Peo v. Birch

22CA0928 Peo v Birch 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0928
Arapahoe County District Court No. 20CR3054
Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Samuel Isaiah Birch,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE MEIRINK
Dunn and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 17, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Mark G. Walta, Alternate Defense Counsel, Littleton, Colorado, for Defendant-
Appellant
¶1 Defendant, Samuel Isaiah Birch, appeals his judgment of

conviction and sentence imposed by the trial court. We affirm.

I. Background

¶2 In December 2020, Douglas County Sheriff’s Office deputies

responded to a hit-and-run report involving a dark-colored vehicle.

The driver, later identified as Birch, was arrested after a failed

attempt to flee the scene of the accident. At the scene, Birch

appeared to be intoxicated.

¶3 Shortly after Birch’s arrest, his ex-girlfriend called the

Arapahoe County Sheriff’s Office and identified Birch as the

perpetrator of two armed robberies that took place in November

2020, the second of which resulted in the death of the store clerk.

¶4 The People then charged Birch with first degree murder after

deliberation, first degree felony murder, two counts of aggravated

robbery with a deadly weapon, and tampering with physical

evidence. Birch pleaded not guilty to all counts, and the case

proceeded to trial.

¶5 On the fourth day of trial, the People expressed concerns that

Birch was attempting to introduce alternate suspect evidence

without a hearing on its admissibility under People v. Elmarr, 2015

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CO 53. The People asked the court to exclude such evidence. In

response, Birch argued that his defense strategy was not to

introduce alternate suspect evidence but to impeach the credibility

of law enforcement witnesses by addressing the investigators’

failure to explore other leads. The trial court found that the

evidence Birch sought to introduce was, in fact, alternate suspect

evidence and that Birch had failed to present evidence that

connected the specific alternate suspect to the crime, as required by

Elmarr. Nevertheless, the trial court permitted Birch to cross-

examine the investigator as to the sufficiency of the investigation

and law enforcement’s alleged failure to investigate an alternate

lead.

¶6 The jury found Birch guilty as charged. Birch was sentenced

to the custody of the Department of Corrections for life without

possibility of parole (LWOP) on the first degree murder after

deliberation conviction (the court merged the felony murder

conviction into the conviction for murder after deliberation); for

thirty-two years on the aggravated robbery with a deadly weapon

convictions; and for eighteen months on the tampering with

physical evidence conviction.

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¶7 Birch now appeals.

II. Analysis

¶8 Birch argues that the trial court erred by (1) construing his

challenge to the adequacy of the investigation as an alternate

suspect defense under Elmarr and (2) incorrectly instructing the

jury that self-induced voluntary intoxication is not a defense to

tampering with physical evidence. He also contends that his LWOP

sentence for first degree felony murder is constitutionally

disproportionate because of recent amendments reclassifying felony

murder as second degree murder. We disagree with each of these

contentions.

A. Alternate Suspect Evidence

¶9 Birch defended on the theory that he was not the individual

who committed the charged crimes. He contends that the trial

court violated his constitutional right to present a defense.

Specifically, Birch argues that the trial court erroneously construed

his defense — that the police conducted an inadequate

investigation — as an alternate suspect defense triggering the

procedural requirements set forth in Elmarr.

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¶ 10 We review a trial court’s evidentiary decisions for an abuse of

discretion. Elmarr, ¶ 20. The court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair or is based

on a misapprehension of the law. Id.

¶ 11 In Elmarr, the supreme court held that “the admissibility of

alternate suspect evidence ultimately depends on the strength of

the connection between the alternate suspect and the charged

crime.” Id. at ¶ 22. To be admissible, the alternate suspect

evidence must be relevant, and its probative value must not be

sufficiently outweighed by the danger that the jury will be misled or

confused. Id. In this context, the touchstone of relevance is

“whether the alternate suspect evidence establishes a non-

speculative connection or nexus between the alternate suspect and

the crime charged.” Id. at ¶ 23.

¶ 12 At trial, Birch sought to introduce details of a specific lead that

law enforcement did not pursue concerning someone who lived in

the area, met Birch’s height description, wore the same style of

glasses, and was known to be armed and dangerous. While the

potential suspect was arrested and interrogated, law enforcement

released him. The People argued that these details amounted to

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inadmissible alternate suspect evidence. Birch disagreed, arguing

that the evidence would only be introduced to highlight law

enforcement’s failure to investigate and pursue other leads. The

trial court agreed with the People, holding that there was no

evidence connecting the alternate suspect to the crime charged and

that this was the exact evidence the Elmarr court determined was

inappropriate to present to a jury because it would invite

speculation.

¶ 13 Birch contends that the trial court’s application of Elmarr

deprived him of his right to present a complete defense, which rose

to the magnitude of reversible constitutional error. We disagree.

¶ 14 While the Constitution guarantees criminal defendants the

opportunity to present a complete defense, Holmes v. South

Carolina, 547 U.S. 319, 324 (2006), this right is still subject to and

constrained by, familiar and well-established limits on the

admissibility of evidence, Elmarr, ¶ 27. To be admissible, evidence

must be relevant, CRE 402, and even relevant evidence may be

excluded if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury, CRE 403.

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¶ 15 The trial court did not abuse its discretion and properly

exercised its gatekeeping function by weighing the relevance of the

evidence concerning the alternate suspect and ultimately deciding

to exclude it because it could have misled the jury.

