26CO42, 25SA303 - In re People v. Mena, Omar

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
June 8, 2026

# 2026 CO 42

No. 25SA303, In Re People v. Mena-Double Jeopardy - Partial Verdicts -
Verdict Forms -Lesser-Included Offenses.

In the underlying criminal case from which this C.A.R. 21 proceeding
emerged, the defendant was charged with three counts of sexual assault under
three different statutory provisions. The trial court presented the jury with verdict
forms that included the charged offenses and the lesser-included offense of
attempt as to each count. After three days of deliberation, the jury sent a written
note to the court that clearly suggested it had acquitted the defendant of the
charged offenses but was deadlocked on the lesser-included offenses.

Departing from federal precedent, the supreme court holds that under these
circumstances - when a partial verdict is spontaneous, final, and unambiguous
regarding the charges to which it applies -a trial court violates the defendant's
right to be protected from double jeopardy under the Colorado Constitution if it
fails to accept that verdict. Accordingly, the order to show cause is made absolute.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 42

Supreme Court Case No. 25SA303
Original Proceeding Pursuant to C.A.R. 21
Larimer County District Court Case No. 23CR1133
Honorable Sarah B. Cure, Judge

In Re
Plaintiff:

The People of the State of Colorado,

V.

Defendant:

Omar Alexander Mena.

Order Made Absolute
en banc
June 8, 2026

Attorneys for Plaintiff:
Gordon P. Mclaughlin, District Attorney, Eighth Judicial District
Russell B. Connelly, Deputy District Attorney
Fort Collins, Colorado

Attorneys for Defendant:

Wolf Law, LLC

Jeffrey A. Wolf

Colleen Kelley

Cassandra P. Monahan

Denver, Colorado

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Attorneys for Respondent Larimer County District Court:
Philip J. Weiser, Attorney General
Lane Towery, Assistant Attorney General
Denver, Colorado

JUSTICE HOOD delivered the Opinion of the Court, in which CHIEF JUSTICE
MÁRQUEZ, JUSTICE GABRIEL, and JUSTICE SAMOUR joined.
JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, dissented.
JUSTICE BLANCO did not participate.

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JUSTICE HOOD delivered the Opinion of the Court.

11 In this original proceeding arising from an underlying criminal action, we
examine a double jeopardy issue that first emerged in a note from a stalled jury.
More specifically, we consider whether the trial court erred by declaring a
complete mistrial after the jury spontaneously informed the court that it had
reached a unanimous verdict on the charged offenses but remained deadlocked
on lesser-included offenses. Because the jury's note irrefutably implied a partial
verdict-namely, that the jury had acquitted the defendant, Omar Alexander
Mena, of the charged offenses-we conclude that the trial court's mistrial order
violated Mena's right to be protected from double jeopardy under the Colorado
Constitution.

## I. Facts and Procedural History

[2 Mena was charged with three counts of sexual assault. See § 18-3-402(1)(a),
(b), (h), C.R.S. (2025). He pleaded not guilty, and the case proceeded to a jury trial.
13
After the close of evidence, the People submitted jury instructions for the
lesser-included offense of attempt on each count, which the court accepted over
defense counsel's objection. The court then gave the jury verdict forms that
contained two options for each charge: (1) the jury could find Mena not guilty of
both the completed offense and the lesser-included attempt offense, or (2) the jury

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could find Mena guilty of either the completed offense or the lesser-included
attempt offense.

14 The forms gave the jury no way to declare Mena not guilty of the charged
offense and simultaneously indicate a deadlock on the lesser-included offense.
Each of the verdict forms was structured1 as follows:

*I. We, the jury, find the defendant, Omar Alexander Mena, NOT
GUILTY of Count No. 1-SEXUAL ASSAULT (PHYSICALLY
HELPLESS), and the lesser-included offense of CRIMINAL
ATTEMPT TO COMMIT SEXUAL ASSAULT (PHYSICALLY
HELPLESS).

