Peo v. Andrew

20CA1298 Peo v Andrew 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA1298

Larimer County District Court No. 18CR1524

Honorable C. Michelle Brinegar, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Davis Andrew,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE SCHUTZ

Fox and Graham*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,

Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for

Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2021.

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¶ 1 Defendant, Davis Andrew, appeals the judgment of conviction

entered on jury verdicts finding him guilty of attempted first degree

extreme indifference murder, first degree assault causing serious

bodily injury with a deadly weapon, and first degree burglary. We

affirm.

I. Background

¶ 2 Viewed in the light most favorable to the People, the evidence

produced at trial established the following facts. Andrew and three

other men drove to an apartment complex intending to rob M.C. at

gunpoint. Andrew remained in the car and drove around the

vicinity while the other men knocked on the door of the top floor

apartment where M.C.’s girlfriend lived. As M.C. unlocked the

deadbolt, one man kicked the door in. M.C. pushed against the

door, preventing the intruders from fully entering the apartment,

and yelled to his girlfriend to call the police.

¶ 3 The men fired three shots into the apartment, from two

different guns, before leaving the scene. One bullet struck M.C. in

the knee, shattering the end of his femur. A second bullet went into

an interior wall, and a third bullet hit the ceiling. Another shot was

fired toward the building from the base of the stairwell as the men

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fled to Andrew’s vehicle. Andrew then drove the men to his

apartment.

¶ 4 Police identified two of the gunmen — Deshawn Watson and

Demontrae Wilson — and connected them to Andrew. As relevant

here, the People charged Andrew with attempted extreme

indifference murder, first degree assault, and first-degree burglary

under a complicity theory. At trial, the prosecution presented

evidence that in addition to being the getaway driver, Andrew had

played a significant role in planning the crime.

¶ 5 At the close of the prosecution’s evidence, defense counsel

moved for a judgment of acquittal on all counts, arguing that the

evidence was insufficient to prove that Andrew had a culpable

mental state under a complicity theory. The district court denied

the motion, and the jury found Andrew guilty on all counts.

Andrew thereafter moved for a new trial, arguing the guilty verdicts

for first degree assault and attempted extreme indifference murder

were legally inconsistent. The court denied this motion as well. On

appeal, Andrew contends the court’s rulings were erroneous.

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II. Motion for Judgment of Acquittal

¶ 6 Andrew first contends the district court should have granted

his motion for acquittal as to the charges of attempted extreme

indifference murder and first degree assault because there was

insufficient evidence he was legally accountable for the shootings as

a complicitor. We disagree.

A. Standard of Review

¶ 7 We review the denial of a motion for judgment of acquittal de

novo. Montes-Rodriguez v. People, 241 P.3d 924, 927 (Colo. 2010).

To determine whether the prosecution presented sufficient evidence

to sustain a conviction, we consider whether “the relevant evidence,

both direct and circumstantial, when viewed as a whole 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. Lehnert,

163 P.3d 1111, 1115 (Colo. 2007). In doing so, we give the

prosecution the benefit of all reasonable inferences supported by a

logical connection between the facts established and the conclusion

inferred. People v. Donald, 2020 CO 24, ¶ 19.

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B. Applicable Law

¶ 8 To support guilty verdicts under a complicity theory, the

prosecution must prove that the defendant is legally accountable for

the behavior of another person and that the other person committed

the crimes charged. § 18-1-603, C.R.S. 2021; see also People v.

Childress, 2015 CO 65M, ¶ 34. Andrew does not dispute that the

gunmen committed the crimes charged.

¶ 9 “A person is legally accountable as principal for the behavior of

another constituting a criminal offense if, with the intent to promote

or facilitate the commission of the offense, he or she aids, abets,

advises, or encourages the other person in planning or committing

the offense.” § 18-1-603.

¶ 10 Evidence is sufficient to prove a defendant’s complicity in

attempted extreme indifference murder if it shows that (1) “the

defendant was legally accountable for the behavior of another

actor,” and (2) “either the defendant or the other actor engaged in

conduct strongly corroborative of the firmness of his purpose to

complete the commission of the crime of extreme indifference

murder.” Montoya v. People, 2017 CO 40, ¶ 18. A person engages

in conduct strongly corroborative of the firmness of his purpose to

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complete the commission of the crime of extreme indifference

murder if (1) under circumstances evidencing an attitude of

universal malice manifesting extreme indifference to the value of

human life generally, (2) he knowingly engages in conduct which

creates a grave risk of death to a person other than himself. § 18-3-

102(1)(d), C.R.S. 2021; see Montoya, ¶ 17; see also § 18-2-101(1),

C.R.S. 2021 (defining criminal attempt).

¶ 11 A person commits first degree assault if, as relevant here, (1)

with intent to cause serious bodily injury to another person, (2) he

causes serious bodily injury to any person (3) by means of a deadly

weapon. § 18-3-202, C.R.S. 2021.

C. Evidence

¶ 12 The prosecution presented the following relevant evidence:

• M.C. testified that he and Andrew knew each other

because they had worked together at a landscaping job

for a few months.

• Facebook messages between Andrew and Watson in the

two days leading up to the crime indicated, in slang

terms, that (1) they were planning robberies; (2) Andrew

had selected and “scoped” a robbery target, a “big one,”

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for the day of the shooting; and (3) Andrew told Watson

to bring a gun.

