Peo v. Stokes

22CA1000 Peo v Stokes 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1000
El Paso County District Court No. 19CR7180
Honorable Eric Bentley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

John Garfield Stokes,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE SCHOCK
Dunn and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, John Garfield Stokes, appeals his convictions for

attempted second degree murder and first degree assault. He

contends that (1) the district court erred by denying his motion to

elect; (2) his convictions are inconsistent with his acquittal of

second degree murder; (3) the attempted murder conviction must be

vacated either because the indictment was insufficient or because

he was acquitted of the underlying murder; (4) the evidence was

insufficient to sustain his first degree assault conviction; and (5) the

jury instructions erroneously limited deadly force self-defense to the

second degree murder charge. We affirm the judgment.

I. Background

¶2 After a verbal confrontation at a gas station, Stokes drove to a

car wash, followed by the victim, Nicholas Anderson. As Stokes

pulled into the car wash bay, Anderson pulled up behind him, got

out of his car, and walked up to Stokes’s vehicle, where he began

punching the window and attempting to open the driver’s side door.

Eventually, Anderson pulled the door open and reached inside.

¶3 As he did so, Stokes shot him three times, causing Anderson

to fall to the ground. Stokes immediately got out of his vehicle and

shot Anderson twice more while he was on the ground. He tried to

1
shoot him a sixth time, but the gun did not fire. Anderson died

from the shooting. The evidence at trial established that the first

three gunshots were fatal, while the last two would not have been.

¶4 All five shots and the “dry fire” occurred in about ten seconds.

The entire forty-second encounter — beginning with Anderson

approaching Stokes’s vehicle — was captured on surveillance video.

¶5 Stokes was indicted on charges of second degree murder, first

degree assault, and attempted first degree murder, as well as other

counts not directly related to the shooting. The indictment specified

that it encompassed all lesser included offenses.

¶6 At trial, there was no dispute that Stokes had shot and killed

Anderson. But Stokes argued that he had done so in self-defense.

The district court gave the jury two self-defense instructions: (1) a

“deadly physical force in defense of person” instruction, which

applied to the second degree murder count; and (2) a “defense of

person” instruction, which applied to the remaining charges.

¶7 The jury was given two verdict forms for the shooting-related

charges. The first listed second degree murder as the primary

charge and first and second degree assault as lesser included

offenses. The second listed attempted first degree murder as the

2
primary charge and attempted second degree murder and

attempted second degree assault as lesser included offenses.

¶8 The jury found Stokes guilty of first degree assault (as a lesser

included offense of second degree murder) and attempted second

degree murder (as a lesser included offense of attempted first degree

murder). The district court sentenced Stokes to eight years in

prison for the attempted second degree murder conviction, with

lesser concurrent sentences on all other offenses.

II. Motion to Elect

¶9 As Stokes sees it, the problems with his convictions stem from

the denial of his motion to require the prosecution to elect which

evidence supported each charge. This, he argues, allowed the

prosecution to slice a single ten-second event — the shooting and

killing of Anderson — into multiple individual gunshots supporting

different offenses. And he blames that theory for what he views as

the overarching unfairness in his case — that the jury convicted

him of first degree assault and attempted second degree murder,

despite its apparent finding that he acted in self-defense when he

killed Anderson. Beginning with what Stokes deems to be the

3
source of that perceived inconsistency, we conclude that the district

court did not abuse its discretion in ruling on his motion to elect.

A. Additional Background

¶ 10 During trial, Stokes moved for an election by the prosecution

as to “what evidence constitutes which offenses,” or alternatively, a

unanimity instruction with accompanying interrogatories. Defense

counsel asserted that his argument in support of his motion for

judgment of acquittal depended on whether the prosecution

intended to treat the shooting as a single continuous transaction or

to treat each gunshot as a distinct act. The prosecution confirmed

its position that each shot was part of a single transaction but that

there were “different acts of conduct within that transaction.”

¶ 11 Stokes then filed a brief expanding upon his argument. He

asserted that, given the prosecution’s theory that the shots were all

part of one transaction, all the shooting-related charges — second

degree murder, attempted first degree murder, and first degree

assault — should merge if he was convicted. While conceding that

double jeopardy did not preclude the court from submitting all

three charges to the jury, he argued that the “cleanest method” for

avoiding any multiplicity concerns was to include them on a single

4
verdict form, with attempted first degree murder and first degree

assault as lesser included offenses of second degree murder.

