People v. Strickler

SUMMARY

January 6, 2022

2022COA1

No. 18CA2334, People v. Strickler — Criminal Law —

Sentencing — Mandatory Sentences for Violent Crimes —

Deadly Weapon

A division of the court of appeals considers whether fire meets

the definition of “deadly weapon” under section 18-1-901(3)(e)(II),

C.R.S. 2021, and concludes that it does.

The summaries of the Colorado Court of Appeals published opinions

constitute no part of the opinion of the division but have been prepared by

the division for the convenience of the reader. The summaries may not be

cited or relied upon as they are not the official language of the division.

Any discrepancy between the language in the summary and in the opinion

should be resolved in favor of the language in the opinion.

COLORADO COURT OF APPEALS 2022COA1

Court of Appeals No. 18CA2334

Mesa County District Court No. 17CR1144

Honorable Lance P. Timbreza, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Alan Strickler,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE GROVE

Navarro and Pawar, JJ., concur

Announced January 6, 2022

Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Joshua Alan Strickler, appeals his convictions for

attempted first degree extreme indifference murder, attempted first

degree arson, and attempted criminal mischief. We affirm the

convictions for attempted first degree extreme indifference murder

and attempted first degree arson, and in doing so conclude that

Strickler was properly convicted of a crime of violence because fire,

as Strickler used it, met the statutory definition of “deadly weapon.”

However, we remand with directions to merge Strickler’s conviction

for attempted criminal mischief into his conviction for attempted

first degree arson.

I. Background

¶ 2

After receiving a report of a structure fire at the Lone Rose

Apartments, first responders entered the building and noticed a

haze of smoke in the second floor hallway. Firefighters pinpointed

one apartment as the source of the smoke, and, when forcing entry

through the deadbolted door saw towels jammed into the spaces at

the top and bottom of the doorframe. As the firefighters opened the

door, a large amount of smoke escaped.

¶ 3

The apartment was Strickler’s. It was unoccupied when the

firefighters entered, but they observed burners on the gas stovetop

2

that were lit and heaped with burning clothes and what appeared to

be charcoal. Behind the stove, which was pulled away from the

wall, the firefighters found a smoldering portable grill. The grill was

placed under the gas line that connected the stove to the wall, and

materials in it were on fire.

¶ 4

Earlier that day, Strickler had called the police to report a

threat made by a man named Gary Cox, who was staying in an

apartment in the same building with his wife, Stefanie Reel.1

Strickler reported that Cox had tried to kick in his apartment door,

and he showed the officer text messages sent by Reel from around

the same time warning Strickler not to answer his door because

“Gary” was “pisse[d].” The officer spoke to Cox on the phone and

Reel in person. Reel did not deny sending the text messages, but as

the officer recalled at trial, she claimed that they were referring to “a

different Gary than Gary Cox.” The officer did not take any further

action.

1 The apartment appears to have been leased to Reel. Cox admitted

that he was staying there but denied being a “resident” because

Reel had a restraining order against him.

3

¶ 5

According to the officer, Strickler became “upset” when he

learned that she “wasn’t making or wasn’t able to make an arrest

on the case,” and, as the officer prepared to leave, Strickler said,

“I’ll do what I have to do then.” Strickler set the fires in his

apartment a few hours after the officer left. He passed by another

tenant as he left the building, and as he did so, he said, “[W]ell, let’s

see how this goes.”

¶ 6

Strickler called 911 to report the smell of smoke at his

apartment nearly twenty minutes after he left it with clothes

burning on the stove and a lit portable grill placed directly under

the gas line. A fire investigator testified that the plastic portions of

the gas line had melted from the heat, and that “the manner in

which [the portable grill] was placed could have caused significant

damage — not only structurally to the building, but potential mass

loss of life for all involved — not only the occupants of this building,

but responders called to the scene, as well.”

¶ 7

Strickler was tried on charges of first degree arson, attempted

first degree arson, attempted criminal mischief, and two counts of

attempted extreme indifference murder. One of the attempted

extreme indifference murder charges named Stefanie Reel as the

4

victim; the other named as victims “tenants or residents of the Lone

Rose Apartments.” Both attempted extreme indifference murder

charges were alleged to be crimes of violence.

¶ 8

The jury acquitted Strickler of first degree arson and of

attempting to murder Stefanie Reel specifically. It found Strickler

guilty of the other count of attempted extreme indifference murder,

attempted first degree arson, and attempted criminal mischief.

