COLORADO COURT OF APPEALS 2016COA113 

Court of Appeals No. 14CA2276 

Weld County District Court No. 14CR285 

Honorable Thomas J. Quammen, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Benjamin Jacob Geisick, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division II 

Opinion by JUDGE ASHBY 

Webb and Harris, JJ., concur 

Announced July 28, 2016 

Cynthia H. Coffman, Attorney General, Ethan Zweig, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, Kathryn Heffron, Deputy 

State Public Defender, Greeley, Colorado, for Defendant-Appellant
1 

¶ 1 Defendant, Benjamin Jacob Geisick, appeals the judgment of 

conviction entered on jury verdicts finding him guilty of resisting 

arrest, obstructing a peace officer, and possession of drug 

paraphernalia. We affirm. 

I. Background 

¶ 2 Geisick got into an argument with his girlfriend in their motel 

room. The motel manager overheard the argument, confronted 

Geisick, and then called the police. Officer Steinhour was the first 

officer to arrive and he contacted the motel manager. While Officer 

Steinhour and the manager were talking, the manager saw Geisick 

walking away from the motel and pointed Geisick out. Officer 

Steinhour followed Geisick on foot and verbally attempted to stop 

Geisick so that they could talk. A physical struggle between Officer 

Steinhour and Geisick occurred, but it ended quickly and Geisick 

ran away. Geisick hid behind a tree as other officers arrived on the 

scene and, after trying to escape on foot again, Geisick was 

ultimately tackled and arrested by the later responding officers. 

¶ 3 Based on the physical struggle with Officer Steinhour, the 

prosecution charged Geisick with second degree assault on a peace 

officer and attempting to disarm a peace officer. And because 
2 

officers found a pipe, which Geisick admitted was used to smoke 

methamphetamine, and other items in his pockets, the prosecution 

also charged Geisick with possession of drug paraphernalia. 

¶ 4 At trial, both Officer Steinhour and Geisick testified and 

offered significantly different descriptions of their struggle. Officer 

Steinhour testified that Geisick initiated the physical altercation 

between the two of them and that Geisick punched him in the face, 

hit him in the head with his radio microphone, and attempted to 

take his gun. In contrast, Geisick testified that Officer Steinhour 

initiated the physical altercation by grabbing him and throwing him 

into a wall, and denied that he ever punched the officer, hit him in 

the head with the radio microphone, or attempted to take his gun. 

Geisick did admit, however, that a physical struggle occurred and 

that he ran away from Officer Steinhour and the other officers who 

arrived later. 

¶ 5 At the close of evidence, Geisick asked the trial court to 

instruct the jury on two lesser nonincluded offenses that the People 

did not charge: resisting arrest and obstructing a peace officer. The 

trial court, at the request of Geisick, found that there was evidence 

to support both of the lesser nonincluded offenses and instructed 
3 

the jury on those offenses. The jury found Geisick not guilty of the 

charged offenses of assault on a peace officer and attempting to 

disarm an officer, but found him guilty of the uncharged lesser 

nonincluded offenses of resisting arrest and obstructing a peace 

officer in addition to the charged offense of possession of drug 

paraphernalia. The trial court convicted and sentenced Geisick 

accordingly. 

¶ 6 Geisick appeals his convictions, arguing that (1) the trial court 

erred by denying his challenge for cause to a potential juror; (2) the 

trial court erred by admitting inadmissible hearsay testimony; (3) 

the evidence was insufficient to support his resisting arrest and 

obstruction convictions; and (4) the cumulative effect of these errors 

denied him a fair trial. We consider and disagree with each of these 

arguments in turn. 

II. Challenge for Cause 

¶ 7 Geisick argues that the trial court reversibly erred by denying 

his challenge for cause to a potential juror whom he then used a 

peremptory challenge to dismiss. We reject this argument because 

Geisick fails to explain how this error prejudiced him. 
4 

¶ 8 As the supreme court explained in People v. Novotny, 2014 CO 

18, to obtain relief for an improperly denied challenge for cause a 

defendant must establish prejudice by demonstrating a reasonable 

probability that the error contributed to the verdict. See id. at ¶ 27; 

People v. Wise, 2014 COA 83, ¶ 28 (“[T]he court in Novotny made 

clear that the mere loss of a peremptory challenge, standing alone, 

is insufficient to require reversal.”). Here, the juror in question did 

not sit on the jury and Geisick fails to articulate in his opening brief 

how the alleged error prejudiced him or contributed to the verdict. 

We therefore reject this argument. 

III. Hearsay 

¶ 9 Geisick next argues that the trial court erred by admitting 

hearsay testimony about the physical altercation with Officer 

Steinhour from an officer who did not witness the altercation. We 

review for abuse of discretion. See Compan v. People, 121 P.3d 876, 

883 (Colo. 2005). But even if a court abuses its discretion by 

admitting hearsay, we will not reverse if the error was harmless. 

