23CA0435 Peo v Anderson 12-19-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0435 Larimer County District Court No. 16CR380 Honorable Stephen J. Jouard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Chayce Aaron Anderson,
Defendant-Appellant.
ORDER AFFIRMED
Division I Opinion by JUDGE SULLIVAN J. Jones and Lipinsky, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 19, 2024
Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Kimberly Alderman Penix, Alternate Defense Counsel, Chelsey Bradley, Alternate Defense Counsel, Fort Collins, Colorado, for Defendant-Appellant ¶1 Defendant, Chayce Aaron Anderson, appeals the
postconviction court’s order denying his Crim. P. 35(c) motion
without an evidentiary hearing. We affirm.
I. Background
¶2 In October 2017, a jury found Anderson guilty of nine counts
related to two construction site burglaries, including four counts of
second degree burglary, two counts of criminal mischief, and one
count each of theft, criminal attempt to commit theft, and criminal
attempt to commit second degree burglary. At trial, the jury heard
evidence from which it could have reasonably found the following
facts.
¶3 Anderson and an acquaintance, Jacob Ansari, stole equipment
from two construction sites — the Cargill site and the Temple site.
On the night of the Temple site burglary, Anderson and Ansari had
been drinking at several bars. Between 1:00 a.m. and 2:00 a.m., an
employee at the Temple site spotted two individuals banging on a
trailer with a sledgehammer. The employee yelled at the
individuals, causing them to flee. The employee then realized that
the trailer had been broken into and contacted law enforcement.
The employee also noticed a pickup truck parked on the outskirts of
1 the construction site. After inspecting the truck and finding two
masks and bolt cutters inside, responding officers had the truck
towed to the police department for further investigation.
¶4 The next day, Anderson arrived at the police station to attempt
to retrieve his truck. During a voluntary interview with a detective,
which the detective recorded, Anderson claimed that he didn’t know
why his truck was at the police station and that he had been
drinking heavily the night before.
¶5 Ansari later admitted to law enforcement that he and
Anderson committed the burglaries at both construction sites. Cell
phone location data obtained by law enforcement placed Ansari’s
and Anderson’s phones at the Temple site on the night of the
burglary.
¶6 Anderson appealed his convictions and a division of this court
affirmed. People v. Anderson, (Colo. App. No. 18CA0334, June 11,
2020) (not published pursuant to C.A.R. 35(e)). Anderson then filed
a pro se petition for postconviction relief under Crim. P. 35(c),
asserting fifteen claims for relief, including a claim that his trial
counsel provided ineffective assistance of counsel. The
postconviction court appointed counsel, who supplemented
2 Anderson’s pro se petition. The postconviction court subsequently
denied all of Anderson’s claims without a hearing.
¶7 Anderson now appeals. He contends that the postconviction
court erred by denying his Crim. P. 35(c) motion without a hearing
because his factual allegations, taken as true, showed that his trial
counsel provided ineffective assistance of counsel by failing to (1)
assert a voluntary intoxication defense and request a corresponding
voluntary intoxication jury instruction; (2) move to suppress
evidence obtained from his cell phone following a warrantless
search; (3) cross-examine Ansari regarding the terms of his plea
agreement; and (4) introduce the full recording of Anderson’s
voluntary police interview. Anderson also contends that his trial
counsel’s numerous errors, even if harmless in isolation, amounted
to ineffective assistance of counsel when considered cumulatively.
We disagree with these contentions and affirm.
II. Standard of Review
¶8 We review de novo the postconviction court’s denial of a
defendant’s Crim. P. 35(c) motion without a hearing. People v.
Trujillo, 169 P.3d 235, 237 (Colo. App. 2007).
3 III. Applicable Law
¶9 A court may deny a defendant’s postconviction motion under
Crim. P. 35(c) without an evidentiary hearing only where the
motion, files, and record in the case clearly establish that the
allegations presented in the motion are without merit and don’t
warrant postconviction relief. Ardolino v. People, 69 P.3d 73, 77
(Colo. 2003). The court must determine whether the defendant’s
allegations, even if proven true, would fail to establish either of the
two required prongs under the Strickland test for ineffective
assistance of counsel. Id. (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)).
