21CA1741 Peo v Erickson 11-14-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1741 Douglas County District Court No. 19CR451 Honorable Theresa Slade, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Devon Michael Erickson,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, VACATED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE FOX Johnson and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 14, 2024
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Devon Michael Erickson, appeals the judgment of
conviction entered on a jury verdict finding him guilty of forty-six
counts including, as relevant here: one count of first degree murder
after deliberation; one count of first degree extreme indifference
murder (EIM); one count of conspiracy to commit first degree
murder after deliberation; six counts of attempted first degree
murder after deliberation; twenty-five counts of attempted first
degree extreme indifference murder (AEIM); and twelve counts
unrelated to murder or attempted murder. We affirm in part,
vacate the conviction as to count 31, and reverse and remand in
part to the district court with instructions to merge the sentences
and convictions for counts 1 and 2, 4 and 10, 5 and 20, 6 and 21, 8
and 16, and 9 and 25.
I. Background
¶2 On May 7, 2019, Erickson — then eighteen years old and a
senior at STEM School Highlands Ranch — and a fellow student,
A.M., entered Erickson’s English classroom, room 107, with guns
and started shooting. A.M. fired nine shots and Erickson fired four.
Classmate K.C. was fatally shot after tackling Erickson, and five
1 students suffered gunshot wounds: J.J., J.G., M.K., G.M.O., and
L.A.
¶3 On the day of the shooting, police interviewed A.M. and
Erickson. Erickson told police that A.M. forced him to do cocaine
and then participate in the shooting. Originally, A.M.’s version of
events matched Erickson’s. However, A.M. testified at Erickson’s
trial that he had lied in his police interview; they had in fact
planned the shooting for several weeks, and their original plan was
to have Erickson shoot A.M., who was suicidal, and then blame
A.M. for the shooting.
¶4 Erickson was ultimately charged as noted above. A.M.
pleaded guilty to multiple counts before Erickson’s trial. A.M., who
was sixteen years old at the time of the shooting, received a life
sentence with the possibility of parole.
¶5 Judge Theresa Slade presided over Erickson’s trial and was
initially assigned to A.M.’s case. However, having previously
represented A.M.’s mother, M.M., in a dependency and neglect
(D&N) case, she recused from A.M.’s case. Erickson then moved to
recuse Judge Slade from his case. The court denied his motion for
recusal, which Erickson twice renewed. The court denied both
2 renewed motions. Erickson then filed a C.A.R. 21 petition in the
Colorado Supreme Court concerning Judge Slade’s non-recusal; the
supreme court similarly denied it. Judge Slade presided over
Erickson’s case.
¶6 At trial, the State argued that A.M.’s trial testimony, not his or
Erickson’s police interviews, reflected the actual events.
Specifically, the State argued that Erickson and A.M. had planned
the shooting for weeks, Erickson was a voluntary participant, and
the two fabricated evidence to advance a narrative that A.M. coerced
Erickson. Conversely, Erickson argued, claiming duress, that A.M.
forced him to ingest cocaine and participate in the shooting.
¶7 The jury found Erickson guilty of all forty-six counts. He
received two concurrent life sentences without the possibility of
parole for the first degree murder convictions and various sentences
for the remaining convictions. Erickson now appeals.
¶8 On appeal, Erickson renews his argument that Judge Slade
erred by failing to recuse. Additionally, he argues that, because
AEIM is not a cognizable offense, Erickson’s AEIM convictions
violated his due process rights. In the alternative, Erickson raises
an as-applied equal protection challenge to his AEIM convictions.
3 Next, he argues that the district court erred by refusing to give the
jury an involuntary intoxication instruction on counts 3-46.
Similarly, he asserts that the court erred by refusing to give a
duress instruction on counts 3-34, 36-39, and 42-45.1 Erickson
also asks us to vacate his conviction for count 31, arguing that
there was insufficient evidence to support a conviction for
attempted murder of R.W., a classmate. Finally, Erickson contends
that the district court erred by entering two first degree murder
convictions and sentences for the same victim and two attempted
first degree murder convictions and sentences for each of five
victims.
