22CA1000 Peo v Stokes 06-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1000 El Paso County District Court No. 19CR7180 Honorable Eric Bentley, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
John Garfield Stokes,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE SCHOCK Dunn and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 26, 2025
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, John Garfield Stokes, appeals his convictions for
attempted second degree murder and first degree assault. He
contends that (1) the district court erred by denying his motion to
elect; (2) his convictions are inconsistent with his acquittal of
second degree murder; (3) the attempted murder conviction must be
vacated either because the indictment was insufficient or because
he was acquitted of the underlying murder; (4) the evidence was
insufficient to sustain his first degree assault conviction; and (5) the
jury instructions erroneously limited deadly force self-defense to the
second degree murder charge. We affirm the judgment.
I. Background
¶2 After a verbal confrontation at a gas station, Stokes drove to a
car wash, followed by the victim, Nicholas Anderson. As Stokes
pulled into the car wash bay, Anderson pulled up behind him, got
out of his car, and walked up to Stokes’s vehicle, where he began
punching the window and attempting to open the driver’s side door.
Eventually, Anderson pulled the door open and reached inside.
¶3 As he did so, Stokes shot him three times, causing Anderson
to fall to the ground. Stokes immediately got out of his vehicle and
shot Anderson twice more while he was on the ground. He tried to
1 shoot him a sixth time, but the gun did not fire. Anderson died
from the shooting. The evidence at trial established that the first
three gunshots were fatal, while the last two would not have been.
¶4 All five shots and the “dry fire” occurred in about ten seconds.
The entire forty-second encounter — beginning with Anderson
approaching Stokes’s vehicle — was captured on surveillance video.
¶5 Stokes was indicted on charges of second degree murder, first
degree assault, and attempted first degree murder, as well as other
counts not directly related to the shooting. The indictment specified
that it encompassed all lesser included offenses.
¶6 At trial, there was no dispute that Stokes had shot and killed
Anderson. But Stokes argued that he had done so in self-defense.
The district court gave the jury two self-defense instructions: (1) a
“deadly physical force in defense of person” instruction, which
applied to the second degree murder count; and (2) a “defense of
person” instruction, which applied to the remaining charges.
¶7 The jury was given two verdict forms for the shooting-related
charges. The first listed second degree murder as the primary
charge and first and second degree assault as lesser included
offenses. The second listed attempted first degree murder as the
2 primary charge and attempted second degree murder and
attempted second degree assault as lesser included offenses.
¶8 The jury found Stokes guilty of first degree assault (as a lesser
included offense of second degree murder) and attempted second
degree murder (as a lesser included offense of attempted first degree
murder). The district court sentenced Stokes to eight years in
prison for the attempted second degree murder conviction, with
lesser concurrent sentences on all other offenses.
II. Motion to Elect
¶9 As Stokes sees it, the problems with his convictions stem from
the denial of his motion to require the prosecution to elect which
evidence supported each charge. This, he argues, allowed the
prosecution to slice a single ten-second event — the shooting and
killing of Anderson — into multiple individual gunshots supporting
different offenses. And he blames that theory for what he views as
the overarching unfairness in his case — that the jury convicted
him of first degree assault and attempted second degree murder,
despite its apparent finding that he acted in self-defense when he
killed Anderson. Beginning with what Stokes deems to be the
3 source of that perceived inconsistency, we conclude that the district
court did not abuse its discretion in ruling on his motion to elect.
A. Additional Background
¶ 10 During trial, Stokes moved for an election by the prosecution
as to “what evidence constitutes which offenses,” or alternatively, a
unanimity instruction with accompanying interrogatories. Defense
counsel asserted that his argument in support of his motion for
judgment of acquittal depended on whether the prosecution
intended to treat the shooting as a single continuous transaction or
to treat each gunshot as a distinct act. The prosecution confirmed
its position that each shot was part of a single transaction but that
there were “different acts of conduct within that transaction.”
¶ 11 Stokes then filed a brief expanding upon his argument. He
asserted that, given the prosecution’s theory that the shots were all
part of one transaction, all the shooting-related charges — second
degree murder, attempted first degree murder, and first degree
assault — should merge if he was convicted. While conceding that
double jeopardy did not preclude the court from submitting all
three charges to the jury, he argued that the “cleanest method” for
avoiding any multiplicity concerns was to include them on a single
4 verdict form, with attempted first degree murder and first degree
assault as lesser included offenses of second degree murder.
