—Second Degree Assault on a Peace Officer—Resisting Arrest—Obstruction—Jury Instructions—Self-Defense—Affirmative Defense—Evidence—Prosecutorial Misconduct—Mistrial—Unanimous Verdict—Unit of Prosecution—Double Jeopardy—Lesser Included Offense.

February 18, 2021


Two deputies were dispatched to defendant’s home for a well-being check in response to a report that defendant was threatening to harm himself and others. On the way to the scene, the deputies learned that defendant had an active arrest warrant. When the deputies arrived at defendant’s home, defendant indicated that he was not suicidal, and the deputies tried to place him under arrest on the outstanding warrant. Defendant ran from the deputies and then physically fought with them until they restrained and took him into custody. A jury convicted defendant of second degree assault on a peace officer, resisting arrest, and obstructing a peace officer.

On appeal, defendant contended 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. Because defendant denied committing second degree assault, he was not entitled to receive an affirmative defense instruction as to that charge.

Defendant also contended that the trial court erred by denying his motion for a mistrial based on alleged prosecutorial misconduct. Here, the prosecutor asked Deputy Martinez: “Was there any indication to you that there was illegal narcotics—” at which point defense counsel objected, the judge sustained the objection, and the court instructed the jury to disregard the question. Although the question was improper, the possible prejudice to defendant was not substantial enough to warrant a mistrial.

Defendant also argued that the trial court violated his right to a unanimous verdict as to the charges of resisting arrest and obstruction. The unit of prosecution for resisting arrest and obstruction of a peace officer is defined in terms of discrete volitional acts, not by the number of officers involved. Therefore, the jury was not required to unanimously agree that defendant had resisted arrest from or obstructed a particular peace officer, only that he had resisted arrest from or obstructed any officer. Accordingly, there was no violation of defendant’s rights.

Lastly, defendant argued that the trial court violated his double jeopardy rights because resisting arrest is a lesser included offense of second degree assault on a peace officer, and the trial court erred by failing to merge these convictions. The Court of Appeals examined the offenses and concluded that resisting arrest is a lesser included offense of second degree assault on a peace officer. Accordingly, the trial court plainly erred by failing to merge the convictions.

The judgment of conviction for second degree assault on a peace officer and obstruction of a peace officer was affirmed. The conviction for resisting arrest was vacated and the case was remanded for correction of the mittimus.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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