II. The Judge’s Non-Recusal Does Not Require Reversal
A. Standard of Review and Applicable Law
¶9 We review de novo whether a district court judge’s recusal was
required. People v. Garcia, 2024 CO 41M, ¶ 20. Several bodies of
law govern a judge’s duty to recuse. First, the Fourteenth
Amendment’s Due Process Clause requires recusal when the
1 The court gave a duress instruction for counts 35, 40, 41 and 46, and Erickson concedes that he was not entitled to a duress instruction for first degree murder — counts 1 and 2.
4 objective “probability of actual bias . . . is too high to be
constitutionally tolerable.” Sanders v. People, 2024 CO 33, ¶ 29
(quoting Rippo v. Baker, 580 U.S. 285, 287 (2017)). This occurs
when a judge has “a direct, personal, substantial, [or] pecuniary
interest” in the case. Id. at ¶ 27 (quoting Caperton v. A.T. Massey
Coal Co., 556 U.S. 868, 876 (2009)).
¶ 10 Second, section 16-6-201(1)(d), C.R.S. 2024, and Crim. P.
21(b)(1)(IV) provide that a judge must recuse when she “is in any
way interested or prejudiced with respect to the case, the parties, or
counsel.” However, a mere showing of “possible or arguable bias or
prejudice” is insufficient; there must be a reasonable inference that
the judge cannot deal fairly with a party. Sanders, ¶ 41. This
requires “a direct, certain, and immediate interest, and not one
which is indirect, contingent, incidental, or remote.” Id. (citation
omitted).
¶ 11 Third, our supreme court has interpreted Code of Judicial
Conduct Rule 2.11(A) as requiring recusal if a judge is actually
biased or if there is an “appearance of partiality.” Sanders, ¶ 45. If
a judge has personal knowledge of disputed facts or “served as a
lawyer in the matter in controversy,” C.J.C. 2.11(A)(1), (5)(a), we
5 may find an appearance of partiality, Sanders, ¶ 45. While evidence
of actual bias is not necessary to support a disqualification motion,
reversal is only appropriate under this rule if the judge was actually
biased. Sanders, ¶¶ 2, 30, 50 (citation omitted).
¶ 12 Finally, a party seeking a judge’s disqualification must allege
concrete facts; “conclusory statements, conjecture, and innuendo
do not suffice.” Black v. Black, 2020 COA 64M, ¶ 117 (quoting
Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 639 (Colo. 1987)). A
reversal based on bias or prejudice requires “more than mere
speculation concerning the possibility of prejudice.” People v.
Schupper, 2014 COA 80M, ¶ 59 (quoting People v. Coria, 937 P.2d
386, 391 (Colo. 1997)).
B. Analysis
¶ 13 Erickson argues that the above principles required Judge
Slade’s recusal from his case and warrant reversal on appeal.
Without citing to specific portions of the record to support his
argument, Erickson contends that because Judge Slade
represented A.M.’s mother in a D&N case more than a decade
before Erickson’s trial, she had “information about [A.M.] she would
not otherwise have been exposed to.” Erickson further alleges that
6 Judge Slade may have had “information . . . about [A.M.’s] behavior,
culpability, and credibility.” Finally, Erickson argues that Judge
Slade’s decision to recuse from A.M.’s case likewise required her
recusal in Erickson’s case. We disagree and conclude that these
conclusory speculations are legally insufficient. We reach this
determination for two reasons.
¶ 14 First, there is no allegation, let alone evidence, that Judge
Slade had any direct, concrete interest in Erickson’s case. See
Sanders, ¶¶ 27, 41. The fact that she possibly had some dated
familiarity with A.M. from the D&N case is insufficient to show that
she would be unable to deal fairly with Erickson in his trial. See id.
at ¶ 41. Although Erickson relies heavily on the judicial code’s
caution against an appearance of partiality, he points to no actual,
specific bias sufficient to warrant reversal. See id. at ¶ 50. Judge
Slade had no prior interaction with Erickson. Additionally,
Erickson does not allege any disputed facts in his case that Judge
Slade obtained when representing A.M.’s mother. See C.J.C.
2.11(A)(1). The D&N case occurred a decade-plus before A.M. and
Erickson met.
7 ¶ 15 Our cases require more than alleged here to support a judge’s
disqualification. In one case, the mere fact that a judge presiding
over a case had formerly prosecuted a defendant on similar charges
was insufficient to create an appearance of partiality requiring
recusal. People v. Flockhart, 2013 CO 42, ¶¶ 43, 46, 54. While the
cases were similar, the court reasoned that they were not materially
related, seven years had elapsed between them, and nothing from
the earlier case was relevant to the later case. Id. at ¶¶ 53-54.
