Peo v. Owens

22CA1917 Peo v Owens 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1917
Arapahoe County District Court No. 05CR2945
Honorable Christopher J. Munch, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sir Mario Owens,

Defendant-Appellant.

ORDER AFFIRMED

Division II
Opinion by JUDGE FOX
Gomez and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 3, 2025

Philip J. Weiser, Attorney General, Katharine Gillespie, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Jonathan D. Reppucci, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Sir Mario Owens, appeals the order denying his

2017 motion for postconviction relief as successive under Crim. P.

35(c)(3)(VII). We affirm.

I. Background

A. The Underlying Trial

¶2 In 2007, Owens was convicted of various crimes including the

first degree murder of Gregory Vann and the attempted murders of

Javad Marshall-Fields and Elvin Bell in connection with a 2004

shooting at Lowry Park in Aurora. After two witnesses to the Lowry

Park shooting were killed in 2005 on Dayton Street in Aurora,

Owens was separately tried and convicted of those murders. See

People v. Owens, 2024 CO 10, ¶¶ 5, 17, 62 (Owens III). A division

of this court affirmed Owens’ convictions for the Lowry Park

shooting.1 People v. Owens, (Colo. App. No. 07CA0895, July 26,

2012) (not published pursuant to C.A.R. 35(f)) (Owens I). Divisions

of this court and our supreme court have heard several appeals

1 This appeal concerns only the Lowry Park trial and related

postconviction proceedings. We discuss the Dayton Street trial
solely for context and because the postconviction court in the Lowry
Park proceedings reviewed evidence from the Dayton Street
postconviction proceedings.

1
related to both trials, and a further recitation of the underlying facts

may be found in those opinions. E.g., id.; Owens III, ¶¶ 5-62;

People v. Owens, slip op. at ¶¶ 1-13 (Colo. App. No. 17CA1182, Oct.

7, 2021) (not published pursuant to C.A.R. 35(e)) (Owens II).

B. The 2014 Postconviction Motion

¶3 In 2014, Owens filed a Crim. P. 35(c) motion for postconviction

relief, alleging, as relevant here, that a juror in the Lowry Park trial,

Juror 75, engaged in misconduct by “failing to disclose critical

information during jury selection,” among other things.

¶4 The events leading to this claim began mid-trial in 2007. The

district court notified the parties that a juror had informed the

bailiff that “she recognized an individual who came into the

courtroom,” the district court asked the bailiff “to inquire as to who

that person is,” and the court (via the bailiff) confirmed that the

person, Melissa White, was not a witness and was only observing

the trial. Later, the prosecution revisited the issue, noting that

White was sitting with Owens’ mother, so “it might be wise to

inquire if [Juror 75] does know Mr. Owens[’] family . . . [and] the

nature of [Juror 75’s] relationship with Ms. White.”

2
¶5 When asked if the defense wanted to further inquire, counsel

said, “I’m not requesting that, but . . . I don’t have any objection to

it.” The district court then denied the prosecution’s request for

additional inquiry, citing concerns about chilling the right to

observe court proceedings “just based upon where an individual is

sitting in the courtroom and who they may be seated next to.”

¶6 Juror 75’s relationship to the case was not revisited until after

trial. However, postconviction proceedings revealed that Juror 75’s

connections were more extensive than the parties initially believed.

As relevant here, Owens believed Juror 75 told the bailiff she knew

more people than just White, and in his postconviction motion, he

asserted that “at least based on what [Juror 75] has stated, the

judge who presided over the Lowry Park trial . . . was aware of the

fact that [Juror 75] was working under the influence of extraneous

information, but he did not disclose this information to the parties.”

¶7 As discussed below, Juror 75 gave conflicting testimony and

statements about whether she told the bailiff she knew other

witnesses and/or people in addition to White. But in various

postconviction pleadings, Owens repeatedly asserted that the

district court knew more about Juror 75’s familiarity with the case

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than it disclosed at trial. Owens also suggested that the district

court’s failure to disclose Juror 75’s communications with the court

and/or the bailiff may have constituted judicial misconduct.

