Peo v. Dobson

• Court: Colorado Court of Appeals
• Decided: September 25, 2025
• Docket: 23CA1211
• Status: Unpublished

Opinion

23CA1211 Peo v Dobson 09-25-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1211 Boulder County District Court No. 17CR1540 Honorable Patrick Butler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Craig Dobson,

Defendant-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE GROVE J. Jones and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 25, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, James Craig Dobson, appeals the postconviction

court’s order denying his Crim. P. 35(c) motion for postconviction

relief. We affirm in part, reverse in part, and remand the case for

an evidentiary hearing on Dobson’s claim that trial counsel

provided ineffective assistance by requesting a jury instruction on

the lesser included offense of criminally negligent homicide.

I. Background

¶2 The People charged Dobson with second degree murder

following a deadly altercation that he had with the victim, Roland

Dequina. Dobson and Dequina were longtime friends who, as

Dobson’s opening brief puts it, “were members of a Boulder

unhoused community and frequented an area known as ‘No Man’s

Land.’” Dobson presented evidence at trial that Dequina was

intoxicated on the date of the altercation. Believing that Dobson

was involved romantically with Dequina’s girlfriend, Dequina

confronted Dobson throughout the day and into the night, allegedly

threatening him and jabbing him with a large stick. At some point,

Dobson hit Dequina in retaliation. Late in the evening, Dobson and

Dequina again got into a fight, which ended when Dobson struck

1 Dequina with a stick and left him unconscious on the ground before

fleeing the scene. Dequina died a few days later.

¶3 Dobson argued at trial that he acted in self-defense, and, for

the second degree murder charge, the trial court instructed the jury

on the affirmative defense of self-defense. Defense counsel also

requested that the court submit an instruction on the lesser

included offense of criminally negligent homicide to the jury. The

court did so; its instructions on the lesser included offense also

included an instruction on self-defense as an element-negating

traverse.

¶4 The jury acquitted Dobson of second degree murder but found

him guilty of criminally negligent homicide. The trial court imposed

a five-year sentence in the custody of the Department of

Corrections.

¶5 Following his unsuccessful direct appeal, Dobson filed a timely

pro se Crim. P. 35(c) motion for postconviction relief. The court

appointed counsel, who filed a supplemental Crim. P. 35(c) motion

on Dobson’s behalf. The postconviction court issued a written order

denying the motion without an evidentiary hearing.

2 II. Discussion

¶6 Although Dobson appeals the postconviction court’s denial of

his Crim. P. 35(c) motion and supplement, he reasserts only three

of his postconviction claims, arguing that trial counsel provided

ineffective assistance by failing to (1) advise him before requesting

the lesser included offense instruction and not addressing that

offense during closing argument; (2) call Lana Christensen as a

defense witness to inquire whether she was experiencing

hallucinations during the altercation; and (3) call Jonathan

Holsinger as a defense witness to “provide[] additional information

to the jury regarding the defense of self-defense.”

¶7 Because we conclude that the postconviction court should

have held a hearing on Dobson’s claim of ineffective assistance of

counsel with respect to the lesser included offense instruction, we

3 reverse and remand for a hearing on that claim alone. We

otherwise affirm the court’s order.1

A. Standard of Review and Relevant Law

¶8 We review de novo a postconviction court’s ruling denying a

Crim. P. 35(c) motion without an evidentiary hearing. People v.

Cali, 2020 CO 20, ¶ 14. Upon receipt of a motion for postconviction

relief under Crim. P. 35(c), the court must hold an evidentiary

hearing unless “the motion and the files and record of the case

show to the satisfaction of the court that the defendant is not

entitled to relief.” Crim. P. 35(c)(3)(IV). A defendant need not set

forth evidentiary support for his allegations in the motion itself;

instead, a defendant need only assert facts that, if true, would

provide a basis for relief. White v. Denver Dist. Ct., 766 P.2d 632,

635 (Colo. 1988).