Here, the claimed connection between the proceedings is even more
attenuated. Judge Slade’s prior representation did not concern the
same parties or subject matter as Erickson’s case. Like Flockhart,
the two cases were not related, occurred years apart, and any facts
from the D&N case were irrelevant to Erickson’s trial.
¶ 16 Second, Erickson relies on a case in which a division of this
court held that Judge Slade’s involvement as guardian ad litem in a
case involving a mother’s older child required her recusal from a
D&N case concerning the mother’s younger children. People in
Interest of C.Y., 2018 COA 50, ¶¶ 10, 24. Finding an impermissible
appearance of partiality, the court described the earlier case as
“highly relevant during this termination proceeding” in part because
8 the judge was statutorily required to consider it. Id. at ¶¶ 18, 20-24
(noting that the judge also took a position adverse to the mother in
the first proceeding).
¶ 17 Not so, here. A.M.’s mother was neither a party nor a witness
in Erickson’s case. And Erickson has not identified any specific
information Judge Slade could have obtained about A.M. in the
course of representing the mother that would have been relevant to
the charges against Erickson. Moreover, nothing in the record
suggests that the D&N case caused Judge Slade to harbor any bias
against A.M. or Erickson. In short, because Erickson’s concerns
about Judge Slade’s partiality were “purely speculative” and lacked
any suggestion of actual bias, Judge Slade did not err by refusing to
recuse. Schupper, ¶ 59.
III. AEIM is a Cognizable Colorado Offense
¶ 18 Erickson asks us to depart from established precedent holding
that AEIM2 is a cognizable offense. Erickson initially stated that
2 Attempted extreme indifference murder (AEIM) is derived from
section 18-3-102(1)(d), C.R.S. 2024, extreme indifference murder (EIM), and section 18-2-101(1), C.R.S. 2024, criminal attempt.
9 this issue was unpreserved, but the State points to various parts of
the record where Erickson preserved this argument.
¶ 19 We review questions of law de novo. Washington v. People,
2024 CO 26, ¶ 14, and our “[supreme court] alone can overrule [its]
prior precedents concerning matters of state law,” People v.
Novotny, 2014 CO 18, ¶ 26. Our supreme court has explicitly held
that AEIM is a cognizable crime under Colorado law. People v.
Castro, 657 P.2d 932, 937-38 (Colo. 1983), overruled in part on
other grounds by West v. People, 2015 CO 5. Castro’s validity is not
in question. See, e.g., Montoya v. People, 2017 CO 40, ¶ 17 & n.3
(affirming AEIM’s validity under section 18-3-102(1)(d), C.R.S.
2024’s current language); People v. Anderson, 2019 CO 34, ¶¶ 17-
18 (discussing AEIM’s elements). Because we are bound by
controlling precedent, Novotny, ¶ 26, we reject Erickson’s invitation
to depart from Castro.
IV. The Unpreserved As-Applied Constitutional Challenge Fails
¶ 20 Alternatively, Erickson raises an unpreserved as-applied equal
protection challenge to his AEIM convictions for individuals neither
shot at nor injured. Specifically, he contends that these convictions
cannot stand because AEIM and attempted first degree extreme
10 indifference assault (AEIA) proscribe the same conduct with vastly
different penalties. Because we conclude that the two crimes do not
proscribe identical conduct and thus do not violate equal
protection, we affirm Erickson’s AEIM convictions.
A. Preservation and Standard of Review
¶ 21 We generally do not consider unpreserved as-applied
challenges because a factual record is typically imperative. See
People v. Stone, 2020 COA 23, ¶ 49 (citation omitted). However, we
may exercise our discretion to consider such claims “where doing so
would clearly further judicial economy” or when the factual record
is sufficient to facilitate our review. People v. Price, 2023 COA 96, ¶
47 (citation omitted).
¶ 22 In Price, a division of this court exercised its discretion to
consider an unpreserved as-applied equal protection challenge
where the defendant argued that one statute prohibited “essentially
the same conduct as [another] statute but carrie[d] a much higher
sentence.” Id. at ¶¶ 46-47 (finding a sufficient factual record).
