v. Snider

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
February 18, 2021

2021COA19

No. 18CA0598, People v. Snider — Crimes — Obstructing a
Peace Officer — Assault in the Second Degree — Resisting
Arrest; Criminal Law — Prosecution of Multiple Counts for
Same Act — Lesser Included Offenses

A division of the court of appeals holds that the unit of

prosecution for obstruction of a peace officer, § 18-8-104, C.R.S.

2020, is defined in terms of discrete volitional acts, not the number

of officers involved. The division further concludes that resisting

arrest under section 18-8-103(1)(a), C.R.S. 2020, is a lesser

included offense of second degree assault on a peace officer under

section 18-3-203(1)(c), C.R.S. 2020.
COLORADO COURT OF APPEALS 2021COA19

Court of Appeals No. 18CA0598
Adams County District Court No. 16CR1763
Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Adam Taft Snider,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE TOW
Dailey and Berger, JJ., concur

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
¶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

1
 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

1 There are several different subsections of the statute that create
some form of the crime of second degree assault on a peace officer.
See § 18-3-203(1)(c), (c.5), (f), (f.5), (h), C.R.S. 2020. This case, and
particularly our analysis in Part V, involves only subsection (1)(c).
We express no opinion regarding whether resisting arrest is a lesser
included offense of any other type of second degree assault on a
peace officer.

2
 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

3
 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.

4
 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.

5
 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; 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.

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

6
 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 (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. 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

7
 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.

8
¶ 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 never had the opportunity
to get on top of him and punch him twice in
the face?

[Snider]: I can’t say that I didn’t. I mean that
doesn’t mean I didn’t have the opportunity. I
was very injured on the ground. But it’s still
possibly [sic] I could have tackled him if I
wanted to try.

¶ 20 But in our view — considered even in the light most favorable

to Snider — neither of these statements suggested that he may have

fought back against the arresting deputy. In the first, Snider at

most admitted to possibly touching Deputy Trail with his arm while

attempting to block a kick in a defensive posture. As to the second,

Snider only acknowledged that he may have had an opportunity to

attack the deputy — “if [he] wanted to try” — not that he had

9
 actually done so. And Snider’s other responses during the same

line of questioning further support that he was not admitting to

possibly fighting back against Deputy Trail:

[Prosecutor]: Did you ever punch Deputy Trail?

[Snider]: Definitely not.

[Prosecutor]: Did you ever stand above Deputy
Trail after you pushed him on the ground?

[Snider]: I never pushed him on the ground.

[Prosecutor]: Did you ever tackle Deputy Trail?

[Snider]: No.

[Prosecutor]: Did you ever pick up a 4X4 at all
in the backyard?

[Snider]: No.

¶ 21 More to the point, though, Snider’s testimony did not amount

to an admission that he engaged in conduct that led to his second

degree assault on a peace officer charge — a prerequisite for him to

demand an affirmative defense instruction. See Hendrickson, 45

P.3d at 791; Whatley, 10 P.3d at 670.

¶ 22 Indeed, a person commits second degree assault on a peace

officer if, “[w]ith intent to prevent one whom he or she knows, or

should know, to be a peace officer . . . from performing a lawful

10
 duty, he or she intentionally causes bodily injury to any person.”

§ 18-3-203(1)(c). But Snider never testified that he caused bodily

injury to Deputy Trail, an essential element of the charge. See id.

He only acknowledged that it was possible he used his arm to block

the deputy, which, in our view, fell short of an admission to causing

bodily injury. And Snider continually denied punching, pushing,

tackling, or otherwise attacking Deputy Trail so as to cause bodily

injury. Thus, Snider never admitted to engaging in conduct that

could constitute second degree assault on a peace officer and was

thus not entitled to an affirmative defense instruction. See

Hendrickson, 45 P.3d at 791; Whatley, 10 P.3d at 670.

¶ 23 Our decision finds support in Whatley, a case with

circumstances remarkably similar to those before us. There, a

defendant was charged with second degree assault on a peace

officer, and, like Snider, elected to testify. Whatley, 10 P.3d at 670.

