Peo v. Jones

19CA0551 Peo v Jones 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0551

City and County of Denver District Court No. 18CR5447

Honorable Shelley I. Gilman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Jones,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division A

Opinion by JUDGE FREYRE

Fox and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced October 7, 2021

Philip J. Weiser, Attorney General, Shelby A. Krantz, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Robin M. Lerg, Alternate Defense Counsel, Montrose, Colorado, for Defendant-

Appellant

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¶ 1 Defendant, Michael Jones, appeals his conviction for robbery,

contending there was insufficient evidence to support it. We

disagree and affirm.

I. Background

¶ 2 After meeting codefendant Carla Garnier at a bus stop, Jones

decided to spend the day with her while she ran errands. They

ultimately ended up at a different bus stop where the “regulars” she

knew said that the man who had robbed her a week earlier was

present. As Jones watched, Garnier confronted the victim and

demanded that he “give [her her] fucking money back.” The

“regulars” began hitting the victim as Garnier continued to demand

her money. When the victim refused her demand, Garnier held him

by the waist and attempted to take his wallet. The victim broke

free and ran across the street. Garnier chased after him while

Jones remained at the bus stop.

¶ 3 Shortly thereafter, Jones walked to the street corner while

pushing a man in a wheelchair. Garnier chased the victim across

the street again to where Jones was standing. When the victim

reached the street corner, Jones stepped off the curb and stuck out

his arm. The victim hit Jones’ arm and fell to the ground. While

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the victim was still on the ground, Garnier rummaged through his

pockets and took his wallet

¶ 4 Garnier and Jones then walked away and got on a bus. They

left the bus, however, when they saw the victim speaking to the bus

driver. Instead, they boarded a different bus and left the scene.

¶ 5 The State charged Jones with robbery under a complicity

theory of liability. At trial, defense counsel argued that Jones did

not know Garnier had planned to rob the victim and, therefore, he

could not have intended to help her with the robbery. The jury

disagreed and convicted him as charged.

II. Sufficiency of Complicitor Liability

¶ 6 Jones contends the prosecution presented insufficient

evidence of knowledge and intent to support his robbery conviction

under a complicity theory of liability. We disagree.

A. Standard of Review and Applicable Law

¶ 7 When considering a challenge to the sufficiency of the

evidence, we review de novo “whether the relevant evidence, both

direct and circumstantial, when viewed as a whole and in the light

most favorable to the prosecution, is substantial and sufficient to

support a conclusion by a reasonable mind that the defendant is

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guilty of the charge beyond a reasonable doubt.” Clark v. People,

232 P.3d 1287, 1291 (Colo. 2010) (quoting People v. Bennett, 183

Colo. 125, 130, 515 P.2d 466, 469 (Colo. 1973)). In making this

determination, the reviewing court may not re-evaluate the

credibility of witnesses, the weight of testimony, or the adequacy of

a defendant’s defense. People v. Nunez, 9 P.3d 261, 267 (Colo.

1991). The reviewing court “is not permitted to act as a thirteenth

juror and set aside a verdict just because it might have drawn a

different conclusion had it been the trier of fact.” People v. McIntier,

134 P.3d 467, 471-72 (Colo. App. 2005); People v. Martinez, 36 P.3d

154, 163 (Colo. App. 2001).

¶ 8 As relevant here, a person commits robbery when he

“knowingly take[s] anything of value from the person or presence of

another by the use of force, threats, or intimidation.” § 18-4-301,

C.R.S. 2020. A person acts “knowingly” “with respect to conduct or

to a circumstance described by a statute defining an offense when

he is aware that his conduct is of such nature or that such

circumstance exists.” § 18-1-501(6), C.R.S. 2020.

¶ 9 Complicity is a legal theory of liability in which “[a] person is

legally accountable as [a] principal for the behavior of another

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constituting a criminal offense if, with the intent to promote or

facilitate the commission of the offense, he or she aids, abets,

advises, or encourages the other person in planning or committing

the offense.” § 18-1-603, C.R.S. 2020; see also People v. Childress,

2015 CO 65M, ¶ 7; People v. Vecellio, 2012 COA 40, ¶ 33. Under

this theory, the prosecution must prove that the defendant acted

with

(1) the intent, in the commonly understood

sense of desiring or having a purpose or

design, to aid, abet, advise, or encourage the

principal in his criminal act or conduct, and

(2) an awareness of those circumstances

attending the act or conduct he seeks to

further that are necessary for commission of

the offense in question.

Childress, ¶ 29. The phrase “circumstances attending the act or

conduct” is defined as “those elements of the offense describing the

prohibited act itself and the circumstances surrounding its

commission, including a required mental state, if any.” Id.

¶ 10 A complicitor need not possess the same mental state required

for the underlying offense; he only needs to “act with an awareness

the principal is or would be acting with that required mental state.”

Id. And a defendant’s mental state can be proven by circumstantial

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evidence rather than direct evidence. People v. Collie, 995 P.2d 765,

773 (Colo. App. 1999) (“Evidence of a defendant’s intent can ‘rarely

be proven other than by circumstantial or indirect evidence.’”

(quoting People v. Valenzuela, 825 P.2d 1015, 1016 (Colo. App.

1991))). The jury may infer a defendant’s mental state from his

conduct and other evidence, including the circumstances

surrounding the commission of the crime. People v. Grant, 174

P.3d 798, 812 (Colo. App. 2007); People v. Yascavage, 80 P.3d 899,

902 (Colo. App. 2003), aff’d, 101 P.3d 1090 (Colo. 2004).

B. Analysis

¶ 11 Contrary to Jones’ contention, we conclude that the

prosecution presented sufficient evidence of Jones’ knowledge,

based on the following evidence:

• Testimony that Jones was with Garnier when the

“regulars” told her that the man who had robbed her the

week prior was at the same bus shelter.

• Testimony that Jones witnessed Garnier confront the

victim and demand that he “give [her her] fucking money

back.”

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• Surveillance video showing Jones watching Garnier grab

the victim by the waist and chase after him.

¶ 12 As well, we conclude that the prosecutor presented sufficient

evidence of Jones’ intent to aid or abet Garnier, based on the

following evidence:

• Surveillance video showing Jones step off the curb, hold

his arm out, and cause the victim to fall to the ground.

• Surveillance video showing Jones stand by as Garnier

rummaged through the victim’s clothing to take his

wallet.

• Surveillance video showing Jones and Garnier walk away

together, board a bus, leave the bus, and eventually leave

the scene on a different bus.

¶ 13 Viewing this evidence in the light most favorable to the

prosecution, we conclude that the jury could have reasonably

determined beyond a reasonable doubt that Jones committed

robbery under a complicity theory.

III. Conclusion

¶ 14 The judgment is affirmed

JUDGE FOX and JUDGE LIPINSKY concur.