COLORADO COURT OF APPEALS 2017COA46 

Court of Appeals No. 16CA0164 

City and County of Denver District Court No. 14CV34510 

Honorable Elizabeth A. Starrs, Judge 

Adrian Malpica-Cue, 

Plaintiff-Appellee, 

v. 

Benjamin A. Fangmeier, 

Defendant-Appellant. 

ORDER VACATED AND CASE 

REMANDED WITH DIRECTIONS 

Division II 

Opinion by JUDGE J. JONES 

Dailey and Berger, JJ., concur 

Announced April 6, 2017 

Marra Leavitt LLC, Marcie B. Leavitt, Arvada, Colorado, and Ramos Law, LLC, 

Jessica L. Derakhshanian, Wheat Ridge, Colorado, for Plaintiff-Appellee 

Hall & Evans, LLC, Alan Epstein, Denver, Colorado; Temple & Associates, 

Christopher J. Witte, Lone Tree, Colorado, for Defendant-Appellant
1 

¶ 1 Defendant, Benjamin A. Fangmeier, appeals the district 

court’s order denying his motion to decrease the amount of 

damages awarded at trial based on an affidavit from the jury 

foreman asserting that the jury entered a number by mistake on the 

special verdict form. Construing a 2007 amendment to CRE 606(b), 

we vacate the order and remand the case. 

I. Background 

¶ 2 Plaintiff, Adrian Malpica-Cue, sued Mr. Fangmeier for 

damages resulting from a car accident. After a trial, the jury filled 

out Special Verdict Form B, answering “Yes” to the following two 

questions: (1) “Did the Plaintiff, Adrian Malpica-Cue, have injuries, 

damages and losses?”; and (2) “Was the Defendant’s negligence a 

cause of any of the injuries, damages and losses claimed by the 

Plaintiff?” The jury then answered questions concerning damages 

as follows: 

a) What is the total amount of the Plaintiff’s damages, if 

any, for non-economic losses or injuries? Non-economic 

losses or injuries are those losses or injuries described in 

paragraph 1 of Instruction 10. You should answer “0” if 

you determine there were none. 

 ANSWER: $2,500.00 
2 

b) What is the total amount of the Plaintiff’s damages, if 

any, for economic losses? Economic losses are those 

losses described in numbered paragraph 2 of Instruction 

No. 10. You should answer “0” if you determine there 

were none. 

 ANSWER $18,373.38 

c) What is the total amount of the Plaintiff’s damages, if 

any, for physical impairment or disfigurement? In 

computing damages in this category, you shall not 

include any damages for losses or injuries already 

determined above. You should answer “0” if you 

determine there were none. 

 ANSWER: $20,873.38 

¶ 3 Each of the six jurors signed the special verdict form. The trial 

judge read the verdict, and each separate amount of damages, 

aloud in open court. The judge then asked the jury, “Was this and 

is this your verdict?” The jury foreman replied, “Yes, it is.” The 

judge then asked, “Would any of the lawyers — would either of the 

parties want me to poll the jury?” Both Mr. Fangmeier’s and Mr. 

Malpica-Cue’s counsel answered, “No, your honor.” 

¶ 4 According to Mr. Fangmeier’s post-trial motion, after the court 

dismissed the jury, but while the jurors were still in the courthouse, 

defense counsel spoke with some of the jurors about the amount of 

damages they had awarded. They told counsel that they had 
3 

intended to award $2,500 for noneconomic losses, $18,373.38 for 

economic losses, and $0 for physical impairment or disfigurement. 

The jury had therefore intended to award total damages of only 

$20,873.38, but the noneconomic and economic damages had 

mistakenly been added together, and the total had been mistakenly 

entered on the line designated for “physical impairment or 

disfigurement.” Defense counsel told the court clerk that all six 

jurors agreed that they had made a mistake on the verdict form and 

wanted to fix it. The judge denied defense counsel’s request to 

reconvene the jury that day, and told him to file a motion on the 

issue. 

