dissenting.
I agree with the majority that the record establishes that the trial court did not provide the jury with a verdict form for the obstruction of a peace officer charge but did provide a verdict form for third degree assault, even though the court agreed to charge the former but not the latter as a lesser included offense of second degree assault. In the circumstances presented here, however, I cannot agree with my colleagues that there is no reasonable possibility that the erroneous verdict forms contributed to defendant’s conviction of second degree assault. Accordingly, I respectfully dissent.
I. Standard of Review
As an initial matter, I question whether plain error review is the appropriate standard here. Defense counsel apparently was unaware of the error regarding the verdict forms until after LePage’s trial was over. Accordingly, it is not clear to me that counsel could have objected during the trial, which would militate against plain error review. See, e.g., United States v. Warden, 291 F.3d 363, 365 n. 1 (5th Cir.2002) (holding that plain error standard was inapplicable to a challenge to the imposition of certain special sentencing conditions, which challenge the defendant made for the first time on appeal, because the defendant had been given no opportunity to object or comment- on the conditions at issue before the court imposed them). Nonetheless, the parties here agree that we should review for plain error, and, for present purposes, I will do so as well, because I would reverse even under that higher standard.
As the majority states, plain error is error that is obvious and substantial and that so undermines the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Lehnert v. People, 244 P.3d 1180, 1185 (Colo.2010); People v. James, 40 P.3d 36, 46 (Colo.App.2001). “Under this standard, the defendant must demonstrate that the error complained of affected a substantial right and that the record reveals a reasonable possibility that the error contributed to [his or] her conviction.” Lehnert, 244 P.3d at 1185; James, 40 P.3d at 46.
II. Discussion
In my view, the trial court’s error in failing to provide the jury with a verdict form on a lesser included offense that was charged and to which the parties had agreed, and in submitting, instead, a form for a lesser included offense that was not at issue, was obvious and substantial. Moreover, this error undermined the fundamental fairness of LePage’s trial and establishes, at a minimum, a reasonable possibility that the error contributed to LePage’s conviction of second degree assault.
At oral argument, all parties agreed that because the jury was given no verdict form for the obstruction of a peace officer charge, the jury, at least as a “technical” matter, could not enter a verdict on that charge. Neither the parties nor the majority has cited a single published decision from any court, and I have not found one, in which a court has upheld a verdict in a criminal case on such facts.
*1084The civil cases on which the majority relies are distinguishable. In each, the jury was given a verdict form that allowed it to enter judgment on the claim at issue, there was a technical deficiency in the form of the verdict, and the deficiency was harmless. See, e.g., Bohrer v. DeHart, 961 P.2d 472, 476-78 (Colo.1998). (although special verdict form neglected to require the jury to decide explicitly the total amount of the plaintiffs damages, the percentage of fault of each party, and the damages caused by each party, as required by statute, the error was harmless because the jury was instructed properly, the verdict forms showed that the jury followed the instructions, and the missing computations could easily be determined by looking at the face of the forms); Hock v. New York Life Ins. Co., 876 P.2d 1242, 1259 (Colo.1994) (although verdict form would have allowed jury to find both a bad faith breach of contract and rescission of that same contract, which would have been inconsistent, any error was harmless because the jury did not actually reach an inconsistent verdict, and the verdict form, on its face, showed that the jury followed the court’s instructions); Technical Computer Servs., Inc. v. Buckley, 844 P.2d 1249, 1253 (Colo.App.1992) (although verdict form for Wage Act claim referred to “damages” -rather than unpaid wages, the alleged error was “mere semantics” and thus not grounds for reversal).
The majority’s reliance on civil cases to support its conclusion of no plain error in this criminal case strikes me as dubious, given the limited applicability of the plain error doctrine in civil cases. See Harris Group, Inc. v. Robinson, 209 P.3d 1188, 1195 (Colo.App.2009) (noting that the circumstances justifying the application of the plain error doctrine in civil cases are rare). In any event, none of these cases involved a factual scenario like that presented here, where the jury was not given a verdict form to decide a claim that was presented to it. I am, however,, aware of at least one recent civil case in which that did occur, and in that case, the court reversed, finding that the error was not harmless. See Nash v. Lewis, 365 Fed.Appx. 48, 52 (9th Cir.2010) (absence of a place on the verdict form at which the jury could have determined liability on plaintiffs false imprisonment claim was not harmless error, because the court could not conclude that the jury would necessarily have rejected that claim had the verdict form given it a place to decide the question).
The criminal cases on which the majority relies are likewise distinguishable. In Morris v. State, 658 So.2d 155, 156 (Fla.Dist.Ct.App.1995), the verdict form given to the jury failed to include an option to find the defendant guilty of a lesser included offense, but, unlike the present case, the defendant was given the opportunity to review the form before it went to the jury and not only failed to object- but also affirmatively expressed satisfaction with the form. On these facts, the court concluded that defendant had waived any objection and that any error was invited. Id. No one asserts any issue of waiver or invited error in the present case, nor could anyone reasonably do so. The verdict forms that the court and the parties approved were not the forms that were given to the jury.