¶ 10 Under Strickland, a defendant must prove that (1) trial
counsel’s performance was deficient and (2) such deficient
performance prejudiced the defense. 466 U.S. at 687. An
attorney’s performance is deficient if it falls “below an objective
standard of reasonableness.” Id. at 688. To prove that an
attorney’s deficient performance prejudiced the defense, a
defendant must show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. We “must indulge a strong
4 presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance,” id. at 689, while also
evaluating counsel’s performance from counsel’s perspective at the
time of the representation, People v. Garcia, 815 P.2d 937, 941
(Colo. 1991).
IV. Analysis
A. Voluntary Intoxication Defense
¶ 11 Anderson first contends that the postconviction court erred by
denying his Crim. P. 35(c) motion without a hearing because he set
forth facts showing that his trial counsel provided ineffective
assistance of counsel by failing to (1) investigate and assert a
voluntary intoxication defense and (2) request a corresponding
voluntary intoxication jury instruction. He argues that, but for his
trial counsel’s failure to pursue this defense, the jury wouldn’t have
convicted him because a reasonable juror would have concluded
that he couldn’t have formed the requisite intent on the night of the
Temple site burglary. The postconviction court found, in part, that
trial counsel’s decision to refrain from pursuing a voluntary
intoxication defense “was a strategic decision,” and thus didn’t
constitute deficient performance.
5 ¶ 12 We agree with the postconviction court that trial counsel’s
decision to forgo a voluntary intoxication defense could have been
based on sound trial strategy. Anderson’s theory of defense at trial
was a general denial. He argued that he never went to the Temple
site on the night of the burglary. According to Anderson’s theory of
defense, because he was “extremely drunk” on the night of the
burglary, he agreed to let two men “borrow his truck overnight” in
exchange for giving him marijuana and a ride home. Anderson
argued that the two men used his truck to commit the burglary
after dropping him off at home.
¶ 13 In contrast to a general denial, a voluntary intoxication
defense would have required Anderson’s trial counsel to argue that,
to the extent Anderson participated in criminal activity, he couldn’t
have formed the requisite specific intent, negating an essential
element of the charged offense. See Brown v. People, 239 P.3d 764,
769 (Colo. 2010) (voluntary intoxication “is a partial defense that,
under appropriate circumstances, negates the specific intent
necessary to carry out certain offenses”). As a result, a voluntary
intoxication defense would have conflicted with Anderson’s theory
that he was at home at the time of the burglary. While Anderson
6 conceivably could have advanced both alternative theories, doing so
would have risked damaging the defense’s credibility in the jurors’
eyes. See, e.g., People v. Garner, 2015 COA 174, ¶¶ 66-67 (defense
counsel’s explanation that a voluntary intoxication instruction
would have been inconsistent with the defense’s chosen general
denial theory, and would have undermined the defense’s credibility
with the jury, “was a reasonable explanation”); see also Jackson v.
Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998) (“[C]ounsel’s failure
to seek an intoxication instruction was reasonable, because the
instruction would have conflicted with his chosen trial strategy.”).
Pursuing a voluntary intoxication defense also would have risked
the jury “pictur[ing] [Anderson] at the scene,” rather than at home.
People v. Villarreal, 231 P.3d 29, 35 (Colo. App. 2009) (defense
counsel didn’t provide ineffective assistance of counsel by failing to
request a voluntary intoxication instruction that would have
“entice[d] the jury to . . . imagine the defendant in proximity to the
victim”), aff’d, 2012 CO 64.
¶ 14 “[I]n applying the presumption that the challenged action
might be considered sound strategy, courts are ‘required not simply
to give [the] attorneys the benefit of the doubt, but to affirmatively
7 entertain the range of possible reasons . . . counsel may have had
for proceeding as they did.’” Garner, ¶ 70 (quoting Cullen v.
Pinholster, 563 U.S. 170, 196 (2011)). Given the recognized risks
associated with pursuing a voluntary intoxication defense alongside
a general denial defense, we can’t conclude that Anderson alleged
facts that would overcome the presumption that his trial counsel’s
conduct was grounded in sound trial strategy. See People v.
Houser, 2020 COA 128, ¶ 36 (“Strickland cautioned that ‘[i]t is all
too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a
court, examining counsel’s defense after it has proved unsuccessful,
to conclude that a particular act or omission of counsel was
unreasonable.’” (quoting Strickland, 466 U.S. at 689)); see also
Strickland, 466 U.S. at 689 (“There are countless ways to provide
effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same
way.”).
