The People of the State of Colorado, Plaintiff-Appellee, v. Saul Anaya, Defendant-Appellant. (2023)

JUDGMENT AFFIRMED

¶ 1 Defendant, Saul Anaya, appeals the judgment of conviction entered on jury verdicts finding him guilty of two counts of first degree murder, one count of attempted first degree murder, and illegal discharge of a firearm. We affirm.

I. Background

¶ 2 At trial, the prosecution presented evidence that would support the following findings of fact.

¶ 3 Sometime after midnight on June 22, 2009, Anaya and Bryan Segovia were walking to a friend's house when a group of men saw them from their apartment window and asked about their gang affiliation. After Anaya responded with the name of a local gang, the men piled out of the apartment window and “jumped” them. The fight ended when Anaya and Segovia ran away. They went to Anaya's apartment, where Anaya retrieved a .22 revolver and a pair of black gloves while Segovia waited outside.

¶ 4 Anaya and Segovia walked back to the area of the attack, stopping on the way so Anaya could load the gun. When they arrived, Anaya approached the building and fired several shots through the window that their attackers had jumped out of a few minutes earlier. He killed two men. A third was also in the room but was unharmed. Anaya and Segovia then buried the gun and returned to Anaya's apartment.

¶ 5 The next day, they visited a friend and described the shooting. At trial, the friend testified about the details of what Anaya and Segovia discussed with him, including Anaya's admission that he was the shooter. After police identified Segovia as a possible suspect, he confessed to his participation, told them Anaya was the shooter, and led them to where the gun was buried.

¶ 6 Anaya was convicted as charged and a division of this court affirmed. People v. Anaya, (Colo. App. No. 10CA1487, Mar. 8, 2012) (not published pursuant to C.A.R. 35(f)). However, his attorney on direct appeal failed to provide trial transcripts, so the division affirmed his convictions without reaching the merits of his contentions. See id. Anaya then filed a Crim. P. 35(c) motion, claiming, among other things, that appellate counsel was ineffective for failing to provide trial transcripts on appeal. After a few years passed without action by the court, the parties stipulated to Anaya's ineffective assistance of appellate counsel claim and agreed that he should be granted a new direct appeal.

II. Complicity

¶ 7 Anaya contends that the court reversibly erred by giving a complicity instruction that was not supported by sufficient evidence, was legally inaccurate, and erroneously failed to instruct the jury on multiple theories of culpability. We are not persuaded.

A. Standard of Review and Preservation

¶ 8 A trial court has a duty to correctly instruct the jury on all matters of law for which there is sufficient evidence to support giving the instructions. Castillo v. People, 2018 CO 62, ¶ 34. We review de novo whether sufficient evidence exists to support the requested instruction, id. at ¶ 32, and “view the evidence in the light most favorable to the giving of the instruction.” People v. Theus-Roberts, 2015 COA 32, ¶ 33; see also id. at ¶ 34 (“If the evidence presented establishes that two or more persons were jointly engaged in the commission of a crime, then it is appropriate for the trial court to instruct the jury on complicity.”).

¶ 9 Trial courts have a duty to accurately instruct juries on the relevant law. People v. Lucas, 232 P.3d 155, 162 (Colo. App. 2009). We review de novo whether the jury instructions given at trial, as a whole, fulfilled this requirement. People v. Garcia, 28 P.3d 340, 343 (Colo. 2001). In general, when the challenged instruction tracks the language of the statute and the applicable model jury instruction, it is sufficient. People v. Jackson, 2018 COA 79, ¶ 64, aff'd, 2020 CO 75. Nonetheless, model instructions are not binding with respect to the correct interpretation of the law. People v. Flockhart, 2013 CO 42, ¶ 12.

¶ 10 Defense counsel objected to the complicity instruction in the trial court, but only on sufficiency grounds. We thus apply plain error review to his arguments concerning the language of the instruction and whether multiple complicity instructions were required. See People v. Miller, 113 P.3d 743, 750 (Colo. 2005).

B. Sufficiency

¶ 11 We first reject Anaya's contention that there was insufficient evidence to support the complicity instruction.

