Douglas County District Court No. 10CR454 Honorable Paul A. King, Judge
Cynthia H. Coffman, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
ROTHENBERG, JUDGE [*]
¶ 1 Defendant, Richard Wesley Anderson, appeals his judgment of conviction and sentences for attempted extreme indifference first degree murder; first degree assault, threatening a peace officer with a weapon; first degree assault, serious bodily injury with a deadly weapon; and first degree assault, extreme indifference. We vacate his conviction for attempted extreme indifference murder. We further conclude that his convictions and separate sentences on three different theories of first degree assault violate double jeopardy. On remand the trial court is instructed to vacate his conviction for attempted extreme indifference first degree murder and two of his convictions and sentences for first degree assault, and to correct the mittimus accordingly.
¶ 2 Anderson became so depressed after his wife's death and the loss of his job and home that he decided to commit suicide. After a night of heavy drinking at a bar, he went to his car, which was parked in the bar's parking lot. Anderson pulled a gun on another patron, who had come outside to check on his well-being, and then shouted obscenities at the bar's manager, who also had come outside. Anderson then drove away.
¶ 3 The bar's manager called 911 to report the incident. A police officer was nearby and responded by pulling over Anderson's car. Anderson then got out of his car and fired multiple bullets at the officer's patrol car. One bullet hit the officer's arm, wounding him. As Anderson attempted to reload his gun, the officer shot Anderson twice, ending the incident. The evidence at trial established that Anderson and the officer were the only persons on the road. The officer was on patrol alone, it was about 2 a.m., and there were no other cars or traffic in the area.
¶ 4 At trial, Anderson admitted to shooting at the officer but maintained that he did not intend to harm the officer. According to Anderson, he wanted to force the officer to shoot him as a means of committing suicide. He thus maintained that he lacked the requisite mens rea for attempted extreme indifference murder.
¶ 5 During their deliberations, the jurors sent out five separate notes to the court requesting additional guidance on the mental state required to convict a defendant of attempted extreme indifference first degree murder. These notes clearly indicated that the jurors were having a very difficult time trying to harmonize the mental elements of the attempt offense and the substantive charge. The problem arose because the jury was instructed on the elements of attempted extreme indifference first degree murder as follows:
1.That the defendant,
2.In the state of Colorado, at or about the date and place charged,
3.with intent to commit the crime of Murder in the First Degree,
4.Engaged in conduct constituting a substantial step toward the commission of murder in the First Degree.
¶ 6 The jury was also instructed that extreme indifference first degree murder required that the defendant "knowingly engaged in conduct which creates a grave risk of death to a person or persons other than himself." (Emphasis added.)
¶ 7 Thus, the attempt instruction included the mens rea of "with intent, " and the extreme indifference murder instruction included the mens rea of "knowingly."
¶ 8 The court sent the jurors five written responses before they returned the above-mentioned verdicts. Following the verdicts, the trial court sentenced Anderson to 48 years in the custody of the Department of Corrections for the attempted extreme indifference murder conviction, and to a concurrent sentence of 30 years on the first degree assault (extreme indifference) conviction. It also imposed consecutive sentences of 30 years on the two remaining first degree assault convictions, for a total of 108 years.
¶ 9 Anderson contends that (1) the evidence was insufficient to convict him of attempted extreme indifference murder; (2) the jury instructions on both extreme indifference murder and attempted extreme indifference murder provided incorrect mens rea instructions; (3) his convictions for first degree assault violate double jeopardy; and (4) his sentences are based upon identical evidence and must run concurrently.
II. Sufficiency of the Evidence
¶ 10 Anderson first contends there was insufficient evidence to convict him of attempted extreme indifference murder. He alleges that the evidence was insufficient because the prosecution did not present evidence that he acted with "universal malice, " both because (1) he did not intend to kill anyone other than himself and (2) his conduct only endangered one person. We disagree with his first contention but agree with his second.
A. Standard of Review
¶ 11 We review a sufficiency of the evidence claim de novo. People v. Davis, 2012 COA 56, ¶ 11.
¶ 12 To determine whether there was sufficient evidence to support a conviction, we ask "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." Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (citation omitted). We give the prosecution the benefit of every reasonable inference which may be fairly drawn from the evidence. Id. at 1292.
¶ 13 "We will not set aside a conviction for lack of evidence because a conclusion different from that reached by the jury might be reached on the same evidence." People v. Fuller, 791 P.2d 702, 706 (Colo. 1990).
B. Attempted Extreme Indifference Murder
¶ 14 Colorado is the only state in the union that explicitly recognizes this particular attempt crime, and "the concept of attempting to commit a homicide through extreme indifference or recklessness [has been] 'largely disfavored by legal scholars and almost . . . universally rejected in American law.'" People v. Rubio, 222 P.3d 355, 358 (Colo.App. 2009) (citation omitted). Nonetheless, we must apply the law that the legislature enacted and that our supreme court has definitively construed "absent some constitutional impediment." Id.
¶ 15 A person commits extreme indifference first degree murder if "[u]nder circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another." § 18-3-102(1)(d), C.R.S. 2015.
¶ 16 "A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense." § 18-2-101(1), C.R.S. 2015.
¶ 17 Attempted extreme indifference murder "covers knowing conduct that created a grave risk of, but did not result in, death." Rubio, 222 P.3d at 359.
¶ 18 We disagree with Anderson's first contention that his subjective intent precludes a conviction for attempted extreme indifference murder. Unlike intentional first degree murder after deliberation, the crime of extreme indifference murder "does not require proof that the defendant intended to cause the death of another . . . [but] proof that the defendant knowingly engaged in conduct that created a grave risk of death to one or more persons and demonstrated extreme indifference to the value of human life generally." People v. Reynolds, 252 P.3d 1128, 1133 (Colo.App. 2010).
¶ 19 Thus, even if defendant meant only to effect his own suicide by provoking the officer to shoot him, Anderson's knowing and voluntary acts of firing numerous gunshots at the officer permit his conviction for attempted extreme indifference murder. His desire to commit "suicide by cop" is no excuse. See Rubio, 222 P.3d at 359 (Defendant's conduct "in fact created a grave risk of death [because e]ven if he meant only to destroy a car, spraying such firepower around a neighborhood could be found to reflect an attitude of universal malice manifesting extreme indifference to human life generally."). Therefore, on this basis only, his conviction is not precluded.
¶ 20 However, we agree with Anderson's related second contention that there was insufficient evidence that he sought to take human life generally because he fired shots at a single person, namely, the officer, and no other person was around or endangered by his conduct. Anderson maintains - and we agree - that his ...