Despite repeatedly suggesting that the district court may have erred

by withholding information about Juror 75 from the parties, Owens

did not raise such a claim in the first postconviction proceedings.

¶8 In May 2017, the postconviction court denied Owens’ Crim. P.

35(c) motion, concluding, as relevant here, that he failed to prove

that Juror 75 committed juror misconduct or that her presence on

the jury prejudiced him. The postconviction court found that

“Juror 75 realized that she recognized [the] faces of some people in

the courtroom,” including “at least three and probably four

witnesses and possibly other people in the gallery,” beyond White.

However, in part because Juror 75 did not have a relationship with

these witnesses, the postconviction court concluded that Owens

was not denied “a fair trial due to Juror 75’s recognition of

witnesses and courtroom observers.”

¶9 As for Juror 75’s conversation with the bailiff, the

postconviction court found that

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Juror 75 told the bailiff that she knew people
in the courtroom. The bailiff then reported to
the judge, who told the bailiff to get a name.
When asked for a name, Juror 75 specifically
mentioned Melissa White — the only person
whom she knew by name. The bailiff reported
back to the judge. When contacted years later,
the bailiff could not recall what Juror 75 told
her or what she told the judge.

When she testified in 2015, Juror 75 was sure
that she told the bailiff that she recognized
several people — plural. When she testified
again in 2016 she only remembered telling the
bailiff about White. The 2015 version was
more detailed and appears to be more
accurate. Her intention was to explain the
entire situation to the judge, but she was never
given the opportunity and was told that she
would remain on the jury.

¶ 10 Thus, the postconviction court concluded that the district

court “may have erroneously inferred from the bailiff’s reports that

Juror 75 recognized only one person — White.” It also noted that

Juror 75 was denied an opportunity to speak with the district court

after attempting to bring the issue to its attention and that “it would

certainly have been preferable if the trial court had spoken to Juror

75 as she, and later the prosecution, requested.” Therefore,

although it found that the “court’s decision not to interview the

juror deprived the court and parties of information that would have

5
been useful in deciding whether to replace [her],” the postconviction

court noted that “[t]he issue . . . [was] whether [J]uror 75’s service

deprived Owens of his constitutional right[s] . . . not whether the

trial court should have” granted the requests to interview her.

C. The 2017 Appeal and Second Postconviction Motion

¶ 11 In July 2017, Owens appealed the first postconviction court’s

order denying his 2014 Crim. P. 35(c) motion. In December 2017,

while the appeal was pending, he filed a second Crim. P. 35(c)

motion. In his appeal and his 2017 postconviction motion, Owens

alleged that the first postconviction court’s findings gave rise to new

claims. On appeal, he argued that the first postconviction court

found that Juror 75 had ex parte communications with the district

court and those communications “denied Owens’ rights to counsel

and to be present” and violated his due process rights. In the

second postconviction motion, he similarly alleged that the first

postconviction court found that “substantive, ex parte

communications occurred . . . wherein Juror 75 actually advised

the court that she knew several people in the courtroom”; the court

withheld the communications from the parties; and this violated

Owens’ rights to counsel, to be present, and to due process.

6
¶ 12 In 2021, a division of this court affirmed the first

postconviction court’s order denying relief under Crim. P. 35(c).

Owens II, slip op. at ¶ 168. The division held that “Juror 75’s jury

service did not deprive Owens of a fair trial.” Id. at ¶ 154. It also

disagreed with Owens’ claim that the postconviction court “found

that there were undisclosed ex parte communications, and [it]

decline[d] to make that factual finding on appeal.” Id. at ¶ 143

n.29; see also People v. A.W., 982 P.2d 842, 852 (Colo. 1999)

(“Appellate courts are not empowered to make factual findings,

absent such findings in the record below.”). The division also

concluded that “Owens was not denied due process or fundamental

fairness” because the district court’s communications were

“sufficient to alert the parties that further inquiry was necessary,”

and “Owens did not request the opportunity to question Juror 75.”