• Telephone records showed that Andrew and Wilson had

communicated about thirty-nine times in the ten weeks

surrounding the date of the crime.

• GPS data and video surveillance showed that (1) Watson

and Wilson had traveled from Colorado Springs to Fort

Collins shortly before the crime; (2) Andrew, Watson, and

Wilson had left Andrew’s Fort Collins apartment and had

been at or near M.C.’s girlfriend’s apartment during the

crime; (3) all three had returned to Andrew’s apartment

after the crime; and (4) Wilson and Watson had returned

to Colorado Springs that night.

• Police found Watson carrying a weapon that had been

used at the apartment shooting.

• A jailhouse informant testified that Andrew had (1)

confessed to having played a role in the crime, (2)

identified M.C. as a cocaine dealer, and (3) asked the

informant to find out M.C.’s address.

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D. Discussion

¶ 13 Andrew argues this case presents a fact pattern similar to

People v. Duran, in which a division of this court concluded that

“[m]erely driving persons to [a] party, being present there, and being

associated with [a shooter] are insufficient to support a

determination of complicity.” 272 P.3d 1084, 1092 (Colo. App.

2011). However, the evidence related to the crime vacated in Duran

is readily distinguishable from the facts presented here.

¶ 14 In Duran, the defendant drove some friends, including the

shooter, to a party hosted by a teenager whose parents were out of

town. 272 P.2d at 1089. At some point during the party, the

shooter had a confrontation with one of the host’s friends. Id. at

1090. The shooter pulled a gun, causing a chaotic scene in which

the partygoers fled the house. Id. As he exited the house, the

shooter fired a series of shots. Id. One of those shots hit a

partygoer who had not been involved in the confrontation, causing

her death. Id. The shooter and Duran fled the scene in Duran’s

car. Id. There was no evidence to suggest that Duran knew the

victim or in any way planned to confront her or any other person at

the party.

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¶ 15 In contrast to the facts at issue in Duran, the evidence here

shows that Andrew played a central role in selecting the victim;

aided, abetted, and advised the gunmen in the planning of the

crime; and participated in executing that plan. He was not merely a

driver. Indeed, Andrew concedes the jury could reasonably infer

that he was complicit in first degree burglary. He argues only that

the jury could not infer that he was complicit in the shooting. We

disagree.

¶ 16 Andrew instructed Watson to bring a gun to the robbery.

Andrew also knew the victim, lived in the same city, and drove three

men with guns to where the victim — who he believed to be a drug

dealer — was staying. The gunmen kicked in the door and started

shooting before they entered the apartment. Although Andrew did

not shoot, direct and circumstantial evidence shows that he advised

and encouraged the use of guns in the commission of the robbery.

Moreover, the jury could reasonably infer that Andrew had expected

M.C. to put up a fight and knew that the gunmen may need to

shoot.

¶ 17 The jury could also reasonably infer that Andrew knew M.C.

was not alone in his girlfriend’s apartment. In fact, M.C.’s girlfriend

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and their young daughter were at home when the crime occurred.

The three bullets fired into the apartment certainly created a grave

risk of death. See People v. Jefferson, 748 P.2d 1223, 1227 (Colo.

1988) (firing shots into a home known to be occupied is an example

of conduct manifesting extreme indifference to the value of human

life generally).

¶ 18 Because there is substantial evidence that Andrew

orchestrated the crime, he is legally accountable for his three

partners’ actions. The jury could reasonably infer that the gunmen

intended to cause serious bodily injury when they shot M.C. in the

knee and that the gunmen knowingly fired their weapons into the

apartment, creating a grave risk of death. Thus, the evidence is

sufficient to sustain Andrew’s guilty verdicts for complicity in first

degree assault and attempted extreme indifference murder. See

Montoya, ¶ 18. Accordingly, the district court properly denied

Andrew’s motion for acquittal.

III. Motion for a New Trial

¶ 19 Andrew also contends his convictions for first degree assault

and attempted extreme indifference murder with the same victim

were mutually exclusive, requiring reversal of both convictions.

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Specifically, he argues that because the specific intent element of

first degree assault negates the “attitude of universal malice

manifesting extreme indifference to the value of human life

generally” element of extreme indifference murder, the verdicts are

logically and legally inconsistent. Again, we disagree.

¶ 20 In Candelaria v. People, our supreme court held that specific

intent may logically and legally coexist with extreme indifference to

the value of human life. 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.”). And the principles announced in

Candelaria were recently reaffirmed. See People v. Anderson, 2019

CO 34, ¶¶ 3, 21 (finding sufficient evidence of attempted extreme

indifference murder when conduct endangered only one person; the

defendant was also convicted for first degree assault against the

same victim for the same conduct).

¶ 21 Although Andrew cites contrary holdings from divisions of this

court that have not been expressly abrogated, see People v. Beatty,

80 P.3d 847, 852 (Colo. App. 2003); People v. Lee, 914 P.2d 441,

447-48 (Colo. App. 1995), we are bound by the holdings of the

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Colorado Supreme Court. See, e.g., People v. Harmon, 2019 COA

156, ¶ 3 n.1. Candelaria and its progeny make clear that

convictions for first degree assault and first degree extreme

indifference murder can be consistent.

¶ 22 Because Andrew’s convictions are not legally or logically

inconsistent, the district court properly denied his motion for a new

trial.

IV. Conclusion

¶ 23 The judgment is affirmed.

JUDGE FOX and JUDGE GRAHAM concur.