v. Draper

2021 COA 120, 501 P.3d 262

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY

September 9, 2021

2021COA120

No. 18CA0488, People v. Draper — Crimes — Murder in the First Degree — Extreme Indifference — Universal Malice

Disagreeing with People v. Garcia, 2020 COA 80, a division of the court of appeals holds that in a prosecution for extreme indifference murder a trial court is required to give a jury instruction defining “universal malice” in a manner consistent with the supreme court’s definition of the term in Candelaria v. People, 148 P.3d 178 (Colo. 2006).

COLORADO COURT OF APPEALS 2021COA120

Court of Appeals No. 18CA0488 Arapahoe County District Court Nos. 16CR2517 & 16CR3337 Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. James Anthony Draper, Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE BERGER

Richman and Welling, JJ., concur

Announced September 9, 2021

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Antony Noble, Alternate Defense Counsel, Taylor Ivy, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant

¶1 This case requires us to decide whether the trial court erred by failing to instruct the jury on the definition of “universal malice,” an element of first degree extreme indifference murder. See § 18-3-102(1)(d), C.R.S. 2020. Disagreeing with another division of this court, we conclude that the trial court erred by failing to define that term.

¶2 Defendant, James Anthony Draper, appeals multiple convictions, including three counts of attempted extreme indifference murder. Draper claims that the following alleged errors require either the reversal or vacation of his convictions:

 instructional error;

 violations of the Uniform Mandatory Disposition of Detainers Act (UMDDA), sections 16-14-101 to -108, C.R.S. 2020;

 improper consolidation;

 the admission of inadmissible evidence at trial; and  unconstitutional convictions for attempted extreme indifference murder.

While we agree that the court erred by not instructing the jury on the definition of “universal malice,” we conclude that this error was

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constitutionally harmless. Because we reject Draper’s other claims of error, we affirm his convictions.

Relevant Facts and Procedural History

¶3 Evidence admitted at trial permitted the jury to find the following facts. Draper repeatedly told his wife, A.D., that if she ever cheated on him, he would kill her. On at least one occasion, A.D. told Draper that she had cheated on him.

¶4 Witnesses testified that about a week before A.D. was murdered, Draper and A.D. argued about A.D.’s affair. A.D.’s friends testified that A.D. told them that she believed Draper was going to kill her and that she wanted to leave the relationship but did not know how to do so. A day or two before A.D. was murdered, Draper called the man with whom A.D. had the affair and demanded details of the sexual conduct.

¶5 Then, one morning, the police found A.D. in her apartment and discovered that she had been shot twice, once in the back of the head and once in the chest. A forensic pathologist testified that the bullet to her chest was a lethal injury.

¶6 The next morning, Draper, brandishing a gun, approached a car and ordered the occupants to get out. While driving that car,

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Draper shot at other occupied cars, hitting at least three. The police pursued Draper. During that chase, Draper pointed his gun directly at no fewer than three police officers.

¶7 The incident ended when an officer crashed his vehicle into the car Draper was driving. On his arrest, Draper asked the officers why they had not killed him. During the search incident to arrest, the police found cocaine in Draper’s pocket. In the car, the police found two guns, one of which an expert testified at trial was the gun used to murder A.D.

¶8 In the first filed case, based on the events that occurred after A.D.’s murder, the prosecution charged Draper with six counts of attempted extreme indifference murder; three counts of first degree assault; aggravated robbery; aggravated motor vehicle theft; felony menacing; vehicular eluding; and possession of a controlled substance.1

1The prosecution dismissed two attempted extreme indifference murder counts. As a result, the jury considered four attempted extreme indifference murder counts.

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¶9 In a later filed case, the prosecution charged Draper with the first degree murder of A.D. Over Draper’s objection, the trial court consolidated the two cases for trial.

¶ 10 Draper’s theory of the case was that he did not kill A.D.; instead she was murdered by some unidentified person. In his attempt to explain or mitigate his conduct shortly after A.D.’s murder, Draper claimed he was distraught when he learned about A.D.’s death and he tried to commit “suicide by cop” without any intent to harm anyone else.

¶ 11 The jury found Draper guilty of three counts of attempted extreme indifference murder; the lesser included offense of attempted reckless manslaughter; three counts of the lesser nonincluded offense of felony menacing; aggravated robbery; aggravated motor vehicle theft; felony menacing; vehicular eluding; possession of a controlled substance by a special offender; and the lesser nonincluded offense of illegal discharge of a firearm. The jury acquitted Draper of one count of attempted extreme indifference murder and the three counts of first degree assault. The trial court sentenced Draper to a total of 400 years in prison for these convictions.

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¶ 12 The jury also found Draper guilty of second degree murder for the murder of A.D. but acquitted him of first degree murder. The trial court adjudicated Draper a habitual criminal and imposed a concurrent sentence of ninety-six years in prison.

Jury Instructions

¶ 13 We first address Draper’s contentions of instructional error.

A. The Trial Court Did Not Abuse its Discretion by Denying Draper’s Request to Instruct the Jury on Certain Lesser Included Offenses

¶ 14 Draper’s counsel asked the court to instruct the jury on a number of lesser included offenses. As to the murder of A.D., the court agreed in part, instructing the jury on second degree murder. But the court refused to instruct the jury on manslaughter and criminally negligent homicide, finding that there was no rational basis on which the jury could acquit Draper of the greater offenses but convict him of those lesser offenses.

¶ 15 As to the attempted extreme indifference murder counts, Draper’s counsel requested that the jury be instructed on the lesser included offenses of attempted manslaughter and attempted criminally negligent homicide. The trial court instructed the jury on

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attempted manslaughter but denied an instruction on attempted criminally negligent homicide.

1. Standard of Review

¶ 16 We review a trial court’s refusal to instruct the jury on lesser included offenses for an abuse of discretion. People v. Buell, 2017 COA 148, ¶ 31, aff’d, 2019 CO 27. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair, or if it misapplies the law. People v. Baker, 2021 CO 29, ¶ 29. “A trial court is only required to give a lesser included offense instruction when there is ‘a rational basis in the evidence to support a verdict acquitting him of a greater offense . . . and convicting him of the lesser offense.’” Buell, ¶ 31 (quoting People v. Bartowsheski, 661 P.2d 235, 242 (Colo. 1983)).