Erickson raises a nearly identical challenge, which we similarly
exercise our discretion to address. “We review de novo whether two
statutes prohibit the same or different conduct.” Id. at ¶ 47. We
11 reverse unpreserved constitutional errors only upon a finding of
plain error. Id. (citing Hagos v. People, 2012 CO 63, ¶ 14).
B. Applicable Law
¶ 23 Under our state constitution, “equal protection is violated
where two criminal statutes proscribe identical conduct, yet one
punishes that conduct more harshly.” Dean v. People, 2016 CO 14,
¶ 14. We look to each statute’s elements to determine whether they
proscribe identical conduct. People v. Curtis, 2021 COA 103, ¶ 31.
There is no equal protection violation when “one statute requires
proof of an element that the other does not.” Id. (citation omitted).
¶ 24 While the General Assembly may prescribe harsher penalties
for conduct that it views as more reprehensible, such differences
must be rationally justified, Dean, ¶ 16, and distinguishable by “a
person of average intelligence,” People v. Griego, 2018 CO 5, ¶ 36
(citation omitted).
C. Analysis
¶ 25 A person commits EIM when, “[u]nder circumstances
evidencing an attitude of universal malice manifesting extreme
indifference to the value of human life generally, [one] knowingly
engages in conduct which creates a grave risk of death to a person,
12 or persons, other than himself, and thereby causes the death of
another.” § 18-3-102(1)(d) (emphasis added). EIA occurs when,
“[u]nder circumstances manifesting extreme indifference to the
value of human life, [one] knowingly engages in conduct which
creates a grave risk of death to another person, and thereby causes
serious bodily injury to any person.” § 18-3-202(1)(c), C.R.S. 2024.
Erickson argues that, because the only difference between the two
statutes is the result, the attempted offenses are identical. For
three reasons, we are not persuaded: (1) unlike AEIA, AEIM requires
a finding of universal malice; (2) AEIM requires a substantial step
towards causing death, while AEIA requires a substantial step
towards causing bodily injury; and (3) there is a rational
justification for more harshly punishing conduct that satisfies those
two elements.
¶ 26 First, a division of this court has held that EIM’s “universal
malice” requirement distinguishes it from EIA. People v. Baker, 178
P.3d 1225, 1229-30 (Colo. App. 2007) (concluding that universal
malice is not a required finding for an EIA conviction). Universal
malice is “conduct ‘evidenc[ing] a willingness to take human life
indiscriminately, without knowing or caring who the victim may be
13 or without having an understandable motive or provocation.’”
Garcia v. People, 2023 CO 30, ¶ 16 (alteration in original) (citation
omitted). Erickson contends that this definition is indistinguishable
from “circumstances manifesting an extreme indifference to human
life.” § 18-3-202(1)(c). Not so.
¶ 27 Baker’s holding undermines this argument as does the fact
that “we will not interpret a statutory provision in a way that
renders any of its words or phrases meaningless.” People v. Warren,
2024 COA 60, ¶ 20. EIM requires universal malice and “extreme
indifference to human life.” § 18-3-102(1)(d). If the phrases have
identical meanings, one necessarily becomes meaningless.
Furthermore, criminal attempt requires “acting with the kind of
culpability otherwise required for commission of an offense.” § 18-
2-101(1), C.R.S. 2024. Therefore, one must act with universal
malice and extreme indifference to commit AEIM, while AEIA
requires only extreme indifference. See Baker, 178 P.3d at 1229-
30.
¶ 28 Second, our supreme court has distinguished AEIM from AEIA
on an additional ground; namely, that AEIM requires a substantial
14 step towards causing death, while AEIA does not.3 See Castro, 657
P.2d at 940-41 (concluding that completed EIA and AEIM are
sufficiently different so as not to violate equal protection). Erickson
distinguishes Castro by arguing that the court did not consider two
attempted offenses, and the “heightened risk of death to the victim”
that distinguishes the attempted murder offense (AEIM) from the
completed assault (EIA) is not present when victims are neither shot
at nor injured. Id. at 941. We disagree.