See Crider v. People, 186 P.3d 39, 42 (Colo. 2008). An error is 

harmless if there is no reasonable probability that it contributed to 
5 

the defendant’s conviction. Id. at 44. We conclude that any error in 

admitting the testimony was harmless. 

¶ 10 Officer Steinhour testified in detail about what happened 

before, during, and after the struggle with Geisick. In addition to 

this testimony, the People elicited testimony from the officer who 

interviewed Officer Steinhour about the struggle but did not witness 

it himself. The interviewing officer testified extensively about the 

struggle based on what Officer Steinhour told him in the interview. 

¶ 11 Geisick objected to this testimony on the ground that it was 

hearsay. The trial court agreed that the testimony was potentially 

inadmissible hearsay because the interviewing officer was testifying 

to the truth of Officer Steinhour’s statement about the struggle 

based only on having heard the statement, not having actually 

witnessed the struggle. See CRE 801(c). But the trial court 

overruled the objection and admitted the interviewing officer’s 

testimony on two alternative hearsay exception grounds: (1) Officer 

Steinhour’s statement to the interviewing officer was an excited 

utterance, rendering the interviewing officer’s testimony about it 

admissible under CRE 803(2); and (2) Officer Steinhour’s statement 

was a prior consistent statement as defined by CRE 801(d)(1). 
6 

¶ 12 We question both of the trial court’s alternative rulings 

admitting the testimony. First, there is little in the record to 

support a conclusion that Officer Steinhour’s entire statement to 

the interviewing officer was an excited utterance. Although the 

interviewing officer testified that Officer Steinhour appeared to be 

coming down from an adrenaline rush at the time of the interview, 

the interview took place after Officer Steinhour had left the site of 

the struggle, chased Geisick for several blocks, returned to the site 

of the struggle, and collected items that he had lost from his duty 

belt during the struggle. Very little in the record suggests that 

Officer Steinhour’s statement was a spontaneous reaction to an 

event so startling that it continued to render his capacity for 

reflective thought inoperative. See Compan, 121 P.3d at 882 (For a 

statement relating to an event to qualify as an excited utterance, 

“the event or condition must be sufficiently startling to render 

normal reflective thought processes of the declarant inoperative, 

and the statement must be a spontaneous reaction to the event 

rather than the result of reflective thought.”). To the contrary, the 

interviewing officer testified that he had waited until “everything 

calmed down” to interview Officer Steinhour. 
7 

¶ 13 Second, we question whether Officer Steinhour’s entire 

statement qualified as nonhearsay under CRE 801(d)(1). As 

relevant here, this rule provides that a statement is not hearsay if 

“the declarant testifies at the trial . . . and is subject to crossexamination concerning the statement, and the statement is . . . 

consistent with his testimony and is offered to rebut an express or 

implied charge against him of recent fabrication or improper 

influence or motive.” CRE 801(d)(1). Although Officer Steinhour 

was cross-examined extensively about the struggle itself, his crossexamination barely, if at all, addressed the statement he gave to the 

interviewing officer. 

¶ 14 But even if we assume that the trial court erred by admitting 

the interviewing officer’s testimony, we conclude that the error was 

harmless. The interviewing officer’s testimony was not that of an 

eyewitness; the jury was aware that the interviewing officer was 

testifying only about what Officer Steinhour said in the interview. 

And because Officer Steinhour himself described the incident in 

detail, it is unlikely that another officer’s testimony about Officer 

Steinhour’s earlier description of the incident had a significant 

impact on the jury — especially because the prosecutor did not 
8 

argue that the consistency of Officer Steinhour’s descriptions of the 

incident made them more believable. Indeed, the jury apparently 

did not believe large parts of Officer Steinhour’s descriptions of the 

incident because it found Geisick not guilty of the assault and 

attempting to disarm charges. 

IV. Sufficiency of the Evidence 

¶ 15 Geisick also argues that the evidence was insufficient to 

support his convictions for resisting arrest and obstructing a peace 

officer. We conclude that Geisick waived this argument and 

therefore do not address its merits. 

¶ 16 Waiver occurs when a party intentionally relinquishes a 

known right. See United States v. Olano, 507 U.S. 725, 733 (1993). 

When a party specifically removes issues from a trial court’s 

consideration, the party has waived those issues and we may not 

review them on appeal. See People v. Rediger, 2015 COA 26, ¶ 54 

(cert. granted Feb. 16, 2016). 