2. Application

¶ 17 As relevant here, a person commits first degree murder when, “[a]fter deliberation and with the intent to cause the death of a person other than himself, he causes the death of that person . . . .” § 18-3-102(1)(a). A person commits second degree murder when that “person knowingly causes the death of a person.” § 18-3-103(1), C.R.S. 2020. A person commits the crime of

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manslaughter if he “recklessly causes the death of another person.” § 18-3-104(1)(a), C.R.S. 2020. “Any person who causes the death of another person by conduct amounting to criminal negligence commits criminally negligent homicide.” § 18-3-105, C.R.S. 2020.

¶ 18 The court refused to instruct the jury on manslaughter and criminally negligent homicide because there was no evidence that, if Draper committed the criminal act, his culpable mental state could have been anything other than intentional or knowing.

¶ 19 Draper defended against the charge of first degree murder by claiming that he did not kill A.D. No evidence suggested that A.D.’s death was the result of an accident or resulted from Draper consciously disregarding a substantial and unjustifiable risk that A.D. would be killed. The circumstances of the shooting — two potentially lethal gunshot wounds — simply made it impossible for a reasonable jury to find a culpable mental state other than intentional or knowing. Therefore, the court did not abuse its discretion by denying Draper’s request to instruct the jury on manslaughter and criminally negligent homicide.

¶ 20 Similarly, regarding Draper’s rampage, the trial court did not abuse its discretion by refusing to instruct the jury on attempted

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criminally negligent homicide. A person commits attempted manslaughter by taking a substantial step toward recklessly causing the death of another. § 18-2-101(1), C.R.S. 2020; § 18-3-104(1)(a). A person commits attempted criminally negligent homicide by taking a substantial step toward “caus[ing] the death of another person by conduct amounting to criminal negligence.”2 §§ 18-3-105, 18-2-101(1). The distinction between a reckless and criminally negligent mental state is whether the defendant was aware of the risk posed by his actions. § 18-1-501(3), (8), C.R.S. 2020.

¶ 21 Draper fired shots and hit at least three occupied vehicles. It simply defies logic to conclude that he did so with criminal negligence. By Draper’s own theory of defense — that he shot at other cars in an effort to commit “suicide by cop” — Draper acknowledged that he acted at least knowingly. Under these circumstances, the contention that Draper negligently fired a gun multiple times at numerous persons or was unaware of the risk of doing so borders on the frivolous. Accordingly, the trial court

2We express no opinion as to whether attempted criminally negligent homicide is a cognizable offense.

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correctly rejected an instruction on attempted criminally negligent homicide.

B. The Trial Court Correctly Refused to Instruct the Jury that Voluntary Intoxication Was a Defense to the Attempted Extreme Indifference Murder Charges

¶ 22 Draper next argues that the trial court erred by refusing to instruct the jury that it could consider evidence of his voluntary intoxication when determining whether he acted with extreme indifference and universal malice, both elements of attempted extreme indifference murder.

¶ 23 Section 18-1-804(1), C.R.S. 2020, provides that evidence of voluntary intoxication is relevant and admissible for only one purpose: “to negative the existence of a specific intent if such intent is an element of the crime charged.” See People v. Zekany, 833 P.2d 774, 778 (Colo. App. 1991). The General Assembly has declared all offenses with a mental state of “intentionally” to be specific intent offenses. § 18-1-501(5).

¶ 24 Attempted extreme indifference murder is not a specific intent crime; instead, it requires that the defendant have the general intent to act knowingly. See § 18-3-102(1)(d); see also § 18-2-101(1); Zekany, 833 P.2d at 778. Draper argues that the

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court in People v. Jefferson, 748 P.2d 1223, 1233-34 (Colo. 1988), held that extreme indifference murder requires a heightened mental culpability beyond knowing. This is a misreading of Jefferson. Jefferson upheld the constitutionality of the extreme indifference murder statute against an equal protection challenge, in spite of the fact that both second degree murder and extreme indifference murder require a mental state of knowingly, because “[a] more specific actus reus [was] sufficient to distinguish” the two offenses. Id. at 1233. Accordingly, specific intent is not an element of attempted extreme indifference murder, and, by statute, the defense of voluntary intoxication is unavailable. The trial court correctly denied Draper’s request.

C. Universal Malice

¶ 25 Draper argues that the trial court reversibly erred by refusing to define universal malice.

1. The Trial Court Did Not Abuse its Discretion by Refusing to Give Draper’s Proposed Definition of Universal Malice

¶ 26 Defense counsel tendered a definitional instruction on universal malice:

“Universal malice” means that depravity of the human heart, which determines to take life

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upon slight or insufficient provocation, without knowing or caring who may be the victim.

The prosecutor objected, stating that case law “does not require a definition and there is no definition of universal malice.” Defense counsel further argued: “there has to be a definition of universal malice.” The trial court rejected the tendered instruction and declined to otherwise instruct the jury on the meaning of universal malice.3

¶ 27 A trial court has a duty to correctly instruct the jury on all matters of law. People v. Espinosa, 2020 COA 63, ¶ 8. We review de novo whether jury instructions accurately informed the jury of the relevant governing law. People v. Carbajal, 2014 CO 60, ¶ 10. A trial court has substantial discretion in formulating jury instructions if “they are correct statements of the law and fairly and adequately cover the issues presented.” People v. Nerud, 2015 COA

3 The trial court rejected the tendered instruction based on the principle from Evans v. People that “a trial court’s use of an excerpt from an opinion in an instruction is generally an unwise practice.” 706 P.2d 795, 800 (Colo. 1985). As the supreme court explained in Evans, judicial “opinions and [jury] instructions have very different purposes.” Id. However, when the supreme court, in one of its opinions, defines a statutory term (like universal malice), lower courts must apply the law stated by the supreme court. That does not constitute an improper use of an excerpt from an opinion.

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27, ¶ 35 (citation omitted). Thus, we review a trial court’s decision to give, or not to give, a particular jury instruction for an abuse of discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).

¶ 28 Over a century ago, the Colorado Supreme Court described universal malice as the “depravity of the human heart, which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim.” Longinotti v. People, 46 Colo. 173, 180-81, 102 P. 165, 168 (1909). This definition was quoted with approval in Jefferson, 748 P.2d at 1228.

¶ 29 Most recently, however, the Colorado Supreme Court has described universal malice as “conduct that, by its very nature and the circumstances of its commission, evidences a willingness to take human life indiscriminately, without knowing or caring who the victim may be or without having an understandable motive or provocation.”4 Candelaria v. People, 148 P.3d 178, 181 (Colo.

4 We rely on the supreme court’s definition of universal malice in Candelaria v. People, 148 P.3d 178, 181 (Colo. 2006), because the supreme court in People v. Anderson, 2019 CO 34, ¶ 15, relied on the Candelaria definition. Anderson does not purport to change the Candelaria definition of universal malice. In addition, unlike Candelaria, the issue presented in Anderson was not the definition of universal malice.