¶ 29 Erickson asserts that Castro’s reasoning depended on the fact
that the defendant’s act would have resulted in death if the victim,
who was shot, had not survived. First, this part of Castro dealt with
the sufficiency of evidence to uphold an AEIM conviction, not the
equal protection claim. See id. Second, we do not read Castro as
holding that a heightened risk of death requires injury. The court
specifically described the defendant’s conduct as “manifest[ing]
extreme indifference towards the lives of the victim . . . and of those
3 People v. Castro, 657 P.2d 932, 940-41 (Colo. 1983), overruled in
part on other grounds by West v. People, 2015 CO 5, primarily compared AEIM with completed EIA but alluded to both attempted offenses when it described AEIM as requiring a substantial step towards causing death, while “assault in the first degree . . . does not require . . . a substantial step towards” causing another’s death.
15 in the immediate vicinity” and that firing a gun “in the general
direction of the victim and other persons” created a grave risk of
death. Id. (emphasis added). Therefore, while the conviction there
related only to the injured victim, Castro did not foreclose the
possibility of an AEIM conviction for uninjured victims.
¶ 30 Finally, there is a rational justification, readily apparent to
those of average intelligence, for punishing conduct committed with
universal malice and constituting a substantial step toward causing
death more harshly than conduct that does not. See Griego, ¶ 36.
¶ 31 In short, because there is a rational basis for AEIM’s
heightened penalty and because AEIM “requires proof of . . .
element[s] that [AEIA] does not,” we conclude that Erickson’s AEIM
convictions do not violate equal protection as applied to him.
Curtis, ¶ 31.
V. The District Court Did Not Err by Refusing to Give an Involuntary Intoxication Instruction
A. Additional Facts
¶ 32 Defense counsel originally asked for a jury instruction on
involuntary intoxication for all counts. This instruction was based
on Erickson’s theory that A.M. forced him, at gunpoint, to ingest
16 cocaine. After a somewhat lengthy discussion, the district court
ultimately refused to give the instruction because there was no
evidence that Erickson (1) did not knowingly ingest an intoxicant, or
(2) did not know the substance at issue was an intoxicant.
Although the court denied the involuntary intoxication instruction,
Erickson received a voluntary intoxication instruction for counts 1,
3-9, 37-39, and 42-46.
¶ 33 On appeal, Erickson argues that he presented evidence of
involuntary intoxication, and the district court therefore erred by
failing to allow the instruction under section 18-1-804(5), C.R.S.
2024, which provides an exception to voluntary intoxication if a
defendant’s intoxication stems from “circumstances that would
afford a defense” to a charged crime. He does not direct us to
exactly where in the record he presented evidence of involuntary
intoxication. However, when cross-examining A.M., defense counsel
focused briefly on A.M.’s initial statements to police that, on the day
of the shooting, he forced Erickson to consume cocaine.
B. Standard of Review
¶ 34 We review de novo whether a defendant met the burden of
presenting “some credible evidence” to support an affirmative
17 defense instruction. Pearson v. People, 2022 CO 4, ¶ 16 (citations
omitted). If the district court erroneously refused to give an
affirmative defense instruction, we review for constitutional
harmless error. Id. Under this standard, we reverse “unless the
error was harmless beyond a reasonable doubt.” Id.
C. Applicable Law
¶ 35 Generally, there are two types of defenses that criminal
defendants may raise. First, affirmative defenses “seek to justify or
mitigate the entire crime,” not just a single element of the offense.
People v. Miller, 113 P.3d 743, 750 (Colo. 2005). Second, traverse
defenses “negate[] one or more elements of the offense, serving to
undermine or cast doubt on the possibility that a defendant
committed the charged offense.” Pearson, ¶ 19. Involuntary
intoxication is an affirmative defense. Miller, 113 P.3d at 750.
Voluntary intoxication, by contrast, is not an affirmative defense
because it seeks to negate evidence of specific intent. Id.; see also §
18-1-804(1).
¶ 36 Colorado appellate courts have broadly determined that
defendants cannot assert a traverse defense and an affirmative
defense for the same crime. E.g., Pearson, ¶ 19 (citations omitted).
18 Our cases have not explicitly decided whether this rule applies
when a defendant seeks voluntary and involuntary intoxication
instructions for the same offenses. See Miller, 113 P.3d at 750-52
(noting that both instructions were given but considering only the
disputed voluntary intoxication instruction). However, we need not
decide that issue here for the reasons set forth below.
D. Analysis
¶ 37 It is unclear whether Erickson asserts error in the court’s
refusal to give an involuntary intoxication instruction instead of —
or in addition to — the voluntary intoxication instruction.
