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,
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.