FOREPERSON

** II. We, the jury, find the defendant, Omar Alexander Mena,
GUILTY of Count No. 1-

[ ] SEXUAL ASSAULT (PHYSICALLY HELPLESS)
OR

[ ] CRIMINAL ATTEMPT TO COMMIT SEXUAL ASSAULT
(PHYSICALLY HELPLESS)

1 The People charged Mena with sexually assaulting the alleged victim on a single
occasion in a way that violated three different statutory subsections; namely,
sections 18-3-402(1)(a), (b), and (h). Hence, three charged offenses. Each alleged
offense gave rise to a separate elemental instruction, a corresponding lesser-
included offense instruction, and a verdict form like the one set forth here. The
instructions distinguished among the alleged offenses using self-explanatory
shorthand references: "physically helpless," "incapable of appraising the nature of
conduct," and "no consent." The format of each verdict form was identical, aside
from these shorthand references.

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\* If you find the defendant NOT GUILTY of the charged offense and
the lesser-included offense, the foreperson should sign section I
above.

** If you find the defendant guilty of the crime charged or the
lesser-included offense, the foreperson should complete only this
GUILTY verdict by placing, in ink, an "X" in the appropriate square.
ONLY ONE SQUARE may be filled in, with the remainder to remain
unmarked. The foreperson should then sign only section II above.

15
The trial lasted five days. The jury deliberated for an additional three. On
the second day of deliberations, the jury indicated that it was divided but still
might reach a unanimous verdict.

16 On the third day, the jury informed the court, in writing, that it was "unable
to come to a unanimous decision on the secondary charges. The jury is unanimous
on the primary charges. No further deliberation will change our decision." To
clarify what the jury meant, the court asked, "By 'secondary charges' do you mean
the lesser-included offenses? By 'primary charges' do you mean the charges as
outlined in [the elemental instruction for the completed offense]?" The jury
answered both questions, "Yes."

17 Defense counsel asked the trial court to provide a new verdict form to the
jury to allow it to separately indicate whether it had reached a verdict on the
completed offense or the lesser-included offense for each charge. The court denied

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the request, declared a mistrial on all charges, and denied defense counsel's
request to poll the jury.

18 We granted Mena's petition for review under C.A.R. 21.2

## II. Original Jurisdiction

19
Relief under C.A.R. 21 is an extraordinary remedy "limited in both purpose
and availability." People v. Moore, 2021 CO 26, 1 21, 485 P.3d 1088, 1094. The
decision of whether to exercise our jurisdiction under that rule rests solely within
our discretion. C.A.R. 21(a)(2). We exercise our jurisdiction "when an appellate
remedy would be inadequate [and] ... a party may otherwise suffer irreparable
harm." People v. Kilgore, 2020 CO 6, 1 8, 455 P.3d 746, 748 (citation omitted).

110 We agree with Mena that a traditional appellate remedy would be
inadequate. A defendant can't immediately appeal a trial court's order for a new
trial because it's not a final judgment. People v. Cochran, 490 P.2d 684, 685 (Colo.
1971); see also C.A.R. 1(a)(1). Because Mena may otherwise be forced to endure a
second trial in violation of his constitutional right against double jeopardy, see

2 The petitioner presents the following issue:
Whether a district court has abused its discretion by finding a mistrial
on all charges manifestly necessary when a jury unequivocally
indicates it has a unanimous verdict on originally filed charges and is
only deadlocked on lesser included charges.

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People v. Segovia, 196 P.3d 1126, 1129 (Colo. 2008), we exercise our original
jurisdiction.

## III. Analysis

111 We begin by identifying the standard of review. Next, we recount the legal
framework that structures our analysis of double jeopardy and the manifest
necessity exception. We then review when double jeopardy law allows a trial
court to declare a mistrial and when it requires a court to accept a partial acquittal.
Finally, we apply these principles to the facts of this case.

## A. Standard of Review

112 We review a trial court's finding of manifest necessity for a mistrial for an
abuse of discretion. People v. Richardson, 184 P.3d 755, 760 (Colo. 2008). A court
"necessarily abuses its discretion if its ruling is based on an erroneous view of the
law." People v. Voth, 2013 CO 61, 1 15, 312 P.3d 144, 148.

## B. Double Jeopardy and Manifest Necessity

113 The United States and Colorado Constitutions both prohibit the government
from subjecting criminal defendants to repeated prosecution for the same offense
after the government fails to obtain a conviction in the first instance. U.S. Const.
amend. V; Colo. Const. art. II, § 18.