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2006). This most recent definition of universal malice no longer includes any reference to the “depravity of the human heart.”

¶ 30 The supreme court is the ultimate arbiter of state law and when it defines a statutory term, lower courts must apply that definition. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40. Defense counsel’s tendered definition of universal malice was not a correct statement of the law because it did not accurately reflect the supreme court’s most recent definition of universal malice. “A trial court may refuse an instruction that contains an incorrect statement of law.” People v. Tweedy, 126 P.3d 303, 307 (Colo. App. 2005). Therefore, the trial court did not abuse its discretion by refusing the tendered instruction.

2. The Trial Court Erred by Not Defining Universal Malice

¶ 31 Draper also contends that the trial court erred by failing to define universal malice. We agree with this contention.

¶ 32 In addition to tendering his definition of universal malice, defense counsel argued that “there has to be some definition of universal malice,” citing both Jefferson and Candelaria. Even though Draper’s tendered instruction incorrectly stated the law, the tendered instruction as well as his argument that “there has to be a

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definition of universal malice” put the trial court on notice of Draper’s request that the jury be given a correct definition of universal malice. See People v. Garcia, 28 P.3d 340, 349 n.8 (Colo. 2001). Accordingly, this issue was preserved.

¶ 33 A definitional instruction is not required when an elemental term is “one with which reasonable persons of common intelligence would be familiar, and its meaning is not so technical or mysterious as to create confusion in jurors’ minds as to its meaning.” People v. Deadmond, 683 P.2d 763, 769 (Colo. 1984), superseded by statute, Ch. 140, sec. 1, § 16-11-204.5(4), 1985 Colo. Sess. Laws 630. Conversely, words and phrases “that have acquired a technical or particular meaning, whether by legislative definition or otherwise,” must be defined for the jury. § 2-4-101, C.R.S. 2020; see Griego v. People, 19 P.3d 1, 7 (Colo. 2001).

¶ 34 A division of this court recently held that the ordinary meaning of universal malice is an “unrestricted willingness to do harm without sufficient justification.” People v. Garcia, 2021 COA 80, ¶ 18. The Garcia division discerned this meaning by combining the dictionary definitions of “universal” — defined as “including or covering all or a whole collectively or distributively without limit or

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notable exception or variation” or “relatively unrestricted in application,” id. (quoting Webster’s Third New International Dictionary 2501 (2002)) — and “malice” — defined as an “intention or desire to harm another usu[ally] seriously through doing something unlawful or otherwise unjustified,” id. (quoting Webster’s Third New International Dictionary at 1366).

¶ 35 When a statute uses a term with which reasonable persons of common intelligence would be familiar, it makes sense for courts to consult recognized dictionaries to aid in determining that ordinary meaning or understanding. Griego, 19 P.3d at 9 (turning to the dictionary for the ordinary meaning of “knowledge”); People v. Cardenas, 2014 COA 35, ¶ 25 (“The ordinary meaning of the verbs ‘sell,’ ‘exchange,’ ‘barter,’ and ‘lease’ involves the transfer of a right of ownership or possession.”); People v. Coahran, 2019 COA 6, ¶ 25 (looking to the dictionary for the ordinary meaning of “upon”). But when courts define complex legal concepts or constructs by consultation with dictionaries and then do not instruct jurors on the derived definition, problems arise, as this case well illustrates. We conclude that the term “universal malice” does not have a common meaning or understanding.

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¶ 36 The practice of defining complex legal concepts by consultation with dictionaries is even more problematic because, while the appellate judges in Garcia had access to one or more dictionaries to accomplish this task, the jury has no such resources. Indeed, the Colorado Supreme Court in Alvarez v. People, 653 P.2d 1127, 1131 (Colo. 1982), held that “a juror’s consultation of a dictionary to assist in understanding legal terminology in the court’s instructions [was] improper.”

¶ 37 More importantly, even assuming that universal malice has a common meaning, the Garcia definition is not consistent with the supreme court’s definition of the term. As noted, the supreme court most recently defined universal malice as “conduct that, by its very nature and the circumstances of its commission, evidences a willingness to take human life indiscriminately, without knowing or caring who the victim may be or without having an understandable motive or provocation.” Candelaria, 148 P.3d at 181.

¶ 38 Unlike the supreme court’s definition, the definition derived by the Garcia division does not require a “willingness to take human life indiscriminately” or doing so “without knowing or caring who the victim may be.” These are critical subelements of the legal

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definition of universal malice, an essential element of the crime of extreme indifference murder that distinguishes it from other offenses.5

¶ 39 For these reasons, we disagree with the analysis and holding of Garcia and decline to apply it here. Instead, we conclude that the trial court erred in not instructing the jury on the definition of universal malice consistent with the supreme court’s definition in Candelaria.

3. The Error was Harmless Beyond a Reasonable Doubt

¶ 40 The omission of an element (and by extension the lesser error of failing to define an element) of an offense in the jury instructions can be harmless beyond a reasonable doubt if the evidence relating to that element is overwhelming. See Neder v. United States, 527 U.S. 1, 16-17 (1999); Key v. People, 715 P.2d 319, 323 (Colo. 1986).

¶ 41 That is the case here. In Montoya v. People, the supreme court described “consciously but indiscriminately shooting into a crowd of

5Indeed, Anderson recently reiterated and emphasized the “willingness to take [human] life indiscriminately” language from Candelaria. Anderson, ¶ 15.

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people” as the “quintessential example” of extreme indifference murder. 2017 CO 40, ¶ 21.

¶ 42 Draper’s conduct of indiscriminately shooting at various occupied and unoccupied vehicles is virtually indistinguishable from the supreme court’s “quintessential example.” “[B]y its very nature and the circumstances of its commission, [Draper’s conduct] evidence[d] a willingness to take human life indiscriminately, without knowing or caring who the victim may be or without having an understandable motive or provocation.” Candelaria, 148 P.3d at 181.

¶ 43 Because the evidence that Draper acted with universal malice, as defined by the supreme court, was overwhelming, the trial court’s failure to define universal malice for the jury was harmless beyond a reasonable doubt.

UMDDA

¶ 44 Draper next contends that the prison superintendent’s failure to promptly inform him of his rights under the UMDDA requires that all his charges be dismissed or, alternatively, that a hearing be held on his UMDDA claim.