¶ 5 Mr. Fangmeier subsequently filed a motion asking the court to 

vacate the jury verdict awarding $41,746.76, and to enter a 

judgment in the amount of $20,873.38, under C.R.C.P. 59 and 60. 

The motion included an affidavit from the jury foreman saying that 

the jury had made a mistake when it had filled out the verdict form. 

Specifically, the foreman’s affidavit said, 

We all deliberated and agreed to award the 

plaintiff $2,500 for non-economic damages 

(pain and suffering) and $18,373.38 for 

economic damages (medical bills) and nothing 

more. We agreed to award the plaintiff the 
4 

total amount of $20,873.38. We made a 

mistake in completing the verdict form and we 

wrote the total amount of our award on the 

line for permanent impairment. We did not 

intend to give the plaintiff anything for 

permanent impairment. 

The motion also included a photograph of notations on the dry 

erase board that the jury had used during deliberations. 

¶ 6 The district court denied Mr. Fangmeier’s motion, saying that 

Rule 606(b) precluded it from considering the foreman’s affidavit. 

II. Discussion 

¶ 7 Mr. Fangmeier contends that the jury foreman’s affidavit is not 

precluded under Rule 606(b) because an exception to that rule 

allows juror testimony regarding “whether there was a mistake in 

entering the verdict onto the verdict form.” We agree with Mr. 

Fangmeier, though we also conclude that the affidavit, by itself, 

while entitling Mr. Fangmeier to a hearing on the issue, does not 

require a changing of the verdict. 

A. Standard of Review 

¶ 8 We review a district court’s interpretation of an evidentiary 

rule de novo. People v. Reed, 216 P.3d 55, 56-57 (Colo. App. 2008). 
5 

B. Analysis 

¶ 9 Under Rule 606(b), a juror may not testify regarding “any 

matter or statement occurring during the course of the jury’s 

deliberations or to the effect of anything upon his or any other 

juror’s mind or emotions as influencing him to assent to or dissent 

from the verdict or indictment or concerning his mental processes 

in connection therewith.” But the rule gives three exceptions: a 

juror may testify regarding “(1) whether extraneous prejudicial 

information was improperly brought to the jurors’ attention, (2) 

whether any outside influence was improperly brought to bear upon 

any juror, or (3) whether there was a mistake in entering the verdict 

onto the verdict form.” CRE 606(b).1 We consider only the third 

exception. 

¶ 10 In its order denying Mr. Fangmeier’s post-trial motion, the 

district court relied heavily on Stewart ex rel. Stewart v. Rice, 47 

P.3d 316 (Colo. 2002). The facts in Stewart are nearly identical to 

 

1 In Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S. Ct. 855 

(2017), the Court held that the Sixth Amendment to the United 

States Constitution may require a court to consider evidence of a 

juror’s racial bias in circumstances where common law and rules of 

evidence otherwise would not permit such consideration. This case 

does not involve such an issue. 
6 

those presented by this case: the defendant caused a car accident; 

the court told the jury to fill out a special verdict form awarding 

damages for three separate categories — noneconomic, economic, 

and physical impairment; there were separate lines on which the 

jury could enter damages for each category; the amounts that the 

jury awarded for the first two categories added up to the amount 

entered for the third category; the trial judge read the verdict aloud 

and polled each juror to confirm the verdict; and defense counsel 

submitted affidavits from five of the six jurors asserting that the 

jury had not intended to award any damages for physical 

impairment, but had mistakenly written the total of the first two 

categories on the line for the third category. Id. at 317-18. The 

supreme court held that the jurors’ affidavits could not be 

considered, and the verdict could not be altered, because the 

alleged mistake did not fall within the plain language of either of the 

(then) two exceptions to Rule 606(b) — for extraneous prejudicial 

information and outside influence. Id. at 317, 320, 323. The 

supreme court also held that there was no implicit “clerical error” 

exception to Rule 606(b). Id. at 324-27. 
7 

¶ 11 Despite the factual similarity of Stewart to this case, we 

conclude that, in light of a 2007 amendment to Rule 606(b), 

Stewart does not control. 