II. Analysis

¶ 9

Strickler contends that (1) he was improperly convicted of a

crime of violence because fire does not meet the statutory definition

of “deadly weapon”; (2) the trial court improperly admitted evidence

about the disappearance of fire extinguishers and damage to exit

signs in the building during the weeks before the fire; and (3)

attempted criminal mischief is a lesser included offense of

attempted first degree arson. We address each issue in turn.

A. Fire as a “Deadly Weapon”

¶ 10

Strickler contends that fire does not meet the statutory

definition of deadly weapon, and that he therefore should not have

been subject to the crime of violence sentence enhancer. We

disagree.

5

1. Applicable Law

¶ 11

We review sufficiency of the evidence claims de novo to

determine “whether the relevant evidence, both direct and

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

favorable to the prosecution, is substantial and sufficient to support

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

the charge beyond a reasonable doubt.” People v. Donald, 2020 CO

24, ¶ 25 (citation omitted). We may not reweigh the evidence or

substitute our judgment for that of the jury, People v. Rivas, 77

P.3d 882, 891 (Colo. App. 2003), and we must “give the prosecution

the benefit of every reasonable inference which might be fairly

drawn from the evidence,” People v. Perez, 2016 CO 12, ¶ 25

(citation omitted).

¶ 12

As relevant here, attempted first degree murder is subject to a

crime of violence sentence enhancement if the defendant “[u]sed, or

possessed and threatened the use of, a deadly weapon.” § 18-1.3-

406(2)(a)(I)(A), C.R.S. 2021. “Deadly weapon” is defined as “[a]

knife, bludgeon, or any other weapon, device, instrument, material,

or substance, whether animate or inanimate, that, in the manner it

6

is used or intended to be used, is capable of producing death or

serious bodily injury.” § 18-1-901(3)(e)(II), C.R.S. 2021.

2. Analysis

¶ 13

The prosecution charged Strickler with a crime of violence

sentence enhancer in connection with both attempted extreme

indifference murder charges. Count 4 of the “Amended Complaint

and Information” alleged that Strickler “unlawfully used, or

possessed and threatened the use of, a deadly weapon, namely: fire,

a dangerous or deadly weapon, during the commission of,

attempted commission of, conspiracy to commit, or the immediate

flight from the offense of Attempted Murder – Extreme Indifference.”

Consistent with the statutory definition, the trial court instructed

the jury that “[a] ‘deadly weapon’ means a knife, bludgeon, or any

other weapon, device, instrument, material, or substance, whether

animate or inanimate, that, in the manner it is used or intended to

be used, is capable of producing death or serious bodily injury.” On

the verdict form for Count 4, the jury found that Strickler “use[d],

or possess[ed] and threaten[ed] the use of, a deadly weapon.”

¶ 14

Citing People v. Ross, 831 P.2d 1310, 1313 (Colo. 1992),

abrogated by Montez v. People, 2012 CO 6, which analyzed an

7

earlier but similar version of section 18-1-901(3)(e), Strickler

contends that our supreme court has declared that “only a discrete

list of ‘objects’ can be deadly weapons.” Thus, he argues, because

fire is not an “object,” it does not fall within the statutory definition

of “deadly weapon.”2

¶ 15

The People respond that another division of this court has

already rejected an argument similar to the one that Strickler raises

here. See People v. Magana, 2020 COA 148 (cert. granted May 24,

2021). But Magana addressed a different issue: whether fire can be

the basis for a crime of violence sentence enhancement for first

degree arson even though it is also an element of first degree arson.

Id. at ¶ 60. The division did not consider the scope of the definition

of “deadly weapon” under section 18-1-901(3)(e)(II).

¶ 16

Nonetheless, we reject Strickler’s contention because we do

not read Ross as limiting the definition of “deadly weapon” to

“objects.” True, the weapon in question in Ross — a fist — was an

“object.” 831 P.2d at 1312. And the court noted that it had

2 As Strickler correctly points out, fire is not a per se deadly

weapon. See § 18-1-901(3)(e)(I), C.R.S. 2021.

8

previously interpreted “[a]ny other weapon, device, instrument,

material, or substance” broadly, “to include any object or device.”

Id. at 1313; see Bowers v. People, 617 P.2d 560, 563 (Colo. 1980)

(holding that items other than those specifically enumerated in the

statute can be deadly weapons); People v. Bramlett, 193 Colo. 205,

209, 573 P.2d 94, 96 (1977) (“[T]he statutory definition of ‘deadly

weapon’ includes any object . . . .”). But neither Ross nor any of the

cases that it relied on had occasion to consider whether the means

of committing the crime must be an “object,” as that phrase is

commonly understood, in order to qualify as a deadly weapon. That

is, while our supreme court has held that using an “object” to

commit the crime may be sufficient to satisfy the “deadly weapon”

sentence enhancer, it has not held that it is necessary for a

defendant to have used an “object” for the definition of “deadly

weapon” to apply.