[14 In a jury trial like Mena's, jeopardy attaches "when the jury is sworn" in.
People v. Porter, 2015 CO 34, 1 9, 348 P.3d 922, 924. If the jury finds the defendant

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not guilty or the trial is terminated without the defendant's consent after jury
selection and before a verdict has been reached, double jeopardy principles will
usually prevent retrial on the charges at issue. Segovia, 196 P.3d at 1133. As such,
double jeopardy prevents prosecutors from intentionally forcing a mistrial to
afford themselves a more favorable opportunity to secure a conviction. People v.
Baca, 562 P.2d 411, 413 (Colo. 1977).

115 A defendant may be retried if a trial court declares a mistrial due to manifest
necessity. Segovia, 196 P.3d at 1133. Manifest necessity exists under circumstances
"substantial and real, that interfere with ... 'the administration of honest, fair,
even-handed justice to either, both, or any, of the parties to the proceeding.""
People v. Castro, 657 P.2d 932, 942 (Colo. 1983) (quoting Brown v. People, 291 P.2d
680, 684 (Colo. 1955)), overruled on other grounds by, West v. People, 2015 CO 5, 1 2,
341 P.3d 520, 523. The declaration of a mistrial for manifest necessity is an extreme
step that should be taken only when no "other reasonable alternatives" are
available. Segovia, 196 P.3d at 1133.

116 One circumstance that constitutes manifest necessity for a mistrial is when
a "jury is unable to agree upon a verdict." § 18-1-301(2)(b)(IV), C.R.S. (2025); see
also Richardson, 184 P.3d at 760. Here, we examine whether it is manifestly
necessary to retry all charges when a jury returns a partial verdict that indicates
an acquittal on greater offenses but a deadlock on lesser-included offenses.

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## C. Partial Verdicts

117 Juries are often asked to decide guilt as to the charged offense and one or
more lesser-included offenses, like attempt. And because Colorado is a "soft
transition" jurisdiction, a Colorado jury may consider guilt for charged and lesser
offenses simultaneously. Richardson, 184 P.3d at 764 n.7. This can sometimes result
in a jury reaching a verdict on the charged offenses, while remaining deadlocked
on lesser-included offenses. When a jury returns "a final verdict on some, but not
all of the greater degrees of the offense included within" a charge, we have a
"partial verdict." Id. at 763 n.5 (quoting Whiteaker v. State, 808 P.2d 270, 274 (Alaska
Ct. App. 1991)).

118 A partial verdict, or the suggestion of one, can create a conundrum for the
court: Should it try to clarify the jury's intentions? Should it attempt to interpret
and accept the partial verdict? Or should it declare a mistrial based on the jury's
stated deadlock? However unenviable the task is at times, it is the trial court's
responsibility to pick the best path under often shifting circumstances. See
Gibbons v. People, 2014 CO 67, 1 31, 328 P.3d 95, 101 ("Addressing the fluid
dynamics associated with possible deadlock is a quintessential trial court
responsibility.").

119 Even so, a court generally shouldn't "interfere with the jury's deliberative
process." Id. at [ 32, 328 P.3d at 101. Thus, if a jury raises merely the possibility

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of an impasse to the court, the court must avoid making a statement to the jury
that may suggest that the court is attempting to coerce any juror to "surrender his
conscientious convictions to secure" a unanimous verdict. Lowe v. People, 488 P.2d
559, 561 (Colo. 1971). But the court should determine whether the jury is
deadlocked or whether further deliberations would be helpful. Gibbons, 1 31,
328 P.3d at 101. The court then has discretion regarding how to proceed -for
example, by giving supplemental instructions or by declaring a mistrial. See id. at
TT 30-33, 328 P.3d at 101-02.

## 1. Prohibition on Partial-Verdict Inquiries

120 But the court may not initiate a partial-verdict inquiry - that is, it may not
directly ask the jury to clarify its verdict when the jury has simply indicated that
it is deadlocked. See Richardson, 184 P.3d at 763. The court may not inquire as to
the extent of the jury's deadlock by, for example, asking which offenses the jury is
deadlocked on; doing so risks applying improper pressure on the jury. Id. If the
jury's communication leaves the court unable to discern the jury's intention as
between charged offenses for which the jury has acquitted a defendant and lesser
offenses as to which the jury remains deadlocked, the court has discretion to either
declare a mistrial as to all offenses or prompt the jury to continue deliberating. See
Gibbons, T 31, 328 P.3d at 101.