¶ 12 Though there were only two exceptions to Rule 606(b) in 2002 

when the supreme court decided Stewart, in 2007 the supreme 

court amended Rule 606(b) “to bring it into conformity with the 

2006 amendments to the federal rule, providing that juror 

testimony may be used to prove that the verdict reported was the 

result of a mistake in entering the verdict on the verdict form.” CRE 

606 committee cmt. The nearly identical federal rule was amended 

in 2006 in response “to a divergence between the text of the Rule 

and the case law that has established an exception for proof of 

clerical errors.” Fed. R. Evid. 606 advisory committee’s note to 

2006 amendment; see also CRE 606 committee cmt. The 

divergence in federal case law was represented by two different 

approaches — a broad exception to the rule and a narrow 

exception. The “broader exception,” which was not adopted, 

permitted “juror testimony to prove that the jurors were operating 

under a misunderstanding about the consequences of the result 

that they agreed upon.” Fed. R. Evid. 606 advisory committee’s 
8 

note to 2006 amendment; see, e.g., Eastridge Dev. Co. v. Halpert 

Assocs., Inc., 853 F.2d 772, 783 (10th Cir. 1988); Attridge v. 

Cencorp Div. of Dover Techs. Int’l, Inc., 836 F.2d 113, 116 (2d Cir. 

1987); see also Chalmers v. City of Chicago, 431 N.E.2d 361, 365 

(Ill. 1982). This approach was rejected “because an inquiry into 

whether the jury misunderstood or misapplied an instruction goes 

to the jurors’ mental processes underlying the verdict, rather than 

the verdict’s accuracy in capturing what the jurors had agreed 

upon.” Fed. R. Evid. 606 advisory committee’s note to 2006 

amendment; see also 3 Jack B. Weinstein & Margaret A. Berger, 

Weinstein’s Federal Evidence § 606.04[4][b], at 606-39 (Mark S. 

Brodin ed., 2d ed. 2015). 

¶ 13 Instead, the amendment adopted a narrow approach that “is 

limited to cases such as ‘where the jury foreperson wrote down, in 

response to an interrogatory, a number different from that agreed 

upon by the jury, or mistakenly stated that the defendant was 

‘guilty’ when the jury had actually agreed that the defendant was 

not guilty.’” Fed. R. Evid. 606 advisory committee’s note to 2006 

amendment (quoting Robles v. Exxon Corp., 862 F.2d 1201, 1208 

(5th Cir. 1989)). 
9 

¶ 14 Because the Colorado Supreme Court amended Rule 606(b) 

expressly to conform to the federal rule amendment, we hold that 

the added “mistake” exception is likewise narrow and limited to 

cases where the verdict rendered is not the verdict to which the jury 

agreed. See Stewart, 47 P.3d at 321 (“When our rule is similar to 

the federal rule, we may look to the federal authority for guidance in 

construing our rule.”); Leiting v. Mutha, 58 P.3d 1049, 1052 (Colo. 

App. 2002) (“Cases interpreting a similar federal rule of evidence are 

instructive.”). 

¶ 15 In this case, the mistake alleged is the type of “mistake” or 

“clerical error” contemplated by the added exception. In essence, 

the jury foreman asserts that he mistakenly wrote down $20,873.38 

(the sum of the damages for the noneconomic and economic losses) 

in a space where he should have written the amount the jury agreed 

to — $0. Put another way, all of the jurors agreed that Mr. 

Malpica-Cue should not recover anything for physical impairment 

or disfigurement, but the foreman misread the verdict form. This 

type of mistake is distinguishable from those in cases — reflecting 

the rejected broader exception — where jurors agreed on an amount 

of damages (that is, agreed to the figure as shown on the verdict 
10 

form), but later claimed that they did so as a result of 

misunderstanding the meaning or effect of the instructions, and 

would have awarded different damages had they properly 

understood the instructions. Compare Craig Outdoor Advert., Inc. v. 