¶ 12 In ruling on Stokes’s motion, the court first noted that the

prosecution had elected to treat the five gunshots and attempted

sixth shot as a single transaction. But because that single

transaction was composed of multiple acts that may have had

“different effects” on Anderson, the court would exercise its

discretion to give a modified unanimity instruction that required the

jury to “unanimously agree that [Stokes] committed the offense by

means of the same act or acts or by means of all of his acts.” The

district court declined to give the jury the requested interrogatories.

¶ 13 As to the lesser included offenses, the district court agreed

with Stokes that first degree assault was a lesser included offense of

second degree murder, so it included those offenses on the same

verdict form. But it concluded that attempted first degree murder

was not a lesser included offense of second degree murder and,

thus, would be on a different verdict form. The court explained that

any issues regarding merger would be addressed at sentencing.

5
B. Preservation

¶ 14 We first note that the election argument Stokes makes on

appeal is not the same one he made in the district court. In the

district court, Stokes argued that the prosecution should be

required to elect which acts or series of acts supported which

charge or, alternatively, that a unanimity instruction should be

given. See People v. Archuleta, 2020 CO 63M, ¶ 21. The district

court largely granted that motion by confirming that the

prosecution had elected to treat all six gunshots as a single

transaction and giving the jury a modified unanimity instruction.

¶ 15 On appeal, Stokes argues that the prosecution should have

been required to make a different kind of election — an election of a

single count upon which the issue of Anderson’s death would be

tried. See § 18-1-408(3), C.R.S. 2024. But Stokes never requested

that the prosecution elect a single count. To the contrary, Stokes

agreed that all three shooting-related charges should be submitted

to the jury, and he specifically requested the additional lesser

included offense of attempted second degree murder. The only

issue was whether those offenses should be included on one verdict

form or two — an issue Stokes does not raise on appeal.

6
¶ 16 Because Stokes did not preserve his argument that the

prosecution was required to elect a single count — as opposed to a

single act upon which the counts were based — we review this

contention for plain error. See Hagos v. People, 2012 CO 63, ¶ 14.

C. Election of a Single Count

¶ 17 When multiple counts are supported by identical evidence,

“the court upon application of the defendant may require the state

. . . to elect the count upon which the issues shall be tried.”

§ 18-1-408(3) (emphasis added). But the district court is not

required to grant such a request. People v. DeBoer, 829 P.2d 447,

450 (Colo. App. 1991). Instead, it has discretion to either grant or

deny the motion. People v. Muckle, 107 P.3d 380, 382 (Colo. 2005);

People v. Fry, 74 P.3d 360, 369 (Colo. App. 2002), aff’d, 92 P.3d 970

(Colo. 2003). We review the district court’s decision for an abuse of

discretion, meaning we will reverse only if the ruling is “manifestly

arbitrary, unreasonable, or unfair.” Fry, 74 P.3d at 369.

¶ 18 The denial of a section 18-1-408(3) motion to elect does not

implicate double jeopardy because there can be no double jeopardy

violation until the defendant is convicted of multiplicitous counts.

See People v. Zadra, 2017 CO 18, ¶ 17. Thus, when a defendant’s

7
conduct establishes more than one offense, the defendant may be

prosecuted for each offense. § 18-1-408(1); Reyna-Abarca v. People,

2017 CO 15, ¶ 41 (noting that prosecutors may charge “multiple

claims arising from the same set of facts”). Then, if the defendant is

convicted of both a greater and lesser included offense, the offenses

must merge so there is only one conviction. See Reyna-Abarca,

¶ 79; see also § 18-1-408(1)(a). And if a defendant is convicted of

multiple nonincluded offenses based on “the same act or series of

acts arising from the same criminal episode,” the sentences on

those offenses must run concurrently. § 18-1-408(2), (3).

¶ 19 The district court did not abuse its discretion by declining to

require the prosecution to elect a single count on which to proceed.

First, as noted above, Stokes did not request such an election. He

argued that the first degree assault charge should be submitted to

the jury as a lesser included offense of second degree murder —

exactly as it was. And he specifically requested that the jury be

instructed on attempted second degree murder as a lesser included

offense as well. The district court did not err — much less plainly

err — by not limiting the prosecution to a single count when Stokes

8
never asked for such a limitation. See § 18-1-408(3) (permitting the

court to require an election “upon application of the defendant”).

