Peo v. Johnson

23CA1413 Peo v Johnson 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1413
City and County of Denver District Court No. 21CR20003
Honorable Darryl F. Shockley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Neshan M. Johnson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Brown and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

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

Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Neshan M. Johnson, appeals his convictions of

second degree murder, attempted manslaughter (reckless),

attempted first degree assault (extreme indifference), vehicular

eluding, and accessory to second degree murder. We affirm.

I. Background

¶2 On a snowy night, Johnson drove around Denver in a stolen

vehicle with two underaged teenagers, R.C. and D.M. The vehicle

contained a semiautomatic rifle, a pistol, and an airsoft gun.

¶3 When the trio stopped at a stoplight, the car behind them was

unable to stop in time and rear-ended them. Angry, R.C. asked

Johnson if he could get out and respond to the collision. Passenger

D.M. testified that Johnson told R.C., “Yeah.” R.C. then got out of

Johnson’s vehicle and began shooting the semiautomatic rifle at the

car behind them. After firing approximately ten to fifteen shots,

R.C. returned to Johnson’s vehicle and the trio drove away.

¶4 The driver of the vehicle that rear-ended Johnson, P.C., was

struck by three of R.C.’s bullets and died. The car behind P.C.’s

car, driven by J.A., was also caught in the gun fire, but both the car

and the driver were unharmed.

1
¶5 A few hours later, police spotted Johnson’s vehicle and began

pursuing it after learning that the vehicle was stolen. Rather than

slowing down, Johnson accelerated, resulting in a short police

chase. Johnson eventually lost control of the car, and it crashed

into a pole. Johnson, R.C., and D.M. got out of the car and fled on

foot. The three were quickly apprehended by police. When R.C.

was arrested, he told police officers, “Did you find my toys? [. . .]

Crip set, this is going to get me my stripes.”

¶6 A jury convicted Johnson as a complicitor of two counts of

second degree murder, one count of attempted manslaughter

(reckless), one count of attempted first degree assault (extreme

indifference), one count of vehicular eluding, and one count of

accessory to second degree murder.

¶7 Johnson contends that reversal is warranted because the

prosecutor inundated the jury with prejudicial gang-related

evidence, and the verdicts of attempted manslaughter (reckless) and

attempted first degree assault (extreme indifference) are legally

inconsistent. We disagree and conclude that (1) the broad gang-

related evidence was relevant; (2) the irrelevant gang-related

2
evidence was not timely objected to; and (3) the jury verdicts are not

inconsistent.

II. The Court Did Not Reversibly Err by Admitting the Gang-
Related Evidence

¶8 Johnson contends that the trial court reversibly erred by

allowing extensive evidence pertaining to gangs generally and to his

alleged gang membership. We disagree.

A. Additional Facts

¶9 Before trial, the prosecution moved to join a case arising out of

an earlier shooting in which Johnson, R.C., and D.M. were allegedly

involved (the Montview shooting). The prosecution believed both

shootings were gang motivated. In its joinder motion, the

prosecution alternatively moved to introduce gang evidence and

associated expert testimony in this case. The motion and attached

expert letter contained detailed information concerning gangs,

including the historical background of Denver gangs and gang

culture. Johnson objected and the court set the matter for a

hearing.

¶ 10 At the hearing, the prosecution presented the following

evidence that it believed supported Johnson’s gang affiliation:

3
• R.C. was a “very well-known East Side Crip” who went by

the moniker “Lil Rocca.” R.C.’s father was also a well-

known East Side Crip. Johnson was an aspiring East

Side Crip.

• At the time P.C. was killed, R.C. was trying to earn the

respect of his gang.

• Numerous photographs were retrieved from a phone that

showed Johnson with a “known Crip gang member.”

Another photograph showed Johnson brandishing a gun,

believed to be the one used in the Montview shooting,

with a blue bandana around it — the color associated

with the Crip gang. Still other images showed Johnson

displaying hand signs that symbolized the phrase

“everybody killer” and displaying “the typical C that is

used to denote Crip affiliations.”