¶ 12 At the jury instruction conference, Anaya objected to instructing the jury on complicity because, according to defense counsel, there was no “evidence proffered, nor has there been any argument by the prosecution that this is a complicity case.” To the contrary, defense counsel argued, the prosecution's theory was that “Anaya was the principal in the case, not a complicitor.”

¶ 13 In response, the prosecutor pointed out that, throughout the trial, the defense had “repeatedly elicited, at least by implication, [that] maybe this was done with a ․22 rifle” rather than a .22 caliber handgun. Our review of the record reveals substantial support for that argument. Among other things, Segovia admitted on cross-examination that (1) he owned a .22 caliber rifle during the relevant period; (2) the bullets from the .22 caliber handgun that he helped the police locate would fit his rifle; and (3) he no longer knew where the rifle was (but it was not found in his possession during a search of his home). In addition, on cross-examination, the People's firearms identification expert (1) testified the handgun recovered by the police was compatible with “any .22 long rifle cartridge”; (2) agreed it was possible that the bullets that he had been asked to analyze could “have been fired from a .22 caliber rifle”; and (3) conceded that he could not “say with absolute certainty that [the handgun recovered by the police] was the gun used” in the shooting.

¶ 14 This evidence, in the prosecutor's view, raised the possibility that the defense would argue in closing that Segovia, rather than Anaya, actually shot the victims. According to the prosecutor, if that happened, and if the jury were to believe that “Segovia did the shooting, but [Anaya] got him the bullets and walked back with him and loaded [a gun] for him ․ [c]omplicity would be a very real issue.”

¶ 15 After returning from a recess to consider the issue, the court ruled as follows:

[T]here has been evidence elicited from two or three witnesses from the defense — by the defense regarding Mr. Segovia's possession of a .22 caliber long rifle and the fact that the same ammunition fits the two weapons.

There was evidence questioning whether the weapon that actually committed — that was used in the commission of these offenses was a handgun or a long rifle. And while — as I said, while I don't think it is the strongest argument [the] People can make or even argument that they have advanced during the trial, I think the evidence introduced by implication by the defense is a proper basis for including the complicity instruction. So I'll give it.

¶ 16 “Complicitor liability ‘may be established by reasonable inference from other established facts and circumstances.’ ” People v. Chavez, 190 P.3d 760, 769 (Colo. App. 2007) (quoting Harris v. People, 139 Colo. 9, 13, 335 P.2d 550, 553 (1959)). A trial court may only instruct a jury on complicity when there is evidence sufficient for a “reasonable juror to find beyond a reasonable doubt that the defendant was guilty as a complicitor.” Martinez v. People, 2015 CO 16, ¶ 26.

¶ 17 However, jury instructions that are based on a factually inadequate basis do not violate due process if there is sufficient evidence to support the conviction on an alternate theory of liability. People v. Dunaway, 88 P.3d 619, 631 (Colo. 2004); see also Griffin v. United States, 502 U.S. 46, 59-60 (1991). Because jurors are trusted to follow the court's instructions and find the defendant guilty only if the prosecution has proved each element of the crime beyond a reasonable doubt, due process “does not require reversal of a conviction on the basis of the very remote possibility that one of the alternatives in the instruction may have misled the jury into handing down an erroneous conviction.” Dunaway, 88 P.3d at 629. “[A]s long as the evidence supports one of the theories of liability beyond a reasonable doubt, [the defendant's] trial was not fundamentally unfair.” Id. at 624.

¶ 18 We agree with the trial court's conclusion that, in light of the evidence elicited by defense counsel about Segovia's possession of a .22 caliber rifle, the complicity instruction was appropriate. But even if the evidence did not support the instruction, any error would be harmless because Anaya does not contend that the evidence was insufficient to support his conviction as a principal. See Dunaway, 88 P.3d at 631; Theus-Roberts, ¶ 38; People v. Rowe, 2012 COA 90, ¶ 28. We therefore need not consider the issue further.