¶ 20 Second, even if we could construe Stokes’s motion to elect as a

request under section 18-1-408(3) to elect among the three charges,

and even assuming Stokes did not waive such an election by

requesting the lesser included offenses, the district court did not

abuse its discretion. Because the evidence could have sustained

any one of the charged offenses, the district court properly allowed

the jury to consider all the charges. See Fry, 74 P.3d at 370. The

court then imposed concurrent sentences on the counts for which

Stokes was convicted. See § 18-1-408(3); Fry, 74 P.3d at 369-70

(holding that the district court did not abuse its discretion by

denying the defendant’s motion to elect because “it nevertheless

sentenced him to concurrent sentences”); People v. Hardin, 607

P.2d 1291, 1295 (Colo. 1980) (holding that district court did not err

by allowing charges of attempted murder, first degree assault, and

second degree assault based on one incident where the charges

were based on different shots and the sentences ran concurrently).

9
D. Election of Charged Acts

¶ 21 In addition to a section 18-1-408(3) election of a single count,

the prosecution may be required to elect a single act (or series of

acts) that supports the charged offense if it “presents evidence of

multiple discrete acts, any one of which would constitute the

offense charged, and there is a reasonable likelihood that jurors will

disagree regarding which act was committed.” Archuleta, ¶ 21.

This rule was the basis for Stokes’s motion to elect in the district

court, and Stokes reasserts this type of election on appeal. We

review this issue de novo. People v. Wagner, 2018 COA 68, ¶ 38.

¶ 22 When multiple distinct acts could each support a conviction,

the district court has two options. First, it can require the

prosecution to select the act that is the basis for the charge. Id. at

¶ 39. Second, the court can give the jury a “modified unanimity

instruction,” advising the jury that it “must either unanimously

agree that the defendant committed the same act or acts or that the

defendant committed all of the acts.” Archuleta, ¶ 22 (citation

omitted). These two options are alternatives, either of which is

sufficient to protect the defendant’s right to a unanimous jury

verdict. Id.; Quintano v. People, 105 P.3d 585, 592-95 (Colo. 2005).

10
¶ 23 The prosecution argued, and the district court agreed, that no

election or modified unanimity instruction was required in this case

because Stokes was charged with engaging in a “single criminal

transaction.” Archuleta, ¶ 31. We agree with Stokes that this is a

close call. On one hand, the five gun shots and attempted sixth

shot spanned less than ten seconds, and the prosecution said it

would treat them as a single transaction. See id. (holding that

election was not required where a “series of discrete acts . . .

contributed to and together ultimately caused [the victim’s] death”);

People v. Wester-Gravelle, 2020 CO 64, ¶¶ 40-41 (holding that there

was no plain error where prosecution “tried the case as involving a

single transaction” consisting of three incidents of forgery).

¶ 24 On the other hand, as the district court noted, those shots had

“different effects” on the victim. More importantly, the prosecution

drew that distinction in closing, arguing that all of the shots

supported the second degree murder count while only the last two

supported the attempted first degree murder count. And while

there was no “reasonable likelihood that jurors [would] disagree

regarding which act was committed,” Archuleta, ¶ 21 — there was

11
no dispute that Stokes took all five shots — jurors reasonably could

have disagreed about which shots were taken in self-defense.

¶ 25 But we need not decide whether the evidence could support

multiple discrete acts because the district court gave a modified

unanimity instruction. That instruction “protect[ed] [Stokes’s] right

to a unanimous verdict by assuring that some jurors [did] not

convict on one offense and others on a separate offense.” Quintano,

105 P.3d at 593; see also People v. Larsen, 2023 COA 28, ¶ 33

(holding that a failure to elect does not violate due process if a

modified unanimity instruction “sufficiently cures any harm from

the prosecution’s failure to individualize the counts charged”).

¶ 26 Stokes also argues that the lack of an election deprived him of

due process and his constitutional right to present a defense

because he was forced to defend against a “moving target.” See

People v. Estorga, 612 P.2d 520, 523 (Colo. 1980) (“[A]n election

enables the defendant to prepare and make his defense to a specific

charge . . . .”). But the supreme court has pulled back somewhat

from the “defense preparation rationale” for the election

requirement, noting that “in most instances the defendant can

12
obtain adequate information to prepare a defense” through other

procedures. Thomas v. People, 803 P.2d 144, 154 (Colo. 1990).