• Facebook communications by Johnson discussed being a

Crip. One showed a message sent to Johnson asking,

“Are you a Crip?” to which Johnson responded, “I’m

affiliated, about to be certified.”

4
¶ 11 At the hearing, the prosecution argued that the jury needed

expert testimony on how gangs operate in order to understand the

slang used by R.C. and Johnson, their relationship, and the

significance of other evidence, including hand signals, clothing, and

colors. The prosecutors stated that “at no point during the trial

would [they] talk generally about all the terrible stuff that Crips do,”

noting that general information about Crip actions was not relevant.

In response, defense counsel argued that P.C.’s shooting was not

gang motivated and that there was insufficient evidence to show

that Johnson was a gang member.

¶ 12 The trial court denied the motion to join the Montview

shooting and concluded that while the rule permitted it to join the

two cases, doing so would be overly prejudicial. It then found that

the gang evidence was relevant and intrinsic to the case because it

helped to explain why the young men were driving a stolen car with

guns and why they would shoot at other cars. The trial court found

that the probative value of the evidence outweighed any unfair

prejudice. Nevertheless, the court recognized the inherent prejudice

in such evidence and stated:

5
Now, I do believe that, in reading the case law
on this matter, the danger is just letting in
every single historical fact and fact about the
East Side Crips or the Crips in general. . . . I
do believe that . . . it would probably be
appropriate for the expert to talk about the
history, just briefly . . . . But as far as the
actual expert testimony as to the gang
affiliation and the facts of this case, obviously,
the Court believes that there is – there will
have to be some limitations on the testimony.

¶ 13 The prosecution then explained that the evidence set forth in

its motion, rather than all the details contained in the expert’s

letter, reflected what it intended to introduce at the trial. With that

caveat, the court stated:

What we’ll do, folks is, for the Defense, if there
are any of these areas listed out in the People’s
motion that you are objecting to – and,
obviously, some of this is going to be what
happens at trial and what comes out at trial,
but I will entertain a motion in limine
indicating what information you believe is not
appropriate and may not apply to the facts of
this particular case.

....

Any of the evidence that’s coming in is still
subject to all the other rules of evidence, and
so I would expect that if there’s any objections,
that they would be made contemporaneously
or, like I said, in a motion in limine prior to
trial.

6
¶ 14 Defense counsel did not file any motions in limine and did not

object to the admission of the gang evidence when it was admitted

at trial.

¶ 15 At trial, the prosecution admitted the photographs and videos

of Johnson wearing blue bandanas, holding guns, and flashing

what appeared to be gang signs. It also admitted a text message in

which Johnson admitted he was a Tre Tre Crip. The prosecution

also introduced expert witness testimony about the following:

• the basic history and structure of gangs and the gang

scene in Denver;

• gang monikers, including that R.C. had a moniker, but

Johnson did not;

• blue paisley is the color traditionally associated with the

Crips;

• the gang signs, graffiti, and flags that represented the

Crips;

• respect is a central pillar in gang culture and members

trying to “gain[] stripes” or gain rank within the gang;

• an “aspiring gang member” has to commit acts of

violence to “demonstrate their loyalty,” and those acts

7
could be directed towards anyone, not just rival gang

members; and

• opinions related to the case, including that R.C. and

Johnson were active members of the Tre Tre Crip gang,

but that Johnson outranked R.C. because Johnson

referred to R.C. by his gang name and referred to him as

“little brother” and that their behavior during the

shooting was consistent with “young, up-and coming

gang members trying to put in work and achieve status.”

¶ 16 The defense presented a gang expert who generally rebutted

the prosecution’s argument that this was a gang-motivated shooting

and opined that R.C. was an “immature kid” who didn’t

“understand the ramifications of what had happened” or what he

had said to the police.