¶ 17 At the close of evidence, Geisick requested that the trial court 

instruct the jury on two lesser offenses — resisting arrest and 

obstructing a peace officer — that were not lesser included offenses 

of those that the People charged. Before a court grants a 
9 

defendant’s request for an instruction on a lesser nonincluded 

offense, the defendant “must show an evidentiary basis upon which 

the jury could rationally acquit on the greater but convict on the 

lesser offense.” People v. Medrano-Bustamante, 2013 COA 139, 

¶ 90. Thus, by requesting the lesser nonincluded instructions and 

verdict forms, Geisick necessarily argued that based on the 

evidence, a jury could rationally convict him of resisting arrest and 

obstruction instead of, or in addition to, the charged offenses.1

¶ 18 Successfully challenging the sufficiency of the evidence on 

appeal requires exactly the opposite showing: that the evidence 

could not have supported a rational conclusion that the defendant 

was guilty of the offense beyond a reasonable doubt. See People v. 

Harper, 205 P.3d 452, 455 (Colo. App. 2008). Indeed, now on 

appeal, Geisick argues that the evidence was such that a jury could 

not have rationally concluded that he was guilty of resisting arrest 

and obstructing a peace officer. But by arguing to the trial court 

that the evidence permitted a rational conclusion that he had 

committed the lesser nonincluded offenses in order to persuade the 

 

1 We also note that Geisick never moved for a judgment of acquittal 

on the lesser nonincluded offenses nor did he ever suggest that the 

evidence was insufficient to support his conviction of those offenses. 
10 

trial court to give the instructions, he waived the argument he now 

makes on appeal that the evidence was insufficient. 

¶ 19 We are aware that another division of this court recently 

analyzed this issue and applied the doctrine of invited error, rather 

than waiver, to conclude that the defendant was barred from 

challenging the sufficiency of the evidence on appeal. See People v. 

Riley, 2016 COA 76, ¶ 14. In Riley, the division concluded that by 

requesting a lesser nonincluded instruction at trial, the defendant 

invited the potential error that he would be convicted of the lesser 

nonincluded offense based on insufficient evidence. Id. at ¶ 15. 

¶ 20 Although we agree with the Riley division that a defendant is 

precluded from challenging his or her conviction of a lesser 

nonincluded offense on which the defendant requested an 

instruction, we disagree that such a challenge is precluded because 

it is invited error. Invited error “prevents a party from inducing an 

inappropriate or erroneous [ruling] and then later seeking to profit 

from that error.” Rediger, ¶ 52 (quoting Horton v. Suthers, 43 P.3d 

611, 618 (Colo. 2002)). By requesting a lesser nonincluded 

instruction, the defendant asks only that the jury receive that 
11 

instruction, not that the jury find him or her guilty of the lesser 

nonincluded offense. 

¶ 21 For these reasons, the only error that a defendant can possibly 

induce is that of giving the instruction, not that of the jury finding 

the defendant guilty of the offense. Indeed, as the division in Riley

acknowledged, even if the defendant requests that the jury be 

instructed on a lesser nonincluded offense, he does not concede 

that he is guilty of that offense and is free to argue that the jury 

should find him not guilty. See Riley, ¶ 15. 

¶ 22 A defendant’s request for the instruction does, however, 

affirmatively represent to the trial court that the evidence is 

sufficient to support a rational finding that the defendant is guilty 

of the lesser nonincluded offense beyond a reasonable doubt. In 

other words, the defendant represents that there is sufficient 

evidence on which the jury could convict him of the lesser 

nonincluded offense. And this affirmative representation, just like 

when defense counsel affirmatively assents to a proposed 

instruction or ruling, waives the defendant’s right to argue the 

opposite on appeal. See Rediger, ¶ 60 (defense counsel’s indication 
12 

that the instructions were proper waived defendant’s right to argue 

that the instructions were improper on appeal). 

¶ 23 Ultimately, the distinction between strategic invited error and 

waiver in this case is one without a functional difference. Although 

we think that waiver is the proper doctrine to apply under these 

circumstances, applying invited error would similarly preclude our 

review of Geisick’s substantive argument that the evidence was 

insufficient to support his conviction of the lesser nonincluded 

offenses. 

V. Cumulative Error 

¶ 24 Finally, Geisick argues that the cumulative effect of the alleged 

errors deprived him of a fair trial. Even if we assume that the trial 

court erred by denying his challenge for cause and admitting the 

interviewing officer’s testimony, we do not perceive that these errors 

prejudiced Geisick’s right to a fair trial. See People v. Conyac, 2014 

COA 8M, ¶ 152 (concluding, without analysis, that “although we 

have found some errors, because we do not perceive that they 

substantially prejudiced defendant’s right to a fair trial, there is no 

reversible cumulative error”). 

VI. Conclusion 
13 

¶ 25 The judgment of conviction is affirmed. 

JUDGE WEBB and JUDGE HARRIS concur.