¶ 27 That is the case here. By the time Stokes filed his motion to

elect, the prosecution had nearly rested its case and “there [was]

little opportunity for further defense preparation.” Id. Stokes was

well aware of the evidence against him and claimed self-defense to

the entire incident, not simply to certain shots and not others. And

in response to Stokes’s motion, the prosecution confirmed that

some shots were fatal and some were not. It further explained that,

although the shots were all part of a single transaction, Stokes’s

actions while Anderson was on the ground were alone sufficient to

support the attempted murder charge. Thus, Stokes had notice of

the prosecution’s theory. Under these circumstances, a formal

election was not “essential to accord due process” to Stokes. Id.

III. Inconsistent Verdicts

¶ 28 Stokes also argues that his convictions for first degree assault

and attempted second degree murder must be vacated because they

13
are inconsistent with his acquittal of second degree murder.1 He

contends that the acquittal on the murder charge necessarily

means the jury found he acted in self-defense, which should have

resulted in a complete acquittal on all charges. We disagree.

¶ 29 Consistency between guilty and not guilty verdicts is not

required. People v. Delgado, 2019 CO 82, ¶ 14; People v. Frye, 898

P.2d 559, 570-71 (Colo. 1995). Unlike mutually exclusive guilty

verdicts, which are specific findings “encompassing all the elements

of the crime,” an acquittal is not a finding and may have “various

explanations.” Delgado, ¶ 26. It may, for example, be “the result of

lenity.” People v. Brooks, 2020 COA 25, ¶ 12. Absent an express

jury finding negating an element of an offense, id. at ¶ 24, “[t]he

most that can be said . . . is that . . . either in the acquittal or the

conviction the jury did not speak their real conclusions.” United

State v. Powell, 469 U.S. 57, 63 (1984) (emphasis added) (citation

omitted). We may not guess which it is. See Frye, 898 P.2d at 569.

1 To the extent the People suggest that the jury verdict finding

Stokes guilty of the lesser included offense of first degree assault
does not constitute an acquittal of the second degree murder
charge, we disagree. See People v. Viburg, 2021 CO 81M, ¶ 21 (“By
definition, a jury that finds a defendant guilty of a lesser included
offense axiomatically acquits them of the greater offense.”).

14
Rather, “the convictions will generally be upheld, despite their

rational incompatibility with the acquittals.” Id. at 568.

¶ 30 Stokes urges us to make an exception in this case because the

“ultimate issue of fact was self-defense in a single transaction” and

there can be no explanation for the acquittal of second degree

murder other than that he acted in self-defense. But the

inconsistent resolution of controlling factual issues is the essence of

an inconsistent verdict claim. See id. at 565-66, 571 (upholding

conviction for felony menacing with a gun despite acquittal on first

degree sexual assault indicating that defendant did not use a gun);

State v. Ramos, 479 S.W.3d 500, 508-09 (Tex. App. 2015) (affirming

aggravated assault conviction despite acquittal of murder where the

defendant claimed he acted in self-defense). Because “the jury

holds an unreviewable power to return a verdict of not guilty even

for impermissible reasons,” we may not look behind the verdict —

no matter how clear the jury’s rationale might seem. McElrath v.

Georgia, 601 U.S. 87, 94, 97 (2024) (citation omitted).

¶ 31 We also note that, even setting aside the possibility of

compromise or lenity, the verdict is not necessarily inconsistent.

The jury could have found that Stokes did not knowingly cause

15
Anderson’s death, as required for second degree murder, § 18-3-

103(1)(a), C.R.S. 2024, but did intend to cause him serious bodily

injury, as required for first degree assault, § 18-3-202(1)(a), C.R.S.

2024 — that is, that Stokes intended to seriously injure Anderson

but not kill him. Or the jury could have found that Stokes acted in

self-defense in firing the first three fatal shots but lost that right

once Anderson fell to the ground. Cf. Sanchez v. People, 470 P.2d

857, 860 (Colo. 1970) (noting that a defendant’s “exercise of his

right of self-defense, lawful in the first instance, [may] bec[o]me

unlawful by reason of the manner in which he defended himself”).

Indeed, in arguing that attempted first degree murder was a lesser

included offense of second degree murder, Stokes asserted in the

district court that there was a rational basis for a verdict acquitting

him of murder but convicting him of attempted murder.