The defendant in Whatley testified that he never hit, pushed,

kicked, or otherwise struck a peace officer, but he did say that he

had “wrestled around” with an officer and “pushed toward” him. Id.

Nonetheless, the trial court rejected the defendant’s request to give

a self-defense instruction, and a division of this court affirmed. Id.

11
 The division reasoned that it “[could] not conclude that [the

defendant’s] comments amounted to an admission that defendant

by his conduct he [sic] caused injury to the officer.” Id.

¶ 24 Likewise, here, we cannot conclude that Snider’s testimony

regarding possibly blocking Deputy Trail constituted an admission

to causing bodily injury to the deputy. Thus, Snider was not

entitled to an affirmative defense instruction. See Hendrickson, 45

P.3d at 791; Whatley, 10 P.3d at 670.

¶ 25 Snider argues, however, that his failure to admit to second

degree assault did not necessarily preclude him from receiving a

self-defense instruction. He relies on Brown v. People, 239 P.3d

764, 770 (Colo. 2010), for the proposition that “a criminal defendant

who maintains his innocence may receive an inconsistent jury

instruction . . . provided there is a rational basis for the instruction

in the evidentiary record.” Id. But Snider’s reliance on Brown is

misplaced; the holding in Brown does not extend to affirmative

defenses. See People v. Taylor, 2012 COA 91, ¶¶ 34, 35, abrogated

on other grounds as recognized by People v. Folsom, 2017 COA

146M.

12
¶ 26 In sum, because we conclude Snider was not entitled to an

affirmative defense instruction, we discern no error in the trial

court’s refusal to give such an instruction.

III. Motion for Mistrial

¶ 27 Next, Snider contends that the trial court erred by denying his

motion for a mistrial based on alleged prosecutorial misconduct.

We disagree.

A. Additional Facts

¶ 28 During direct examination of Deputy Martinez, the prosecutor

began questioning him about his initial contact with Snider.

Specifically, the prosecutor asked the deputy to describe Snider’s

demeanor. In response, the deputy testified that Snider was very

cooperative at first and did not show any signs of being stressed.

The prosecutor then began to ask, “Was there any indication to you

that there was illegal narcotics —” Defense counsel objected,

interrupting the prosecutor before he could finish the question.

Deputy Martinez never offered a response to the question.

¶ 29 The trial judge sustained the objection and ordered the parties

to approach. The judge reprimanded the prosecutor for his

attempted question, and defense counsel moved for a mistrial. The

13
 judge denied the motion for a mistrial but instructed the jury to

disregard the prosecutor’s question.

B. Standard of Review and Applicable Law

¶ 30 “Prosecutors have a higher ethical responsibility than other

lawyers because of their dual role as both the sovereign’s

representative in the courtroom and as advocates for justice.”

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) (citing

People v. Pautler, 35 P.3d 571, 579 (Colo. O.P.D.J. 2001)). Because

of their unique role, they must “scrupulously avoid comments that

could mislead or prejudice the jury.” Id.

¶ 31 Determining whether a prosecutor’s actions constitute

misconduct “is generally a matter left to the trial court’s discretion.”

Id. Similarly, the trial court has considerable discretion to

determine whether a mistrial is warranted. People v. Tillery, 231

P.3d 36, 43 (Colo. App. 2009) (citing People v. James, 117 P.3d 91,

95 (Colo. App. 2004)), aff’d sub nom. People v. Simon, 266 P.3d

1099 (Colo. 2011). Thus, we will not disturb the trial court’s denial

of a motion for mistrial “absent a clear showing of abuse of

discretion and prejudice to the defendant.” People v. Ortega, 899

P.2d 236, 238 (Colo. App. 1994). The prejudice to the defendant

14
 must be “so substantial that its effect on the jury cannot be

remedied by any other means.” Tillery, 231 P.3d at 43. If the trial

court gives the jury a curative instruction to remedy possible

prejudice, we presume, absent contrary evidence, that the jury

understood and followed the instruction. People v. Tibbels, 2019

COA 175, ¶ 18 (cert. granted June 29, 2020).