Owens II, slip op. at ¶ 143 n.29.

¶ 13 In 2022, the second postconviction court summarily denied

Owens’ 2017 postconviction motion as successive under Crim. P.

35(c)(3)(VII). It held that all the evidence alleged in the 2017

postconviction motion “came to light well before [that] motion was

filed, well before this Court’s May 16, 2017, order denying the prior

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[Crim. P.] 35(c) petition, and before the last amendment to that . . .

petition.” It also rejected Owens’ argument that the first

postconviction court’s findings gave rise to new claims because the

“findings and order on the prior [Crim. P.] 35(c) petition do not

constitute a legitimate basis for a new [Crim. P.] 35(c) petition. The

remedy for any error in the ruling on the earlier petition would be

review on appeal.”2 This appeal followed.

II. Issues Raised on Appeal

¶ 14 On appeal, Owens argues that his second postconviction

motion was not successive. Therefore, he asks us to reach the

merits of his claim raised in the motion that the district court erred

by “fail[ing] to relay to the parties that Juror 75 disclosed she knew

multiple people in the courtroom,” which he contends violated his

rights (1) to counsel at a critical stage; (2) to be present at a critical

stage; and (3) to due process. Because we conclude that the second

postconviction court did not err by denying Owens’ second

postconviction motion as successive, we do not address the merits.

2 The postconviction court’s 2022 order did not discuss Owens II.

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III. The 2017 Postconviction Motion was Successive

A. Standard of Review

¶ 15 “We review de novo a trial court’s decision to deny a

postconviction motion as successive.” People v. Bonan, 2014 COA

156, ¶ 26 (citing People v. Muniz, 667 P.2d 1377, 1380-81 (Colo.

1983)).

B. Relevant Law and Analysis

¶ 16 Under Crim. P. 35(c)(3)(VI) and (VII), subject to certain

exceptions, “court[s] shall deny any claim[s]” (1) that were “raised

and resolved in a prior appeal or postconviction proceeding”; or (2)

“that could have been presented ” in a previous appeal or

postconviction proceeding. (Emphasis added.) Under both

subsections, an exception applies to “claim[s] based on evidence

that could not have been discovered previously through the exercise

of due diligence.” Crim. P. 35(c)(3)(VI)(a), (VII)(b). Under Crim. P.

35(c)(3)(VII)(a) and (e), claims that could have been brought are also

not barred if they are “based on events that occurred after initiation

of the defendant’s prior appeal or postconviction proceeding” or if

“an objective factor, external to the defense and not attributable to

the defendant, made raising the claim[s] impracticable.”

9
¶ 17 Owens argues that his second postconviction motion was not

successive because the facts supporting his claims “came to light

only through the postconviction court’s findings.” He contends that

his second postconviction motion satisfied the exceptions in Crim.

P. 35(c)(3)(VII)(a), (b), and (e) because the first postconviction court’s

findings were new evidence, a new event, and “an objective

factor . . . [that] made raising the claims impracticable.” We

conclude that these arguments rest on a fundamental

misunderstanding.

¶ 18 First, with respect to Owens’ argument that his “claims are

based on the facts as found by the postconviction court — facts that

could not have been reasonably discovered or presented previously,”

Owens appears to misunderstand the difference between evidence

and a court’s findings of fact. See Crim. P. 35(c)(3)(VII)(b).