C. The Instruction

¶ 19 We turn next to whether the jury was properly instructed on complicity. At trial, the court gave the following complicity instruction:

A person is guilty of an offense committed by another person if he is a complicitor. To be guilty as a complicitor, the following must be established beyond a reasonable doubt:

1. A crime must have been committed.

2. Another person must have committed all or part of the crime.

3. The defendant must have had knowledge that the other person intended to commit the crime.

4. The defendant must have had the intent to promote or facilitate the commission of the crime.

5. The defendant must have aided, abetted, advised, or encouraged the other person in the commission or planning of the crime.

¶ 20 This instruction tracked the language of the model instruction available at the time, see COLJI-Crim. G1:06 (2008), which largely copied the language of section 18-1-603, C.R.S. 2022. It was also approved in Bogdanov v. People, 941 P.2d 247, 254 n.10 (Colo. 1997), amended, 955 P.2d 997 (Colo. 1997)

¶ 21 However, in People v. Childress, 2015 CO 65M, after examining the history of complicity jurisprudence, our supreme court clarified the proper application of the requirement that the defendant must have “the intent to promote or facilitate the commission of the crime.” The Childress court held that a defendant is liable as a complicitor when he

aids, abets, advises, or encourages the other person in planning or committing [the] offense, and he does so with: (1) the intent to aid, abet, advise, or encourage the other person in his criminal act or conduct, and (2) an awareness of circumstances attending the act or conduct he seeks to further, including a required mental state, if any, that are necessary for commission of the offense in question.

Childress, ¶ 34. This clarification led to what is now referred to as the “dual mental state requirement.” Id. at ¶ 29.

¶ 22 A post-Childress comment to the model instruction noted that the instruction was approved “before the Colorado Supreme Court's opinion in People v. Childress ․ which substantially modified its earlier opinion in Bogdanov.” COLJI-Crim. G1:06 cmt. 2 (2016). The comment further stated that the instruction was under review. Id. The model instruction was revised after Anaya's trial.

¶ 23 The question before us is whether the instruction given here correctly articulates the mental state required by section 18-1-603 as it was interpreted in Childress. We conclude the jury was properly instructed. There is no meaningful difference between the mental state in the instruction given to the jury and the mental state required under Childress.

¶ 24 The instruction the trial court provided required that a complicitor have knowledge that the principal actor intended to commit all or part of the charged crime. That part of the instruction, when paired with the other instructions stating the elements of the crimes charged, necessarily required the jury to find that Anaya was aware of the elements of the crime, including the conduct and mental state of the principal. Thus, it comported with Childress.

¶ 25 As applied to the facts here, if the jury were to conclude that Segovia shot the victims and Anaya was an accomplice, in addition to finding that Anaya acted with the intent to aid, abet, advise, or encourage Segovia in committing the charged acts, the jury was also required to find that Anaya knew that Segovia did so with the required mens rea, and that he knew of the attendant circumstances.

¶ 26 We cannot conclude that different findings would have been required if the instruction had used the exact wording used in Childress, ¶ 34 — the defendant must have an “awareness of circumstances attending the act or conduct he seeks to further.” And Childress acknowledged that where the defendant can only be convicted if the principal intended to commit the crime, any perceived distinctions between the complicitor's mental state as defined in Childress, and the complicitor's mental state as defined in Bogdanov, are academic, having no practical significance. Childress, ¶ 32.

¶ 27 In Jackson, ¶ 63, the division decided an issue virtually identical to the one that Anaya raises here. Like this case, Jackson involved a complicity instruction that quoted the model instructions in conjunction with a charge of first degree murder. The division held that the instruction “accurately required the jury to find that [the defendant] was aware that the shooter acted after deliberation and with the intent to cause the death of the victim.” Id. at ¶ 66. The Jackson division held that this instruction properly described the requirements for complicitor liability under Childress. Id. at ¶¶ 58, 63, 66. We agree and reach the same conclusion here.

¶ 28 This is so even though, as Anaya points out, the complicity instruction given in this case was subsequently amended, and the Jackson division did not have the benefit of the new model instruction. See COLJI-Crim. J:03 (2018). Although the new model instruction more closely tracks the language employed in Childress, the amended language does not conflict with or implicitly disapprove of the language used in the old instruction. In any case, the amended instruction is not binding on this court with respect to the legal issue presented here. Flockhart, ¶ 12. We therefore conclude that the trial court did not commit any error in instructing the jury on complicitor liability.

