Peo v. Miller

23CA0625 Peo v Miller 04-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0625
City and County of Denver District Court No. 11CR5114
Honorable Jennifer B. Torrington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan J. Miller,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE MOULTRIE
Lipinsky and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 10, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Ryan J. Miller, appeals the court’s denial of his

Crim. P. 35(c) motion without a hearing. We affirm.

I. Background and Procedural History

¶2 The historical facts giving rise to this case are set forth in

People v. Miller, (Colo. App. No. 13CA1371, Sept. 21, 2017) (not

published pursuant to C.A.R. 35(e)) (Miller I) and People v. Miller,

(Colo. App. No. 19CA1456, Aug. 5, 2021) (not published pursuant

to C.A.R. 35(e)) (Miller II). As recited in Miller II:

In brief, the People charged both Miller and his
friend [Richard Leavitt] with, among other
things, murdering [the victim], Miller’s
ex-girlfriend. [Leavitt] agreed to testify against
Miller at trial in exchange for pleading guilty to
a reduced charge of second degree murder.
[Leavitt] testified that Miller had admitted
shooting and killing [the victim.] The People
also presented other evidence linking Miller to
[the victim’s] murder; for example, Miller had
previously forced his way into [the victim’s]
apartment and assaulted her after she broke
up with him and he became bitter and
obsessed about the breakup, and Miller’s DNA
was on the murder weapon (a handgun).
Miller’s defense was that [Leavitt] murdered
[the victim], and he wasn’t involved at all.

Miller II, ¶ 2.

¶3 A jury convicted Miller of first degree murder, second degree

kidnapping, first degree burglary, first degree criminal trespass, and

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third degree assault. A division of this court affirmed Miller’s

convictions. Miller I, ¶ 66.

¶4 In 2017, Miller filed a pro se Crim P. 35(c) motion for

postconviction relief, asserting that his trial and appellate counsel

were ineffective. The postconviction court summarily denied

Miller’s motion without a hearing. Miller appealed the

postconviction court’s ruling, and a division of this court affirmed.

Miller II, ¶ 59.

¶5 In 2022, Miller, through counsel, filed the Crim P. 35(c) motion

for postconviction relief (the 2022 motion) at issue in this appeal.

Miller asserted two claims based on newly discovered evidence

arising from (1) Leavitt’s alleged confession to a cellmate and (2)

alleged “new technology, scientific advances, and professional

and/or academic consensus” related to the analysis and mapping of

cell phone records. Miller also asserted two claims based on

constitutional error. He requested an evidentiary hearing on the

2022 motion and an order reversing his judgment of conviction and

granting him a new trial. The postconviction court issued a

thorough written order denying the 2022 motion without holding an

evidentiary hearing.

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¶6 On appeal, Miller contends that the postconviction court erred

by summarily denying the 2022 motion.1

II. Standard of Review

¶7 We review de novo a postconviction court’s decision to

summarily deny a Crim. P. 35(c) motion. People v. Cali, 2020 CO

20, ¶ 14. In a Crim. P. 35(c) proceeding, we presume the validity of

the convictions, and the defendant bears the burden of proving that

he is entitled to postconviction relief. Dunlap v. People, 173 P.3d

1054, 1061 (Colo. 2007). A court “may deny a Crim. P. 35(c) motion

without a hearing if the allegations are bare and conclusory; the

allegations, even if true, do not warrant relief; or the record refutes

the claims.” People v. Joslin, 2018 COA 24, ¶ 4; Crim. P.

35(c)(3)(IV).

III. Newly Discovered Evidence

¶8 Miller contends that he was entitled to a hearing on the 2022

motion because his two claims of newly discovered evidence had

1 Miller didn’t challenge his convictions for kidnapping, burglary,

assault, and trespass in the 2022 motion. Accordingly, we review
only his challenge to his first degree murder conviction. See People
v. Goldman, 923 P.2d 374, 375 (Colo. App. 1996) (“Allegations not
raised in a Crim. P. 35(c) motion . . . and thus not ruled on by the
trial court are not properly before this court for review.”).