C. Analysis

¶ 32 Snider contends that the prosecutor’s question constituted

prosecutorial misconduct that caused him sufficient prejudice to

warrant a mistrial. We are not persuaded.

¶ 33 The People concede, as they must, that the prosecutor’s

attempted question was improper. Nevertheless, as noted, the

prosecutor was unable to complete his question over defense

counsel’s objection. And the witness never offered a response.

Consequently, contrary to Snider’s suggestion, it cannot be said

that the prosecutor’s question elicited any information, let alone

prejudicial information.

¶ 34 Still, Snider argues that the question nonetheless prejudiced

him because it invited the jury to speculate as to whether he used

illegal narcotics. He also asserts that any prejudice was

15
 compounded by the fact that the jury could interpret counsel’s

objection, and the bench conference that followed, as an effort to

hide facts from the jury. However, in our view, the possible

prejudice Snider alludes to — which is speculative in nature — is

not substantial enough to warrant a mistrial. See People v. Ned,

923 P.2d 271, 275 (Colo. App. 1996) (“Speculation of prejudice is

insufficient to warrant reversal of a trial court’s denial of a motion

for mistrial.”). And in any event, Snider does not assert that the

jury failed to understand or follow the court’s curative instruction to

disregard the prosecutor’s question. Thus, we presume the jury

followed the instruction, curing any potential prejudice. Tibbels, ¶

18.2

¶ 35 Because Snider has therefore failed to show that the

prosecutor’s attempted question “so prejudiced the jury’s verdict as

to affect the fundamental fairness” of his trial, we cannot conclude

2 Snider points out that curative instructions may not always be
sufficient to remedy possible prejudice. See, e.g., People v. Lee, 630
P.2d 583 (Colo. 1981). But that is true “only when . . . improper
testimony or statements are so prejudicial that, but for the
exposure, the jury might not have found the defendant guilty.”
People v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009), aff’d sub nom.
People v. Simon, 266 P.3d 1099 (Colo. 2011). Such is not the case
here.

16
 the prosecutor’s misconduct warrants reversal of his conviction.

Domingo-Gomez, 125 P.3d at 1053.

IV. Right to a Unanimous Verdict

¶ 36 Snider also contends that the trial court violated his right to a

unanimous verdict as to the charges of resisting arrest and

obstruction. We disagree.

A. Additional Facts

¶ 37 The complaint and information set forth the following as to

Snider’s resisting arrest charge:

On or about May 27, 2016, Adam Taft Snider
unlawfully and knowingly prevented or
attempted to prevent Deputy Lonn Trail, a
peace officer, acting under the color of his
official authority, from effecting the arrest of
defendant by using or threatening to use
physical force or violence against the peace
officer or another; in violation of section 18-8-
103, C.R.S.

¶ 38 As to Snider’s obstruction charge, the complaint stated as

follows:

On or about May 27, 2016, Adam Taft Snider,
by using or threatening to use violence, force,
physical interference, or an obstacle,
unlawfully and knowingly obstructed,
impaired, or hindered the enforcement of the
penal law or the preservation of the peace by
Deputy Andrew Martinez, a peace officer,

17
 acting under color of his official authority; in
violation of section 18-8-104(1)(a), C.R.S.
[2020].

¶ 39 Thus, the complaint specified that Snider’s actions toward

Deputy Trail were the basis of his resisting arrest charge, and his

actions toward Deputy Martinez were the basis for obstruction.

However, at trial, the court did not identify any particular deputy

when instructing the jury on either charge. Instead, it instructed

the jury on each crime as follows:

The elements of the crime of resisting arrest
are:

1. That the defendant,

2. in the State of Colorado, at about the date
and place charged,

3. knowingly,

4. prevented or attempted to prevent a peace
officer, acting under color of his official
authority, from effecting an arrest of the
defendant or another,

5. by using or threatening to use physical force
or violence against the peace officer or
another[,]

18
 6. and that the defendant’s conduct was not
legally authorized by the affirmative defense in
Instruction 17.3

The elements of the crime of obstructing a
peace officer are:

1. That the defendant,

2. in the State of Colorado, at about the date
and place charged,

3. knowingly,

4. by using or threatening to use violence,
force, physical interference, or an obstacle,

5. obstructed, impaired, or hindered,

6. the enforcement of the penal law or the
preservation of the peace by a peace officer,
acting under color of his official authority, and

7. the defendant’s conduct was not legally
authorized by the affirmative defense in
Instruction 17.