¶ 16 Moreover, we are unpersuaded by Birch’s argument that he

was denied the ability to argue that the criminal investigation was

inadequate or that law enforcement failed to explore potential leads

that may have identified alternate suspects. On the contrary, the

court later permitted Birch to question the adequacy of the

investigation by identifying possible leads law enforcement failed to

follow. Birch cross-examined the lead investigator on law

enforcement’s decision to not follow up on a tip provided by the

manager of a restaurant near the shooting site. The tip alleged that

someone who resembled the shooter placed and picked up an

online order at a nearby restaurant. Though the People objected to

this line of questioning based on the court’s earlier ruling, the court

nonetheless permitted Birch to continue his examination.

B. Voluntary Intoxication Instruction

¶ 17 Birch next contends that the trial court plainly erred by

instructing the jury that voluntary intoxication did not apply to the

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crime of tampering with physical evidence. We decline to address

this claim’s merits, however, because Birch invited the error he

raises on appeal.

¶ 18 Birch submitted the proposed voluntary intoxication

instruction to the trial court. The proposed instruction was limited

to the first degree murder charge and specifically indicated, in

relevant part, that the jury “c[ould] [not] consider evidence of self-

induced intoxication for purposes of deciding whether the

prosecution has proved the elements of . . . Tampering with

Physical Evidence.”1

¶ 19 A defendant “may not complain on appeal of an error that he

has invited or injected into the case; he must abide the

consequences of his acts.” People v. Zapata, 779 P.2d 1307, 1309

(Colo. 1989). The “invited error doctrine precludes plain error

review of a defense-tendered instruction” because “the defendant’s

trial counsel made a deliberate, strategic decision to request it.”

People v. Gross, 2012 CO 60M, ¶ 2.

1 Although the trial court slightly revised the instruction to match

the “may” or “may not” language used in the Colorado pattern
criminal jury instructions, the language largely tracked what
defense counsel proposed.

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¶ 20 Because Birch affirmatively tendered the voluntary

intoxication jury instruction, and the trial court granted his request

to include it, Birch cannot now argue that the court erred by doing

what Birch asked it to do.

¶ 21 We are unpersuaded by Birch’s argument that the error was

not invited because “trial counsel — along with the prosecution and

trial court — simply had no idea that the defense of self-induced

intoxication applied to tampering with physical evidence.” Invited

error “is sometimes referred to as a strategic error,” but the strategy

need not “be competent or well planned.” People v. Perez-Rodriguez,

2017 COA 77, ¶ 25. Rather, the action that results in the invited

error must simply be deliberate rather than inadvertent. Id.

Defense counsel deliberately proposed the instruction, and “we

cannot consider the trial court to be in error for giving an

instruction demanded by the defense.” Gross, ¶ 8 (alteration

omitted) (quoting Gray v. People, 342 P.2d 627, 630 (Colo. 1959)).

C. Life Without the Possibility of Parole

¶ 22 For the first time on appeal, Birch contends that his LWOP

sentence for felony murder is constitutionally disproportionate.

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¶ 23 The People respond that the issue is moot because the trial

court sentenced Birch to LWOP for first degree murder after

deliberation, not felony murder. We agree.

¶ 24 We review de novo whether an issue is moot. People in Interest

of C.G., 2015 COA 106, ¶ 11. An issue is moot when the relief

granted by the court would not have a practical effect upon an

existing controversy. DePriest v. People, 2021 CO 40, ¶ 8.

¶ 25 At the time Birch committed the killing at issue in this case,

“[m]urder after deliberation and felony murder [were] not

denominated by the [Colorado Criminal] Code as separate and

independent offenses, but only ways in which criminal liability for

first-degree murder [could] be charged and prosecuted.” People v.

Lowe, 660 P.2d 1261, 1269 (Colo. 1983), overruled in part on other

grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). When the

evidence supports a conviction for multiple theories of the same

crime, both theories may be presented to the jury for deliberation so

long as the trial court enters only one conviction in the event the

jury returns a guilty verdict under both theories. Id. at 1269-72.

To avoid infringing on the constitutional prohibition against double

jeopardy, courts cannot convict a defendant of multiple counts of

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first degree murder related to a single victim. Candelaria v. People,

148 P.3d 178, 180-82 (Colo. 2006).

¶ 26 Birch was charged with first degree murder after deliberation

and first degree felony murder. The jury was instructed on both

theories and found him guilty of both. But the trial court merged

the convictions and imposed only one LWOP sentence for first

degree murder after deliberation.2

¶ 27 Simply put, Birch was not sentenced to LWOP on the felony

murder charge. The merging of Birch’s convictions and imposing a

single sentence for first degree murder after deliberation had the

effect of vacating the conviction for felony murder. See People v.

Wood, 2019 CO 7, ¶ 29 (“Stated differently, ‘[m]erger ha[d] the same

effect as vacating one of the multiplicitous’ murder convictions.”

(quoting People v. Rhea, 2014 COA 60, ¶ 17)). Following the merger

and imposition of one sentence for first degree after deliberation

murder, any challenge Birch had relating to felony murder became

moot.

2 The mittimus also reflects only one LWOP sentence for first degree

murder after deliberation.

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¶ 28 Having determined that the felony murder sentencing issue is

moot, we decline to review Birch’s unpreserved argument that he is

entitled to an extended proportionality review in light of recent

amendments reclassifying felony murder as second degree murder.

See People v. Mountjoy, 2016 COA 86, ¶ 35 (“[A]n appellate court

‘may, as a matter of discretion, take up an unpreserved challenge to

the constitutionality of a statute, but only where doing so would

clearly further judicial economy.’” (quoting People v. Houser, 2013

COA 11, ¶ 35)), aff’d on other grounds, 2018 CO 92M.

III. Disposition

¶ 29 We affirm the judgment of conviction.

JUDGE DUNN and JUDGE TOW concur.

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