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arguable merit and asserted facts that, if true, would entitle him to

relief. We address and reject each of his claims of newly discovered

evidence.

A. Applicable Law

¶9 To succeed on a motion for a new trial based on newly

discovered evidence, a defendant must satisfy the factors identified

in People v. Muniz, 928 P.2d 1352, 1357 (Colo. App. 1996) (the

Muniz elements):

the evidence was discovered after trial; that
defendant and his counsel exercised diligence
to discover all possible evidence favorable to
the defendant prior to and during the trial;
that the newly discovered evidence is material
to the issues involved, and not merely
cumulative or impeaching; and lastly, that the
newly discovered evidence is of such character
as probably to bring about an acquittal verdict
if presented at another trial.

See Farrar v. People, 208 P.3d 702, 706-07 (Colo. 2009); see also

People v. Genrich, 2019 COA 132M, ¶ 41.

B. Leavitt’s Alleged Confession

¶ 10 Miller first contends that the postconviction court erred by

denying him the opportunity to present at an evidentiary hearing

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newly discovered evidence of Leavitt’s alleged confession to a third

party. We disagree.

1. Additional Facts

¶ 11 At trial, Leavitt testified that Miller planned the victim’s

murder and fatally shot her. Miller asserted in the 2022 motion

that, after his conviction, Leavitt told a fellow inmate that Leavitt

was in custody because of his marijuana business; an unidentified

person “owed him some money and they got killed, and [Leavitt] got

48 years in prison and his partner got life”; and Leavitt’s partner

was lucky that “he did not get what she got too.” When asked

about the word “she,” Leavitt told the inmate, “well I owe a lot of

money and there are debts that we take in” and “I wound up taking

48 years while he got life, he’s lucky I did not kill him too.” Leavitt

continued, “she owed the money, and I was going to knock off both

of them”; through his plea deal, Leavitt “got 48 years and lucked

out on that”; and “that fool is lucky I did not off him too, he got life.”

¶ 12 The postconviction court rejected Miller’s claim, concluding

that, while the 2022 motion satisfied the first two Muniz elements, it

failed to satisfy the third and fourth elements because the evidence

was “merely cumulative or impeaching” and Leavitt’s statements

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were “not of such character as to probably bring about an acquittal

if presented at another trial.”

2. Application

¶ 13 We agree with the postconviction court that Miller failed to

allege facts that, even accepted as true, were sufficient to satisfy the

third and fourth Muniz elements. See Genrich, ¶ 41.

¶ 14 As the postconviction court noted, with respect to the first two

Muniz elements, it’s undisputed that Leavitt’s alleged statements

were made after trial and that due diligence by Miller or his counsel

therefore wouldn’t have revealed the evidence before the end of trial.

¶ 15 With respect to the third Muniz element, we conclude that

Miller failed to show that the newly discovered evidence “is material

to the issues involved, and not merely cumulative or impeaching.”

Id. At most, Leavitt’s statements, even if true, merely impeach his

trial testimony that Miller planned the victim’s murder and fatally

shot her — it doesn’t necessarily demonstrate Miller’s innocence.

See Farrar, 208 P.3d at 707 (to be sufficiently material, new

evidence must be “consequential in the sense of being affirmatively

probative of the defendant’s innocence”).

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¶ 16 Leavitt’s alleged statements aren’t material because they don’t

contain “sufficiently significant new evidence” that “will probably be

believed” over his trial testimony. See id. at 707-08. Instead, Miller

asks us to (1) speculate that Leavitt’s statements relate to this case

and the victim, even though neither Miller nor the victim is

identified by name in the statements, and (2) interpret Leavitt’s

statements to mean that Leavitt — not Miller — shot the victim.

Without more context to or evidence supporting Leavitt’s

statements, we decline to do so. See People v. Bossert, 772 P.2d

618, 621 (Colo. 1989) (stating that, to prove that testimony was

perjured, a defendant must show that the declarant made a

materially false statement); see also Farrar, 208 P.3d at 708 (noting

that a witness’s recantation necessarily serves to impeach their

credibility and therefore “it can justify a new trial only to the extent

that it not only impeaches the prior testimony but does so by

contradicting it with a different and more credible account”). And

as the postconviction court noted, Miller presented no evidence or

defense at trial concerning his and Leavitt’s involvement in an

illegal marijuana business, such that Leavitt might have had a

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motive to kill the victim or indicating that Leavitt was specifically

referring to Miller and Miller’s girlfriend.