Regardless, even if the district court found Erickson’s evidence of
involuntary intoxication credible — and even if Erickson could seek
both instructions for the same counts — the court did not err by
refusing to give the proffered involuntary intoxication instruction
because it had no basis upon which to conclude that the jury could
differentiate Erickson’s voluntary intoxication from his involuntary
intoxication. See Pearson, ¶ 16.
¶ 38 Regarding section 18-1-804(5), no Colorado appellate court
has interpreted whether involuntary intoxication “under
circumstances that would afford a defense to a charge of crime”
19 includes intoxication by force or duress. Erickson cites People v.
Mion, 2023 COA 110M, ¶¶ 32-22, (cert. granted Aug. 19, 2024), to
support his argument that coerced intoxication is a cognizable form
of involuntary intoxication. We are not persuaded. Mion involved a
defendant who voluntarily ingested what he believed was solely
marijuana and later sought an “innocent mistake” involuntary
intoxication instruction after suggesting that the marijuana may
have been laced with another substance. Id. at ¶¶ 12, 16-19, 26,
34. Here, Erickson argues that A.M. forced him to ingest cocaine.
Thus, unlike Mion, this issue is not “what substance caused the
intoxication” but what circumstances caused the intoxication. Id.
at ¶ 31.
¶ 39 However, we need not decide whether coerced intoxication is a
cognizable defense under section 18-1-804(5) because the evidence
presented at trial was insufficient to distinguish the effects of
Erickson’s voluntary drug use on May 7 from his alleged
involuntary cocaine use. Entitlement to an involuntary intoxication
defense requires proof that the involuntary intoxication resulted in
the defendant “lack[ing] capacity to conform his conduct to the
requirements of the law.” § 18-1-804(3). Here, because there was
20 insufficient evidence to conclude that Erickson’s involuntary
intoxication — alone — met this standard, the court’s decision to
refuse the involuntary intoxication instruction was not erroneous.
That Erickson simultaneously argued A.M. forced him to use
cocaine and that his long-term cocaine use impacted his conduct
also weighs against finding error. See People v. Brown, 218 P.3d
733, 737 (Colo. App. 2009), aff’d, 239 P.3d 764 (Colo. 2010) (citing
People v. Garcia, 826 P.2d 1259 (Colo. 1992), for the proposition
that “a defendant is not entitled to a theory of defense instruction
inconsistent with his own principal theory”).
¶ 40 There was evidence that Erickson ingested drugs at least three
separate times on May 7. First, A.M. testified that he and Erickson
did cocaine around 7:00 a.m. Erickson does not appear to argue
that this was involuntary. Second, D.S. testified that he and
Erickson did cocaine and smoked marijuana between 8:00 a.m. and
10:00 a.m. Third, A.M. testified that he and Erickson did cocaine
multiple times between 11:00 a.m. and approximately 12:45 p.m.
The latter instance is the cocaine use that Erickson claimed was
involuntary. Finally, a defense expert testified that Erickon had a
21 long history of drug use and “used marijuana, cocaine, and cough
medicine up until the day he was arrested.”
¶ 41 The defense expert testified about cocaine’s half-life,
estimating that the drug leaves a person’s system in approximately
five hours depending on the amount consumed. However, the
expert did not clarify the half-life for specific amounts and admitted
that Erickson tested positive for cocaine more than five hours after
his last use. Additionally, she noted that a person may feel
cocaine’s effects even after it leaves the bloodstream. The expert
also did not testify in depth about the half-lives or effects of
marijuana and cough medicine or how these substances interact
with cocaine. Therefore, even if the court gave an involuntary
intoxication instruction on some counts, the jury would have been
unable to determine which “episode” of intoxication — voluntary or
involuntary — potentially negated Erickson’s culpability.4
4 This analysis applies equally to counts for which Erickson sought
only an involuntary intoxication instruction and those for which he may have sought both voluntary and involuntary intoxication instructions. Even if the court had given the involuntary intoxication instruction on different counts from which it gave a voluntary intoxication instruction, the jury still could not have considered each type of intoxication in isolation because of the potential overlap between the effects of each.
22 ¶ 42 On this record, we affirm the district court’s order refusing an
involuntary intoxication instruction. See Pearson, ¶ 16.