D. Multiple Theories of Culpability

¶ 29 Anaya also contends that the court erred because it failed to instruct the jury that it was required to separately consider the two theories of liability (principal and complicity) and provide particularized instructions tailored to each offense “for which the prosecution pursued multiple theories of liability.”

¶ 30 First, as was the case in Jackson, Anaya cites no authority for the proposition that the court should have instructed the jury that it must consider the two theories of liability separately. The error thus cannot have been “obvious,” as is required for reversal under plain error review. See People v. Pollard, 2013 COA 31M, ¶ 40.

¶ 31 Second, the division in Jackson rejected the argument that a court must provide “a separate complicity instruction for each offense to which complicity applies.” Jackson, ¶ 68. As in Jackson, the jury here was instructed that “[e]ach count charges a separate and distinct offense and the law applicable to each count should be considered separately.” We agree with Jackson’s conclusion that the instruction was accurate; thus, no error occurred.

III. Evidentiary Ruling

¶ 32 Anaya contends the district court erroneously prohibited him from introducing a video of Segovia's interview with a detective into evidence.

A. Standard of Review and Applicable Law

¶ 33 We review evidentiary rulings for an abuse of discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). A trial court abuses its discretion if its ruling is manifestly arbitrary, unreasonable, or unfair. Id.

B. Additional Facts

¶ 34 The defense cross-examined Segovia, highlighting inconsistences between his trial testimony and the statements he made to police, specifically about whether he saw Anaya shoot the gun, or if Anaya was the shooter. The following day, the People called a detective who interviewed Segovia, and on cross-examination defense counsel had the following colloquy with him:

[Defense Counsel]: And [Segovia] told you ․ that specifically he did not see [Anaya] shoot the gun?

[Detective]: At first, he said that.

[Q]: At first. There was a second interview done a week later?

[A]: Yes, when we recovered the weapon.

[Q]: Right. And it was in that interview that you again addressed the question of whether or not [Segovia] had, in fact, seen [Anaya] fire the gun?

[A]: Yes.

[Q]: And in that interview, again, he said he did not see [Anaya] fire the gun?

[A]: That's right.

[Q]: In fact, you had the opportunity to ask him multiple times about seeing [Anaya] shoot the gun. And, in fact, he told you, you know, again, I wasn't standing next to him. I didn't see it.

[A]: Well, in the context of the whole interview.

[Q]: Is that what he said?

[A]: But, see, that's your reading, just lines in the transcript. But if you look at the whole interview, the thing that I was trying to get at was that for him to say that he knew that [Anaya] did the shooting, he had to have seen the gun go off or had to have seen him with the gun.

That's what I was trying to make him understand why he kept telling me that he knew he shot the gun, and he knew that he did the shooting, but he had to have seen the gun.

¶ 35 Counsel then asked the detective whether “it would help the jury to be able to watch the interview that you conducted with [Segovia]?” In response to this question, the court sustained the prosecution's relevance objection.

¶ 36 Shortly thereafter, defense counsel asked the court to admit the video of Segovia's interview into evidence and play it for the jury. The prosecutor argued that it was hearsay. The court appeared to agree with that view, and ultimately declined to admit the video based on a “lack of foundation.”

C. Analysis

¶ 37 To the extent that Anaya contends that the video should have been admitted into evidence for the purpose of refreshing the detective's recollection, CRE 612 does not require its admission for this purpose.

¶ 38 As for Anaya's contention that the court should have admitted the video as substantive evidence, we are unable to consider his argument on the merits because the video is not in the record before us, and defense counsel did not make an offer of proof as to its contents. “Any facts not appearing of record cannot be reviewed,” and we presume that “material portions omitted from the record would support the judgment.” People v. Duran, 2015 COA 141, ¶ 12.

IV. Conclusion

¶ 39 We affirm the judgment of conviction.

Opinion by JUDGE GROVE

Harris and Kuhn, JJ., concur JUDGE HARRIS and JUDGE KUHN concur.