¶ 12 In ruling on Stokes’s motion, the court first noted that the
prosecution had elected to treat the five gunshots and attempted
sixth shot as a single transaction. But because that single
transaction was composed of multiple acts that may have had
“different effects” on Anderson, the court would exercise its
discretion to give a modified unanimity instruction that required the
jury to “unanimously agree that [Stokes] committed the offense by
means of the same act or acts or by means of all of his acts.” The
district court declined to give the jury the requested interrogatories.
¶ 13 As to the lesser included offenses, the district court agreed
with Stokes that first degree assault was a lesser included offense of
second degree murder, so it included those offenses on the same
verdict form. But it concluded that attempted first degree murder
was not a lesser included offense of second degree murder and,
thus, would be on a different verdict form. The court explained that
any issues regarding merger would be addressed at sentencing.
5 B. Preservation
¶ 14 We first note that the election argument Stokes makes on
appeal is not the same one he made in the district court. In the
district court, Stokes argued that the prosecution should be
required to elect which acts or series of acts supported which
charge or, alternatively, that a unanimity instruction should be
given. See People v. Archuleta, 2020 CO 63M, ¶ 21. The district
court largely granted that motion by confirming that the
prosecution had elected to treat all six gunshots as a single
transaction and giving the jury a modified unanimity instruction.
¶ 15 On appeal, Stokes argues that the prosecution should have
been required to make a different kind of election — an election of a
single count upon which the issue of Anderson’s death would be
tried. See § 18-1-408(3), C.R.S. 2024. But Stokes never requested
that the prosecution elect a single count. To the contrary, Stokes
agreed that all three shooting-related charges should be submitted
to the jury, and he specifically requested the additional lesser
included offense of attempted second degree murder. The only
issue was whether those offenses should be included on one verdict
form or two — an issue Stokes does not raise on appeal.
6 ¶ 16 Because Stokes did not preserve his argument that the
prosecution was required to elect a single count — as opposed to a
single act upon which the counts were based — we review this
contention for plain error. See Hagos v. People, 2012 CO 63, ¶ 14.
C. Election of a Single Count
¶ 17 When multiple counts are supported by identical evidence,
“the court upon application of the defendant may require the state
. . . to elect the count upon which the issues shall be tried.”
§ 18-1-408(3) (emphasis added). But the district court is not
required to grant such a request. People v. DeBoer, 829 P.2d 447,
450 (Colo. App. 1991). Instead, it has discretion to either grant or
deny the motion. People v. Muckle, 107 P.3d 380, 382 (Colo. 2005);
People v. Fry, 74 P.3d 360, 369 (Colo. App. 2002), aff’d, 92 P.3d 970
(Colo. 2003). We review the district court’s decision for an abuse of
discretion, meaning we will reverse only if the ruling is “manifestly
arbitrary, unreasonable, or unfair.” Fry, 74 P.3d at 369.
¶ 18 The denial of a section 18-1-408(3) motion to elect does not
implicate double jeopardy because there can be no double jeopardy
violation until the defendant is convicted of multiplicitous counts.
See People v. Zadra, 2017 CO 18, ¶ 17. Thus, when a defendant’s
7 conduct establishes more than one offense, the defendant may be
prosecuted for each offense. § 18-1-408(1); Reyna-Abarca v. People,
2017 CO 15, ¶ 41 (noting that prosecutors may charge “multiple
claims arising from the same set of facts”). Then, if the defendant is
convicted of both a greater and lesser included offense, the offenses
must merge so there is only one conviction. See Reyna-Abarca,
¶ 79; see also § 18-1-408(1)(a). And if a defendant is convicted of
multiple nonincluded offenses based on “the same act or series of
acts arising from the same criminal episode,” the sentences on
those offenses must run concurrently. § 18-1-408(2), (3).
¶ 19 The district court did not abuse its discretion by declining to
require the prosecution to elect a single count on which to proceed.
First, as noted above, Stokes did not request such an election. He
argued that the first degree assault charge should be submitted to
the jury as a lesser included offense of second degree murder —
exactly as it was. And he specifically requested that the jury be
instructed on attempted second degree murder as a lesser included
offense as well. The district court did not err — much less plainly
err — by not limiting the prosecution to a single count when Stokes
8 never asked for such a limitation. See § 18-1-408(3) (permitting the
court to require an election “upon application of the defendant”).