¶ 17 Moreover, even if evidence of Leavitt’s alleged recantation

satisfied the materiality prong of Muniz, we would affirm the

postconviction court’s order because “the newly discovered evidence

is [not] of such character as probably to bring about an acquittal if

presented at another trial.” Genrich, ¶ 41. As the Miller I division

noted, the prosecution presented “ample evidence from which the

jury could have concluded that [Miller] had . . . a motive” to kill the

victim, and — even if Leavitt shot and killed the victim — the

prosecution presented sufficient evidence for the jury to find Miller

guilty under a complicity theory of liability. See § 18-1-603, C.R.S.

2024 (a defendant is liable under a complicity theory of liability for

a criminal offense committed by another if, “with the intent to

promote or facilitate the commission of the offense, [he] aids, abets,

advises, or encourages the other person in planning or committing

the offense”). Considering the vagueness of Leavitt’s statements

and the ample evidence that Miller participated in planning the

victim’s murder and killed her, as detailed in the postconviction

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court’s order, Miller has not alleged facts sufficient to show that the

new evidence would likely lead to his acquittal.

C. Cell Phone Science

¶ 18 Miller also contends that the postconviction court erred by

denying him an evidentiary hearing to present newly discovered

evidence related to the reliability of the prosecution’s cell phone

expert’s methods. We disagree.

1. Additional Facts

¶ 19 Before trial, Miller objected to the proposed testimony of the

prosecution’s cell phone expert, Detective Alfonso Cervera, and

moved for an evidentiary hearing under People v. Shreck, 22 P.3d 68

(Colo. 2001), which the trial court denied.

¶ 20 At trial, the court admitted into evidence the “call detail”

records from Miller’s and Leavitt’s respective cell phones and

qualified Detective Cervera as an expert in cell site analysis and call

record detail over Miller’s objection. Detective Cervera described

“call detail” records as a phone’s billing records, which include

information about the dates and times that a phone was used, as

well as information about what cell site or antenna the phone used

during a specified period of the phone’s usage. Detective Cervera

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testified that he examined historical data from the call detail

records to determine whether Miller’s and Leavitt’s cell phones were

near specific locations — the crime scene and other locations of

interest — on the day the victim was murdered. Detective Cervera

prepared a “slide show” to display some of the cell phone data.

¶ 21 Using that slide show, he explained that each cell phone

antenna site covers approximately a half mile to one mile in an

urban area. Detective Cervera also explained that, while a phone’s

exact location could not be determined from the data, the data

generally represented where a phone was located in the cell site

area during the phone’s call, text, or internet activity. He said that

his opinion about where a particular phone was located in relation

to particular antennae was “an estimate based on training and

experience” and was “very conservative.” Detective Cervera

concluded that the cell site location data were consistent with

Miller’s and Leavitt’s phones being near the crime scene around the

time of the victim’s murder.

¶ 22 On cross-examination, and as noted in Miller II,

Detective Cervera testified that tracking cell
phone call activity isn’t an exact science, all
activity data doesn’t reveal the length of a call

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or a person’s direction of travel during a call;
various environmental factors, including the
distance between the cell towers facilitating
signal reception, affect a call’s indicated
location; and ultimately cell phone activity
data provides only an approximate location of
someone using a cell phone.

Miller II, ¶ 44.

¶ 23 In the 2022 motion, Miller argued that newly discovered

evidence in the form of derivative mapping based on “new scientific

developments” and “previously unavailable technology,” coupled

with current professional or academic consensus regarding “the use

of call detail records analysis to pinpoint a device’s location,” would

prove that Detective Cervera’s testimony was unsupported,

unreliable, and misleading. Miller specifically challenged the way

Detective Cervera drew pie-shaped wedges on his mapping to depict

cell site coverage ranges of over one and a half miles. He also

asserted that the locations of Miller’s phone could not be

determined without a “drive test” of the cell tower coverage area.