¶ 19 According to Black’s Law Dictionary, evidence is “[s]omething

(including testimony, documents, and tangible objects) that tends to

prove or disprove the existence of an alleged fact; anything . . .

offered to prove the existence or nonexistence of a fact”; or “[t]he

collective mass of things, esp. testimony and exhibits, presented

before a tribunal in a given dispute.” Black’s Law Dictionary 696

10
(12th ed. 2024) (emphasis added). A finding of fact, or a finding, is

“[a] determination by a judge . . . of a fact supported by the evidence

in the record . . . ; a conclusion or ruling that an alleged fact more

probably exists than not.” Id. at 772 (emphasis added).

¶ 20 A Texas court aptly illustrated this distinction: “[A] finding of

fact is not evidence proving the fact supposedly found to exist. This

is so because a finding of fact is little more than a characterization

or construction of the evidence by the fact-finder. And, before a

finding can be valid, it must enjoy evidentiary support.” Vidaurri v.

Ensey, 58 S.W.3d 142, 146 (Tex. App. 2001). Thus, a fact finder

cannot conclude that an object is a car without “evidence from

which it can be deduced that the object is a car. That the fact-

finder concludes that it is a car, is not proof that it is a car.” Id.

Other courts have reached similar conclusions. See In re B.R.W.,

2021-NCCOA-343, ¶ 40 (“[A] trial court’s findings of fact are not

evidence . . . .”); Tex. Real Est. Comm’n v. Nagle, 767 S.W.2d 691,

695 (Tex. 1989) (“[F]indings of fact and conclusions of law . . . are

not evidence.”).

¶ 21 A division of this court applied similar reasoning to conclude

that new academic theories do not constitute new evidence under

11
Crim. P. 35(c). Bonan, ¶¶ 30-31 (“Academic theories merely form

the basis for interpreting evidence when they are applied to existing

evidence.”). Just as a fact finder uses academic theories to

interpret existing evidence, a court uses its interpretation of existing

evidence as the basis for its factual findings. The findings

themselves are not evidence. Therefore, we reject Owens’ argument

that the first postconviction court’s findings were “evidence that

could not have been discovered previously” under Crim. P.

35(c)(3)(VII)(b).

¶ 22 For similar reasons, we also conclude that Owens’ second

postconviction motion was successive because he could have

brought the same claims in an earlier proceeding. See Crim. P.

35(c)(3)(VII).

¶ 23 Owens first emphasizes that, because the evidence in the first

postconviction proceedings suggested that Juror 75 only disclosed

knowing or recognizing White, “[t]he postconviction court’s finding

that Juror 75 disclosed her recognition and/or knowledge of

multiple people in the courtroom presented entirely new

information” that could not have been previously discovered. Thus,

he argues that the second postconviction court clearly erred when it

12
concluded that “[a]ll of the evidence . . . came to light well before”

the second postconviction motion. We reject this contention of

error and agree with the second postconviction court that Owens

had access to the evidence supporting the first postconviction

court’s findings before that postconviction court ruled on the first

postconviction motion and before Owens filed his second

postconviction motion.

¶ 24 Owens also places great weight on the conflicting evidence as

to whether Juror 75 told the bailiff and/or the district court that

she recognized or knew multiple people. But conflicting evidence

differs from new evidence. During the first postconviction

proceedings, Owens repeatedly suggested that the district court

knew but did not disclose that Juror 75 recognized multiple

individuals. Moreover, Juror 75 said in 2013 and in 2015 that she

told the bailiff she recognized more than one person. A timeline of

the most pertinent evidence from the postconviction proceedings

and statements in Owens’ pleadings follows.

¶ 25 2008: Another juror in the Lowry Park trial, Juror B.K., told a

defense investigator that, “after the verdict one of the jurors shared

that she knew” about the people involved in the case, and the juror

13
(presumably Juror 75) said “she had privately met with the judge to

share her concerns but that she was told not to discuss this with

the other jurors until after the trial.”

¶ 26 2013: Juror 75 told a prosecution investigator that “she had

informed the judge early on in the process that she knew some

people” but later clarified that she never spoke directly with the

judge. (Emphasis added.) However, Juror 75 told a defense

investigator that “she informed the bailiff that she knew Melissa

White . . . [but] she did not tell the bailiff that she knew some of the

witnesses who testified.”