¶ 20 Second, even if we could construe Stokes’s motion to elect as a
request under section 18-1-408(3) to elect among the three charges,
and even assuming Stokes did not waive such an election by
requesting the lesser included offenses, the district court did not
abuse its discretion. Because the evidence could have sustained
any one of the charged offenses, the district court properly allowed
the jury to consider all the charges. See Fry, 74 P.3d at 370. The
court then imposed concurrent sentences on the counts for which
Stokes was convicted. See § 18-1-408(3); Fry, 74 P.3d at 369-70
(holding that the district court did not abuse its discretion by
denying the defendant’s motion to elect because “it nevertheless
sentenced him to concurrent sentences”); People v. Hardin, 607
P.2d 1291, 1295 (Colo. 1980) (holding that district court did not err
by allowing charges of attempted murder, first degree assault, and
second degree assault based on one incident where the charges
were based on different shots and the sentences ran concurrently).
9 D. Election of Charged Acts
¶ 21 In addition to a section 18-1-408(3) election of a single count,
the prosecution may be required to elect a single act (or series of
acts) that supports the charged offense if it “presents evidence of
multiple discrete acts, any one of which would constitute the
offense charged, and there is a reasonable likelihood that jurors will
disagree regarding which act was committed.” Archuleta, ¶ 21.
This rule was the basis for Stokes’s motion to elect in the district
court, and Stokes reasserts this type of election on appeal. We
review this issue de novo. People v. Wagner, 2018 COA 68, ¶ 38.
¶ 22 When multiple distinct acts could each support a conviction,
the district court has two options. First, it can require the
prosecution to select the act that is the basis for the charge. Id. at
¶ 39. Second, the court can give the jury a “modified unanimity
instruction,” advising the jury that it “must either unanimously
agree that the defendant committed the same act or acts or that the
defendant committed all of the acts.” Archuleta, ¶ 22 (citation
omitted). These two options are alternatives, either of which is
sufficient to protect the defendant’s right to a unanimous jury
verdict. Id.; Quintano v. People, 105 P.3d 585, 592-95 (Colo. 2005).
10 ¶ 23 The prosecution argued, and the district court agreed, that no
election or modified unanimity instruction was required in this case
because Stokes was charged with engaging in a “single criminal
transaction.” Archuleta, ¶ 31. We agree with Stokes that this is a
close call. On one hand, the five gun shots and attempted sixth
shot spanned less than ten seconds, and the prosecution said it
would treat them as a single transaction. See id. (holding that
election was not required where a “series of discrete acts . . .
contributed to and together ultimately caused [the victim’s] death”);
People v. Wester-Gravelle, 2020 CO 64, ¶¶ 40-41 (holding that there
was no plain error where prosecution “tried the case as involving a
single transaction” consisting of three incidents of forgery).
¶ 24 On the other hand, as the district court noted, those shots had
“different effects” on the victim. More importantly, the prosecution
drew that distinction in closing, arguing that all of the shots
supported the second degree murder count while only the last two
supported the attempted first degree murder count. And while
there was no “reasonable likelihood that jurors [would] disagree
regarding which act was committed,” Archuleta, ¶ 21 — there was
11 no dispute that Stokes took all five shots — jurors reasonably could
have disagreed about which shots were taken in self-defense.
¶ 25 But we need not decide whether the evidence could support
multiple discrete acts because the district court gave a modified
unanimity instruction. That instruction “protect[ed] [Stokes’s] right
to a unanimous verdict by assuring that some jurors [did] not
convict on one offense and others on a separate offense.” Quintano,
105 P.3d at 593; see also People v. Larsen, 2023 COA 28, ¶ 33
(holding that a failure to elect does not violate due process if a
modified unanimity instruction “sufficiently cures any harm from
the prosecution’s failure to individualize the counts charged”).
¶ 26 Stokes also argues that the lack of an election deprived him of
due process and his constitutional right to present a defense
because he was forced to defend against a “moving target.” See
People v. Estorga, 612 P.2d 520, 523 (Colo. 1980) (“[A]n election
enables the defendant to prepare and make his defense to a specific
charge . . . .”). But the supreme court has pulled back somewhat
from the “defense preparation rationale” for the election
requirement, noting that “in most instances the defendant can
12 obtain adequate information to prepare a defense” through other
procedures. Thomas v. People, 803 P.2d 144, 154 (Colo. 1990).