B. Failure to Move to Suppress Cell Phone Evidence
¶ 15 Anderson next contends that the postconviction court erred by
denying his Crim. P. 35(c) motion without a hearing because he set
8 forth facts showing that his trial counsel provided ineffective
assistance by failing to move to suppress evidence obtained from
his cell phone that law enforcement seized upon his arrest.
¶ 16 At the outset, we reject the People’s argument that Anderson’s
contention raises a new argument on appeal that he didn’t present
to the postconviction court. Anderson argued in his postconviction
motion that his trial counsel provided ineffective assistance by
failing to move to suppress evidence that law enforcement obtained
from his cell phone without a warrant, “resulting in the fruits of an
illegal and unconstitutional search and seizure.” Thus, Anderson
adequately drew the postconviction court’s attention to the alleged
ineffective assistance that he now asserts on appeal, allowing the
court a meaningful chance to consider it. Rael v. People, 2017 CO
67, ¶ 17 (“We do not require that parties use ‘talismanic language’
to preserve an argument for appeal.” (quoting People v. Melendez,
102 P.3d 315, 322 (Colo. 2004))).
¶ 17 We nonetheless conclude that Anderson failed to allege facts
that, when considered in light of the record, would establish
prejudice under Strickland’s second prong. See Strickland, 466 U.S.
at 694; see also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)
9 (“Where defense counsel’s failure to litigate a Fourth Amendment
claim competently is the principal allegation of ineffectiveness, the
defendant must also prove that his Fourth Amendment claim is
meritorious and that there is a reasonable probability that the
verdict would have been different absent the excludable evidence in
order to demonstrate actual prejudice.”).
¶ 18 According to Anderson, his trial counsel should have moved to
suppress evidence obtained from his cell phone that law
enforcement seized upon his arrest because an officer looked
through it before obtaining a warrant. At trial, the prosecution’s
evidence related to Anderson’s cell phone fell into two categories: (1)
evidence stemming from law enforcement’s search of the cell
phone’s contents and (2) location information for the cell phone
from AT&T, Anderson’s service provider.
¶ 19 Regarding the first category, a detective testified at trial that
Anderson’s cell phone contained pictures and screenshots of
internet searches of construction equipment similar to the items
10 taken from the Temple site.1 The detective also noticed that the
phone’s user made a variety of internet searches for “very specific
tools.”
¶ 20 The detective also testified at length, however, regarding the
second category. Specifically, the detective explained that he
obtained a warrant for the production of Anderson’s cell phone
records from AT&T, including location data, and that the
information received from AT&T was separate from the information
extracted from Anderson’s cell phone itself. The records that AT&T
provided to the detective included date, time, and location
information for Anderson’s cell phone on the night of the Temple
site burglary. (The detective also obtained similar information for
Ansari’s cell phone.) The detective then input this information into
a computer program that mapped the locations of Anderson’s and
1 Law enforcement collected a second cell phone, a “ZTE” phone,
from Anderson’s truck when it was towed. An officer searched the ZTE phone’s contents after obtaining a warrant. Anderson doesn’t argue that his trial counsel should have challenged that search. But as both parties point out, the detective’s trial testimony is unclear which cell phone contained the arguably inculpatory pictures and internet searches. For purposes of our analysis, we will assume, without deciding, that law enforcement found the pictures and internet searches on the cell phone that law enforcement seized from Anderson upon his arrest.
11 Ansari’s phones over time. The detective testified that the map
showed that both Anderson’s and Ansari’s phones accessed two cell
phone towers just before and after the Temple site burglary. The
Temple site fell “right in between those two towers.” According to
the detective, the phones went silent for about fifteen minutes but
reactivated “just after” the construction site employee called 911 to
report the burglary.
¶ 21 The map, which the prosecution admitted into evidence and
published to the jury, largely corroborated the detective’s testimony.
It showed Anderson’s and Ansari’s phones within a mile of the
Temple site starting at approximately 1:00 a.m. until the phones
went silent at 1:34 a.m. The phones reactivated again in the same
area at approximately 2:00 a.m. and then moved away from the
Temple site starting at 2:37 a.m. The construction site employee
called 911 to report the burglary at 1:46 a.m.