¶ 27 2014: Owens alleged in his first Crim. P. 35(c) motion that

Juror 75’s statements suggested that the district court knew Juror

75 “was working under the influence of extraneous information, but

[it] did not disclose this information to the parties.”

¶ 28 2014: In a motion to disqualify Judge Spear — who presided

over the Lowry Park trial — from the postconviction proceedings,

Owens quoted an argument from his 2012 Dayton Street

postconviction motion that “the information supplied to date

indicates Judge Spear was contacted” about Juror 75’s familiarity

with the case but “failed to provide notice of potential juror

14
misconduct to the parties,” and while “such a claim [is] difficult to

comprehend . . . this claim is now presented. If true, Judge Spear’s

failure to provide such information to trial counsel prejudiced Owens.”

(Emphasis added.) He also stated that Juror 75 “will testify . . .

that she provided misleading and untrue information . . . that she

was not an impartial juror, and that Judge Spear was told of these

facts during trial but took no action.”

¶ 29 2015: Referencing her conversation with the bailiff, Juror 75

first testified that she “didn’t say anything about witnesses. [She]

just said [she] knew Melissa White’s name and [she] knew other

faces that were out there, not that they were a witness [sic].” On

cross-examination, the prosecution asked: “[A]s I recall what you

have said was that you told [the bailiff] that you knew some people

plural,” and Juror 75 said, “That’s right.” She then clarified that

she “only knew Melissa White’s name,” but when asked if her

“recollection [was] that [she] did let [the bailiff] know that [she] knew

more than one person or at least thought [she] recognized more

than one person,” Juror 75 again said, “That’s right.”

¶ 30 2015: In a renewed motion to disqualify Judge Spear, citing

Juror 75’s testimony, Owens stated, “[A]ccording to [Juror 75], she

15
informed Judge Spear, through the bailiff, that she recognized

witnesses in the case, and that through the bailiff, Judge Spear said

that was okay . . . .”

¶ 31 2016: Juror 75 testified that her “best memory” was that

“when [she] spoke to the bailiff, it was about Melissa, not about . . .

anyone else.”

¶ 32 2016: In another motion to disqualify Judge Spear, Owens

asserted that if the fact finder believed that “Juror [75] . . . informed

[the district court] of her familiarity with several witnesses, . . . then

a claim of judicial misconduct would exist.” (Emphasis added.)

¶ 33 2017: Owens argued in a pleading that Juror B.K.’s 2008

interview “raised the unmistakable specter of judicial misconduct”

by suggesting undisclosed communications between Juror 75 and

the district court. (Emphasis added.)

¶ 34 This evidence presumably formed the basis for the first

postconviction court’s conclusion that Juror 75 told the bailiff she

recognized multiple people. And Owens’ pleadings suggest that he

knew that evidence could support a claim that the district court

erred. When it issued its 2017 order, the first postconviction court

had access to the same information that Owens did when he

16
repeatedly alluded to undisclosed ex parte communications. The

fact that the first postconviction court found Juror 75’s 2015

testimony more credible than other evidence did not create new

evidence previously unavailable to Owens.

¶ 35 That the evidence was conflicting or inconsistent also does not

mean, as Owens suggests, that he lacked a basis to argue that the

district court failed to disclose the full extent of Juror 75’s

communications with the bailiff. He relies on C.R.C.P. 11, which is

a rule of civil procedure, but even under the Colorado Rules of

Professional Conduct, a claim is not frivolous merely because “the

facts have not [yet] been fully substantiated.” People v. Layton, 494

P.3d 693, 725 (Colo. O.P.D.J. 2021) (citing Colo. RPC 3.1). And

while Owens emphasizes the discrepancies in Juror 75’s

statements, “defense counsel . . . should not be placed in the

position of warranting the validity of [another’s] assertions” and

“may properly ‘present a supportable argument which is extremely

unlikely to prevail . . . .’” People v. Breaman, 924 P.2d 1139, 1141

(Colo. App. 1996) (alteration in original) (quoting Mission Denver Co.

v. Pierson, 674 P.2d 363, 365 (Colo. 1984)), aff’d, 939 P.2d 1348

(Colo. 1997).