¶ 32 In any event, this is why we do not speculate about why the

jury did what it did. See Frye, 898 P.2d at 568-59. Because a

conviction need not be consistent with an acquittal, Stokes’s

16
acquittal of second degree murder does not preclude his convictions

for assault and attempted murder.2 See id. at 571.

IV. Attempted Second Degree Murder

¶ 33 Stokes next challenges his conviction for attempted second

degree murder on two other grounds. First, he asserts that the

indictment was insufficient because it alleged that he caused

Anderson’s death and not that he attempted to do so. Second, he

contends that he cannot be convicted of attempted murder when he

was acquitted of the completed act. We disagree on both points.

A. Sufficiency of the Indictment

¶ 34 An indictment must “provide[] the defendant with sufficient

notice of the charged offenses and facts to allow for adequate trial

preparation and protect the defendant from subsequent prosecution

for the same offense.” People v. Gallegos, 260 P.3d 15, 21 (Colo.

App. 2010). We review the sufficiency of an indictment de novo. Id.

2 Stokes asserts that the purportedly inconsistent verdicts violate

double jeopardy. But double jeopardy bars “a second prosecution
for the same offense after acquittal.” Viburg, ¶ 15 (emphasis added)
(citation omitted). It does not “come into play . . . when a jury
convicts on one charge and acquits on another” in the same case.
People v. Delgado, 2019 CO 82, ¶ 43.

17
¶ 35 The indictment charged Stokes with attempted first degree

murder. Although it included a general factual recitation alleging

that Stokes “knowingly caused the death” of Anderson, the

attempted murder count alleged that he attempted to do so:

On or about October 7, 2019, by engaging in
conduct constituting a substantial step toward
the commission of murder in the first degree,
[Stokes] unlawfully, feloniously, after
deliberation, and with the intent to cause the
death of a person other than himself,
attempted to cause the death of [Anderson]; in
violation of sections 18-3-102(1)(a) and 18-2-
101, C.R.S. [2019].

This count provided Stokes with notice of the attempted murder

charge and “answer[ed] the questions of ‘who, what, where, and

when’” for that offense. Gallegos, 260 P.3d at 21 (citation omitted).

¶ 36 The indictment did not expressly charge Stokes with

attempted second degree murder. But notice of a charged offense

also provides adequate notice of uncharged lesser included offenses.

People v. Martinez, 2024 COA 34, ¶ 22; see also Brown v. People,

239 P.3d 764, 767 (Colo. 2010) (holding that attempted second

degree murder is a lesser included offense of attempted first degree

murder). And the indictment in this case made that point

18
expressly, providing that it encompassed the listed offenses “and all

lesser included offenses from the date and time of the incident.”

¶ 37 Moreover, it was Stokes who requested that attempted second

degree murder be submitted to the jury as a lesser included offense.

Having done so, he cannot now complain that he did not have

sufficient notice of that offense. See People v. Williams, 23 P.3d

1229, 1232 (Colo. App. 2000) (holding that the defendant

“effectively waived” any deficiency in the indictment by tendering an

instruction on a lesser offense that included the disputed element).

¶ 38 Thus, the indictment was sufficient to give Stokes notice of the

attempted second degree murder charge.

B. Inconsistency with Acquittal of Murder

¶ 39 We also reject Stokes’s argument that his acquittal of murder

precludes his conviction for attempted murder.

¶ 40 For this proposition, Stokes relies primarily on Martinez v.

People, 137 P.2d 690, 692 (Colo. 1943), which stated that “if a

person is charged with a crime, and if the evidence shows a

completed act, an acquittal on the charge will preclude a

prosecution for an attempt to commit the act.” He also cites Lewis

19
v. People, 235 P.2d 348 (Colo. 1951), and People v. Yoshio

Futamata, 343 P.2d 1058 (Colo. 1959), to support that rule.

¶ 41 But these cases rested on the obsolete principle that failure to

complete the crime is an element of attempt. See Lewis, 235 P.2d

at 351 (“[W]hen a crime is completely consummated, there can be

no prosecution for an attempt.”) (citation omitted); Martinez, 137

P.2d at 692 (defining attempt as “an effort to commit a crime, and a

direct, ineffectual act done towards its commission”). That is no

longer the law. Under today’s criminal attempt statute, it is not a

defense “that the crime attempted was actually perpetrated by the

accused.” § 18-2-101(1), C.R.S. 2024.3 Thus, unlike at the time of

Martinez, Lewis, and Yoshio Futamata, evidence of a completed

offense can support a conviction for attempt to commit that offense.