¶ 27 That is the case here. By the time Stokes filed his motion to
elect, the prosecution had nearly rested its case and “there [was]
little opportunity for further defense preparation.” Id. Stokes was
well aware of the evidence against him and claimed self-defense to
the entire incident, not simply to certain shots and not others. And
in response to Stokes’s motion, the prosecution confirmed that
some shots were fatal and some were not. It further explained that,
although the shots were all part of a single transaction, Stokes’s
actions while Anderson was on the ground were alone sufficient to
support the attempted murder charge. Thus, Stokes had notice of
the prosecution’s theory. Under these circumstances, a formal
election was not “essential to accord due process” to Stokes. Id.
III. Inconsistent Verdicts
¶ 28 Stokes also argues that his convictions for first degree assault
and attempted second degree murder must be vacated because they
13 are inconsistent with his acquittal of second degree murder.1 He
contends that the acquittal on the murder charge necessarily
means the jury found he acted in self-defense, which should have
resulted in a complete acquittal on all charges. We disagree.
¶ 29 Consistency between guilty and not guilty verdicts is not
required. People v. Delgado, 2019 CO 82, ¶ 14; People v. Frye, 898
P.2d 559, 570-71 (Colo. 1995). Unlike mutually exclusive guilty
verdicts, which are specific findings “encompassing all the elements
of the crime,” an acquittal is not a finding and may have “various
explanations.” Delgado, ¶ 26. It may, for example, be “the result of
lenity.” People v. Brooks, 2020 COA 25, ¶ 12. Absent an express
jury finding negating an element of an offense, id. at ¶ 24, “[t]he
most that can be said . . . is that . . . either in the acquittal or the
conviction the jury did not speak their real conclusions.” United
State v. Powell, 469 U.S. 57, 63 (1984) (emphasis added) (citation
omitted). We may not guess which it is. See Frye, 898 P.2d at 569.
1 To the extent the People suggest that the jury verdict finding
Stokes guilty of the lesser included offense of first degree assault does not constitute an acquittal of the second degree murder charge, we disagree. See People v. Viburg, 2021 CO 81M, ¶ 21 (“By definition, a jury that finds a defendant guilty of a lesser included offense axiomatically acquits them of the greater offense.”).
14 Rather, “the convictions will generally be upheld, despite their
rational incompatibility with the acquittals.” Id. at 568.
¶ 30 Stokes urges us to make an exception in this case because the
“ultimate issue of fact was self-defense in a single transaction” and
there can be no explanation for the acquittal of second degree
murder other than that he acted in self-defense. But the
inconsistent resolution of controlling factual issues is the essence of
an inconsistent verdict claim. See id. at 565-66, 571 (upholding
conviction for felony menacing with a gun despite acquittal on first
degree sexual assault indicating that defendant did not use a gun);
State v. Ramos, 479 S.W.3d 500, 508-09 (Tex. App. 2015) (affirming
aggravated assault conviction despite acquittal of murder where the
defendant claimed he acted in self-defense). Because “the jury
holds an unreviewable power to return a verdict of not guilty even
for impermissible reasons,” we may not look behind the verdict —
no matter how clear the jury’s rationale might seem. McElrath v.
Georgia, 601 U.S. 87, 94, 97 (2024) (citation omitted).
¶ 31 We also note that, even setting aside the possibility of
compromise or lenity, the verdict is not necessarily inconsistent.
The jury could have found that Stokes did not knowingly cause
15 Anderson’s death, as required for second degree murder, § 18-3-
103(1)(a), C.R.S. 2024, but did intend to cause him serious bodily
injury, as required for first degree assault, § 18-3-202(1)(a), C.R.S.
2024 — that is, that Stokes intended to seriously injure Anderson
but not kill him. Or the jury could have found that Stokes acted in
self-defense in firing the first three fatal shots but lost that right
once Anderson fell to the ground. Cf. Sanchez v. People, 470 P.2d
857, 860 (Colo. 1970) (noting that a defendant’s “exercise of his
right of self-defense, lawful in the first instance, [may] bec[o]me
unlawful by reason of the manner in which he defended himself”).
Indeed, in arguing that attempted first degree murder was a lesser
included offense of second degree murder, Stokes asserted in the
district court that there was a rational basis for a verdict acquitting
him of murder but convicting him of attempted murder.