¶ 40 Similarly, the verdict forms did not specify which particular

officer Snider was alleged to have resisted or obstructed. Thus, the

jury never indicated whether it agreed as to which particular officer

Snider resisted or obstructed.

3 The affirmative defense in Instruction 17, self-defense, is not
relevant to the issues on appeal.

19
 B. Preservation and Standard of Review

¶ 41 We review de novo whether the trial court violated a

defendant’s right to a unanimous verdict. See People v. Simmons,

973 P.2d 627, 629-30 (Colo. App. 1998) (reviewing the issue de

novo). However, Snider concedes, and the record supports, that

this issue was not preserved. Thus, if we discern error, we will

reverse only if the error is plain. Hagos v. People, 2012 CO 63,

¶ 14.

¶ 42 “[P]lain error occurs when there is (1) an error, (2) that is

obvious, and (3) that so undermines the fundamental fairness of the

trial itself as to cast serious doubt on the reliability of the judgment

of conviction.” Cardman v. People, 2019 CO 73, ¶ 19. The

defendant has the burden of establishing each component. People

v. Boykins, 140 P.3d 87, 95 (Colo. App. 2005).

¶ 43 An error is obvious if, at the time the issue arose, “it was so

clear cut and so obvious that a trial judge should have been able to

avoid it without benefit of objection.” People v. Conyac, 2014 COA

8M, ¶ 54; accord Cardman, ¶ 34; Scott v. People, 2017 CO 16, ¶ 16.

“For an error to be this obvious, the action challenged on

appeal ordinarily ‘must contravene (1) a clear statutory command;

20
 (2) a well-settled legal principle; or (3) Colorado case law.’” Scott,

¶ 16 (quoting People v. Pollard, 2013 COA 31M, ¶ 40).

¶ 44 An error so undermines the fairness of the trial such that

reversal is warranted if “a reasonable possibility exists that [the

error] . . . contributed to [the] conviction.” Cardman, ¶ 39 (quoting

People v. Lozano-Ruiz, 2018 CO 86, ¶ 5). Yet “the error must impair

the reliability of the judgment of conviction to a greater degree than

under harmless error,” Hagos, ¶ 14, as we will only reverse to

correct particularly egregious errors. See id. (“[The plain error]

standard was formulated to permit an appellate court to correct

‘particularly egregious errors . . . .’” (quoting Wilson v. People, 743

P.2d 415, 420 (Colo. 1987))).

C. Applicable Law and Analysis

¶ 45 In Colorado, a “person who is accused of an offense other than

a noncriminal traffic infraction or offense” is entitled to a jury trial.

§ 16-10-101, C.R.S. 2020. Further, such a defendant is entitled to

a unanimous jury verdict. § 16-10-108, C.R.S. 2020; Crim. P.

21
 23(a)(8); Crim. P. 31(a)(3).4 Snider contends that his right to

unanimity was violated because neither the elemental instructions

nor the verdict form given by the trial court required the jury to

agree as to which particular officer he resisted or obstructed.

¶ 46 “Unanimity means only that each juror agrees that each

element of the crime charged has been proved to that juror’s

satisfaction beyond a reasonable doubt.” People v. Linares-Guzman,

195 P.3d 1130, 1134 (Colo. App. 2008). Thus, we consider whether

the prosecution was required to prove that Snider resisted or

obstructed a particular officer.

¶ 47 The question turns on how the units of prosecution for the

crimes of resisting arrest and obstruction of a peace officer are

legislatively defined. “The unit of prosecution is the manner in

which a criminal statute permits a defendant’s conduct to be

4 Days after briefing in this appeal was completed, the United States
Supreme Court held that a defendant charged in state court with a
“serious offense” is constitutionally entitled to a unanimous jury
verdict. Ramos v. Louisiana, 590 U.S. ___, ___, 140 S. Ct. 1390,
1397 (2020). Neither party filed a notice of supplemental authority,
and thus neither addresses whether the charges relevant to this
claim are “serious” for purposes of Ramos. Because Colorado law
already provided that Snider was entitled to a unanimous verdict,
we do not address the impact of Ramos on this issue.