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A. Additional Facts

¶ 45 Draper was incarcerated in the custody of the Department of Corrections (DOC) on June 1, 2017, when he was resentenced to prison in an unrelated case. The Arapahoe County Sheriff issued a no bond detainer dated June 21, 2017, for the case charging the murder of A.D. In a pro se document filed in the court on August 18, 2017, Draper purported to invoke his UMDDA right to be tried within 182 days and claimed that the DOC superintendent failed to promptly inform him of the detainer.

¶ 46 The prosecution requested a hearing, and, because Draper was represented by counsel, the trial court ordered defense counsel to file a written response to the prosecutor’s request for a hearing. In response to the court’s order, defense counsel filed a document stating that Draper was invoking his UMDDA right to a speedy disposition. That document did not assert that the superintendent failed to promptly inform Draper of his UMDDA rights. The trial court held a hearing and set the case charging the attempted extreme indifference murder counts and the case charging the murder of A.D. for trial. The superintendent advised Draper of his

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UMDDA rights in writing on September 27, 2017. Draper’s trial began on January 2, 2018.

B. Applicable Law

¶ 47 Section 16-14-102(2), C.R.S. 2020, provides as follows:

It is the duty of the superintendent of the institution where the prisoner is confined to promptly inform each prisoner, in writing, of the source and nature of any untried indictment, information, or criminal complaint against him of which the superintendent has knowledge . . . .

¶ 48 “[T]he superintendent only has ‘knowledge’ of untried charges when a detainer has been filed.” People v. Yellen, 704 P.2d 306, 310 (Colo. 1985). A prisoner may request in writing a final disposition of any untried charges. § 16-14-102(1). The superintendent must forward this request to the court and the prosecutor, § 16-14-103(1), C.R.S. 2020, and a trial on the untried charges must begin within 182 days after receipt of the request, § 16-14-104(1), C.R.S. 2020. If the trial does not begin within that period, the court must dismiss those charges with prejudice. Id.

¶ 49 In addition,

[f]ailure of the superintendent of the institution where the prisoner is confined to inform a prisoner, as required by subsection (2) of this

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section, within one year after a detainer from this state has been filed with the institution where the prisoner is confined shall entitle the prisoner to a dismissal with prejudice . . . .

§ 16-14-102(3). “Otherwise, a violation of the prompt notification requirement entitles a defendant to a dismissal of the charges unless the prosecution can demonstrate a lack of prejudice as a result of that violation.” People v. Glasser, 293 P.3d 68, 76 (Colo. App. 2011) (emphasis in original) (citing People v. Higinbotham, 712 P.2d 993, 1001 (Colo. 1986)).

C. Application

1. Automatic Dismissal Under Section 16-14-102(3) is Not Warranted

¶ 50 Dismissal is required if the superintendent fails to inform a prisoner of a detainer within one year after the detainer has been filed with the institution where the prisoner is confined. § 16-14-102(2), (3).

¶ 51 The earliest possible date that the superintendent could have had knowledge of the detainer for the case charging the murder of A.D. was June 21, 2017, the date the Arapahoe County Sheriff issued the no bond detainer. The superintendent informed Draper of his UMDDA rights on September 27, 2017, approximately three

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months after the date of the detainer and well less than a year after the date of the detainer. Therefore, automatic dismissal under section 16-14-102(3) is not warranted.

2. Draper is Not Entitled to Any Relief Under his Claim that the Superintendent Failed to Promptly Notify him of his UMDDA Rights

¶ 52 Draper claimed in his pro se document that “[t]he failure to promptly advise me of my detainers and/or the rights allotted me related to them has prejudiced me and requires dismissal of the related charges.” But Draper was represented by counsel when he filed this document, and defense counsel never asserted that the superintendent failed to promptly inform Draper of his rights under the UMDDA.

¶ 53 A criminal defendant is not entitled to hybrid representation — self-representation and representation by counsel. See People v. Arguello, 772 P.2d 87, 92 (Colo. 1989). It follows that a trial court may disregard pro se filings by a represented defendant. See, e.g., People v. Gess, 250 P.3d 734, 737 (Colo. App. 2010). Indeed, the division in Gess concluded that the defendant’s pro se motion was insufficient to invoke his UMDDA rights. Id. We apply Gess here

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and conclude that Draper’s pro se UMDDA document was ineffective for any purpose.

¶ 54 Even assuming that Draper’s pro se document preserved this claim for review, we conclude that Draper is not entitled to any relief.

¶ 55 As discussed above, the earliest possible date that the superintendent could have had knowledge of the detainer for the case charging the murder of A.D. was June 21, 2017. Assuming Draper could have invoked his right to a speedy disposition under the UMDDA on June 21, 2017, and that the court would have received Draper’s request on the very same day, the statutory deadline for Draper’s trial would have been December 20, 2017 (182 days later). Draper’s trial began on January 2, 2018, thirteen days after December 20, 2017.

¶ 56 The only prejudice Draper claims on appeal is a longer detention. True, the prosecution bears the burden to prove that the defendant was not prejudiced by the failure to give prompt notice. Higinbotham, 712 P.2d at 997-98. But Draper does not cite, nor are we aware of, any authority to support his claim that there is a

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presumption that any delay in promptly notifying a defendant of his UMDDA rights is prejudicial.

¶ 57 In fact, in Martin v. People, 738 P.2d 789, 793 n.2 (Colo. 1987), the supreme court upheld the trial court’s determination that a six-day delay was not prejudicial. There is no material difference between the six-day delay in Martin, and the possible thirteen-day delay in this case. Accordingly, we reject this claim.

3. Draper’s Trial Began Within the 182-Day Deadline

¶ 58 To the extent Draper claims that the trial court did not bring him to trial within the time required by the UMDDA, the record disproves that argument. Even assuming Draper’s pro se document (received by the court on August 18, 2017) invoked his right to be brought to trial within 182 days, Draper was brought to trial within the statutory timeframe. Draper’s trial began on January 2, 2018, 137 days after the court received his pro se document.

¶ 59 For all of these reasons, Draper is not entitled to any relief under the UMDDA.

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The Trial Court Did Not Abuse its Discretion by Consolidating Draper’s Two Cases

¶ 60 Draper argues that the trial court abused its discretion by consolidating the separately filed cases involving the murder of A.D. and the charges arising from Draper’s rampage.

A. Preservation and Standard of Review

¶ 61 A pretrial objection to consolidation is sufficient to preserve the issue for appeal. Bondsteel v. People, 2019 CO 26, ¶ 29. Draper objected to the prosecution’s motion to consolidate. Therefore, this issue is preserved.

¶ 62 We review a trial court’s decision to consolidate separate charges under Crim. P. 13 for an abuse of discretion. Id. at ¶ 32.