¶ 32 In any event, this is why we do not speculate about why the
jury did what it did. See Frye, 898 P.2d at 568-59. Because a
conviction need not be consistent with an acquittal, Stokes’s
16 acquittal of second degree murder does not preclude his convictions
for assault and attempted murder.2 See id. at 571.
IV. Attempted Second Degree Murder
¶ 33 Stokes next challenges his conviction for attempted second
degree murder on two other grounds. First, he asserts that the
indictment was insufficient because it alleged that he caused
Anderson’s death and not that he attempted to do so. Second, he
contends that he cannot be convicted of attempted murder when he
was acquitted of the completed act. We disagree on both points.
A. Sufficiency of the Indictment
¶ 34 An indictment must “provide[] the defendant with sufficient
notice of the charged offenses and facts to allow for adequate trial
preparation and protect the defendant from subsequent prosecution
for the same offense.” People v. Gallegos, 260 P.3d 15, 21 (Colo.
App. 2010). We review the sufficiency of an indictment de novo. Id.
2 Stokes asserts that the purportedly inconsistent verdicts violate
double jeopardy. But double jeopardy bars “a second prosecution for the same offense after acquittal.” Viburg, ¶ 15 (emphasis added) (citation omitted). It does not “come into play . . . when a jury convicts on one charge and acquits on another” in the same case. People v. Delgado, 2019 CO 82, ¶ 43.
17 ¶ 35 The indictment charged Stokes with attempted first degree
murder. Although it included a general factual recitation alleging
that Stokes “knowingly caused the death” of Anderson, the
attempted murder count alleged that he attempted to do so:
On or about October 7, 2019, by engaging in conduct constituting a substantial step toward the commission of murder in the first degree, [Stokes] unlawfully, feloniously, after deliberation, and with the intent to cause the death of a person other than himself, attempted to cause the death of [Anderson]; in violation of sections 18-3-102(1)(a) and 18-2- 101, C.R.S. [2019].
This count provided Stokes with notice of the attempted murder
charge and “answer[ed] the questions of ‘who, what, where, and
when’” for that offense. Gallegos, 260 P.3d at 21 (citation omitted).
¶ 36 The indictment did not expressly charge Stokes with
attempted second degree murder. But notice of a charged offense
also provides adequate notice of uncharged lesser included offenses.
People v. Martinez, 2024 COA 34, ¶ 22; see also Brown v. People,
239 P.3d 764, 767 (Colo. 2010) (holding that attempted second
degree murder is a lesser included offense of attempted first degree
murder). And the indictment in this case made that point
18 expressly, providing that it encompassed the listed offenses “and all
lesser included offenses from the date and time of the incident.”
¶ 37 Moreover, it was Stokes who requested that attempted second
degree murder be submitted to the jury as a lesser included offense.
Having done so, he cannot now complain that he did not have
sufficient notice of that offense. See People v. Williams, 23 P.3d
1229, 1232 (Colo. App. 2000) (holding that the defendant
“effectively waived” any deficiency in the indictment by tendering an
instruction on a lesser offense that included the disputed element).
¶ 38 Thus, the indictment was sufficient to give Stokes notice of the
attempted second degree murder charge.
B. Inconsistency with Acquittal of Murder
¶ 39 We also reject Stokes’s argument that his acquittal of murder
precludes his conviction for attempted murder.
¶ 40 For this proposition, Stokes relies primarily on Martinez v.
People, 137 P.2d 690, 692 (Colo. 1943), which stated that “if a
person is charged with a crime, and if the evidence shows a
completed act, an acquittal on the charge will preclude a
prosecution for an attempt to commit the act.” He also cites Lewis
19 v. People, 235 P.2d 348 (Colo. 1951), and People v. Yoshio
Futamata, 343 P.2d 1058 (Colo. 1959), to support that rule.
¶ 41 But these cases rested on the obsolete principle that failure to
complete the crime is an element of attempt. See Lewis, 235 P.2d
at 351 (“[W]hen a crime is completely consummated, there can be
no prosecution for an attempt.”) (citation omitted); Martinez, 137
P.2d at 692 (defining attempt as “an effort to commit a crime, and a
direct, ineffectual act done towards its commission”). That is no
longer the law. Under today’s criminal attempt statute, it is not a
defense “that the crime attempted was actually perpetrated by the
accused.” § 18-2-101(1), C.R.S. 2024.3 Thus, unlike at the time of
Martinez, Lewis, and Yoshio Futamata, evidence of a completed
offense can support a conviction for attempt to commit that offense.