22
 divided into discrete acts . . . .” Woellhaf v. People, 105 P.3d 209,

215 (Colo. 2005). “To determine the unit of prosecution, we look

exclusively to the statute.” People v. Arzabala, 2012 COA 99, ¶ 23.

“In construing a statute, we must determine and effectuate the

intent of the General Assembly, which we discern when possible

from the plain and ordinary meaning of the statutory language.”

People v. Lowe, 2020 COA 116, ¶ 40.

¶ 48 As to the crime of resisting arrest under section 18-8-103(1), a

division of this court has determined that the unit of prosecution is

defined in terms of discrete volitional acts of resistance. Lowe,

¶ 45.

¶ 49 However, as to obstruction of a peace officer under section

18-8-104(1)(a), the unit of prosecution has yet to be identified.

¶ 50 As relevant here, a person commits obstruction of a peace

officer if, “by using or threatening to use violence, force, physical

interference, or an obstacle, such person knowingly obstructs,

impairs, or hinders the enforcement of the penal law or the

preservation of the peace by a peace officer, acting under color of

his or her official authority.” § 18-8-104(1)(a). Notably, to be

convicted of obstruction of a peace officer, one does not necessarily

23
 need to harm, or even threaten to harm, a peace officer. Thus, the

plain language of the statute indicates that its primary purpose is

not to shield peace officers from possible harm, but to facilitate the

performance of their duties. And the statute’s placement in article

8 of title 18, entitled “Offenses — Governmental Operations,”

further clarifies that the intent of the statute is to protect

governmental operations, not individual peace officers. See People

v. Hickman, 988 P.2d 628, 645-46 (Colo. 1999) (considering a

statute’s placement within title 18 as evidence of the legislature’s

intent). Therefore, like resisting arrest, the unit of prosecution for

obstruction must be defined not in terms of the number of officers

involved, but in terms of discrete volitional acts of obstruction that

interfere with governmental operations. See People v. McMinn, 2013

COA 94, ¶ 26.

¶ 51 In sum, then, neither resisting arrest nor obstruction of a

peace officer is a victim-based crime, as the unit of prosecution for

each is defined in terms of discrete volitional acts rather than the

number of officers involved. Thus, even if a defendant’s act of

resistance or obstruction is directed at multiple officers, a

defendant can only be convicted of one count for each act.

24
 Therefore, it follows that to sustain a conviction for either crime, the

prosecution only must prove that the defendant committed an act of

resistance or obstruction, respectively — to whom the act was

directed is irrelevant.

¶ 52 So, as it pertains to Snider’s right to unanimity, the People

were not required to prove that Snider resisted or obstructed a

particular officer, just that he resisted or obstructed any officer.

That means the jury was not required to unanimously agree on

which officer was the target or recipient of his actions. Linares-

Guzman, 195 P.3d at 1134. Accordingly, even if the jury may not

have been in agreement on the matter, Snider’s right to unanimity

was not implicated.

¶ 53 Simmons, to which Snider directs us, does not persuade us

otherwise. There, a division of this court held that the trial court

erroneously instructed the jury on the elements of felony menacing

because the instructions did not identify a specific victim.

Simmons, 973 P.2d at 630. The instructional error, it reasoned,

permitted the jury to convict the defendant of felony menacing

without agreement as to who the victim was, which the division

concluded violated his right to unanimity. Id. However, unlike the

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 offenses with which Snider was charged, the prohibition against

menacing is meant to protect victims from harm; thus, the unit of

prosecution for menacing is defined in terms of the number of

victims. See People v. Borghesi, 66 P.3d 93, 103 n.17 (Colo. 2003)

(“[S]eparate victims can form the basis of multiple counts and

convictions for the crimes of menacing and reckless

endangerment.”). We are aware of no authority holding that the

jury must unanimously agree that a crime was directed toward a

particular victim where, as here, the offense’s unit of prosecution is

defined not by the identity of the victim (or victims), but by discrete

volitional acts.