¶ 17

In fact, Ross’s survey of the “plain meaning of the words

‘weapon, device, instrument, material, [and] substance’” suggests

just the opposite. 831 P.2d at 1313 & n.2. Relying on the

dictionary to shed light on each of these terms, the court in Ross

defined “weapon” as “an instrument of offensive or defensive

9

combat, . . . something . . . used in destroying, defeating, or

physically injuring an enemy.” Id. (quoting Webster’s Third New

International Dictionary 2589 (1969)). Metaphysical questions about

the meaning of “object” aside, fire falls within the scope of this

definition of “weapon.” It has been used in war for millennia. See,

e.g., W. Hays Parks, Means and Methods of Warfare, 38 Geo. Wash.

Int’l L. Rev. 511, 512 (2006) (“Use of fire as a weapon has been

traced back to the ninth century B.C.”). And it can be used to

destroy, defeat, or physically injure others.

¶ 18

Nor would our conclusion change if, as Strickler argues, Ross

in fact decided that only “objects” can be deadly weapons. Indeed,

one of Ross’s definitions of “substance” — “matter of definite or

known chemical composition,” 831 P.2d at 1313 n.2 (quoting

Webster’s Third New International Dictionary 2279 (1969)) — applies

directly to Strickler’s description of fire: “a chemical chain reaction

producing heat and light.” Employing similar reasoning, other state

courts construing statutes similar to section 18-1-901(3)(e)(II) have

rejected arguments that fire is not a tangible thing, thus effectively

classifying it as an “object.” See, e.g., Taylor v. State, 735 S.W.2d

930, 948-49 (Tex. App. 1987) (“[W]e conclude that fire is not

10

intangible combustion . . . but includes the tangible aspects of the

combustion, light and heat, as well as its effects.”), abrogated on

other grounds by Gaines v. State, 761 S.W.2d 2 (Tex. Crim. App.

1988); see also Mims v. State, 335 S.W.3d 247, 250 (Tex. App. 2006)

(holding that fire is a “thing” because “[i]t undeniably has an

objective existence or reality”); State v. Idlebird, 896 S.W.2d 656,

665 (Mo. Ct. App. 1995) (noting that fire’s “tangible aspects,

including heat and light . . . arguably bring it within the term

‘substance’” as used in the Missouri statute defining “dangerous

instrument”), overruled on other grounds by State v. Williams, No.

WD 60855, 2003 WL 1906460, at *11 (Mo. Ct. App. Apr. 22, 2003)

(unpublished opinion), aff’d, 126 S.W.3d 377, 384 (Mo. 2004).

¶ 19

Thus, fire qualifies as a deadly weapon under at least two of

the categories listed in section 18-1-901(3)(e)(II). And because there

was ample evidence presented to support a finding that Strickler’s

use of fire rendered it capable of producing death or serious bodily

injury, we conclude that the evidence was sufficient to support his

conviction for the crime of violence sentence enhancer.

B. Evidence of Missing Fire Extinguishers and Damaged Exit

Signs

11

¶ 20

Strickler contends that the trial court improperly allowed the

lead detective to testify about the unexplained disappearance of fire

suppression and detection equipment and damage to exit signs that

occurred at some time before Strickler set fire to his apartment.3

We perceive no basis for reversal.

1. Standard of Review and Preservation

¶ 21

We review a trial court’s evidentiary ruling for an abuse of

discretion. People v. Stewart, 55 P.3d 107, 122, 125 (Colo. 2002).

A trial court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misinterprets or

misapplies the law. People v. Williams, 2019 COA 32, ¶ 21.

¶ 22

The parties disagree about preservation, but we conclude that

Strickler’s motion in limine, in which he argued that the court

should exclude evidence of the missing and damaged equipment,

was sufficient to preserve the issue for our review. We therefore

review his contention for harmless error and will disregard any

3 On appeal, Strickler does not contend that this alleged error had

any effect on his attempted arson and criminal mischief

convictions. Thus, because his argument focuses solely on the

effect of the evidence on the attempted murder charges, we consider

his claims of prejudice only with respect to that conviction.

12

error only if we can say with fair assurance that, in light of the

entire trial record, the error did not substantially influence the

verdict or impair the trial’s fairness. See Stewart, 55 P.3d at 124.