1 The claims that Dobson raised in his postconviction motion and

supplement but did not reassert on appeal are abandoned and may not be raised again on remand. See People v. Osorio, 170 P.3d 796, 801 (Colo. App. 2007) (a defendant abandons a postconviction claim by failing to specifically reassert it in the appeal of the order denying the claim); see also People v. Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (The defendant’s “failure to specifically reassert on this appeal all of the claims which the district court disposed of . . . constitutes a conscious relinquishment of those claims which he does not reassert.”).

4 ¶9 To prevail on an ineffective assistance of counsel claim, a

defendant must show both that counsel’s performance was deficient

and that the deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 688, 697 (1984); Davis v. People,

871 P.2d 769, 772 (Colo. 1994). An ineffective assistance claim

fails if the defendant is unable to satisfy either prong. Strickland,

466 U.S. at 697.

¶ 10 To establish deficient performance, the defendant must show

that counsel’s representation “fell below an objective standard of

reasonableness.” Dunlap v. People, 173 P.3d 1054, 1062 (Colo.

2007) (quoting Strickland, 466 U.S. at 688). To establish prejudice,

the defendant must show that there is a reasonable probability

that, but for counsel’s errors, the result of the proceeding would

have been different. Strickland, 466 U.S. at 694. A reasonable

probability means a probability sufficient to undermine confidence

in the outcome. Ardolino v. People, 69 P.3d 73, 76 (Colo. 2003).

B. Lesser Included Offense Instruction

¶ 11 Dobson contends that the postconviction court erred by

summarily denying his claim that trial counsel provided ineffective

assistance by (1) requesting an instruction for the lesser included

5 offense of criminally negligent homicide without consulting him and

(2) failing to argue to the jury during closing that he should be

acquitted of that lesser included offense. We agree that an

evidentiary hearing is required to assess these claims.

¶ 12 “[T]he decision whether to request jury instructions on lesser

offenses is a tactical decision that rests with defense counsel after

consultation with the defendant.” Arko v. People, 183 P.3d 555,

556 (Colo. 2008). Because defense counsel retains the ultimate

decision-making authority on whether to request a lesser included

offense, failure to consult with a client is not per se ineffective.

People v. Newmiller, 2014 COA 84, ¶¶ 24-25. Instead, a court must

assess whether counsel’s decision to request a lesser included

offense was objectively reasonable under the totality of the

circumstances, “examin[ing] counsel’s entire performance as it

relates to this matter.” Id. at ¶ 25.

¶ 13 During trial, the court instructed the jury on the elements of

second degree murder and the affirmative defenses of “defense of

person” and “deadly physical force in defense of person.” At defense

counsel’s request, the jury also received instructions on the

elements of criminally negligent homicide. Those instructions

6 accurately characterized self-defense for that charge as an element-

negating traverse rather than an affirmative defense.

¶ 14 Dobson asserts that trial counsel’s decision to request the

lesser included offense instruction amounted to ineffective

assistance because it was not a reasonable strategic decision and,

given that the jury acquitted him of second degree murder, there

was a reasonable possibility that he would have been acquitted

altogether had the jury not been presented with a means of

reaching a compromise verdict. And, Dobson adds, had counsel

consulted with him about the lesser included offense instruction, he

would have opposed it.

¶ 15 In rejecting this claim, the postconviction court acknowledged

that “[i]t is unclear to the Court if Defendant was advised of the

possibility of a less[e]r included offense by his trial counsel.” It

ruled, however, that the allegations in Dobson’s postconviction

motion failed both the performance and prejudice prongs of

Strickland, concluding that “the result of the trial shows that the

jury did not accept Defendant’s self-defense claim” and that “[t]he

decision to ask the Court to instruct the jury on a lesser offense . . .

was a strategic decision made by counsel during the trial.”