¶ 54 Still, because neither the jury nor the People identified specific

deputies as “victims” of each crime consistent with the charged

complaint, Snider argues that a simple variance occurred. See

People v. Rice, 198 P.3d 1241, 1245 (Colo. App. 2008) (“A simple

variance occurs when the charged elements are unchanged, but the

evidence proves facts materially different from those alleged in the

charging instrument.”). Thus, he argues, reversal of his convictions

is nonetheless warranted. Because Snider raises this argument for

the first time on appeal, we review only for plain error. Hagos, ¶ 14.

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 And even if we assume, arguendo, that a simple variance occurred,

Snider has offered no explanation as to why it cast serious doubt on

the reliability of his conviction. See Cardman, ¶ 19 (An error is

plain if it “so undermines the fundamental fairness of the trial itself

as to cast serious doubt on the reliability of the judgment of

conviction.”). Thus, we cannot conclude that Snider has met his

burden to establish plain error. See People v. Vigil, 127 P.3d 916,

929-30 (Colo. 2006) (the defendant “bears the burden of

persuasion” that there was plain error (citing United States v. Olano,

507 U.S. 725, 734 (1993))).

V. Double Jeopardy

¶ 55 Finally, Snider contends that resisting arrest under section

18-8-103(1)(a) is a lesser included offense of second degree assault

on a peace officer. He argues that the trial court plainly erred by

failing to merge his resisting arrest conviction into his second

degree assault conviction in violation of his double jeopardy rights.

We agree. Thus, we vacate the resisting arrest conviction.

A. Standard of Review and Applicable Law

¶ 56 The United States and Colorado Constitutions prohibit

imposing multiple punishments on a defendant for the same offense

27
 unless specifically authorized by the General Assembly. Page v.

People, 2017 CO 88, ¶ 8 (citing Woellhaf, 105 P.3d at 214).

¶ 57 As relevant here, our legislature has determined that a

defendant may not be convicted of two offenses for the same

conduct if the lesser offense is included in the greater.

§ 18-1-408(1)(a), C.R.S. 2020. Thus, if a defendant is convicted of

both a greater offense and a lesser included offense for the same

conduct, the conviction of the lesser must merge into that of the

greater. See Page, ¶ 9. “Whether convictions for different offenses

merge is a question of law that we review de novo.” Id. at ¶ 6.

¶ 58 Snider argues that resisting arrest is a lesser included offense

of second degree assault on a peace officer under two different

theories — the “strict elements test” and the test set forth in section

18-1-408(5)(c).

¶ 59 Our supreme court articulated the “strict elements test” to

which Snider refers in Reyna-Abarca v. People: “[A]n offense is a

lesser included offense of another offense if the elements of the

lesser offense are a subset of the elements of the greater offense,

such that the lesser offense contains only elements that are also

included in the elements of the greater offense.” 2017 CO 15, ¶ 64.

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 Importantly, though, the supreme court later clarified in People v.

Rock that “[t]o the extent that a lesser offense is statutorily defined

in disjunctive terms, effectively providing alternative ways of being

committed, any set of elements sufficient for commission of that

lesser offense that is necessarily established by establishing the

statutory elements of a greater offense constitutes an included

offense.” 2017 CO 84, ¶ 16. Thus, to be an included offense, not

every alternative way of committing a lesser offense must be

contained in the statutory definition of the greater offense; “it is

enough that any particular set of elements sufficient for conviction

of that offense be so contained.” Id.

¶ 60 Under section 18-8-103(1)(a), a person commits resisting

arrest if he or she (1) knowingly (2) prevents or attempts to prevent

a peace officer, acting under color of his official authority, from

effecting an arrest of the actor or another, by either (3) using or

threatening to use physical force or violence against the peace

officer or another.