Miller thus argued that it was “impossible to determine with any

reasonable degree of certainty” that his cell phone was at or near

the location of the victim’s murder. In denying Miller’s motion, the

postconviction court determined that Miller had not established any

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of the four Muniz elements such that a hearing on newly discovered

cell phone science was warranted.

2. Analysis

¶ 24 Accepting as true Miller’s assertion that, since his trial, there

have been technological or scientific advances pertaining to the

analysis and mapping of cell phone records, and that Miller and his

counsel acted with the necessary reasonable diligence in

discovering this new information, we conclude that Miller wasn’t

entitled to a hearing because he failed to establish the third and

fourth Muniz elements.

¶ 25 As to the third Muniz element, Miller has failed to show that

the newly discovered evidence is material. Genrich, ¶ 41. The jury

received substantial evidence from other witnesses about Miller’s

actions on the day of the victim’s murder, independent of Detective

Cervera’s testimony that Miller’s cell phone records placed Miller

near the crime scene. Detective Cervera repeatedly acknowledged

that his mapping was an estimate of cell site coverage and Miller’s

phone may have been located inside or outside of the areas he

identified, and on cross-examination, Miller’s counsel thoroughly

questioned the reliability of Detective Cervera’s methods and

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mapping. Thus, Miller fails to explain how his purported new

evidence calls into doubt the previously presented evidence

indicating that determining a cell phone’s location from cell cite

data is an imprecise science at best.

¶ 26 Moreover, Miller makes the conclusory allegation that

Detective Cervera’s methods were “scientifically baseless, absent

drive testing.” But “drive testing” — a different method used to

determine the approximate, but not exact, location of a cell phone

— is based on the same principles underlying the historic cell site

analysis to which Detective Cervera testified. See United States v.

Morgan, 45 F.4th 192, 203-04 (D.C. Cir. 2022). And Detective

Cervera used historical cell site analysis, which a division of this

court has held to be “widely accepted as reliable” when used “to

determine the general geographic location of a cell phone.” People

v. Shanks, 2019 COA 160, ¶ 35. Accordingly, Miller’s alleged new

evidence is cumulative.

¶ 27 We also conclude that, because ample other evidence

supported his conviction, Miller has failed to establish that the

newly discovered evidence would probably lead to his acquittal, as

the fourth Muniz element requires. See People v. Tomey, 969 P.2d

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785, 787 (Colo. App. 1998) (noting that, in determining whether

newly discovered evidence would likely lead to an acquittal, a court

should consider the newly discovered evidence along with all other

evidence likely to be presented at a new trial).

¶ 28 As the postconviction court noted, substantial evidence

supported Miller’s conviction independent of the cell phone

evidence, including detection of gunshot residue on sweatpants

linked to Miller through DNA and witness testimony; congruent

markings on a bullet recovered from the victim’s skull and a bullet

“test fired” from a gun that Miller had in his possession when he

was arrested; and multiple witnesses’ testimony regarding Miller’s

erratic behavior and hysterical demeanor the day of the victim’s

murder. Therefore, we discern no error in the postconviction

court’s determination that Miller was not entitled to a hearing based

on newly discovered cell phone science evidence.

IV. Constitutional Error

¶ 29 Miller argues the postconviction court further erred by

summarily denying the 2022 motion because it included an

allegation that the trial court violated his constitutional rights to

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due process and a fair trial by permitting the prosecution to

introduce the cell phone evidence. We disagree.

¶ 30 As a preliminary matter, the People contend that this claim

should be denied as successive. We reject this argument because

Miller’s claim is based upon alleged new evidence that could not

have been previously discovered through due diligence and an

asserted new rule of constitutional law. Crim. P. 35(c)(3)(VI)(a)-(b).