Viacom Outdoor, Inc., 528 F.3d 1001, 1022 (8th Cir. 2008) (“Clerical 

error might involve . . . a transposed number in the damages 

amount set forth on the verdict form.”), and Karl v. Burlington N. 

R.R. Co., 880 F.2d 68, 74 (8th Cir. 1989) (“A clerical error would be 

one where the foreperson wrote down . . . a damage amount 

different from that agreed upon by the jury.”), and Kading v. 

Kading, 683 P.2d 373, 376-77 (Colo. App. 1984) (correctable clerical 

error where the amount awarded for one count was inadvertently 

switched with the amount for a different count against the same 

defendant), and Harmon Cable Commc’ns of Neb. Ltd. P’ship v. 

Scope Cable Television, Inc., 468 N.W.2d 350, 367-70 (Neb. 1991) 

(correctable clerical error where the jury foreman made a 

transpositional error in filling out the special verdict forms), with 

United States v. Morris, 570 F. App’x 151, 153-54 (3d Cir. 2014) (no 

correctable clerical error where jury misunderstood the 

instructions), and Munafo v. Metro. Transp. Auth., 381 F.3d 99, 
11 

107-08 (2d Cir. 2004) (no correctable error where jurors “most likely 

misjudged the legal effect” of a question), and Plummer v. Springfield 

Terminal Ry. Co., 5 F.3d 1, 3-4 (1st Cir. 1993) (no correctable error 

where jurors agreed on verdict amounts but allegedly 

misunderstood the legal effect of assessing degrees of fault), and 

Lahaina Fashions Inc. v. Bank of Haw., 319 P.3d 356, 370 (Haw. 

2014) (no correctable clerical error where jury realized its answers 

caused a result opposite from what it intended), and Shadoan v. 

Cities of Gold Casino, 224 P.3d 671, 675 (N.M. Ct. App. 2010) (no 

correctable clerical error where jurors misunderstood the outcome 

and effect of their decision regarding damages).2

 

2 Other cases as well have held that the type of mistake in this case 

is correctable, and that jurors may testify regarding the verdict to 

which the jury actually agreed. See United States v. Dotson, 817 

F.2d 1127, 1130 (5th Cir.) (court changed the tendered verdict 

when juror testimony confirmed that the wrong box had been 

checked on verdict form), vacated in part on other grounds on reh’g, 

821 F.2d 1034 (5th Cir. 1987); Boston Gas Co. v. Century Indem. 

Co., 793 F. Supp. 2d 511, 521 (D. Mass. 2011) (where evidence 

supported alleged jury mistake, court did not reconvene jury 

because the trial was held four years earlier; rather, the court 

vacated the verdict because it was against the weight of evidence), 

aff’d, 708 F.3d 254 (1st Cir. 2013); TeeVee Toons, Inc. v. MP3.Com,

Inc., 148 F. Supp. 2d 276, 277-79 (S.D.N.Y. 2001) (court allowed 

juror testimony regarding calculation error and ordered a new trial); 

Sifers Corp. v. Ariz. Bakery Sales Co., 133 F.R.D. 607, 608 (D. Kan. 

1991) (after discharge, jury informed bailiff that jury foreman had 
12 

¶ 16 Because Rule 606(b) now provides an exception for the type of 

jury mistake alleged in this case, we conclude that the district court 

erred in refusing initially to reconvene the jurors the day the trial 

ended and later in failing to reconvene the jurors to ascertain their 

true verdict in response to Mr. Fangmeier’s post-trial motion.3 

¶ 17 But it does not follow that Mr. Fangemeier is entitled, on this 

record, to a change in the verdict. The question is whether all

jurors agreed that Mr. Malpica-Cue should recover nothing for 

physical impairment. And though it has been said that the foreman 

“is the spokesman for the jury as a whole,” Kading, 683 P.2d at 

376, we believe the court must attempt to ascertain whether the 

foreman’s position actually reflects the views of all of the jurors. 