VI. Any Error in the District Court’s Refusal to Give a Duress Instruction Was Harmless Beyond a Reasonable Doubt
¶ 43 Erickson similarly challenges the district court’s refusal to give
a duress instruction. Erickson acknowledges that he was not
entitled to a duress instruction for first degree murder (counts 1
and 2), and he received a duress instruction on counts 35, 40, 41,
and 46. Therefore, he contends that the court erroneously denied
the instruction as to the remaining counts (except counts 1 and 2).
We disagree.
¶ 44 Duress, like involuntary intoxication, is an affirmative defense.
See § 18-1-708, C.R.S. 2024 (defining duress); § 18-1-710, C.R.S.
2024 (describing sections 18-1-701 to -709, C.R.S. 2024, as
affirmative defenses). As discussed above, a defendant must
present “some credible evidence” to support an affirmative defense
instruction, which we review de novo. Pearson, ¶ 16. We review
erroneous denials of affirmative defense instructions for
constitutional harmless error and reverse “unless the error was
23 harmless beyond a reasonable doubt.” Id. An error is not harmless
beyond a reasonable doubt and requires reversal when “there is a
reasonable possibility that [it] might have contributed to the
conviction.” Hagos, ¶ 11.
¶ 45 We conclude that, even if the court erred in refusing to give a
duress instruction, the error was harmless beyond a reasonable
doubt.
¶ 46 First, because the jury found Erickson guilty of all counts, it
clearly rejected the duress instruction given for several counts.
Because this instruction was given, the prosecution carried the
burden of disproving the duress defense for some counts. Cf.
People v. Coahran, 2019 COA 6, ¶ 38 (failing to give a self-defense
instruction eliminated the burden of disproving self-defense). We
have no reason to believe the jury would have accepted the defense
had it applied to more counts. Cf. People v. DeGreat, 2018 CO 83,
¶¶ 33-34 (refusing a self-defense instruction on one count that
resulted in a conviction was not harmless when the defendant was
acquitted of other counts for which the instruction was given).
24 ¶ 47 The evidence negating duress was significant. Duress requires
proof that the defendant engaged in conduct because of force or
threatened force that “a reasonable person in his situation would
have been unable to resist.” § 18-1-708. Yet the evidence showed
that, once inside the school, Erickson had several opportunities to
safely warn others of the threat, outside of A.M.’s presence.
Erickson was also the first to pull out a gun and begin shooting.
Even if Erickson felt peer pressure from A.M., the jury had ample
evidence to conclude that such pressure did not rise to the level
required for duress.
¶ 48 From these facts, we cannot say there was a reasonable
possibility that giving a duress instruction on additional counts
would have yielded a different result. See Hagos, ¶ 11. Therefore,
any error in rejecting the duress instruction was harmless beyond a
reasonable doubt and does not require reversal. Id.
VII. There Was Insufficient Evidence to Support Erickson’s Conviction on Count 31
¶ 49 Erickson next contends that there was insufficient evidence to
support his conviction for AEIM of R.W., a student allegedly in the
25 classroom at the time of the shooting. We agree and vacate
Erickson’s conviction for count 31.
¶ 50 Even when unpreserved, we review sufficiency of the evidence
claims de novo and will not uphold convictions based on legally
insufficient evidence. McCoy v. People, 2019 CO 44, ¶¶ 2, 27.
Considering the evidence “as a whole and in the light most favorable
to the prosecution,” we ask whether it is “substantial and sufficient
to support a conclusion by a reasonable mind that the defendant is
guilty . . . beyond a reasonable doubt.” People v. Harrison, 2020 CO
57, ¶ 32 (citation omitted). While we “give the prosecution the
benefit of all reasonable inferences that might fairly be drawn from
the evidence,” convictions cannot be based on “guessing,
speculation, conjecture, or a mere modicum of relevant evidence.”
People v. Donald, 2020 CO 24, ¶ 19 (citation omitted).
¶ 51 At trial, Laura Harper, the teacher in whose classroom the
shooting occurred, testified about where each student in the class
usually sat and, for some students, whether they were present on
May 7. The only evidence of R.W.’s presence was Harper’s
26 testimony that “[he] usually sat somewhere in the middle.” Because
this evidence could not establish R.W.’s presence beyond a
reasonable doubt, it is legally insufficient to support Erickson’s
conviction for the attempted murder of R.W.