See People v. Harlan, 8 P.3d 448, 479 (Colo. 2000) (noting that
attempted murder conviction could be based on “successful
attempt” to kill victim). And as we explain above, any inconsistency
3 Colorado first codified criminal attempt in 1963.See § 40-25-1, C.R.S. 1963; People v. Lehnert, 163 P.3d 1111, 1113 (Colo. 2007). The current version of the statute has remained largely unchanged since 1971. Ch. 121, sec. 1, § 40-2-101, 1971 Colo. Sess. Laws 414; § 18-2-101(1), C.R.S. 2024; Lehnert, 163 P.3d at 1114.
20 between an acquittal of the completed offense and a conviction of
the attempt is not a problem either. See Frye, 898 P.2d at 570-71.
¶ 42 Moreover, even if these cases remained good law, the evidence
provides “some basis” for an acquittal of murder and conviction of
attempted murder. Yoshio Futamata, 343 P.2d at 1063 (citation
omitted). The jury could have found that Stokes either did not
knowingly kill Anderson or acted in self-defense when he fired the
first three fatal shots but did attempt to kill him when he fired the
last two shots and attempted to fire another. See id. at 1064. It
does not matter that Anderson was already mortally wounded when
the final shots were fired. See § 18-2-101(1) (“Factual or legal
impossibility of committing the offense is not a defense . . . .”);
People v. Duran, 272 P.3d 1084, 1093-94 (Colo. App. 2011) (holding
that second set of gunshots was sufficient to support attempted
murder conviction even though victim was killed by prior gunshots).
V. First Degree Assault
¶ 43 Stokes next contends that the evidence was insufficient to
support his first degree assault conviction because the first three
shots were fatal and the last two did not cause serious bodily
injury. Viewing the evidence as a whole, we are not persuaded.
21 ¶ 44 In assessing the sufficiency of the evidence, we review the
record de novo to determine whether the evidence was sufficient
both in quantity and quality to sustain the conviction. Johnson v.
People, 2023 CO 7, ¶ 13. In doing so, we view the evidence “as a
whole and in the light most favorable to the prosecution” to
determine if the evidence is “substantial and sufficient to support a
conclusion by a reasonable mind that the defendant is guilty of the
charge beyond a reasonable doubt.” Id. (citation omitted).
¶ 45 As relevant in this case, a person commits first degree assault
if, “[w]ith intent to cause serious bodily injury to another person, he
causes serious bodily injury to any person by means of a deadly
weapon.” § 18-3-202(1)(a). “Serious bodily injury,” at the time of
Stokes’s offense, included “bodily injury which, either at the time of
the actual injury or at a later time, involves a substantial risk of
death, a substantial risk of serious permanent disfigurement, [or] a
substantial risk of protracted loss or impairment of the function of
any part or organ of the body.” § 18-1-901(3)(p), C.R.S. 2019.4 The
4 Section 18-1-901(3)(p), C.R.S. 2024, has since been amended to
include “a penetrating knife or penetrating gunshot wound.” It also includes, and included at the time of Stokes’s offense, “breaks, fractures, . . . or burns of the second or third degree.” Id.
22 “substantial risk of death determination” turns on “the facts of the
actual injury . . . , not the risk generally associated with the type of
conduct or injury in question.” People v. Vigil, 2021 CO 46, ¶ 33.
¶ 46 We first reject Stokes’s suggestion that our review is limited —
either by the acquittal on the murder count or by the prosecution’s
theory at trial — to the final two shots. Sufficiency of the evidence
review turns on whether the evidence as a whole “could support any
rational determination of guilt beyond a reasonable doubt . . .
independent of the jury’s determination that evidence on another
count was insufficient.” Frye, 898 P.2d at 569 (citation omitted).
Further, the sufficiency of the evidence must be “measured ‘against
the elements of the offense,’” not against the prosecution’s
arguments at trial.5 People v. Helms, 2016 COA 90, ¶ 52 (citation
omitted). Thus, in determining whether the evidence was sufficient
to prove serious bodily injury, we must consider all five shots.
¶ 47 Considering the evidence as a whole, there can be little
question that it was sufficient to prove beyond a reasonable doubt
5 We also note that the first degree assault charge was submitted as
a lesser included offense of the second degree murder charge, which the prosecution argued in closing was based on all five shots.