7 ¶ 16 Similarly, the People assert on appeal that “[t]he jury

unequivocally rejected self-defense when it convicted Dobson of

criminally negligent homicide.” And, they contend, because “self-

defense applied to both second-degree murder and criminally

negligent homicide,” making the lesser included charge available to

the jury was a reasonable strategic decision because it allowed for a

compromise verdict with far less serious consequences than a

second degree murder conviction.

¶ 17 We first address Strickland’s performance prong. As we

understand the postconviction court’s order, it concluded that trial

counsel’s request for the lesser included instruction was an

“objectively reasonable” strategic decision in light of the evidence

presented at trial and that any failure by trial counsel to consult

with Dobson about that decision did not amount to ineffective

assistance. The People echo these conclusions on appeal, pointing

out the stark differences in sentencing exposure between second

degree murder and criminally negligent homicide and asserting that

requesting the lesser included instruction would encourage a

compromise verdict — which, given the incriminating evidence

against Dobson, would be a very favorable outcome.

8 ¶ 18 These arguments have some force, but they are undercut at

this stage of the proceedings by the fact that they are speculative.

It may well be true that, after observing what happened at trial,

defense counsel made a considered strategic decision that an “all-

or-nothing” approach would likely result in a second degree murder

conviction and that giving the jury an opportunity to compromise

would substantially reduce the chances of that result. But we

cannot make that inference based on the record before us; indeed,

while trial counsel’s decision to request the lesser included

instruction may have been a well-considered strategy, it is also

conceivable that trial counsel decided to request the lesser included

instruction for some other reason entirely. A hearing is the only

way to make that determination.2

2 Notably, a hearing occurred in each of the cases that the People

cite for the proposition that the decision to request a lesser included offense instruction is an objectively reasonable strategic decision. See People v. Newmiller, 2014 COA 84, ¶¶ 26-27; Morrison v. State, 701 S.W.3d 879, 883 (Mo. Ct. App. 2024); Jinkerson v. State, 666 S.W.3d 318, 325 (Mo. Ct. App. 2023); Campbell v. State, 598 S.W.3d 611, 615 (Mo. Ct. App. 2020). The People cite no cases, and we have found none, in which an appellate court has concluded that the request for a lesser included offense instruction was objectively reasonable based solely on the trial record.

9 ¶ 19 Turning to Strickland’s prejudice prong, the jury obviously did

not accept Dobson’s self-defense argument with respect to the

criminally negligent homicide charge. But because self-defense was

a traverse to the criminally negligent homicide charge — and not, as

it was for second degree murder, an affirmative defense — we

cannot infer that the jury’s rejection of the self-defense argument in

the context of the lesser included charge would have also led it to

acquit him of second degree murder in the absence of the lesser

included instruction.

There are, generally speaking, two types of defenses to criminal charges: (1) “affirmative” defenses that admit the defendant’s commission of the elements of the charged act, but seek to justify, excuse, or mitigate the commission of the act; and (2) “traverses” that effectively refute the possibility that the defendant committed the charged act by negating an element of the act.

People v. Pickering, 276 P.3d 553, 555 (Colo. 2011). “In Colorado, if

presented evidence raises the issue of an affirmative defense, the

affirmative defense effectively becomes an additional element, and

the trial court must instruct the jury that the prosecution bears the

burden of proving beyond a reasonable doubt that the affirmative

defense is inapplicable.” Id. “If, on the other hand, the presented

10 evidence raises the issue of an elemental traverse, the jury may

consider the evidence in determining whether the prosecution has

proven the element implicated by the traverse beyond a reasonable

doubt, but the defendant is not entitled to an affirmative defense

instruction.” Id.