¶ 61 And, under section 18-3-203(1)(c), a person commits second

degree assault if, (1) with intent to prevent one whom he or she

knows, or should know, to be a peace officer from performing a

29
 lawful duty, he or she (2) intentionally (3) causes bodily injury to

any person.

B. Analysis

1. Resisting Arrest is a Lesser Included Offense of Second Degree
Assault on a Peace Officer

¶ 62 Comparing the elements of resisting arrest and second degree

assault on a peace officer, we agree that the former is a lesser

included offense of the latter under the “strict elements test.”

¶ 63 First, we address the differing mental states required in each

offense. A defendant must act “knowingly” to resist arrest, but the

commission of second degree assault on a peace officer requires

acting with the specific intent to prevent a peace officer from

performing a lawful duty. “If acting knowingly suffices to establish

an element, that element also is established if a person acts

intentionally.” § 18-1-503(3), C.R.S. 2020. In other words, if one

has acted “with intent,” one has necessarily acted “knowingly.” See

§ 18-1-501(5), C.R.S. 2020 (the terms “with intent” and

“intentionally” are interchangeable). Therefore, if a defendant

commits second degree assault on a peace officer, he has not only

30
 acted “with intent” in trying to prevent an officer’s performance of a

lawful duty, but he has “knowingly” done so.

¶ 64 Second, we note that effecting an arrest is merely a specific

example of a peace officer’s performance of a lawful duty. In other

words, preventing a peace officer from “effecting an arrest”

necessarily prevents that officer from “performing a lawful duty.”

See Page, ¶ 10 (“[A] lesser offense is included in the greater offense

when there are multiple ways to commit the greater and proof of the

commission of at least one of which necessarily proves commission

of the lesser.”). Therefore, preventing a peace officer from effecting

an arrest is a subset of preventing the officer from performing a

lawful duty.

¶ 65 Notably, to commit resisting arrest, a defendant need not

actually prevent an officer from effecting an arrest, he must only

attempt to do so. Indeed, Snider was unsuccessful in his efforts to

prevent his arrest here. The term “attempt” is not defined,5 but —

5 When the elements of a crime include the term “attempt,” the
definition of the inchoate offense of criminal attempt, § 18-2-101,
C.R.S. 2020, may not apply. Compare People v. Knox, 2019 COA
152, ¶ 34 (applying a dictionary definition instead of the definition
from section 18-2-101 to the term “attempt” in the crime of attempt

31
 under any reasonable definition of the term — an attempt to resist

arrest is encompassed within the broader concept contained within

the second degree assault statute of an act taken “with intent to

prevent a peace officer” from performing a lawful duty.

¶ 66 And third, we turn to the final element of resisting arrest: the

use or threatened use of physical force against the peace officer. To

commit second degree assault on a peace officer, one must

“intentionally cause[] bodily injury to any person.” § 18-3-203(1)(c).

Obviously, to do so necessarily requires using physical force or

violence against the person. Thus, proof that Snider used or

threatened the use of physical force against the peace officer is a

subset of proving that he intentionally injured the officer.

¶ 67 In sum, the elements of resisting arrest are “a subset of the

elements” of second degree assault on a peace officer. See Reyna-

to influence a public servant, § 18-8-306, C.R.S. 2020), with People
v. Tucker, 232 P.3d 194, 200-01 (Colo. App. 2009) (applying the
definition in section 18-2-101 to the same offense). We are
unaware of any statute or case law that defines “attempt” in the
context of the crime of resisting arrest. Nor have the parties
addressed this issue. We need not, and do not, resolve this
question here.

32
 Abarca, ¶ 77. Moreover, comparing the above-described elements

demonstrates that resisting arrest “contains only elements that are

also included in the elements” of second degree assault on a peace

officer. See id. at ¶ 78. Consequently, we conclude that resisting

arrest is a lesser included offense of second degree assault on a

peace officer.6

2. Plain Error

¶ 68 Because Snider’s double jeopardy claim was not preserved, we

review only for plain error. Hagos, ¶ 14. Thus, having concluded

that resisting arrest is a lesser included offense of second degree

assault on a peace officer, we turn to whether the trial court plainly

erred by failing to merge Snider’s convictions for each offense. We

conclude that it did.