23 that Anderson suffered injuries that “involve[d] a substantial risk of
death.” § 18-1-901(3)(p). Indeed, as Stokes recognizes, it was
undisputed that those injuries did cause death. An injury that
naturally results in death necessarily involves a substantial risk of
death when it occurs. It is immaterial that some of the shots may
not have involved a substantial risk of death or that Anderson’s
death may have cut off any further complications.6
VI. Self-Defense Jury Instructions
¶ 48 Stokes finally contends that the self-defense jury instructions
deprived him of a full acquittal by limiting the use of deadly force to
the second degree murder count and applying the nondeadly force
standard to the other counts. To the extent this is a challenge to
the jury instructions, Stokes waived or invited any error by
tendering those instructions and affirmatively requesting the
nondeadly force instruction. To the extent it is a reframing of his
inconsistent verdict argument, it fails for the reasons above.
6 Stokes asserts that a witness before the grand jury erroneously
testified that “getting shot with a bullet anywhere” is serious bodily injury. But short of structural error, an error during grand jury proceedings is “rendered harmless once a petit jury has reached a guilty verdict.” People v. Nozolino, 2014 COA 95, ¶ 37.
24 A. Additional Background
¶ 49 Stokes tendered two separate proposed jury instructions on
self-defense: one for “deadly physical force in defense of person” and
one for “defense of person,” which set out the lower standard of
nondeadly physical force. The proposed instructions specified that
Stokes asserted the “deadly physical force” defense to second degree
murder and the “defense of person” defense to the other charges.
¶ 50 The prosecution objected to the nondeadly physical force
instruction, arguing that it would confuse the jury because Stokes
did not use “anything other than deadly physical force.” Defense
counsel argued that the instruction was appropriate because deadly
physical force applies only to offenses that cause death and the
nonmurder offenses did not have death as an element. Thus, he
argued that those offenses were subject to the lower standard.
¶ 51 The district court agreed with Stokes, concluding that the
general “defense of person” instruction was appropriate for the
charges of attempted murder and assault because deadly force was
not an element of those offenses. The court therefore gave both
instructions Stokes tendered. The “deadly physical force”
instruction, which tracked section 18-1-704(1) and (2)(a), C.R.S.
25 2024, provided that it applied to second degree murder. The
general “defense of person” instruction, which tracked only section
18-1-704(1), provided that it applied to the other counts. That
instruction did not include the element in the “deadly physical
force” instruction that the defendant reasonably believed he was “in
imminent danger of being killed or of receiving great bodily injury.”
¶ 52 The elemental instructions cross-referenced the corresponding
self-defense instruction. The instruction for second degree murder
included as an element that Stokes’s conduct was not legally
authorized by “deadly physical force in defense of person.” The
instructions for the other counts included as an element that
Stokes’s conduct was not legally authorized by “defense of person.”
B. Analysis
¶ 53 Stokes argues that the self-defense jury instructions were
“deficient and confusing” because it was undisputed that he used
deadly force. He asserts that the deadly force instruction therefore
should not have been limited to the murder charge. But Stokes
tendered those instructions. Indeed, he went further, specifically
arguing against the position he takes on appeal. By doing so, he
invited the putative error of which he complains, and we may not
26 review it. See People v. Rediger, 2018 CO 32, ¶ 34 (“The doctrine of
invited error prevents a party from complaining on appeal of an
error that he or she has invited or injected into the case . . . .”);
People v. Zapata, 779 P.2d 1307, 1307 (Colo. 1989) (holding that
invited error bars review of defense-tendered jury instruction).
¶ 54 Stokes also contends that, because there was a “single act of
self-defense,” there was no basis for the jury to find that he was
justified in using deadly force but not nondeadly force. But this is
just a reprise of his argument that the verdicts were inconsistent.
To reiterate, we may not speculate as to why the jury acquitted
Stokes of second degree murder.7 See Frye, 898 P.2d at 569.
VII. Disposition
¶ 55 The judgment is affirmed.
JUDGE DUNN and JUDGE BROWN concur.
7 Stokes points out that the prosecution highlighted the different
self-defense standards in closing. But in doing so, the prosecution correctly explained that the general self-defense standard was a lower standard in that Stokes did not have to believe he was in imminent danger of death or serious bodily injury. In other words, the prosecution’s burden under that instruction was higher.