¶ 63 Crim. P. 13 provides, in pertinent part, that, “[s]ubject to the provisions of [Crim. P.] 14, the court may order two or more indictments, informations, complaints, or summons and complaints to be tried together if the offenses . . . could have been joined in a single indictment, information, complaint, or summons and complaint.” “Accordingly, consolidation requires both that joinder would have been proper under Crim. P. 8(a)(2) and that the

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consolidation would not result in prejudice within the meaning of Crim. P. 14.” Bondsteel, ¶ 34.

¶ 64 Draper contends that consolidation was improper because not all of the evidence was cross-admissible (meaning admissible in each case had the cases been tried separately) and because consolidation prejudiced him. Neither argument has merit.

B. Joinder Would have been Proper under Crim. P. 8(a)(2)

Crim. P. 8(a)(2) allows for the permissive joinder of two or more offenses in the same indictment or information if they are (1) “of the same or similar character”; (2) “based on two or more acts or transactions connected together”; or (3) based on two or more acts or transactions “constituting parts of a common scheme or plan.”

Buell, 2019 CO 27, ¶ 18 (quoting Crim. P. 8(a)(2)). Transactions may be “connected together” when they involve interrelated proof. See People v. Knight, 167 P.3d 147, 151 (Colo. App. 2006).

¶ 65 The record supports the trial court’s determination that the two cases were based on two or more acts or transactions “connected together.” A.D. was murdered less than two days before Draper stole a car at gunpoint and shot at other cars indiscriminately as he drove. Firearms experts testified that one of

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the guns Draper had with him after the police chase matched the gun that was used to murder A.D. Both crimes occurred within about ten miles of each other.

¶ 66 In addition, most, if not all, of the evidence was cross-admissible as direct evidence of guilt, res gestae (“evidence that is closely related in both time and nature to the charged offense” People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994)), or under CRE 404(b).6 For example, evidence that Draper was distraught about the death of his wife when he stole a car from its owner at gunpoint, shot at other cars on the road, and pointed his gun at multiple police officers was directly relevant to the attempted extreme indifference murder counts as evidence of his mental state. Evidence that Draper stole a car from its owner at gunpoint less than two days after his wife was shot in the head and chest was admissible to fully explain the charged conduct to the jury as res gestae. Id. Evidence that the same gun used to kill A.D. was found

6 Draper also argues that the voluminous nature of the evidence that was relevant only to one of the cases warrants reversal. Draper does not cite, nor are we aware of, any authority holding that the volume of evidence against the defendant in each case is relevant to the joinder inquiry under Crim. P. 8(a)(2). Accordingly, we reject this argument.

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in the vehicle Draper hijacked was relevant to prove the identity of A.D.’s murderer.

¶ 67 Accordingly, joinder would have been proper under Crim. P. 8(a)(2).

C. Consolidation Did Not Prejudice Draper Within the Meaning of Crim. P. 14

¶ 68 To show that a trial court abused its discretion by consolidating cases, “the defendant must demonstrate that (1) the joinder caused actual prejudice, and (2) the trier of fact was unable to separate the facts and legal principles applicable to each offense.” Knight, 167 P.3d at 151. When evidence is cross-admissible in separate trials, there is no prejudice in consolidating the cases. Buell, 2017 COA 148, ¶ 16.

¶ 69 As analyzed above, most, if not all, of the evidence was cross-admissible as direct evidence of guilt, res gestae, or under CRE 404(b). Most importantly, Draper’s theory of defense — that he was distraught by the death of his wife and intended to commit “suicide by cop” when he shot at other cars and pointed his gun at police officers — eliminated any possibility of unfair prejudice.

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¶ 70 Draper also failed to demonstrate that the jury was unable to separate the facts and legal principles applicable to each offense. In People v. Bondsteel, 2015 COA 165, ¶ 53, aff’d, 2019 CO 26, the court reasoned that verdicts by which the defendant was acquitted of five charges and convicted of a lesser charge showed that the jury was able to separate the facts and legal theories involved in each offense. See also People v. Garcia, 2012 COA 79, ¶¶ 29-30 (observing that a split verdict “indicates that the jury was able to separate the facts, legal principles, and defenses applicable to these charges from others”). When the jury is instructed that it must consider each charge separately from all other charges, a reviewing court must presume that the jury followed these instructions unless contrary evidence is shown. People v. Curtis, 2014 COA 100, ¶ 23.

¶ 71 The jury convicted Draper of some charges and acquitted him of others. The jury was also instructed that

[e]ach count charges a separate and distinct offense and the evidence and the law applicable to each count should be considered separately, uninfluenced by your decision as to any other count. The fact that you may find Mr. Draper guilty or not guilty of one of the offenses charged, should not control your verdict as to any other offense charged against Mr. Draper.

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¶ 72 Absent any evidence that the jury was unable to follow this instruction (of which there is none) or that the jury was confused by multiple counts and charges, we presume the jury followed these instructions. Id.

¶ 73 In sum, the trial court did not abuse its discretion by consolidating Draper’s cases for trial.

Evidentiary Challenges

¶ 74 Draper contends that the trial court violated his constitutional right to confrontation and state evidence rules by admitting hearsay statements made by A.D. He also argues that the trial court admitted certain evidence in violation of CRE 404(b).

A. Preservation and Standard of Review

¶ 75 A claim of evidentiary error is preserved for review when an objection sufficiently alerts “the trial court to a particular issue in order to give the court an opportunity to correct any error.” People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).

¶ 76 “We review a trial court’s evidentiary rulings for an abuse of discretion.” Campbell v. People, 2019 CO 66, ¶ 21. A court abuses its discretion when its decision is manifestly arbitrary,

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unreasonable, or unfair, or if it misapplies the law. Baker, ¶ 29. Mere disagreement with the trial court’s ruling does not constitute an abuse of discretion. See People v. Shari, 204 P.3d 453, 465 (Colo. 2009). Instead, a reviewing court must defer to the trial court’s ruling so long as it falls within the range of possible outcomes. Id. A claim that the trial court violated the defendant’s Confrontation Clause rights is reviewed de novo. People v. Phillips, 2012 COA 176, ¶ 85.

B. Confrontation Clause

¶ 77 The Federal Constitution provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. Under this Amendment, testimonial hearsay must be excluded when the declarant is unavailable and there has been no prior opportunity for cross-examination by the defendant. Crawford v. Washington, 541 U.S. 36, 68-69 (2004). But only testimonial hearsay statements are subject to exclusion under the Confrontation Clause; nontestimonial hearsay statements are only subject to state rules of evidence. Raile v. People, 148 P.3d 126, 130 (Colo. 2006).

