People v. Tomaske.

2022 COA 52. No. 19CA1491.  Disarming a Peace Officer—Attempt to Disarm a Peace Officer—Police Baton—Force-Against-Intruders Affirmative Defense—Sufficiency of Evidence.

May 19, 2022

While investigating a reported car theft, police officers chased defendant into his home and tackled him. During the struggle, defendant removed the officer’s baton from his duty belt and grabbed, but didn’t remove, the officer’s holstered firearm. As relevant here, the prosecution charged defendant with disarming a peace officer and attempt to disarm a peace officer. Defendant raised the force-against-intruders statute as an affirmative defense in closing argument. The trial court found that the prosecution had disproved the second condition of the defense, and defendant was convicted of both charges.

On appeal, defendant argued that the trial court misinterpreted the disarming a peace officer statute, CRS § 18-8-116(1), because a baton is not a “firearm or self-defense electronic control device, direct-contact stun device, or other similar device” under the statute. Based on the plain language of the statute, a police baton does not fall within the purview of the statute. Further, no other evidence supported the disarming a peace officer charge. Therefore, the trial court erred.

Defendant also argued that the court erred because the prosecution presented insufficient evidence to disprove his force-against-intruders affirmative defense. Here, the officer’s testimony sufficiently supported the court’s finding that the prosecution disproved that defendant had a reasonable belief that officers had committed, were committing, or intended to commit a crime (other than the trespass), a required element of the force-against-intruders affirmative defense. Accordingly, the court did not err.

Alternatively, defendant contended that the trial court premised its force-against-intruders analysis on an erroneous conclusion that a peace officer’s use of excessive force is not necessarily a crime. However, excessive use of force is not, standing alone, a substantive crime; the trial court rejected defendant’s defense based on the evidence presented; and no authority required the trial court to consider whether the officer knew he wasn’t authorized to arrest defendant when he tackled him inside the house.

The conviction for disarming a peace officer was vacated. The conviction for attempt to disarm a peace officer was affirmed.