2. Additional Background

¶ 23

At the preliminary hearing, the lead detective testified, “I was

informed by the property manager . . . that over the weeks leading

up to the arson there have been mysterious disappearances of fire

extinguisher, fire – or smoke detectors, and a disabling of the fire

exit emergency signs on the building.” On cross-examination,

however, he admitted that he had no evidence that Strickler was

responsible for these events; during his interviews with tenants,

they denied seeing Strickler tamper with them; and missing fire

extinguishers and smoke detectors were not found in Strickler’s

apartment.

¶ 24

After the preliminary hearing, Strickler moved in limine to

exclude evidence about the missing fire extinguishers, smoke

detectors, and damaged emergency exit signs as irrelevant and

prejudicial, pointing out that “there is no evidence at all that Mr.

Strickler was responsible for removing fire alarms, removing fire

extinguishers, or dismantling exit signs.” In response, the People

13

argued that the evidence was relevant “because the removal of the

fire extinguishers, fire alarms and disabling of the exit signs makes

it more probable than not that [Strickler] planned to set fire to the

building.” The People conceded that “the alarms and extinguishers

were never found in [Strickler’s] possession,” but asserted that “the

evidence present[ed] at trial will show that the devices were removed

from the building within two weeks of [Strickler’s] attempt[] to set

fire to the building.”

¶ 25

The trial court, without an evidentiary hearing, denied the

motion in limine as to the statements, and ruled:

This information is relevant as to whether or

not [Strickler] planned to do what he is alleged

to have done. It certainly goes to his state of

mind and the planning put in to the fires. The

court does not find the evidence’s probative

value to be outweighed by the danger of unfair

prejudice. This is particularly so when the

court gives the evidence i[t]s maximum

probative value and minimum prejudicial

value. The weight the jury gives the evidence

will be left to the jury.

¶ 26

In his opening statement, the prosecutor told the jury to

expect testimony from the property manager that “in the weeks

leading up to [the fire], he had noticed that fire extinguishers had

started to go missing in the complex,” and that on the date of the

14

fire, “he noticed . . . that the exit signs had been tampered with.”

He conceded, however, that “other residents” of the apartments

would testify “that they never saw fire extinguishers in the

complex.”

¶ 27

The evidence presented to the jury on this issue differed

substantially from the preliminary hearing. Although the lead

detective again testified for the prosecution, he did not mention

missing or damaged fire protection equipment during his direct

examination, and during defense counsel’s cross-examination, he

admitted that he had “no evidence that Mr. Strickler had done

anything with any of the fire extinguishers, exit signs, fire alarms,

et cetera.”

¶ 28

The property manager also testified about the fire safety

equipment. When asked whether he “notice[d] anything out of the

ordinary with regards to the exit signs” on the second floor, he

responded that “[t]hey were broken. The fire department . . .

pointed out that they were broken, and they were just kind of

dangling there.” He did not suggest that Strickler had damaged the

signs, but he explained that the damage must have been recent

because “[t]hey were dangling so much that it would have been

15

something that I would have noticed, or a tenant would have

noticed and probably said something — because they were hanging

pretty low.” When asked about the fire extinguishers, however, the

property manager said that he “didn’t notice anything about them,”

and denied that he had “had any issue with fire extinguishers going

missing” in the weeks leading up to the fire. In response to

questions by the jury, the property manager described the locations

of the exit signs, clarified that the building had failed an inspection

shortly before the fire because the fire extinguishers were past their

expiration dates, and confirmed that “as far as [he] kn[e]w,” none of

the fire extinguishers were missing on the date of the fire.

¶ 29

The prosecutor also briefly addressed the issue with the fire

investigator, who had noted that when he entered the building, he

saw “a fire extinguisher box or housing with an extinguisher

missing.” As the investigator explained, however, that did not

cause him concern at the time “because typically we would think

16

someone was there to help — grab the extinguisher and try to

help.”4

3. Analysis

¶ 30

Strickler argues that evidence of the missing and damaged fire

safety equipment was improperly admitted. He suggests that the

appropriate framework for the admissibility of this evidence is either

CRE 404(b) or res gestae. Under either theory, Strickler argues, the

evidence was inadmissible because the prosecution did not offer

any evidence that linked him to the damage to or disappearance of

the equipment.

¶ 31

The People disagree with both Strickler’s proposed framework

and his res gestae and CRE 404(b) analysis. They first argue that

the evidence was “directly relevant” to the question whether “he

acted with reckless disregard to the safety of other tenants.”

According to the People, “[t]he circumstances and timing of the

damage to the exit signs in particular raised the inference Strickler

caused this damage around the time that he set the fire and left the

4 The investigator did add that there was no evidence that anyone

had used a fire extinguisher in Strickler’s apartment, but the

prosecutor did not follow up on that comment or refer to it again.