¶ 69 Neither this court nor our supreme court has addressed the

specific issue presented here — that is, whether resisting arrest is a

lesser included offense of second degree assault on a peace officer.

6 As noted above, Snider also argues that resisting arrest is a lesser
included offense under the test set forth in section 18-1-408(5)(c),
C.R.S. 2020. However, because we have already determined that
resisting arrest is a lesser included offense by applying the “strict
elements test,” we need not also conduct an analysis under section
18-1-408(5)(c).

33
 And if an appellate court has not decided an issue, appellate courts

usually conclude that a trial court’s error in failing to recognize and

resolve it was not obvious. See Conyac, ¶ 54 (An error is obvious if

“it was so clear cut and so obvious that a trial judge should have

been able to avoid it without benefit of objection.”); People v. Oliver,

2020 COA 97, ¶ 67 (an error was not obvious where an appellate

court had not yet resolved the issue presented); People v. Robles,

302 P.3d 269, 283 (Colo. App. 2011) (Webb, J., specially

concurring) (an error was not obvious where it involved an issue of

first impression and the jurisprudence in the area was conflicting),

aff’d, 2013 CO 24.

¶ 70 That being said, in Reyna-Abarca, the supreme court

nonetheless found plain error under the same circumstances before

us. Reyna-Abarca, ¶¶ 80-83. There, the court determined, as a

matter of first impression, that driving under the influence (DUI) is

a lesser included offense of vehicular assault-DUI and vehicular

homicide-DUI. Id. at ¶ 76. But despite the fact that those issues

had never before been addressed by any appellate court, it

concluded that the trial courts in four different cases plainly erred

by failing to merge the defendants’ convictions for DUI into

34
 convictions for vehicular assault-DUI and vehicular homicide-DUI.

Id. at ¶¶ 80-86.

¶ 71 In doing so, however, the supreme court did not expressly

analyze obviousness. See id. Instead, it simply stated that “[i]n

both our own jurisprudence and in case law nationally, courts have

invariably concluded that when a defendant’s double jeopardy

rights are violated for failure to merge a lesser included offense into

a greater offense, such a violation requires a remedy.” Id. at ¶ 81.

And curiously, the supreme court appeared — without explanation

— to place the burden on the prosecution to prove the error was not

plain. See id. at ¶ 82 (“[T]he People have presented no compelling

arguments as to why any double jeopardy errors that may have

been committed here did not rise to the level of plain error.”).

Contra Vigil, 127 P.3d at 929-30 (noting that the defendant bears

the burden of persuasion that plain error occurred).

¶ 72 Ultimately, we need not decide whether the error here was

obvious due to the lack of a prior clear statement of law regarding

the underlying issue before us. The People simply do not make that

argument. See Reyna-Abarca, ¶ 82 (looking to the prosecution’s

35
 arguments in determining whether a double jeopardy violation rises

to the level of plain error).

¶ 73 Instead, the People argue that the trial court did not plainly

err because it was not obvious that Snider’s convictions were

factually indistinct. To that end, the People contend that the

actions Snider took to elude Deputy Trail — specifically, running

and hiding — could support a resisting arrest charge. Then, when

Snider attacked Deputy Trail after being discovered, they argue,

Snider committed a factually distinct second degree assault.

However, the People’s argument must fail because simply running

and hiding cannot establish the elements of resisting arrest. See

§ 18-8-103(1)(a).

¶ 74 Accordingly, the People have not offered a persuasive

argument as to why the trial court’s failure to merge Snider’s

convictions did not rise to the level of plain error. Therefore, we

conclude that the trial court plainly erred, and we thus vacate

Snider’s resisting arrest conviction. See Reyna-Abarca, ¶¶ 81-82;

People v. Jamison, 2018 COA 121, ¶ 62.

36
 VI. Conclusion

¶ 75 We affirm the judgment of conviction for second degree assault

on a peace officer and obstruction of a peace officer. However, we

vacate the conviction for resisting arrest, and we remand to the trial

court to correct the mittimus to reflect the merger.

JUDGE DAILEY and JUDGE BERGER concur.

37