¶ 17 Before each expert’s testimony, the trial court instructed the

jury that the evidence about gang affiliations was presented for a

8
limited purpose and that the jury could only consider it for that

limited purpose.1

B. Standard of Review and Applicable Law

¶ 18 “We review a trial court’s evidentiary rulings for abuse of

discretion.” Nicholls v. People, 2017 CO 71, ¶ 17. “A trial court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when the trial court misapplies or

misconstrues the law.” Fisher v. People, 2020 CO 70, ¶ 13. Under

this standard, “we ask not whether we would have reached a

different result but, rather, whether the trial court’s decision fell

within the range of reasonable options.” People v. Archer, 2022

COA 71, ¶ 23 (quoting Hall v. Moreno, 2012 CO 14, ¶ 54).

¶ 19 In general, all relevant evidence is admissible. CRE 402.

Evidence is relevant if it tends to make the existence of any fact of

consequence to the determination of the action more probable or

less probable than it would be without the evidence. CRE 401.

1 The limited purposes included identity, intent, motive, credibility,

and absence of accident or mistake.

9
¶ 20 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. Evidence

is considered unfairly prejudicial if it has an “undue tendency to

suggest a decision on an improper basis . . . such as sympathy,

hatred, contempt, retribution, or horror.” People v. Clark, 2015

COA 44, ¶ 18 (citation omitted). In reviewing a trial court’s

determination under CRE 403, “we assume the maximum probative

value that a reasonable fact finder might give the evidence and the

minimum unfair prejudice to be reasonably expected.” Clark, ¶ 18

(citation omitted).

¶ 21 Because gangs are viewed with disfavor by society, gang-

related evidence must be admitted with care. Id. at ¶ 16. However,

such evidence may be admissible to show motive for the crime. Id.

at ¶ 15; People v. Shanks, 2019 COA 160, ¶ 73; see People v.

Trujillo, 2014 COA 72, ¶ 72.

¶ 22 We review the court’s pretrial ruling generally admitting the

gang evidence under the harmless error standard because Johnson

objected to the admission of the gang evidence in its entirety.

Under this standard, we would reverse only if the evidence

10
substantially influenced the verdict or affected the fairness of the

trial. People v. Delsordo, 2014 COA 174, ¶ 7. However, because the

record contains no motions in limine identifying what specific gang

evidence should be excluded and because defense counsel did not

object to the gang evidence as it was introduced during the trial, we

review the admission of the specific evidence Johnson challenges on

appeal for plain error. An error is plain if it is obvious and if it so

undermines the fairness of the proceeding so as to cast doubt on

the reliability of the conviction. See Bock v. People, 2024 CO 61, ¶

24.

C. Analysis

¶ 23 Johnson contends that the trial court abused its discretion by

admitting the above-described gang evidence because it was either

irrelevant or its relevance was substantially outweighed by the

danger of unfair prejudice.

¶ 24 Concerning the court’s pretrial ruling admitting gang evidence

generally, we discern no abuse of discretion and conclude that the

evidence was helpful to the jury’s understanding of the motive for

the shooting, the vernacular spoken by Johnson and R.C. before

and after the shooting, the relationship between Johnson and the

11
juveniles, and the presence of the weapons in the car. The

prosecution’s theory of the case was that the motive for the shooting

“was about gaining stripes” and that Johnson was complicit by

giving permission to a younger member of the gang to take a life to

earn said stripes. Clark, ¶ 15 (gang evidence is admissible to show

motive for the crime). Neither the prosecution nor the defense

contested the facts that Johnson knew there were guns in the car,

that the car was stolen, or that Johnson said something to R.C.

before R.C. exited the car. The salient issue for the jury to decide

was whether Johnson’s statement to R.C. — whatever it was —

aided and abetted R.C. in shooting the car behind them. Moreover,

other evidence supported the prosecution’s theory, including R.C.’s

statement when arrested, “Crip set. This will earn me my stripes.

Did you find my toys?” Thus, the challenged evidence explained the

relationship between Johnson and R.C., as well as Johnson’s

motive for aiding and abetting the shooting, both proper purposes

for admitting gang evidence. See id.; Trujillo, ¶ 57.