¶ 22 The map and the detective’s testimony are also consistent with
Ansari’s testimony. Ansari testified that he and Anderson both had
their phones with them when they burglarized the Temple site, but
he believed that he “turned [his] phone off” at some point because
he feared it would reveal his location. After the burglary, Ansari
12 turned his phone back on and used it to call a friend to pick them
up at a nearby school.
¶ 23 Thus, even without the evidence obtained from the search of
Anderson’s cell phone, the jury still would have heard evidence that
Anderson’s and Ansari’s phones were near the Temple site just
before the employee’s 911 call; Anderson and Ansari burglarized the
Temple site; their phones weren’t active during the burglary; and
their phones reactivated shortly after the burglary and then moved
away from the Temple site. Given this evidence — which law
enforcement obtained separately from their search of Anderson’s
cell phone — we can’t say that Anderson alleged facts showing a
reasonable probability that, but for counsel’s failure to move to
suppress the contents of his cell phone, the result of the trial would
have been different. See Strickland, 466 U.S. at 694; see also
Dunlap v. People, 173 P.3d 1054, 1068-69 (Colo. 2007) (the
defendant failed to establish Strickland’s prejudice prong where
overwhelming evidence supported the jury’s guilty verdict).
13 C. Failure to Cross-Examine Ansari Regarding His Plea Agreement
¶ 24 Anderson also contends that the postconviction court erred by
denying his Crim. P. 35(c) motion without a hearing because he set
forth facts showing that his trial counsel provided ineffective
assistance of counsel by failing to cross-examine Ansari regarding
the terms of his plea agreement.2 The postconviction court rejected
Anderson’s argument, concluding that Anderson failed to allege
sufficient facts showing that he suffered prejudice from his trial
counsel’s performance.
¶ 25 At trial, Ansari testified to the following:
• he was currently incarcerated at the Department of
Corrections;
• among other convictions, he was convicted in 2016 of
second degree burglary, a class 4 felony, for burglarizing
the two construction sites;
• he and Anderson burglarized the sites together;
2 Anderson concedes in his reply brief that his trial counsel didn’t
provide ineffective assistance of counsel by allegedly failing to impeach Ansari with the recording of Ansari’s first police interview.
14 • he had never met the prosecutor in person before and
had only spoken with her for five minutes, “if that,” the
previous week; and
• the prosecutor didn’t offer him anything or make any
promises to him in exchange for his testimony at
Anderson’s trial.
¶ 26 In denying Anderson’s Crim. P. 35(c) motion, the
postconviction court noted that “Ansari was sentenced before his
trial testimony was given and there is no provision in his plea
agreement that his plea was conditioned, in any way, on providing
truthful testimony in [Anderson’s] subsequent trial.”
¶ 27 Based on Ansari’s testimony, the jury heard most of the
relevant terms of his plea agreement, including that he was
convicted of burglarizing the two construction sites, the conviction
was a class 4 felony, and the prosecutor didn’t promise Ansari
anything in exchange for his testimony at Anderson’s trial. In light
of these details, we fail to see how defense counsel’s further cross-
examination of Ansari regarding the plea agreement would have so
undermined Ansari’s credibility that it would have created a
reasonable probability of a different outcome. See Strickland, 466
15 U.S. at 694; see also People v. Washington, 2014 COA 41, ¶ 35
(concluding defense counsel wasn’t constitutionally ineffective for
failing to present evidence that would have been cumulative).
¶ 28 Anderson nonetheless argues that his trial counsel should
have elicited through cross-examination that Ansari received a
light, four-year stipulated prison sentence as part of his plea
agreement. But Anderson cites no authority, and we’ve located
none, indicating that defense counsel provides ineffective assistance
of counsel by failing to cross-examine a fellow suspect who accepts
a plea deal on the exact length of the fellow suspect’s stipulated
prison sentence.
¶ 29 Moreover, Ansari explained during the prosecutor’s direct
examination that he was currently incarcerated and that he had
been previously convicted of several offenses, including but not
limited to identity theft and false reporting. Ansari’s direct
testimony therefore already provided grounds for the jury to
question his credibility. Cf. State v. Tkacz, 2002 WI App 281, ¶ 22,
654 N.W.2d 37, 45 (the defendant wasn’t prejudiced by defense
counsel’s failure to impeach the prosecution’s key witness with the
exact number of her prior criminal convictions because the jury
16 already had reason to question the witness’s credibility).