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¶ 78 “[S]tatements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” are generally considered testimonial. Crawford, 541 U.S. at 52.

¶ 79 The challenged statements include A.D.’s statements that Draper threatened to kill her, that she told Draper she cheated on him, and that she wanted to leave Draper but did not know how. A.D. made the challenged statements to friends and family members. She made these statements while speaking with friends, getting her hair done, and working. These statements were not “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. Accordingly, these statements were not testimonial, a determination which precludes a finding of a Confrontation Clause violation.

C. CRE 807

¶ 80 Draper also argues that the admission of certain hearsay statements violated state evidence rules. He specifically contends

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that the trial court erred by finding that these statements had circumstantial guarantees of trustworthiness under CRE 807.7

¶ 81 Hearsay is a “statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” CRE 801(c). Hearsay isn’t admissible unless an exception applies. CRE 802, 803, 804, 807. CRE 807 provides, in pertinent part, that

[a] statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

¶ 82 “In considering the trustworthiness of a statement, courts should examine the nature and character of the statement, the relationship of the parties, the probable motivation of the declarant

7With one possible exception (relating to a discussion about abortion), Draper does not contend that these hearsay statements were irrelevant.

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in making the statement, and the circumstances under which the statement was made.” People v. Jensen, 55 P.3d 135, 139 (Colo. App. 2001).

¶ 83 The following chart contains our analysis of the hearsay statements Draper challenges on appeal.8

Evidence Preservation Analysis Talisa Brown testified Draper The trial court considered that “[A.D.] said objected to the fact that A.D. and Draper made three the admission Brown were friends; that specific threats of this these statements against her and that evidence concerned A.D.’s [A.D.] said she told under CRE relationship with her Draper she cheated 807, so this husband, a topic with on him, that claim was which she would have admission changed preserved for been intimately familiar;

their relationship, she appeal. See that A.D. did not have an wanted to leave him, Pahl, 169 P.3d apparent motive to lie;

she was unhappy and at 183. that these statements worried for her, her were made in the course kids, and Draper, and of regular conversation;

she felt like a and that A.D.’s demeanor mistress/second changed when she made wife.” these statements to Brown. The trial court

did not abuse its

discretion by finding,

based on these factors,

that these statements had circumstantial guarantees of trustworthiness.

8To avoid any mischaracterization of Draper’s claims, we quote directly from Draper’s opening brief.

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Evidence Preservation Analysis Belinda Godwin Draper The trial court considered testified that “[A.D.] objected to the fact that A.D. and said she and Draper the admission Godwin were coworkers had been arguing, of this along with the other Draper was causing evidence factors above to find that her sadness, and she under CRE these statements had needed a 807. Thus, circumstantial guarantees vacation/break. this claim of of trustworthiness. We Godwin also testified error was perceive no abuse of to a specific occasion preserved for discretion. in which Draper appeal. manipulated [A.D.], as represented to her by [A.D.].” Makia Sharp testified Draper The trial court did not that “[A.D.] voiced objected to abuse its discretion by concerns about her this testimony considering the fact that marriage to Draper, under CRE A.D. and Sharp were she wanted to get 807, so this friends (who considered away from Draper, claim of error each other to be like she wanted out of the was preserved sisters) along with the marriage, that Draper for appeal. other factors detailed was going to kill her above to find that these so she had to get statements had away (repeatedly), circumstantial guarantees that she was tired, of trustworthiness. and that Draper left his gun in her purse.”

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Evidence Preservation Analysis Antoine Webb Draper The trial court considered testified that “[A.D.] objected to the fact that A.D. and told him, or at least this testimony Webb were once her social media under CRE romantically involved account told him, 807, so this along with the other that she loved him, claim of error factors detailed above to which was unusual.” was preserved find that this statement for appeal. had circumstantial guarantees of

trustworthiness. We fail

to see how this statement had circumstantial

guarantees of

trustworthiness.

Therefore, the trial court abused its discretion by

admitting this statement

under CRE 807.

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Evidence Preservation Analysis Ebony Barnes At the pretrial We need not resolve testified that “[A.D] hearing, whether this claim of nonchalantly said she defense error was preserved for needed to get away counsel did appeal because we from Draper, he was not object to conclude that the trial going to killer [sic] this evidence court did not abuse its her, and she was until after the discretion by finding that worried about her court ruled this evidence had the kids.” that the circumstantial guarantees statements of trustworthiness were required by CRE 807.

admissible The trial court considered under CRE the fact that Barnes and 807. Thus, A.D. were friends and that this claim of A.D. made these error may not statements while Barnes have been was doing her hair along preserved for with the other factors appeal. See detailed above to find that Wilson v. these statements had People, 743 circumstantial guarantees P.2d 415, 419 of trustworthiness. We (Colo. 1987). perceive no abuse of discretion.

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Evidence Preservation Analysis Stasha Wells testified Draper The trial court did not that “[A.D.] told her, objected to abuse its discretion by after a third injury this testimony considering the fact that she saw [A.D.] with under CRE Wells and A.D. were and after much 807, so this friends along with the questioning, that she claim of error other factors detailed had ‘gotten into’ an was preserved above to find that these argument with for appeal. statements had Draper, that he had circumstantial guarantees strangled her to the of trustworthiness. point of passing out, that the Monday before her death [A.D.] reiterated how she wanted to be done with Draper and their marriage but she did not know how to be done with him, that Draper was going to kill her, and that Draper would not leave her alone.” Blair Jackson testified Draper The trial court considered about “a letter and objected to the fact that Jackson and voicemail in which this testimony A.D. were coworkers along [A.D.] [alleged] Draper under CRE with the other factors told her he would 807, so this detailed above to find that harm or kill her if he claim of error these statements had did not get what he was preserved circumstantial guarantees wanted.” for appeal. of trustworthiness. We perceive no abuse of

discretion.

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Evidence Preservation Analysis Javon Barker testified At the pretrial We need not resolve that “[A.D.] said she hearing, whether this claim of and Draper were defense error was preserved for having issues, he counsel did appeal because we thought she was not object to conclude that the trial cheating on him, she this evidence court did not abuse its did not want to do until after the discretion by finding that anything, she wanted court ruled this evidence had the to be married and to that the circumstantial guarantees give it a try, Draper statements of trustworthiness told her how to dress were required by CRE 807. and put on makeup admissible The trial court considered to appear less under CRE the fact that Barker and attractive, she relies 807. Thus, A.D. were cousins along on Draper for rides, this claim of with the other factors and Draper accused error may not detailed above to find that her of cheating.” have been these statements had preserved for circumstantial guarantees appeal. See of trustworthiness. This Wilson, 743 does not amount to an P.2d at 419. abuse of discretion.