17

complex.” In the alternative, the People argue that the evidence was

admissible as res gestae and under CRE 404(b).

¶ 32

We conclude that we need not consider the merits of

Strickler’s arguments because, even if the evidence was improperly

admitted, any error was harmless. At the threshold, evidence that

fire extinguishers or smoke detectors had in fact gone missing was

extraordinarily thin. Damage to or theft of smoke detectors was

never mentioned at trial,5 and, as discussed above, the property

manager denied that any of the fire extinguishers had disappeared.

While the fire investigator noted that there was an empty fire

extinguisher box in the second floor hallway, he also testified that

its absence was unsurprising under the circumstances.

¶ 33

With respect to the exit signs, there was uncontradicted

testimony that they had been damaged, but there was no evidence

presented that Strickler had tampered with them. The issue was

mentioned only briefly and went entirely unaddressed in closing

argument.

5 In fact, more than one witness realized that there was a fire in the

building only when alarms started sounding.

18

¶ 34

In reviewing for harmless error, we examine a number of

factors, including the importance of the witness’s testimony to the

prosecution’s case, whether the testimony was cumulative, and the

overall strength of the prosecution’s case. Blecha v. People, 962

P.2d 931, 942 (Colo. 1998). The single most important factor in

harmless error inquiry is whether the case was “close.” People v.

Casias, 2012 COA 117, ¶ 69. To assess the “closeness” of this case,

we consider not only whether the other evidence was sufficient to

convict but also whether it was sufficiently powerful in relation to

the evidence of missing and damaged equipment to give fair

assurance that that evidence did not substantially sway the jury to

its verdict. See id. (citing United States v. Ince, 21 F.3d 576, 584

(4th Cir. 1994)).

¶ 35

The evidence of Strickler’s actions and intent in this case was

not close; it strongly demonstrated that he acted “[u]nder

circumstances evidencing an attitude of universal malice

manifesting an extreme indifference to the value of human life

generally,” and “knowingly engage[d] in conduct which create[d] a

grave risk of death to a person, or persons, other than himself.”

§ 18-3-102(1)(d), C.R.S. 2021. After an altercation with others in

19

the building, he made implied threats directed toward one or more

residents when speaking to a police officer. Several hours later,

Strickler set two fires in his apartment — one of which was left

smoldering under an active gas line located behind a stove that had

been pulled away from the wall — before leaving the building. On

his way out, he stuffed towels or clothing into the edges of the

doorframe, thus ensuring that smoke from the fires would not be

immediately apparent. And rather than immediately reporting the

fire, Strickler rode away on his bike and called 911 only after twenty

minutes had passed.

¶ 36

The importance and persuasiveness of the evidence

surrounding the allegedly missing and damaged equipment paled in

comparison to the overwhelming proof of Strickler’s actions and

intent. As noted above, the evidence challenged on appeal went

unmentioned in closing argument, and defense counsel elicited

testimony from several witnesses highlighting the fact that no one

had seen Strickler damage the signs or remove any fire

extinguishers. Moreover, the jury acquitted Strickler of the

attempted murder of Reel and of first degree arson. Cf. People v.

Delgado-Elizarras, 131 P.3d 1110, 1112-13 (Colo. App. 2005)

20

(holding that any error in the admission of other act evidence was

harmless where the evidence of the defendant’s guilt was

overwhelming and the defendant’s acquittal on a greater charge and

conviction on only the lesser offenses “demonstrate that the jury

based its verdicts on evidence of [the] defendant’s conduct at the

scene, and not on any conclusions regarding [the] defendant’s

propensity to engage in criminal conduct”). Accordingly, he has not

demonstrated that he was so prejudiced by the admission of that

evidence as to justify reversal.

C. Attempted Criminal Mischief as a Lesser Included Offense

¶ 37

Finally, Strickler contends that attempted criminal mischief is

a lesser included offense of attempted first degree arson, and that

the trial court therefore erred by failing to merge the conviction for

attempted criminal mischief into his conviction for attempted first

degree arson. See People v. Welborne, 2018 COA 127, ¶ 22. The

People concede this point. We agree and thus vacate Strickler’s

conviction for attempted criminal mischief. See id. at ¶ 26.

III. Conclusion

¶ 38

We vacate Strickler’s conviction for attempted criminal

mischief, and we remand the case to the trial court to merge the

21

attempted criminal mischief conviction into the attempted first

degree arson conviction, and to correct the mittimus accordingly.

In all other respects, the judgment is affirmed.

JUDGE NAVARRO and JUDGE PAWAR concur.