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121 In Richardson, after three days of deliberation, the jury sent the court a note
declaring that it had a unanimous verdict on one charge but had stopped making
progress toward a unanimous verdict on the other two charges, each of which
encompassed lesser-included offenses on which the court had also instructed the
jury. 184 P.3d at 759. The court accepted three verdict forms from the jury: one
was signed and found Richardson not guilty of vehicular homicide (DUI); the
other two-for vehicular homicide (reckless) and the lesser-included offense of
careless driving resulting in death and for first degree murder and the lesser-
included offenses of second degree murder, manslaughter, and criminally-
negligent homicide - were unsigned and unmarked. Id. The court then effectively
declared a mistrial by setting Richardson's case for retrial on the two deadlocked
charges. Id.

122 This court granted Richardson's petition for review under C.A.R. 21 and
concluded that the trial court had appropriately exercised its discretion by
declaring a mistrial on the counts for which the jury returned blank verdict forms
because the jury was unable to reach a verdict on those charges. Richardson,
184 P.3d at 762. Under these circumstances, the trial court couldn't ask the jurors
to explain which offenses they were deadlocked on because it is improper for the
court to "initiate any inquiry into partial verdicts premised on lesser included

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offenses within a single complaint or count of an indictment." Id. at 763 (quoting
Commonwealth v. Roth, 776 N.E.2d 437, 450 (Mass. 2002)).

123 The rule against judicially initiated inquiries into partial verdicts is born out
of a concern that such questioning may coerce jurors into changing their votes so
the jury can reach a verdict. See id. "[A] judge's request that the jury divulge the
substance of their 'final' vote may force the jury to report as 'final' some votes that
were not intended to be 'final' unless they resolved the entire case." Roth,
776 N.E.2d at 448-49. This rule is consistent with other features of Colorado
criminal procedure that presume a juror's votes aren't final until the jury declares
that their unanimity is intended to be final. See § 16-10-108, C.R.S. (2025); Crim.
P. 23(a)(8).

124 But the question here doesn't implicate inquiries into the jury's deliberative
process. Rather, Mena asks whether a court must accept a partial verdict when
the jury spontaneously and unequivocally tells the court that it has reached a final
and unanimous verdict on certain offenses.

## 2. Spontaneous Partial Verdicts

125 When a trial court is presented with a jury's unsolicited and unambiguous
partial verdict, concerns about juror coercion disappear. Under these
circumstances-when the jury's unsolicited communication allows a court to
distinguish the offenses the jury has unanimously decided from those it

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hasn't-there is no ambiguity to resolve. And because Colorado's Double
Jeopardy Clause bars retrial on charges for which the jury has unanimously
reached "a final judgment favorable to the defendant," People v. Quintana, 634 P.2d
413, 420 (Colo. 1981), overruled on other grounds by, Porter, 1 22, 348 P.3d at 927, a
trial court errs by rejecting the jury's clear partial verdict on facts like these.

126 Citing to Blueford v. Arkansas, 566 U.S. 599 (2012), the People point out that
federal double jeopardy precedent doesn't require this result. Even if this is true,
we have interpreted Colorado's Double Jeopardy Clause to afford broader
protection from repeated prosecution than its federal counterpart. E.g., People v.
Serravo, 823 P.2d 128, 141 (Colo. 1992). While the state and federal Double
Jeopardy Clauses operate along similar principles and have nearly identical text,
"even parallel text does not mandate parallel interpretation." Rocky Mountain Gun
Owners v. Polis, 2020 CO 66, 1 37, 467 P.3d 314, 324. Thus, under some
circumstances, the Colorado Constitution will provide criminal defendants with
protection from retrial even after the federal protection runs out. People v. Paulsen,
601 P.2d 634, 635-36 (Colo. 1979). "There is no reason to think, as an interpretive
matter, that constitutional guarantees of independent sovereigns, even guarantees
with the same or similar words, must be construed in the same way." Jeffrey S.
Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law
174 (2018).