¶ 25 We acknowledge that the volume of gang evidence admitted at

trial exceeded what the court authorized in its pretrial ruling and

that much of it did not relate to the case facts, raising CRE 403

12
concerns. However, reviewing this evidence through the plain error

lens, we conclude that any error was not obvious and thus, reversal

is not warranted. As previously explained, the court recognized the

potential prejudice that could arise from this evidence and

instructed the defense to file motions in limine and to

contemporaneously object to any potentially prejudicial evidence at

the time of its admission. But no motions were filed and no

objections were made, which the court could have reasonably

understood as a signal by defense counsel that the evidence being

admitted was consistent with the pretrial ruling and not unduly

prejudicial.

¶ 26 Moreover, the jury received a limiting instruction at the time

the gang evidence was admitted and in the final written

instructions. The written instruction stated, “it is not a crime to

belong to a gang, and [Johnson is] entitled to be evaluated solely on

the crimes submitted for [the jury’s] consideration.” Absent

contrary evidence, we presume the jury understood and followed

this instruction. See People v. Abdulla, 2020 COA 109M, ¶ 58

(“[W]e employ the presumption that the jury understands and

13
applies the given instructions unless a contrary showing is made

. . . .”)

¶ 27 Finally, we note that the jury returned a verdict on lesser

degrees of murder and attempted murder, indicating that it

carefully considered the evidence and the court’s instructions. See

Washington v. People, 2024 CO 26, ¶ 35 (jury verdict on lesser

degree of murder indicated that error did not cause jury to blindly

convict the defendant); People v. Manyik, 2016 COA 42, ¶ 40 (jury’s

acquittal on most serious charge indicated that it convicted based

on the evidence and was not swayed by improper prosecutorial

arguments). Under these circumstances, we discern no abuse of

discretion in the court’s decision to generally admit gang evidence,

and we perceive no plain error by the court in not sua sponte

limiting the broader gang evidence at trial.

III. Jury Verdicts

¶ 28 Johnson next contends that the jury verdicts for attempted

reckless manslaughter and attempted assault (extreme indifference)

of J.A. are logically and legally inconsistent and therefore cannot

stand. We are not persuaded.

14
A. Additional Facts

¶ 29 Johnson was originally charged with attempted first degree

murder (extreme indifference) and attempted first degree assault

(extreme indifference) of J.A., the driver of the car behind P.C.’s car.

At Johnson’s request,2 the jury was also instructed on the lesser

included offenses of attempted second degree murder and

attempted reckless manslaughter.

¶ 30 The trial court instructed the jury on the elements of

attempted manslaughter (reckless) in Instruction No. 18 as follows:

1) That the defendant,

2) In the State of Colorado, at or about the date and place

charged,

3) Recklessly,

4) Engaged in conduct constituting a substantial step toward

the commission of manslaughter (reckless) against [J.A.]

2 The initial jury instruction conference was off the record.

Following the conference however, the trial court noted that
Johnson had “indicated that [he] did want lesser [included
offenses]” and that “[the court] ended up adding lesser [included
offenses] to each one of the charges and then also to the complicity
[count].”

15
¶ 31 Instruction No. 18 described the elements of manslaughter

(reckless) as:

1) That the defendant,

2) In the State of Colorado, at or about the date and place

charged,

3) Recklessly,

4) Caused the death of another person

Instruction No. 19 instructed the jury regarding the elements

of attempt to commit assault in the first degree (extreme

indifference):

1) That the defendant,

2) In the State of Colorado, at or about the date and the place

charged,

3) Knowingly,

4) Engaged in conduct constituting a substantial step toward

the commission of assault in the first degree (extreme

indifference) against [J.A.].

¶ 32 Instruction No. 10 described the elements of assault in the

first degree (extreme indifference) as:

1) That the defendant,

16
2) In the State of Colorado, at or about the date and place

charged,

3) Knowingly,

4) Under circumstances manifesting extreme indifference to

the value of human life,

5) Engaged in conduct which created a grave risk of death to

another person, and

6) Thereby caused serious bodily injury to any person.