See Munafo, 381 F.3d at 108 (affidavit of single juror insufficient); 

Karl, 880 F.2d at 74; Cont’l Cas. Co. v. Howard, 775 F.2d 876, 885 

 

written damages amount in the wrong space on the verdict form, 

resulting in an award to the wrong party; court permitted 

correction). 

3 The fact that the court polled the jurors is not a bar to considering 

the foreman’s affidavit. E.g., Sifers Corp., 133 F.R.D. at 607 

(correcting verdict after jurors had been polled); Lahaina Fashions, 

Inc. v. Bank of Haw., 319 P.3d 356, 361 (Haw. 2014) (trial court 

acted within its discretion in reconvening jurors; jurors had been 

polled). 
13 

(7th Cir. 1985). This is so for two reasons. First, “[w]hen [an] 

individual juror[] raise[s] [an] allegation[] of verdict inaccuracy, 

courts must proceed with ‘great caution’ to avoid ‘giv[ing] to the 

secret thought of one the power to disturb the expressed 

conclusions of [all jurors]’ and thereby encourage ‘tampering with 

individual jurors subsequent to the verdict.’” Munafo, 381 F.3d at 

108 (quoting Mattox v. United States, 146 U.S. 140, 148 (1892)); 

accord Karl, 880 F.2d at 74; Cont’l Cas. Co., 775 F.2d at 885. And 

second, attempting to determine actual agreement by all jurors 

gives effect to each party’s right to poll the jurors to verify the 

legitimacy of the verdict. C.R.C.P. 47(q); Crim. P. 31(d). 

¶ 18 The motion and affidavit, however, allege facts sufficient to 

justify an evidentiary hearing to ascertain the jurors’ true verdict. 

On remand, the court shall attempt to reconvene all of the jurors. If 

the court is able to do so, it shall ask all of them whether the 

verdict reflected on the verdict form is the verdict to which they 

actually agreed, and if it is not, what verdict they agreed to. If the 

court cannot reconvene all of the jurors, the court should question 

those whom it is able to convene. In either case, the court must 

also consider any objective evidence bearing on the jurors’ actual 
14 

agreement. Such objective evidence may include the fact that the 

amount shown on the verdict form for physical impairment equals 

the total of the amounts shown on the verdict form for noneconomic 

and economic losses, the degree to which the amounts shown on 

the verdict form can be explained by the evidence, and any other 

relevant objective circumstance that does not entail inquiring into 

the jurors’ process of reasoning.4

¶ 19 If after considering the testimony and other evidence the court 

is not persuaded that a correctable mistake was made (in that all 

jurors agreed to a particular different verdict), the verdict shall 

stand.5 But if the court determines otherwise, the court shall 

correct the verdict. 

 

4 Hanna v. State Farm Insurance Co., 169 P.3d 267 (Colo. App. 

2007), does not, contrary to Mr. Malpica-Cue’s assertion, stand for 

the proposition that jurors cannot be reconvened to determine their 

actual verdict after they have been discharged and have left the 

courthouse. That case did not discuss the exceptions to CRE 

606(b). Those exceptions frequently come into play after jurors 

have been discharged. And we note that in some of the cases 

applying the third exception, jurors were reconvened after they had 

left the courthouse. Though the possibility of outside influence 

increases after jurors are discharged, we are confident that any 

such influence can ordinarily be exposed through questioning. 

 

5 To be clear, if fewer than all the jurors testify about their true 

verdict, the court should not change the verdict unless the court 
15 

III. Conclusion 

¶ 20 The order is vacated, and the case is remanded for 

proceedings consistent with this opinion. 

JUDGE DAILEY and JUDGE BERGER concur. 

 

concludes that doing so is consistent both with the juror testimony 

and the relevant objective evidence. If all of the jurors testify, and 

all agree the same mistake was made, the court may correct the 

verdict based on that testimony alone.