¶ 84 In addition to his argument that the above statements lacked circumstantial guarantees of trustworthiness, Draper also argues that the fact that seven witnesses testified to the same evidence violated CRE 807(B) and (C).

¶ 85 CRE 807(B) requires the statement to be “more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts.” The trial court found that A.D.’s statements to her friends and family were more

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probative than any other evidence available to the prosecution because A.D. and Draper “were in a position to know better than anyone else the nature of their relationship.” True, the trial court allowed multiple witnesses to testify to statements A.D. made to them before she was murdered. But A.D.’s statements that Draper had threatened to kill her, that she and Draper argued, and that she wanted to leave the relationship dealt with different topics.9 Accordingly, the trial court did not abuse its discretion by admitting the challenged statements under CRE 807.10

9 CRE 807(C) requires that the “general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.” Draper’s arguments that the admission of these statements violated CRE 807(C) and that discussions about abortion were irrelevant are underdeveloped. We do not address underdeveloped arguments. Antolovich v. Brown Grp. Retail, Inc., 183 P.3d 582, 604 (Colo. App. 2007). 10 Draper may also challenge the admission of A.D.’s statements

under CRE 404(b). We conclude that many of A.D.’s statements may have been admissible as res gestae to fully explain the charged conduct to the jury. See People v. Quintana, 882 P.2d 1366, 1373 (Colo. 1994). Alternatively, this evidence may have been admissible to show Draper’s state of mind, the absence of mistake or accident, or motive as direct evidence of guilt or under CRE 404(b). A trial court’s decision to admit evidence may be defended by any ground supported by the record, even if that ground was not considered by the trial court. Quintana, 882 P.2d at 1371.

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D. CRE 404(b)

¶ 86 CRE 404(b)(1) provides that “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in conformity with the character.” However, “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” CRE 404(b)(2).

¶ 87 Courts determine the admissibility of uncharged crimes, wrongs, or acts under CRE 404(b) by applying a four-step analysis: (1) the evidence must relate to a material fact; (2) the evidence must be logically relevant to that material fact; (3) the logical relevance must be independent of the prohibited character inference described above; and (4) the probative value of the evidence must not be substantially outweighed by the danger of unfair prejudice. People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).

¶ 88 The following chart contains our analysis of the evidence Draper claims was admitted in violation of CRE 404(b).

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Evidence Preservation Analysis Tyseonna Draper Draper objected This evidence is not testified that to this evidence governed by CRE 404(b) “Draper asked her under CRE because it is not evidence if she knew [A.D.] 404(b), so this of other crimes, wrongs, or to be cheating on claim of error acts. Instead, this evidence him and that she was preserved was directly relevant to knew Draper to for appeal. See show Draper’s state of have taken [A.D.]’s Pahl, 169 P.3d mind and motive. phone to text at 183. Accordingly, the trial court ‘some dude.’” did not abuse its discretion by admitting this evidence.

Antoine Webb Draper objected Regardless of whether this testified that he to the evidence exact claim of error was thought “Draper of the phone preserved for appeal, we was parading as call between conclude that the court did [A.D.] to uncover if himself and not err by admitting this she was cheating Webb. evidence. Evidence that on him.” However, he did Draper was “parading” as not specifically A.D. to uncover any object to the cheating is not a crime, evidence that wrong, or other act.

Webb thought Instead, this evidence was Draper was directly relevant to show parading as Draper’s state of mind and A.D. to uncover motive. Accordingly, the any cheating. trial court did not abuse its This claim of discretion by admitting this error may not evidence.

have been

preserved for

appeal. See

People v.

Ujaama, 2012

COA 36, ¶ 37.

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Evidence Preservation Analysis Makia Sharp Draper objected Evidence that Draper had a testified about “the to Sharp’s gun (the type of weapon gun Draper had testimony about used to carry out both and about how the car accident crimes) was admissible as Draper and [A.D.] and injuries to direct evidence of guilt. argued about A.D. but not to Evidence that Draper and [A.D.]’s the specific A.D. argued about A.D.’s conversations with testimony conversations with Webb Webb, of which challenged on related to the material fact Draper alleged he appeal. of Draper’s state of mind had a recording.” Accordingly, and motive. This evidence this issue was was logically relevant to not preserved Draper’s state of mind and for appeal. motive. The relevance of Ujaama, ¶ 37. this evidence was We review independent of the unpreserved prohibited character claims for plain inference. This evidence error. Hagos v. was not unfairly People, 2012 CO prejudicial. Thus, this 63, ¶ 14. evidence was admissible under CRE 404(b).

Because this evidence was admissible as direct

evidence of guilt and under CRE 404(b), the court did not err (much less plainly err) by admitting this

evidence.

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Evidence Preservation Analysis Stasha Wells Draper objected Evidence that Draper testified about to this evidence injured A.D. and that he “[A.D.]’s injuries under CRE controlled her phone was from Draper, 404(b), so this logically relevant to always while she claim is Draper’s motive, intent, was pregnant, and preserved for and absence of mistake. controlling her appeal. The relevance of this phone.” evidence was independent of the prohibited character inference and not unfairly prejudicial. Therefore, the trial court did not abuse its discretion by admitting this evidence under CRE

404(b).

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Evidence Preservation Analysis Ebony Barnes Draper objected As analyzed above, testified “to [A.D.]’s to this evidence evidence that Draper injuries, to Draper under CRE owned guns was admissible controlling her 404(b), so this as direct evidence of guilt. phone, to his claim is Also, as analyzed above, owning guns, and preserved for evidence of A.D.’s injuries to them fighting.” appeal. and Draper controlling A.D.’s phone was

admissible evidence of

motive, intent, and absence of mistake under CRE

404(b). Evidence that A.D.

and Draper fought was

likewise logically relevant to Draper’s motive, intent, and absence of mistake.

The relevance of this

evidence was independent

of the prohibited character inference and not unfairly prejudicial. Thus, the trial court did not abuse its

discretion by admitting this evidence under CRE

404(b).

Nyaire Humphrey Draper objected As already analyzed, testified “to the to this evidence evidence that Draper many fights, under CRE owned a gun was including one the 404(b), so this admissible as direct night before claim is evidence of guilt, and [A.D.]’s death, that preserved for evidence that Draper and Draper and [A.D.] appeal. A.D. fought was admissible had, and the many under CRE 404(b). guns that Draper Accordingly, the trial court had.” did not abuse its discretion by admitting this evidence.