In Delvalle v. State, 653 So.2d 1078, 1079 (Fla.Dist.Ct.App.1995), the jury was given a verdict form that contained numerous lesser included offenses. One of those lesser included offenses, however, contained what the court described as a “typographical omission” (the offense was listed as “First Degree Mur: der Without a Firearm” but should have read, “Attempted First Degree Murder Without a Firearm”). Id As in Morris, the defendant had expressly approved this verdict form. Id .On these facts, the court concluded that any error was invited and, in any event, that it was harmless, because there was no evidence that would have supported a finding by a reasonable jury that no firearm was used. Id Here, in contrast, there was no issue of invited error, and it is undisputed that the evidence would have supported a verdict of obstruction of a peace officer.
Finally, in King v. State, 178 Ga.App. 343, 343 S.E.2d 401, 403 (1986),- the jury was given verdict forms for several lesser included offenses. After the jury began deliberating, the defendant asked the court to provide the jury with one additional form, on a *1085charge about which the jury apparently had been instructed. Id. The trial court denied the defendant’s request, and the appellate court affirmed, concluding that the failure to provide the additional form was harmless error because (1) the defendant was not entitled to the lesser included instruction on the additional charge in the first place, and (2) the jury clearly intended to find the defendant guilty of the greater offense, having rejected numerous other lesser offenses. Id. Here, unlike in King, it is undisputed that LePage was entitled to the instruction on the lesser included offense at issue, and the jury properly could have found him guilty of that charge. Moreover, unlike in King, the jury here was deprived of the opportunity to find LePage guilty of any lesser included offense.
Accordingly, in my view, the case law on which the majority relies does not support its conclusion.
I likewise disagree with the majority’s implicit reliance on the facts that the jury failed to ask the court for a verdict form for the lesser included offense and failed to inquire about the verdict form for third degree assault, on which it was not instructed. The majority suggests that the jury’s failure to do so shows that the jury was not confused and that it intended to reach the verdict that it did after appropriate’ consideration. I respectfully believe that such a conclusion is speculative and insufficient to support a determination that the jury intended to reject a finding of guilt on a lesser included offense for which it was given no verdict form. Human nature being what it is, there are innumerable reasons why the jurors might not have asked about the verdict form. As the majority suggests, the jurors may not have done so because they were not, in, fact, confused and intended to do what they did. It is equally likely, however, that the jurors were confused by the inconsistency between the instructions and the verdict forms but feared that asking about the verdict forms might make them look foolish, especially given their likely assumption that the court would have provided them with the correct forms. In any event, I do not agree that it is appropriate to place on jurors the burden of ensuring that the jury instructions and verdict forms are correct, and neither the parties nor the majority cites any authority indicating that jurors have that burden.
I likewise am unpersuaded by the majority’s repeated reliance on the fact that the instructions were correct and that there was no evidence that the jurors failed to consider the obstruction of a peace officer charge. Although the instructions may well have been correct, that does not alter the fact that the jury was given no mechanism by which to find LePage ■ guilty of the lesser included offense at issue. Moreover, for two reasons, I do not .agree with the majority that our decision may be based on a lack of evidence that the jurors failed to consider the obstruction of a peace officer charge. First, because inquiry into jury, deliberations is generally prohibited, see CRE 606(b), it is likely to be a rare case in which a defendant could develop or cite to such evidence. Second, although, as the majority notes, we have no evidence that the jurors did not consider the obstruction charge, we likewise have no evidence that they did. Indeed, if the jurors began their discussions by looking at the verdict forms that they needed to complete, which would not have been an unreasonable approach, then they might not have seen a need to discuss the obstruction charge. In any event, I do not believe that it is appropriate for us to speculate on this point.
Finally, I do not believe that the evidence was 'so overwhelming as to have dictated a conviction on the greater charge. When the court chose to present the obstruction charge to the jury, it necessarily concluded that a reasonable jury could have acquitted LePage of second degree assault and convicted him of obstruction of a peace officer. See People v. Brown, 218 P.3d 733, 736 (Colo.App.2009) (noting that a defendant is entitled to a lesser included offense instruction if there is a rational basis in the evidence to support a verdict acquitting him or her of a greater offense and convicting him or her of the lesser offense), aff'd, 239 P.3d 764 (Colo.2010). Where, as here, the court correctly determined that a reasonable jury could have convicted on the obstruction charge, I am not convinced that the jurors would not have done so had their actual options been made clear to them, and, again, I believe that it would be. speculative to conclude otherwise.
*1086III. Conclusion
I do not believe that anyone would deny that LePage was entitled to a jury that was empowered to decide that he was guilty of the lesser included charge of obstruction of a peace officer, as opposed to the greater charge of second degree assault. In my view, the trial court’s failure to provide the jury with a verdict form for the obstruction charge, coupled with the provision of a verdict form for a lesser included offense that was not before the jury, at the very least impaired the jury’s ability to decide whether LePage was guilty of obstruction of a peace officer. Indeed, the only charge on which the jury was instructed and for which it had a verdict form was second degree assault. Moreover, the court’s error, which I view as obvious and substantial, has left us to speculate as to whether the jury was confused, what the jury may have considered, and what the jury might have done had it received the instructions and verdict forms to which the court and the parties had agreed. On these facts, I cannot agree that there is no reasonable possibility that the erroneous verdict forms contributed to defendant’s conviction of second degree assault. To the contrary, I believe that these facts establish a serious doubt as to the reliability of LePage’s conviction. Accordingly, I would conclude that the failure to provide the correct verdict forms was plain error, and I would reverse Le-Page’s conviction and remand for a new trial.