¶ 33 The jury found Johnson guilty as a complicitor of one count of

attempted manslaughter (reckless) of J.A. as a lesser included

offense of attempted extreme indifference murder and one count of

attempted extreme indifference assault of J.A.

B. Standard of Review and Applicable Law

¶ 34 “The question of whether jury verdicts are mutually exclusive

is a question of law that we review de novo.” People v. Shockey,

2026 CO 10, ¶ 15; cf. Kreiser v. People, 604 P.2d 27, 28-30 (Colo.

1979) (considering whether the jury’s verdict was ambiguous based

only on the objective circumstances).

¶ 35 As both parties acknowledge, this issue is unpreserved,

limiting our review to plain error. See People v. Leyba, 2019 COA

17
144, ¶ 55, aff’d, 2021 CO 54. Reversal under this standard

requires that the error be obvious and so undermine the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction. People v. Walker, 2022

COA 15, ¶ 28.

¶ 36 “Taken together, the Fifth Amendment Due Process Clause

and the Sixth Amendment guarantee of a trial by jury permit

conviction only upon a jury verdict finding the defendant guilty of

having committed every element of the crime with which he has

been charged.” Sanchez v. People, 2014 CO 29, ¶ 13 (first citing

Sullivan v. Louisiana, 508 U.S. 275, 277-78 (1993); and then citing

Medina v. People, 163 P.3d 1136, 1140 (Colo. 2007)). “The

prosecution bears the burden of proving all elements of the offense

charged and must persuade the factfinder ‘beyond a reasonable

doubt’ of the facts necessary to establish each of those elements.”

Sullivan, 508 U.S. at 277-78 (citations omitted).

¶ 37 Consistent with these principles, “[a] verdict in a criminal case

should be certain and devoid of ambiguity.” Yeager v. People, 462

P.2d 487, 489 (Colo. 1969). Indeed, “[t]he verdict must ‘convey

beyond a reasonable doubt the meaning and intention of the jury.’”

18
Shockey, ¶ 38 (quoting People v. Durre, 690 P.2d 165, 173 (Colo.

1984)). However, consistency in verdicts is not necessarily

required. People v. Brooks, 2020 COA 25, ¶ 12 (citing People v.

Frye, 898 P.2d 559, 571 (Colo. 1995)). And courts “have a duty ‘to

reconcile and uphold verdicts if the evidence so permits.’” People v.

Scearce, 87 P.3d 228, 232 (Colo. App. 2003)).

¶ 38 Colorado law recognizes three circumstances in which a

verdict may be unconstitutionally inconsistent with another verdict:

(1) when an acquittal of one offense necessarily contradicts a

conviction of another because the evidence of each was the same,

see Frye, 898 P.2d at 567 (citing Robles v. People, 417 P.2d 232,

234 (Colo. 1966)); (2) when verdicts are, because of the elements of

the respective offenses, mutually exclusive, People v. Delgado, 2019

CO 82, ¶¶ 20, 23, 28; and (3) when a jury’s special interrogatory

response negates an element of the substantive offense to which the

interrogatory applies, Brooks, ¶¶ 22-25.

¶ 39 “[T]wo guilty verdicts are mutually exclusive when the

existence of an element of one of the crimes negates the existence of

an element of the other crime.” People v. Rigsby, 2020 CO 74, ¶ 27

(emphasis omitted). Both legal and logical inconsistency must be

19
present for verdicts to be mutually exclusive. See id. at ¶¶ 26-27

(concluding verdicts that were logically, but not legally, inconsistent

were not mutually exclusive). When a defendant is convicted of

crimes featuring elements that are mutually exclusive, the

defendant has not been convicted of each crime beyond a

reasonable doubt because there is an explicit finding of doubt in the

contradictory element. Delgado, ¶ 23.

C. Analysis

1. Waiver

¶ 40 We first address the People’s argument that Johnson waived

this issue by not objecting before the jury was discharged.

