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People v. Koper

Court of Appeals of Colorado, First Division

September 20, 2018

The People of the State of Colorado, Plaintiff-Appellee,
Brian Michael Koper, Defendant-Appellant.

          City and County of Denver District Court No. 14CR6405 Honorable Kenneth M. Laff, Judge

          Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant


          CASEBOLT [*] JUDGE

         ¶ 1 Defendant, Brian Michael Koper, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of felony menacing and one count of prohibited possession of a firearm while under the influence of intoxicating liquor. He contends that the trial court failed to give a self-defense instruction, to which he was entitled, on the felony menacing counts and plainly erred in allowing the prosecutor to pose at least forty-four improper "were they lying" type questions during cross-examination. He also contends that the court erred in rejecting his tendered instruction concerning the presumption and inferences that arise when a person's blood alcohol level is less than .05 and in precluding his expert witness from giving testimony concerning the same. In an issue of first impression, we conclude that defendant was entitled to a self-defense instruction concerning the menacing charges based on the legal doctrine of transferred intent, and we further conclude that prosecutorial misconduct requires reversal of the prohibited possession of a firearm conviction. We therefore reverse and remand for a new trial on all counts.

         I. Background

         ¶ 2 While at a bar one evening, defendant saw an acquaintance he knew only as "Abraham" or "Abram" along with several members of his family. Defendant said something to Abram's sister that offended Abram. Trying to make amends, defendant approached Abram on the bar's patio to offer him a beer. Abram responded by punching defendant twice in the face. Defendant then drew his firearm, for which he had a concealed carry permit, and aimed it at Abram. After a short standoff, defendant handed the gun to his fiancee and the two left the bar.

         ¶ 3 The People charged defendant with two counts of felony menacing under section 18-3-206(1)(a), C.R.S. 2017 (proscribing the knowing placement of or attempt to place another person in fear of imminent serious bodily injury by employing any threat or physical action by the use of a deadly weapon). The first count named the alleged victim as M.B., a security guard at the bar who had stepped between defendant and Abram after defendant drew his weapon. The second count named the alleged victim as B.B., another bar patron who had been sitting on the patio at a picnic table behind Abram. The People also charged defendant with prohibited possession of a firearm under section 18-12-106(1)(d), C.R.S. 2017 (prohibiting "possession [of] a firearm while [a] person is under the influence of intoxicating liquor"). The jury found defendant guilty as charged.

         II. Self-Defense Instructions

         ¶ 4 Defendant contends that the trial court erred in rejecting his jury instructions on the affirmative defense of self-defense. We agree.

         A. Additional Facts

         ¶ 5 During trial, the defense tendered jury instructions defining the elements of "defense of person," explaining "apparent necessity," and raising the affirmative defense of self-defense as to the menacing charges. The People objected to the instructions, arguing that defendant had not acted in self-defense as to the named victims but rather in response to Abram's actions, and no offense concerning Abram had been charged. In response, the defense argued that, though defendant "certainly . . . wasn't defending himself against [M.B.] or [B.B.] . . . he pulled the weapon in defense of an assault that had actually occurred, and in his opinion, was ongoing. The jury needs to know in some way, shape, or fashion, in these instructions, that he is entitled to defend himself against an assault."

         ¶ 6 The trial court rejected the affirmative defense instructions. However, it allowed the defense to incorporate a self-defense argument in a theory of the case instruction that read, in relevant part, that defendant "drew his firearm and used it solely for the purposes of preventing further assault [by Abram] and holding his assailant at bay." In permitting that instruction, the trial court stated, "[T]here was an element of self-defense in the case; it was not as to the people who were allegedly menaced."

         ¶ 7 During closing argument, the prosecutor argued that "nowhere in the jury instructions does the word or concept 'self-defense' show up." He also stated that when a person points a gun at another, whether it is in self-defense is "immaterial" because the action inevitably scares the person at whom the gun is pointed.