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127 We are not alone in reaching this conclusion. Other state high courts also
require trial courts to accept partial verdicts that are spontaneous and unequivocal
in describing the offenses to which they apply. See People v. Aranda, 437 P.3d 845,
856 (Cal. 2019) ("The court has no duty to inquire as to the possibility of a partial
verdict unless the jury has given some affirmative indication that it has acquitted
on a greater offense but deadlocked only on a lesser offense." (emphasis added));
State v. Fennell, 66 A.3d 630, 643 (Md. 2013) ("[I]f the jury indicates an intention to
render a partial verdict 'the court may not preclude the jury from doing so.""
(quoting the State's brief to the court)); Oliver v. Justs. of the N.Y. Sup. Ct., 324 N.E.2d
348, 351 (N.Y. 1974) ("If the jury still has a partial verdict, and the court is of the
opinion that further deliberations would not be likely to produce ultimate
agreement[,] ... the partial verdict must then be accepted.").

## D. Application

128 The jury here spontaneously and unequivocally announced that it had
reached a final verdict on the completed-act offenses and was deadlocked on the
attempt offenses. Although the trial court responded to the jury's note with a
question, that question served only to clarify the phrasing of the jury's note; the
question wasn't a partial-verdict inquiry. Armed with the jury's response to the
clarifying question, the only logical inference from the jury's communication is
that it had unanimously acquitted Mena of the completed acts. Had the jury found

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Mena guilty of the charged offenses, the verdict forms told the jury that it wouldn't
need to return a verdict for the lesser-included offenses, and it could return the
forms as presented to the court. So, if the jury had unanimously convicted Mena
of any of the charged offenses, it could have communicated that verdict to the
court through the existing verdict forms. The People seemed to concede as much
in oral argument to this court.

129 Given the jury's valid partial verdict as to the charged offenses, we conclude
that the trial court abused its discretion by declaring a mistrial as to all offenses on
which the court instructed the jury, rather than just as to the lesser-included
offenses. In reaching this conclusion, we don't mean to suggest that trial courts
have no discretion regarding how and when to amend verdict forms.3 Instead, we
simply reiterate that a court's discretion is constrained by the principles of double
jeopardy.

## IV. Conclusion

130 The order to show cause is made absolute. On remand, Mena may be retried
only for the attempt offenses.

JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, dissented.

3 For example, comment 1 to Colorado's model criminal jury instruction E:15,
COLJI-Crim. E:15 (2025), provides an example of how trial judges and the lawyers
before them may be able to structure verdict forms to permit a jury to return a
valid partial verdict.

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JUSTICE BOATRIGHT, joined by JUSTICE BERKENKOTTER, dissenting.

131 Dealing with juries that are struggling to reach a unanimous verdict is
extremely challenging for a trial court judge. The majority amply lays out the
potential pitfalls of the court weighing in inappropriately and being perceived as
trying to coerce a verdict. See Maj. op. 11 18-19. The majority then concedes that
dealing with a potential deadlocked jury is "a quintessential trial court
responsibility" and that the court has "discretion regarding how to proceed,"
whether it be by "giving supplemental instructions or by declaring a mistrial." Id.
(quoting Gibbons v. People, 2014 CO 67, 1 31, 328 P.3d 95, 101). I agree with that
observation wholeheartedly. The trial judge made a very difficult decision here
using their best judgment, and we should leave that decision alone.

132 While the majority seemingly acknowledges that important principle, it
then turns around and disregards it by determining that this quintessential trial
court decision, which was supported by case law, was an abuse of discretion. Maj.
op. 1 29. I am not denying that there may be double jeopardy concerns here, but
I cannot see how the trial court abused its discretion when it declared a mistrial. And
perhaps of greater concern, the majority, for the first time, unnecessarily opens
trial court proceedings to questions surrounding the use of partial verdict forms
that are introduced for the first time during jury deliberations. This is going to
cause problems. Hence, I respectfully dissent.

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133 I believe that the proper remedy here would have been to discharge the
order to show cause and remand the case to the trial court, with leave for the
defense to file a motion to dismiss for violation of Omar Alexander Mena's double
jeopardy rights. Following this approach, the defense could have still raised
arguments that retrial would subject Mena to double jeopardy on the lead charges1
because it is, at the very least, arguable that the jury implicitly acquitted him of
these charges.