¶ 41 Waiver is the intentional relinquishment of a known right or

privilege. People v Rediger, 2018 CO 32, ¶ 39. Although a waiver

can be implied, the conduct upon which the implied waiver is based

must be unequivocal, and it must clearly manifest an intent to

relinquish the claim. Phillips v. People, 2019 CO 72, ¶ 21; Dep’t of

Health v. Donahue, 690 P.2d 243, 247 (Colo. 1984).

¶ 42 After the court read Johnson’s guilty verdicts, defense counsel

requested that the court poll the jury, and the court did so. At no

time did defense counsel object to any of the jury’s verdicts.

20
However, silence alone is not indicative of Johnson’s intent to

relinquish the right to challenge the verdicts on appeal. See

Rediger, ¶ 3 (concluding that mere acquiescence by a defendant

does not constitute a waiver without some record evidence that the

defendant intentionally relinquished a known right)

¶ 43 Moreover, even in the absence of a transcript of the jury

instruction conference, we do not view Johnson’s request for lesser

included offenses, a common request made by a defendant, as

signaling a clear manifestation by Johnson of his intent to

relinquish his challenge to legally and logically inconsistent

verdicts. Therefore, we address the merits of his contention.

2. The Verdicts Are Not Inconsistent

¶ 44 Johnson contends that he could not have acted both

knowingly under circumstances manifesting extreme indifference to

the value of human life (attempted extreme indifference assault) and

recklessly (attempted reckless manslaughter) and that the verdicts

are legally and logically inconsistent. We are not persuaded for

three reasons.

¶ 45 First, we reject Johnson’s argument that there “was one

singular act” by R.C. directed at J.A. and thus, the facts underlying

21
the convictions are the same. See Frye, 898 P.2d at 567. While the

evidence showed that R.C. exited the vehicle and fired shots in the

direction of P.C.’s and J.A.’s cars, each shot fired constituted a

separate crime. The jury could reasonably have concluded that

different shots satisfied the elements of attempted reckless

manslaughter and attempted extreme indifference assault as to

J.A.3 Therefore, this case is unlike People v. Beatty, 80 P.3d 847,

852-53 (Colo. App. 2003), where the division concluded that the

defendant could not have two different culpable mental states for a

single assaultive act.

¶ 46 We are not convinced that People v. Rigsby requires a different

result. Unlike in Rigsby, where the jury convicted the defendant of

three counts of second degree assault for the single act of smashing

a glass in the victim’s face, one of which was a lesser included

offense, Johnson concedes the jury here convicted him of two

distinct crimes, but he argues that they sprung from the same

3 For example, the jury could have reasonably concluded that the

three shots that killed P.C. were reckless, while the remaining seven
to twelve shots fired in the direction of P.C. and J.A. reflected
extreme indifference.

22
facts. We disagree because each shot R.C. fired constituted a

different basis on which the jury could convict Johnson, and

therefore, each could have a different mens rea associated with it.

Because a reasonable jury may have found that some of the shots

satisfied the elements of attempted reckless manslaughter while the

others satisfied the elements of attempted extreme indifference

assault, the verdicts are not legally inconsistent. See Rigsby, ¶ 23

(“[G]uilty verdicts that are legally consistent are not mutually

exclusive.”).

¶ 47 Second, to the extent Johnson asks us to find a legal

inconsistency based on the jury’s acquittal of attempted extreme

indifference murder, we decline to do so. As our supreme court has

explained, “[a] guilty verdict is a specific finding, encompassing all

the elements of the crime. An acquittal isn’t. In other words, while

an acquittal has various explanations, a guilty verdict has but one.”

Delgado, ¶ 26. Therefore, the jury’s decision to acquit Johnson of

attempted extreme indifference murder may be rooted in lenity or

compromise and does not necessarily reflect a finding that R.C. did

not act knowingly under circumstances manifesting extreme

indifference to the value of human life.