17
¶ 36 In sum, the first postconviction court’s findings did not create

new evidence, and Owens could have alleged in the first

postconviction proceedings that the district court — via the bailiff —

engaged in undisclosed, allegedly ex parte communications with

Juror 75. See Crim. P. 35(c)(3)(VII)(b). Witness credibility and the

resolution of conflicting testimony were for the fact finder to

determine and did not bear on whether Owens could raise a claim.

See People v. Rau, 2020 COA 92, ¶ 22, aff’d, 2022 CO 3.

¶ 37 Finally, Owens posits that his second postconviction motion

was not barred because the first postconviction court’s factual

findings were (1) an “event[] that occurred after initiation of [his]

prior appeal or postconviction proceeding”; and (2) an “objective

factor, external to the defense and not attributable to [Owens],

[that] made raising the claim impracticable.” Crim. P.

35(c)(3)(VII)(a), (e). Inexplicably, he argues that those findings were

18
an event “because they were against the weight of the evidence.”3

He also contends that the “objective factor” was the district court’s

“nondisclosure of crucial information from a juror,” which

presumably encompasses an argument that the first postconviction

court’s findings proved such nondisclosure.

¶ 38 We do not see how these arguments differ from his contention

that the postconviction court’s findings constituted new evidence.

For the same reasons that we conclude a court’s findings are not

evidence, we conclude that such findings do not amount to

qualifying “events” or “objective factor[s]” under Crim. P.

35(c)(3)(VII)(a) and (e). For example, if a court’s finding were a

qualifying event or objective factor, so too would be a newly

published academic theory. See Bonan, ¶ 31. Moreover, that

3 In his opening brief, Owens similarly notes that, despite evidence

that Juror 75 told the bailiff she only knew or recognized one
person, “the postconviction court somehow found that [she] . . .
advised the bailiff that she knew several people.” (Emphasis
added.) But an argument that these findings lack record support
would suggest clear error or an abuse of discretion — not newly
discovered evidence or a new event. See People v. Beauvais, 2017
CO 34, ¶ 22 (appellate courts set aside factual findings that are “so
clearly erroneous as to find no support in the record”); Robertson v.
People, 2017 COA 143M, ¶ 9 (“A district court abuses its discretion
if its findings . . . are ‘so manifestly against the weight of evidence in
the record as to compel a contrary result’ . . . .”) (citation omitted).

19
Owens’ claims were not based on new evidence and could have been

raised in the first postconviction proceedings precludes a

conclusion that objective factors made raising them impracticable.

See Crim. P. 35(c)(3)(VII)(e).

¶ 39 Thus, we conclude that the exceptions to successive

postconviction motions in Crim. P. 35(c)(3)(VII)(a), (b), and (e) do not

apply, and the postconviction court properly dismissed Owens’

second postconviction motion as successive.4 The People also posit

that (1) Owens’ second postconviction motion was successive under

Crim. P. 35(c)(3)(VI) because the claims had been “raised and

resolved” in Owens II, and (2) the law of the case doctrine precludes

finding for Owens on the merits. Because we conclude that the

motion was successive under Crim. P. 35(c)(3)(VII), we need not

address either argument.

IV. Disposition

¶ 40 The order denying Owens’ 2017 Crim. P. 35(c) motion as

successive is affirmed.

JUDGE GOMEZ and JUDGE LUM concur.

4 Having concluded that the motion is successive, we need not

address Owens’ argument that it was timely.

20