## I. Summary of the Facts

134 At Mena's trial, the jury was provided with verdict forms for three different
counts of sexual assault that instructed the jury to either (1) find Mena not guilty
of both sexual assault and attempted sexual assault, or (2) find him guilty of sexual
assault or attempted sexual assault (but not both). On the second day of
deliberations, the jury told the bailiff that it was "split on the secondary charges
but not the first." In response, the trial court sent the jury a request for clarification
asking it to elaborate and whether additional deliberation would assist it in

1 The "lead charges" as used here and throughout this opinion refer to the three
original charges brought against Mena for sexual assault (sexual
assault -physically helpless, sexual assault - incapable of appraising the nature of
conduct, and sexual assault-no consent), rather than the lesser-included attempt
charges on which the People later asked the court to instruct the jury.

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reaching a unanimous verdict. The jury answered affirmatively but without
elaboration.

135 The next day, after a total of eighteen and a half hours of deliberation, the
jury sent the court the following note: "The jury is unable to come to a unanimous
decision on the secondary charges. The jury is unanimous on the primary charges.
No further deliberation will change our decision." The court then sought
clarification from the jury, asking if "secondary charges" meant the
lesser-included offenses and "primary charges" meant the lead charges; the jury
confirmed this interpretation.

136 Following this, defense counsel noted that the verdict form was not
structured in a way that would allow the jury to formally enter a not-guilty verdict
on the lead charges if it could not reach a unanimous verdict on the lesser-included
offenses. Accordingly, defense counsel asked the court to create modified verdict
forms that would allow the jury to issue a partial verdict. Relying on People v.
Richardson, 184 P.3d 755 (Colo. 2008), the trial court noted that it had discretionary
authority on the matter and declined to issue modified verdict forms. It
determined that the original verdict forms were "properly crafted," and that it was
not otherwise inclined to issue any partial verdict that would result from such

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inquiry.2 The court then declared a mistrial, finding it manifestly necessary to do
so because the jury was deadlocked after "what appear[ed] to be incredibly
thoughtful and time-intensive deliberations."

137 Without filing any additional motions in the trial court, Mena then
petitioned this court for an order to show cause, challenging the trial court's
finding of "manifest necessity" for a mistrial. He argues that the trial court should
have issued a partial not-guilty verdict on the lead charges because the jury's
communications indicated that it had necessarily found him not guilty on these
charges and was deadlocked only on the lesser-included offenses. Mena thus asks
this court to either dismiss the lead charges or issue an order stating that retrial on
those charges would violate his right against double jeopardy.

## II. Analysis

138 One situation in which this court will exercise original jurisdiction under
C.A.R. 21 is when "no other adequate remedy is available," C.A.R. 21(a)(2), and
when a trial court's ruling would otherwise "significantly hinder" a party's ability
to prove the merits of their claim, P.W. v. Child.'s Hosp. Colo., 2016 CO 6, 1 12,
364 P.3d 891, 895 (quoting Warden v. Exempla, Inc., 2012 CO 74, 1 16, 291 P.3d 30,
34).

2 Defense counsel also asked the court to poll the jury, which the court declined,
reiterating its discretion on the matter, citing Richardson, 184 P.3d 755.

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139
Mena argues that he has no other adequate remedy and is thus entitled to
C.A.R. 21 review because if he is forced to face retrial, "he will have already been
subjected to double jeopardy" in violation of his constitutional rights. Agreeing
with Mena, the majority summarily concludes that because "Mena may otherwise
be forced to endure a second trial in violation of his constitutional right against
double jeopardy" a "traditional appellate remedy would be inadequate." Maj. op.
1 10 (emphasis added).

40 But we don't know that Mena would have to endure a second trial on the
lead charges. Moreover, both Mena and the majority fail to consider what I see as
an obvious remedy available here. If and when the People elect to proceed against
Mena on a retrial, Mena would have the opportunity to file a motion to dismiss
the lead charges on double jeopardy grounds before a second jury trial could
commence. In fact, this was the order of operations pursued in the cases heavily
cited in the briefing and in the majority opinion: Richardson, 184 P.3d 755, and
People v. Segovia, 196 P.3d 1126 (Colo. 2008). Maj. op. 11 15, 21. Both cases
similarly considered whether a declaration of mistrial was manifestly necessary
based on double jeopardy considerations. But, in both cases, the defendants had
first filed a motion to dismiss with the trial court and only sought this court's
review after the trial court denied those motions. See Richardson, 184 P.3d at 760;
Segovia, 196 P.3d at 1129. Mena skipped a step here.