¶ 52 The State argues that the jury could infer R.W.’s presence
from Harper’s testimony because the prosecution asked her to
confirm whether students were absent on May 7, and her testimony
about R.W. was consistent with her testimony about other
students. However, as the prosecution listed names, Harper
focused more on where students sat than their attendance. Only
when prompted did she indicate whether she remembered students
being present.
¶ 53 Of the twenty-five names listed, Harper did not explicitly
confirm whether fourteen students were present. Of these fourteen
students, eleven testified. Only three of the fourteen students,
R.W., K.M., and N.W., did not testify. However, other witnesses’
testimony confirmed K.M.’s and N.W.’s presence on May 7. No
witness, other than Harper, mentioned R.W. or testified about his
presence. Therefore, while Harper’s testimony about R.W. was
consistent with her testimony about other students, the evidence
27 about R.W. was substantially weaker than that of other students.
See Harrison, ¶ 32. Because Erickson’s conviction for count 31 was
supported by little more than speculation, it cannot stand. See
Donald, ¶ 19.
VIII. The District Court Erred by Failing to Merge Two Murder Counts for the Same Victim and Two Attempted Murder Counts for the Same Five Victims
¶ 54 Erickson next raises an unpreserved argument that several of
his convictions and sentences violate double jeopardy and must
merge. The State agrees that merger is the proper remedy. The
counts, convictions, and sentences at issue are as follows:
Victim Conviction and Sentence Conviction and Sentence K.C. First degree murder, after First degree murder, extreme deliberation (AD): count 1 indifference (EI): count 2 Life without parole, Life without parole, concurrent concurrent to count 2 to count 1 L.A. Attempted first degree Attempted first degree murder, murder, AD: count 4 EI: count 10 48 years, consecutive to 48 years, concurrent to count counts 1-3 4, consecutive to all others J.J. Attempted first degree Attempted first degree murder, murder, AD: count 5 EI: count 20 48 years, consecutive to 48 years, consecutive to all counts 1-4 others M.K. Attempted first degree Attempted first degree murder, murder, AD: count 6 EI: count 21 48 years, consecutive to 48 years, consecutive to all counts 1-5 others
28 Victim Conviction and Sentence Conviction and Sentence J.G. Attempted first degree Attempted first degree murder, murder, AD: count 8 EI: count 16 48 years, consecutive to 48 years, consecutive to all counts 1-7 others G.M.O. Attempted first degree Attempted first degree murder, murder, AD: count 9 EI: count 25 48 years, consecutive to 48 years, consecutive to all counts 1-8 others
A. Standard of Review
¶ 55 We review de novo whether merger of multiple criminal
offenses is required. People v. Thompson, 2018 COA 83, ¶ 39.
Under the Double Jeopardy Clauses of the United States and
Colorado Constitutions, absent express statutory authorization,
identical criminal conduct cannot be subject to multiple
punishments under different statutes. Id. at ¶ 40 (citations
omitted). If a district court erroneously “entered multiplicitous
punishments in violation of double jeopardy principles, merger is
the remedy.” Whiteaker v. People, 2024 CO 25, ¶¶ 22-24.
B. Applicable Law and Analysis
¶ 56 Under our criminal code, first degree murder is a single
offense, “which can be committed in four different ways,” rather
than four distinct offenses. Candelaria v. People, 148 P.3d 178, 180
29 (Colo. 2006) (citation omitted). Therefore, a defendant cannot
receive multiple convictions for killing a single victim. Id. at 180-
81. A division of this court has reached a similar conclusion
regarding attempted first degree murder. People v. Jackson, 2018
COA 79, ¶¶ 79, 81 (“[T]wo convictions for attempted first degree
murder based upon the same evidence and the same victim cannot
stand.”), aff’d, 2020 CO 75. We remand to the district court to
correct the mittimus to reflect only one conviction and sentence for
the above-listed victims. Whiteaker, ¶ 24. Specifically, we instruct
the court to merge:
• Counts 1 and 2;
• Counts 4 and 10;
• Counts 5 and 20;
• Counts 6 and 21;
• Counts 8 and 16; and
• Counts 9 and 25.
IX. Disposition
¶ 57 The judgment of conviction is affirmed in part, vacated as to
the conviction for count 31, and reversed and remanded to the
district court, in part, with instructions to correct the mittimus and
30 merge the judgments of convictions and sentences as set forth
above.
JUDGE JOHNSON and JUDGE SCHOCK concur.