Anderson’s trial counsel could have reasonably concluded that
eliciting additional information about Ansari’s plea agreement
would have been “cumulative and unnecessary” to further
undermine his credibility. Id. at ¶ 25 n.5, 654 N.W.2d at 45 n.5;
accord Washington, ¶ 35. As a result, we can’t conclude that a
reasonable probability exists that the jury would have reached a
different verdict had it been made aware of the precise length of
Ansari’s stipulated prison sentence. See People v. Villanueva, 2016
COA 70, ¶ 70 (“Villanueva has failed to establish a reasonable
probability that the result of the trial would have been different had
this evidence been introduced.”); People v. Tackett, 742 P.2d 957,
960 (Colo. App. 1987) (counsel’s failure to present “inconsequential”
evidence didn’t create a reasonable probability that the trial result
would have been different).
D. Failure to Introduce the Full Recording of Anderson’s Voluntary Police Interview
¶ 30 Anderson next contends that the postconviction court erred by
denying his Crim. P. 35(c) motion without a hearing because he set
forth facts showing that his trial counsel provided ineffective
17 assistance of counsel by failing to introduce the full recording of his
voluntary police interview. According to Anderson, the edited
recording that the prosecutor played for jury omitted his statements
that he was too intoxicated to “even walk straight,” that he had no
knowledge of the burglary, and that he lent his truck to two
acquaintances in exchange for marijuana and a ride home.
¶ 31 The postconviction court determined that trial counsel’s
decisions regarding the edits to the recording were strategic and, in
any event, Anderson failed to establish prejudice under Strickland’s
second prong.
¶ 32 As a threshold matter, we note that Anderson’s description of
the edited recording doesn’t align with the recording in the appellate
record. Although certain parts of the recording appear to be
omitted, the recording includes Anderson discussing his (1) heavy
drinking and intoxication on the night of the Temple site burglary;
(2) decision to loan his truck to two acquaintances in exchange for
marijuana and a ride home; and (3) fierce denials of any
involvement in the Temple site burglary. Because the jury heard
these statements in the portion of the recording that the prosecutor
18 played at trial, we don’t perceive how Anderson suffered prejudice
from the edited recording. See Strickland, 466 U.S. at 687.
¶ 33 We also agree with the postconviction court that trial counsel’s
decisions regarding the recording edits could have been rooted in
sound trial strategy. Anderson argued in his pro se petition for
postconviction relief that his trial counsel permitted the prosecution
to edit the recording to remove, among other things, his statements
about his “distrust for detectives” and his juvenile record.
Anderson’s trial counsel could have reasonably decided that
removing these irrelevant and potentially prejudicial statements
from the jury’s consideration best served Anderson’s theory of
defense. See People v. Bradley, 25 P.3d 1271, 1275 (Colo. App.
2001) (“Mere disagreement as to trial strategy will not support a
claim for ineffective assistance of counsel.”); see also Strickland,
466 U.S. at 689 (explaining that the defendant must overcome the
presumption that “the challenged action might be considered sound
trial strategy”) (citation omitted).
¶ 34 Accordingly, the postconviction court didn’t err by denying
without a hearing Anderson’s postconviction claim that his trial
counsel provided ineffective assistance of counsel.
19 V. Cumulative Error
¶ 35 Anderson last contends that his trial counsel’s numerous
errors, even if harmless in isolation, amount to ineffective
assistance of counsel when considered cumulatively.
¶ 36 Even if we assume that the cumulative error doctrine applies
to ineffective assistance of counsel claims — an issue we don’t
decide — we have found no error in the postconviction court’s order
denying Anderson’s claims. A cumulative error analysis is therefore
unnecessary. See People v. Villa, 240 P.3d 343, 359 (Colo. App.
2009) (cumulative error analysis is required only when multiple
errors have been identified).
VI. Abandoned Claims
¶ 37 On appeal, Anderson doesn’t challenge the postconviction
court’s denial of the other ineffective assistance of counsel claims in
his pro se Crim. P. 35(c) petition. We therefore deem those claims
abandoned. See People v. Brooks, 250 P.3d 771, 772 (Colo. App.
2010) (“[A]ny arguments defendant made in his Crim. P. 35 motions
that are not specifically reasserted on appeal are abandoned, and
we therefore do not address them.”).
20 VII. Disposition
¶ 38 We affirm the order.
JUDGE J. JONES and JUDGE LIPINSKY concur.