23
¶ 48 Third, we conclude the verdicts are not mutually exclusive

because none of the elements of one offense negates an element of

the other, and they are not logically inconsistent. See id. at ¶¶ 20,

23, 28. As a matter of logic, we reject Johnson’s argument that the

jury could not find he acted both “knowingly under circumstances

manifesting an extreme indifferent to human life, and recklessly.”

¶ 49 As relevant here, a person commits reckless manslaughter if

he or she recklessly causes the death of another person. See §§ 18-

2-101, 18-3-104(1)(a), C.R.S. 2025. A person acts recklessly when

he or she consciously disregards a substantial and unjustifiable

risk that a result will occur or that a circumstance exists. See § 18-

1-501(5), C.R.S. 2025.

¶ 50 A person commits first degree assault (extreme indifference) if

that person, “[u]nder circumstances manifesting extreme

indifference to the value of human life,” (1) “knowingly engages in

conduct which creates a grave risk of death to another person” and

(2) “thereby causes serious bodily injury to any person.” § 18-3-

202(1)(c); see COLJI-Crim. 3-2:03 (2024). “Grave” and “extreme

indifference” are not statutorily defined. However, “grave” is

commonly understood to mean “serious or imminent, or likely to

24
produce great harm or danger,” while “extreme indifference” is

generally understood to mean “a total lack of concern or caring.”

People v. Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011) (first

quoting People v. Marcy, 628 P.2d 69, 79 (Colo. 1981); and then

quoting People v. Johnson, 923 P.2d 342, 347 (Colo. App. 1996)). A

person acts “knowingly” with “respect to conduct . . . described by a

statute defining an offense when he is aware that his conduct is of

such nature” and, with “respect to a result of his conduct, when he

is aware that his conduct is practically certain to cause the result.”

§ 18-1-501(6).

¶ 51 As to both crimes, “[a] person commits criminal attempt if,

acting with the kind of culpability otherwise required for

commission of an offense, he engages in conduct constituting a

substantial step toward the commission of the offense.” Palmer v.

People, 964 P.2d 524, 527 (Colo. 1998).

¶ 52 Given these definitions, we discern no logical inconsistency

between a jury concluding that Johnson took a substantial step

toward recklessly causing J.A.’s death and its conclusion that,

under circumstances manifesting an extreme indifference to the

value of human life, he took a substantial step toward knowingly

25
engaging in conduct that created a grave risk of J.A.’s death and

thereby caused J.A. serious bodily injury. Indeed, each crime is

directed at a different result — causing death and creating a grave

risk of death and causing serious bodily injury. Moreover, one may

act both recklessly and knowingly in a manner that demonstrates

an extreme indifference to the value of human life. Cf. Candelaria v.

People, 148 P.3d 178, 182 (Colo. 2006) (“Whether one acts with

[specific intent] or merely [knowingly], he may do so in a manner

that . . . demonstrates an extreme indifference to the value of

human life generally . . . .” (citations omitted)).

¶ 53 Further, Johnson acknowledges that in the context of lesser

included offenses, recklessness is encompassed in the knowingly

element of extreme indifference. See Rigsby, ¶ 21 (“If recklessness

suffices to establish an element, that element also is established if a

person acts knowingly or intentionally.”). And he has not identified,

nor can we discern, a specific element of one verdict that negates an

element of the other. Frye, 898 P.2d at 569 n.13 (acknowledging

that where the existence of an element of one crime negates the

existence of an element of another crime, courts are “uniform in

their agreement that the verdicts are legally and logically

26
inconsistent and should not be sustained”); accord People v. Weare,

155 P.3d 527, 529 (Colo. App. 2006); People v. Jones, 990 P.2d

1098, 1104 (Colo. App. 1999).

¶ 54 Accordingly, we discern no plain error that is so obvious and

substantial that it undermines the fundamental fairness of the trial

itself. Rediger, ¶ 48.

IV. Disposition

¶ 55 The judgment is affirmed.

JUDGE BROWN and JUDGE SCHUTZ concur.

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