¶ 20 This distinction is critical. The fact that the jury rejected self-

defense as an element-negating traverse when considering the

criminally negligent homicide charge does not inevitably lead to the

conclusion that it would have also found that the prosecution had

disproved the affirmative defense of self-defense with respect to the

charge of second degree murder. Put another way, the jury’s

determination that the prosecution proved the elements of

criminally negligent homicide beyond a reasonable doubt despite

Dobson’s self-defense argument does not compel us to conclude

that it would have rejected the affirmative defense of self-defense

with respect to second degree murder. And because the jury’s

verdict on the criminally negligent homicide count did not

necessarily dictate the outcome of the second degree murder charge

in the absence of the lesser included offense, we cannot reject

Dobson’s assertion of prejudice based on the existing record.

11 ¶ 21 Accordingly, we conclude that the postconviction court must

hold an evidentiary hearing on Dobson’s claim that trial counsel’s

decision to request a lesser included offense instruction amounted

to ineffective assistance of counsel.

C. Decision Not to Call Allegedly Hallucinating Witness

¶ 22 Dobson next contends that trial counsel provided ineffective

assistance by failing to call Lana Christensen as a defense witness

to inquire into whether she was experiencing hallucinations during

the altercation, and for not investigating this issue before trial.

Specifically, he alleges that Christensen was hallucinating when she

reported seeing four other people at the scene and argues that the

prosecution relied extensively on her statements and testimony

such that evidence of these hallucinations “would have undermined

her eyewitness account and made a different outcome reasonably

likely.” We conclude that no hearing was required on this claim.

¶ 23 Although the postconviction court rejected Dobson’s claim on

other grounds, a court may deny a Crim. P. 35(c) motion without a

hearing if the claims are bare and conclusory in nature and lack

supporting factual allegations. People v. Venzor, 121 P.3d 260, 262

(Colo. App. 2005). As presented both below and on appeal, Dobson

12 asserts only that Christensen was hallucinating and that evidence

of this would have undermined her testimony. However, he

provides no information about the nature of these hallucinations,

their cause, the significance of Christensen hallucinating when she

reported seeing four other people, or any other information that

would explain how trial counsel’s performance on this matter was

ineffective. Thus, we conclude that this allegation is bare and

conclusory, and the postconviction court did not err by denying it

without a hearing.

D. Decision Not to Call Fourth Witness

¶ 24 Dobson also contends that he was entitled to a hearing on his

claim that trial counsel provided ineffective assistance by failing to

call Jonathan Holsinger as a witness “to testify that Mr. Dequina

was acting violently shortly before the incident.” We disagree.

¶ 25 At trial, three defense witnesses testified about Dequina’s

aggressive behavior on the day of the altercation. Trial counsel

elicited testimony from these witnesses that Dequina provoked,

behaved aggressively toward, and threatened Dobson and

eventually struck him with a long stick. Dobson contends,

however, that trial counsel should have called Holsinger as a fourth

13 witness to testify to these same facts because he would have

described Dequina’s behavior “about 30 minutes before the

incident” rather than “earlier in the day, around 4 p.m.” According

to Dobson, Holsinger’s testimony would not have been cumulative

because “none [of the witnesses called by trial counsel] testified to

observing Mr. Dequina shortly before the late-night interaction with

Mr. Dobson.”

¶ 26 However, as the People point out on appeal, one witness

testified that he was present during the day and as “[i]t started

getting nighttime” and that “[i]t was a nice, quiet night.” This

undercuts Dobson’s claim that Holsinger’s testimony would not

have been cumulative because it uniquely recounted events

occurring during the evening. Accordingly, Dobson cannot show

that he was prejudiced by trial counsel’s decision not to call a

witness whose testimony would have replicated the testimony of

three other witnesses in all respects except for slightly different

timing. Because, as the district court found, “a fourth witness

would have been cumulative,” Dobson could not satisfy Strickland’s

prejudice prong, and the district court properly rejected this claim

14 III. Disposition

¶ 27 We reverse the district court’s denial of Dobson’s claim of

ineffective assistance with respect to the lesser included offense

instruction and remand for an evidentiary hearing on that claim. In

all other respects, we affirm the district court’s order.

JUDGE J. JONES and JUDGE SCHUTZ concur.