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141 Following this approach, the parties could have first made the double
jeopardy arguments presented before this court today just as effectively before the
trial court in (and in response to) a motion to dismiss. Then, if the trial court were
to have denied this motion to dismiss, Mena could still request this court's
C.A.R. 21 review at that point, when the issues would be "more obviously ripe and
available" (as the trial court argues here).

142 Instead, due to the premature nature of this petition, Mena is cabined to
presenting arguments that the trial court abused its discretion in declaring a mistrial.
And, by taking this case in this procedural posture, the majority finds itself locked
in to determining that the court abused its discretion; after all, without that
determination, it cannot reach the double jeopardy question. Maj. op. [ 12.

143 I find it difficult to conclude that the trial court abused its discretion here when
it declared a mistrial. The court acted in accordance with the authority it had
before it and proceeded reasonably given the situation. The U.S. Supreme Court
has explicitly stated that trial courts are not required to issue partial verdicts.
Blueford v. Arkansas, 566 U.S. 599, 609 (2012) ("We have never required a trial court,
before declaring a mistrial because of a hung jury, to consider any particular means
of breaking the impasse-let alone to consider giving the jury new options for a
verdict." (emphases added)).

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144 Additionally, the record suggests that the trial court struck an appropriate
balance between "employ[ing] all legal and reasonable measures to secure a
verdict,"" and "tak[ing] care to avoid ... 'the coercion of verdicts by improper . . .
influence."" Richardson, 184 P.3d at 760 (omission in original) (quoting Barriner v.
Dist. Ct., 484 P.2d 774, 776 (Colo. 1971)). In Richardson, we concluded that the trial
court proceeded properly when it took the following steps before declaring a
mistrial instead of conducting a partial verdict inquiry: (1) instructing the jury to
"continue to deliberate so long as progress is being made toward a unanimous
verdict"; and (2) again instructing the jury to continue deliberating "if there is a
likelihood of progress" once the jury communicated that it was still deadlocked as
to the degree of the defendant's guilt. Id. at 762-64. The trial court in Richardson
declared a mistrial only after the jury indicated that further deliberations would
be futile and after accepting the (incomplete) verdict forms. Id. at 758-59. Here,
before declaring a mistrial, the trial court took similar steps to secure a verdict
while honoring its discretion to decline a partial verdict inquiry. The trial court
only declared a mistrial after over eighteen hours of deliberation and after the jury
communicated that it could not come to a unanimous decision on the
lesser-included counts. This decision, moreover, came after the court's
instructions to the jury to continue deliberating if progress could be made as well
as the court's multiple requests for clarification. Now, the majority concludes that

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the trial court here abused its discretion even though the court proceeded
identically to the Richardson trial court. In my view, under these facts, the trial
court did not abuse its discretion by declining to construct a verdict form
mid-deliberations, especially one that had never been given in Colorado.

145 While the trial court notes that rejecting jurisdiction here would "result in
merely re-briefing these same issues in short order," by refusing to do so, the
majority has set an unnecessary precedent that will sow great confusion in future
cases. Anytime a jury indicates some kind of difficulty in reaching a verdict,
defense counsel will now be incentivized to request that a partial verdict form be
submitted. And, compounding the problem, the majority has needlessly muddied
the waters as to when it is proper for a court to tender a partial verdict form during
jury deliberations, or when doing so would be deemed coercive. It is my view that
the majority has made these decisions all the more difficult for future judges.
146 Instead, a fair and just solution remains amply available to Mena without
seeking this court's review at this stage. This court should discharge the order to
show cause and remand the case to the trial court with leave for the defense to file
a motion to dismiss the original charges. Such an approach would enable Mena
to still raise his double jeopardy arguments while reinforcing the correct order of
operations that parties should take before seeking this court's review. Hence, I
respectfully dissent.