See People v. Harlan, 8 P.3d 448, 479 (Colo. 2000) (noting that

attempted murder conviction could be based on “successful

attempt” to kill victim). And as we explain above, any inconsistency

3 Colorado first codified criminal attempt in 1963.See § 40-25-1,
C.R.S. 1963; People v. Lehnert, 163 P.3d 1111, 1113 (Colo. 2007).
The current version of the statute has remained largely unchanged
since 1971. Ch. 121, sec. 1, § 40-2-101, 1971 Colo. Sess. Laws
414; § 18-2-101(1), C.R.S. 2024; Lehnert, 163 P.3d at 1114.

20
between an acquittal of the completed offense and a conviction of

the attempt is not a problem either. See Frye, 898 P.2d at 570-71.

¶ 42 Moreover, even if these cases remained good law, the evidence

provides “some basis” for an acquittal of murder and conviction of

attempted murder. Yoshio Futamata, 343 P.2d at 1063 (citation

omitted). The jury could have found that Stokes either did not

knowingly kill Anderson or acted in self-defense when he fired the

first three fatal shots but did attempt to kill him when he fired the

last two shots and attempted to fire another. See id. at 1064. It

does not matter that Anderson was already mortally wounded when

the final shots were fired. See § 18-2-101(1) (“Factual or legal

impossibility of committing the offense is not a defense . . . .”);

People v. Duran, 272 P.3d 1084, 1093-94 (Colo. App. 2011) (holding

that second set of gunshots was sufficient to support attempted

murder conviction even though victim was killed by prior gunshots).

V. First Degree Assault

¶ 43 Stokes next contends that the evidence was insufficient to

support his first degree assault conviction because the first three

shots were fatal and the last two did not cause serious bodily

injury. Viewing the evidence as a whole, we are not persuaded.

21
¶ 44 In assessing the sufficiency of the evidence, we review the

record de novo to determine whether the evidence was sufficient

both in quantity and quality to sustain the conviction. Johnson v.

People, 2023 CO 7, ¶ 13. In doing so, we view the evidence “as a

whole and in the light most favorable to the prosecution” to

determine if the evidence is “substantial and sufficient to support a

conclusion by a reasonable mind that the defendant is guilty of the

charge beyond a reasonable doubt.” Id. (citation omitted).

¶ 45 As relevant in this case, a person commits first degree assault

if, “[w]ith intent to cause serious bodily injury to another person, he

causes serious bodily injury to any person by means of a deadly

weapon.” § 18-3-202(1)(a). “Serious bodily injury,” at the time of

Stokes’s offense, included “bodily injury which, either at the time of

the actual injury or at a later time, involves a substantial risk of

death, a substantial risk of serious permanent disfigurement, [or] a

substantial risk of protracted loss or impairment of the function of

any part or organ of the body.” § 18-1-901(3)(p), C.R.S. 2019.4 The

4 Section 18-1-901(3)(p), C.R.S. 2024, has since been amended to

include “a penetrating knife or penetrating gunshot wound.” It also
includes, and included at the time of Stokes’s offense, “breaks,
fractures, . . . or burns of the second or third degree.” Id.

22
“substantial risk of death determination” turns on “the facts of the

actual injury . . . , not the risk generally associated with the type of

conduct or injury in question.” People v. Vigil, 2021 CO 46, ¶ 33.

¶ 46 We first reject Stokes’s suggestion that our review is limited —

either by the acquittal on the murder count or by the prosecution’s

theory at trial — to the final two shots. Sufficiency of the evidence

review turns on whether the evidence as a whole “could support any

rational determination of guilt beyond a reasonable doubt . . .

independent of the jury’s determination that evidence on another

count was insufficient.” Frye, 898 P.2d at 569 (citation omitted).

Further, the sufficiency of the evidence must be “measured ‘against

the elements of the offense,’” not against the prosecution’s

arguments at trial.5 People v. Helms, 2016 COA 90, ¶ 52 (citation

omitted). Thus, in determining whether the evidence was sufficient

to prove serious bodily injury, we must consider all five shots.

¶ 47 Considering the evidence as a whole, there can be little

question that it was sufficient to prove beyond a reasonable doubt

5 We also note that the first degree assault charge was submitted as

a lesser included offense of the second degree murder charge, which
the prosecution argued in closing was based on all five shots.