         B. Standard of Review

         ¶ 8 If there is some credible evidence presented that a defendant has acted in self-defense, "the prosecution bears the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense, and the trial court must instruct the jury accordingly." People v. Pickering, 276 P.3d 553, 556 (Colo. 2011). "The question of whether the defendant has presented 'some credible evidence' to support each element of an affirmative defense is a question of law," and we therefore review the issue de novo. People v. Oslund, 2012 COA 62, ¶ 16.

         ¶ 9 We review preserved instructional errors for nonconstitutional harmless error. See Castillo v. People, 2018 CO 62, ¶¶ 55-61 (reviewing erroneous initial aggressor instruction for harmless error); People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). Under that standard, we reverse only if the error "substantially influenced the verdict or affected the fairness of the trial proceedings." Hagos v. People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

         C. Applicable Law

         1. Self-Defense

         ¶ 10 Colorado recognizes a limited statutory right to use physical force in self-defense. See generally § 18-1-704, C.R.S. 2017. In particular, a person may use physical force on another person to defend himself from what "he reasonably believes to be the use or imminent use of unlawful physical force by that other person." § 18-1-704(1). Additionally, a person acting in self-defense may employ "a degree of force which he reasonably believes to be necessary" to defend himself. Id.

         2. Transferred Intent

         ¶ 11 The doctrine of transferred intent "is a legal fiction that is used to hold a defendant criminally liable to the full extent of his or her criminal culpability." People v. Hunt, 2016 COA 93, ¶ 24 (quoting State v. Fekete, 901 P.2d 708, 714 (N.M. 1995)). The doctrine is typically invoked when an actor intends to commit a criminal act, but "the actual result differs from the result designed or contemplated only in that a different person or property was injured or affected." Id. (quoting Fekete, 901 P.2d at 714). By way of example, if A intends to shoot B, but misses and instead shoots and kills unintended victim C, A can be held criminally liable for C's murder even though A did not intend to harm C. In that scenario, A's criminal intent to harm B "transfers" to C. See People v. Jackson, 2018 COA 79, ¶ 89 (discussing transferred intent in the context of determining whether attempted murder after deliberation of one person is a lesser included offense of the murder after deliberation of another person).

         ¶ 12 Thus, the doctrine of transferred intent is most frequently used as a "sword" by the prosecution to hold a defendant criminally liable. Nevertheless, the doctrine can also limit a defendant's liability:

There are, of course, some situations where, though A intentionally kills or injures B, A is not guilty of murder or battery. Though he kills B, . . . he may be guilty of no crime at all (e.g., when he is privileged to kill or injure B in self-defense, or to prevent B's commission of a felony). Now suppose A shoots at B under these circumstances but, missing B, hits and kills or injures C, an innocent bystander. If A aims at his attacker B in proper self-defense, but hits C instead, he is not generally guilty of murder or battery of C. Once again, he is only as guilty as to C as he would have been had his aim been accurate enough to have hit B.

1 Wayne R. LaFave, Substantive Criminal Law § 6.4(d) (3d ed. 2017) (footnote omitted).

         ¶ 13 Accordingly, several jurisdictions have embraced the concept of "transferred intent self-defense." Under that concept, "the doctrine of self-defense is available to insulate one from criminal responsibility where his act, justifiably in self-defense, inadvertently results in the injury of an innocent bystander." People v. Mathews, 154 Cal.Rptr. 628, 631-32 (Cal.Ct.App. 1979); see State v. Clifton, 290 N.E.2d 921, 923 (Ohio Ct. App. 1972); Holloman v. State, 51 P.3d 214, 221-22 (Wyo. 2002) (collecting cases); see also State v. Bellinger, 278 P.3d 975, 989-91 (Kan.Ct.App. 2012) (Atcheson, J., dissenting). Colorado's appellate courts have not addressed this precise issue. But see Henwood v. People, 54 Colo. 188, 194, 129 ...

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