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Tamika Smith was Draper objected As pertinent here, plain impeached with to the error must be substantial “Exhibit 299, admission of — meaning that the error which revealed exhibit 299, a so undermined the Draper to be video interview fundamental fairness of the frequently caught of Smith. trial itself as to cast serious up in something However, he did doubt on the reliability of bad, disrespectful not object to the conviction. Hagos, of people generally, these ¶ 14. Any error was not in trouble with the statements substantial because the law often, scared under CRE evidence challenged on of going back to 404(b). appeal was much less jail, prepared to An issue is inculpatory than the flee, unreliable, unpreserved for admissible evidence that and a bad parent.” review when an Draper threatened to kill objection was A.D. and was found with made in the the gun used to kill her trial court, but less than two days after on “unspecific she was found shot to grounds which death. Accordingly, the would not have admission of this evidence alerted the trial did not so undermine the court to the fundamental fairness of the issue of which trial or cast serious doubt the defendant on the reliability, and any now seeks error was not plain.

review.”

Ujaama, ¶ 37.

Because Draper

did not object to

these

statements

under CRE

404(b), this

claim was not

preserved, and

we review it only

for plain error.

Hagos, ¶ 14.

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E. Harmlessness

¶ 89 We have concluded that the court abused its discretion by admitting Webb’s testimony that A.D. told him through social media that she loved him. We now conclude that this error was harmless. Additionally, assuming that any of the other evidence addressed above was improperly admitted, any such error does not require reversal.

¶ 90 “[W]e review nonconstitutional trial errors that were preserved by objection for harmless error.” Hagos, ¶ 12. “[A]n objected-to trial error is harmless if there is no reasonable possibility that it contributed to the defendant’s conviction.” Pernell v. People, 2018 CO 13, ¶ 22. “[T]he strength of the properly admitted evidence supporting the guilty verdict is clearly an ‘important consideration’ in the harmless error analysis.” Id. at ¶ 25 (quoting Crider v. People, 186 P.3d 39, 43 (Colo. 2008)).

¶ 91 As explained above, Draper’s conduct of shooting and hitting at least three occupied vehicles as he drove down the street constituted the quintessential example of attempted extreme indifference murder. The inculpatory value of this undisputed

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evidence completely overshadowed the inculpatory value of the challenged CRE 807 or CRE 404(b) evidence.

¶ 92 Regarding Draper’s conviction for the murder of A.D., the inculpatory value of the admissible evidence that one of the guns found in the car Draper hijacked was the gun used to murder A.D. likewise completely overshadowed the inculpatory value of the challenged CRE 807 or CRE 404(b) evidence. Therefore, we conclude that the trial court’s erroneous admission of Webb’s testimony was harmless and that even if any of the other challenged CRE 807 or CRE 404(b) evidence was improperly admitted, any error was harmless.

Attempted Extreme Indifference Murder

¶ 93 Finally, Draper contends that his convictions for attempted extreme indifference were unconstitutional.

A. Equal Protection

¶ 94 Draper argues that attempted extreme indifference murder, a class 2 felony, and illegal discharge of a firearm, a class 5 felony, proscribe the same conduct but impose different penalties, thereby violating his right to equal protection of the laws.

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¶ 95 Equal protection of the laws is guaranteed by the United States and Colorado Constitutions. U.S. Const. amend. XIV, § 1; Colo. Const. art. 2, § 25; Howard v. People, 2020 CO 15, ¶ 12. In Colorado (but not under the United States Constitution), a criminal statute violates equal protection when it “proscribe[s] the same criminal conduct” as another statute but “with disparate criminal sanctions,” and when “separate statutes [proscribe] with different penalties what ostensibly might be different acts, but [offer] no intelligent standard for distinguishing the proscribed conduct.” People v. Castro, 657 P.2d 932, 940 (Colo. 1983) (quoting People v. Marcy, 628 P.2d 69, 74-75 (Colo. 1981)), overruled on other grounds by West v. People, 2015 CO 5; see also Howard, ¶ 12.

¶ 96 A review of the statutory definitions of attempted extreme indifference murder and illegal discharge of a firearm reveals an intelligent standard to distinguish the conduct proscribed by these offenses that justifies the resulting difference in penalty.

¶ 97 Extreme indifference murder has the following elements: (1) under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally; (2) knowingly engaging in conduct which creates a grave

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risk of death to another; and (3) thereby causing the death of another. § 18-3-102(1)(d). Criminal attempt is further defined as “acting with the kind of culpability otherwise required for commission of an offense” and engaging in conduct constituting a substantial step, which is defined as “any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” § 18-2-101(1).

¶ 98 By contrast, illegal discharge of a firearm has the following elements: (1) knowingly or recklessly discharging a firearm; and (2) into any dwelling or any other building or occupied structure, or into any motor vehicle occupied by any person. § 18-12-107.5(1), C.R.S. 2020.

¶ 99 There are substantial differences between the elements of these crimes. Accordingly, there is an intelligent standard to distinguish these two crimes that justifies the difference in penalty, and there is no equal protection violation.11

11Draper also apparently alleges that his conviction violated the separation of powers doctrine. This argument is underdeveloped, so we do not address it. Antolovich, 183 P.3d at 604.

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B. Vagueness

¶ 100 Draper finally contends that he was not on notice that he could be guilty of attempted first degree extreme indifference murder if no one was injured. To the extent we understand this argument, we reject it.

¶ 101 The completed crime of extreme indifference murder requires that the defendant “cause[] the death of another.” See § 18-3-102(1)(d). Draper was convicted of attempted extreme indifference murder. Attempt crimes require proof that the actor took a substantial step toward, but did not complete, the crime. § 18-2-101(1); People v. Buerge, 240 P.3d 363, 367 (Colo. App. 2009). In Castro, 657 P.2d at 941, the supreme court held that a substantial step required for a conviction of attempted extreme indifference murder is “conduct which poses a real and proximate risk of death to the victim.” Applying Castro, the supreme court in People v. Ramos, 708 P.2d 1347, 1350 (Colo. 1985), held that the proper inquiry was not the extent of the victim’s injuries but the defendant’s conduct. Accordingly, the supreme court rejected the argument that proof of a significant injury was required to establish attempted extreme indifference murder. Id.

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¶ 102 Draper’s conduct of shooting at multiple occupied vehicles posed a real and proximate risk of death to the victims regardless of whether any of the victims sustained injuries. Therefore, we reject Draper’s vagueness challenge.

Conclusion

¶ 103 The judgment of conviction is affirmed.

JUDGE RICHMAN and JUDGE WELLING concur.