In a first-of-its-kind published ruling, a division of the Colorado Court of Appeals has held that a defendant cannot later challenge a conviction on appeal if their own lawyer explicitly urged the jury to convict on that charge.
The unanimous decision, issued Wednesday, upheld the conviction of Anthony Garcia after his attorney conceded guilt on a resisting arrest charge during closing arguments. Writing for the three-judge panel, Judge Ted C. Tow III said that such a concession amounts to a waiver of the right to later argue that the evidence was insufficient.
“We conclude that when defense counsel tells the jury to find the defendant guilty of one of the charged offenses during closing argument, the defendant has waived the ability to claim on appeal that there was insufficient evidence to support a conviction for that offense,” the court wrote.
Garcia was convicted in Denver District Court of resisting arrest and felony tampering with physical evidence stemming from a 2019 incident. He was acquitted of more serious charges, including attempted first-degree murder and first-degree assault related to a shooting. The trial court sentenced him to six months for resisting arrest and one year for tampering, to be served concurrently with a five-year sentence in an unrelated case.
According to the appellate panel, Garcia’s lawyer made a deliberate tactical decision to acknowledge guilt on the misdemeanor charge in hopes of avoiding convictions on more serious counts. That strategy, the judges said, carried legal consequences.
“Accordingly, we conclude that Garcia’s defense counsel waived any argument that there was insufficient evidence of resisting arrest, and we will not consider it,” the opinion stated. “Because there is no other appellate claim before us, we affirm the judgment.”
The panel acknowledged that defendants have due process protections, but emphasized that constitutional rights can still be knowingly waived through counsel’s strategic choices.
The court compared the situation to guilty pleas, where defendants forfeit the right to appeal the sufficiency of the evidence. It also cited the Colorado Supreme Court’s 2017 decision in Montoya v. People, which held that a defendant could not challenge a conviction on appeal after requesting a lesser charge as part of a trial strategy.
“Existing precedent makes clear that a defendant can waive the right to have the prosecution prove guilt beyond a reasonable doubt,” Judge Tow wrote. “Further, this right may be waived by defense counsel.”
In a footnote, the panel clarified that the outcome might have been different if the concession had been made only during opening statements.
“At that point, counsel was only discussing the evidence that he reasonably anticipated would be presented,” the court noted. “If the prosecution had not presented such evidence, counsel would have been free to pivot.”
The judges added that the repeated concession demonstrated a calculated strategy rather than an accidental misstep.
Garcia’s attorney did not respond to a request for comment. The Colorado Attorney General’s Office declined to comment.
The panel included Judges Ted C. Tow III and Katharine E. Lum, along with retired Judge Dennis A. Graham, sitting by assignment.
The case is People of the State of Colorado v. Anthony Garcia, No. 23CA1371, Colorado Court of Appeals.