23
that Anderson suffered injuries that “involve[d] a substantial risk of

death.” § 18-1-901(3)(p). Indeed, as Stokes recognizes, it was

undisputed that those injuries did cause death. An injury that

naturally results in death necessarily involves a substantial risk of

death when it occurs. It is immaterial that some of the shots may

not have involved a substantial risk of death or that Anderson’s

death may have cut off any further complications.6

VI. Self-Defense Jury Instructions

¶ 48 Stokes finally contends that the self-defense jury instructions

deprived him of a full acquittal by limiting the use of deadly force to

the second degree murder count and applying the nondeadly force

standard to the other counts. To the extent this is a challenge to

the jury instructions, Stokes waived or invited any error by

tendering those instructions and affirmatively requesting the

nondeadly force instruction. To the extent it is a reframing of his

inconsistent verdict argument, it fails for the reasons above.

6 Stokes asserts that a witness before the grand jury erroneously

testified that “getting shot with a bullet anywhere” is serious bodily
injury. But short of structural error, an error during grand jury
proceedings is “rendered harmless once a petit jury has reached a
guilty verdict.” People v. Nozolino, 2014 COA 95, ¶ 37.

24
A. Additional Background

¶ 49 Stokes tendered two separate proposed jury instructions on

self-defense: one for “deadly physical force in defense of person” and

one for “defense of person,” which set out the lower standard of

nondeadly physical force. The proposed instructions specified that

Stokes asserted the “deadly physical force” defense to second degree

murder and the “defense of person” defense to the other charges.

¶ 50 The prosecution objected to the nondeadly physical force

instruction, arguing that it would confuse the jury because Stokes

did not use “anything other than deadly physical force.” Defense

counsel argued that the instruction was appropriate because deadly

physical force applies only to offenses that cause death and the

nonmurder offenses did not have death as an element. Thus, he

argued that those offenses were subject to the lower standard.

¶ 51 The district court agreed with Stokes, concluding that the

general “defense of person” instruction was appropriate for the

charges of attempted murder and assault because deadly force was

not an element of those offenses. The court therefore gave both

instructions Stokes tendered. The “deadly physical force”

instruction, which tracked section 18-1-704(1) and (2)(a), C.R.S.

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2024, provided that it applied to second degree murder. The

general “defense of person” instruction, which tracked only section

18-1-704(1), provided that it applied to the other counts. That

instruction did not include the element in the “deadly physical

force” instruction that the defendant reasonably believed he was “in

imminent danger of being killed or of receiving great bodily injury.”

¶ 52 The elemental instructions cross-referenced the corresponding

self-defense instruction. The instruction for second degree murder

included as an element that Stokes’s conduct was not legally

authorized by “deadly physical force in defense of person.” The

instructions for the other counts included as an element that

Stokes’s conduct was not legally authorized by “defense of person.”

B. Analysis

¶ 53 Stokes argues that the self-defense jury instructions were

“deficient and confusing” because it was undisputed that he used

deadly force. He asserts that the deadly force instruction therefore

should not have been limited to the murder charge. But Stokes

tendered those instructions. Indeed, he went further, specifically

arguing against the position he takes on appeal. By doing so, he

invited the putative error of which he complains, and we may not

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review it. See People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of

invited error prevents a party from complaining on appeal of an

error that he or she has invited or injected into the case . . . .”);

People v. Zapata, 779 P.2d 1307, 1307 (Colo. 1989) (holding that

invited error bars review of defense-tendered jury instruction).

¶ 54 Stokes also contends that, because there was a “single act of

self-defense,” there was no basis for the jury to find that he was

justified in using deadly force but not nondeadly force. But this is

just a reprise of his argument that the verdicts were inconsistent.

To reiterate, we may not speculate as to why the jury acquitted

Stokes of second degree murder.7 See Frye, 898 P.2d at 569.

VII. Disposition

¶ 55 The judgment is affirmed.

JUDGE DUNN and JUDGE BROWN concur.

7 Stokes points out that the prosecution highlighted the different

self-defense standards in closing. But in doing so, the prosecution
correctly explained that the general self-defense standard was a
lower standard in that Stokes did not have to believe he was in
imminent danger of death or serious bodily injury. In other words,
the prosecution’s burden under that instruction was higher.

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