With respect to the latter argument, Miller cites the special

concurrence in Genrich for the proposition that he was entitled to

an evidentiary hearing based on his due process claim. Genrich,

¶¶ 134-36 (Berger, J., specially concurring). However, the majority

opinion in Genrich didn’t address whether the trial court deprived

the defendant of due process by denying his Crim. P. 35(c) motion

without a hearing. Id. at ¶ 69. Miller doesn’t cite any other

Colorado law to support his contention.

¶ 31 In any event, we are bound by Farrar, in which the supreme

court held that “claims of newly discovered evidence do not draw

into question the constitutionality of a criminal conviction.” 208

P.3d at 706. And the supreme court “has never suggested that

newly discovered evidence impeaching a guilty verdict implicates

15
due process of law.” Id. Miller’s citations to opinions from other

jurisdictions do not persuade us otherwise. See People v.

Denhartog, 2019 COA 23, ¶ 78 (“[T]he supreme court ‘alone can

overrule [its] prior precedents concerning matters of state law.’”)

(quoting People v. Novotny, 2014 CO 18, ¶ 26).

¶ 32 Accordingly, we conclude the postconviction court properly

denied Miller’s asserted constitutional due process claim premised

on the cell phone evidence.

V. Complicity Theory Jury Instruction

¶ 33 Miller also contends the trial court denied his constitutional

right to due process and a fair trial by instructing the jury on

complicity as a theory of liability because the prosecution didn’t

charge him with complicity. We decline to address this contention

because it is successive.

A. Additional Facts

¶ 34 At trial, at the prosecution’s request, the court instructed the

jury on complicity as a theory of liability. Miller objected on the

basis that complicity was not a charged offense, and the evidence

could not support a guilty verdict on that charge.

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¶ 35 In the 2022 motion, Miller asserted that he was deprived of

due process and fair notice of the charges against him when the

trial court submitted the prosecution’s complicity theory to the jury.

Citing Grissom v. People, 115 P.3d 1280, 1283 (Colo. 2005), the

postconviction court noted that complicity is not a distinct crime

but rather a theory “by which a defendant becomes accountable for

a criminal offense committed by another.” The postconviction court

also noted that, in People v. Jimenez, 217 P.3d 841, 871 (Colo. App.

2008), a division of this court held that allowing a jury to consider a

defendant’s culpability under a complicity theory did not violate the

defendant’s due process rights. Thus, the postconviction court

found Miller’s claim “unavailing” because the jury instruction

complied with existing legal standards and because his conviction

was affirmed in Miller I.

B. Applicable Law

¶ 36 Rule 35(c) allows a defendant to challenge a judgment of

conviction on the grounds that it was obtained in violation of his

constitutional or statutory rights. See Crim. P. 35(c)(2)(I). But

unless an enumerated exception applies, a postconviction court

“must deny any Crim. P. 35(c) claim that was raised and resolved,

17
or that could have been raised, in a prior appeal or postconviction

proceeding.” People v. Higgins, 2017 COA 57, ¶ 18; Crim. P.

35(c)(3)(VI), (VII).

C. Analysis

¶ 37 Miller characterizes his claim of instructional error as a

constitutional challenge cognizable under Crim P. 35(c)(2)(I). We

disagree. “As a general rule, errors in jury instructions do not

amount to constitutional error sufficient to merit postconviction

review.” People v. Sherman, 172 P.3d 911, 916 (Colo. App. 2006).

In any event, Miller already had the opportunity to challenge the

instruction in a postconviction motion. In his first postconviction

motion, Miller raised an issue related to the complicity instruction.

See Miller II, ¶ 30 (noting that Miller hadn’t challenged the

complicity instruction itself). And he hasn’t demonstrated that this

claim falls into one of the exceptions in Crim. P. 35(c)(3). Thus, we

conclude that the postconviction court didn’t err by denying Miller’s

claim about the complicity instruction because it was successive.

See Moody v. People, 159 P.3d 611, 615 (Colo. 2007) (appellate

court may affirm on any basis supported by the record). Because

the claim is successive, we decline to address its merits.

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VI. Disposition

¶ 38 The postconviction court’s order is affirmed.

JUDGE LIPINSKY and JUDGE JOHNSON concur.

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