People v. Beatty, No. 00CA2090.

• Citation: 80 P.3d 847
• Decision Date: 27 February 2003
• Docket Number: No. 00CA2090.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Elijah E. BEATTY, Defendant-Appellant.
• Court: Court of Appeals of Colorado

80 P.3d 847

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Elijah E. BEATTY, Defendant-Appellant.

No. 00CA2090.

Colorado Court of Appeals, Div. V.

February 27, 2003.

As Modified on Denial of Rehearing July 3, 2003.

Certiorari Denied December 15, 2003.

Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Keyonyu X O'Connell, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge NIETO.

Defendant, Elijah E. Beatty, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder after deliberation, two counts of attempted extreme indifference murder, three counts of attempted first degree assault, three counts of reckless endangerment, and illegal discharge of a firearm. Defendant also appeals the sentence imposed by the trial court. We affirm in part, vacate in part, and remand with directions.

The three victims, father, mother, and child, were traveling in a car. The father was driving, the mother was in the passenger seat, and the child was asleep in the back seat. A white car pulled up next to them, and defendant, who was riding in the back seat, said something to the father. When the father rolled down his window, defendant asked him whether he was the person who had stared at him at a grocery store the previous week. Defendant also said, "Yeah, I know your bitch," referring to the mother. The white car then drove away. The mother testified that she and the father had seen defendant at a grocery store approximately a week earlier.

Later that evening, the white car began to follow the victims' car. The father saw defendant in the front passenger seat of the white car holding a gun, and then he heard gunshots. Two bullet holes were found in the victims' car.

Defendant was convicted of the above mentioned charges after a jury trial. The jury also found that the three attempted first degree murder counts and the three assault counts were crimes of violence under § 18-1.3-406, C.R.S.2002. Defendant was sentenced to thirty-eight years in the Department of Corrections for each attempted murder conviction, twelve years for each attempted assault conviction, six months for each reckless endangerment conviction, and six months for the illegal discharge of a firearm conviction. Two of the attempted murder sentences were to be served consecutively, and the remaining sentences were to be served concurrently. This appeal followed.

I.

Defendant contends that the jury was incorrectly instructed on the elements of attempted first degree murder after deliberation and, as a result, he was deprived of his due process right to have the jury determine that every element of that charge was proved beyond a reasonable doubt. We perceive no reversible error.

Where a defendant does not object to the trial court's jury instructions, we review using a plain error standard. Plain error occurs where the error so undermines the fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. To require reversal for plain error with respect to jury instructions, the defendant must demonstrate that the instructions affected a substantial right and that a reasonable possibility exists that the error contributed to his conviction. People v. Garcia, 28 P.3d 340 (Colo.2001).

Criminal attempt requires that the accused act with the kind of culpability otherwise required for commission of an offense and engage in conduct constituting a substantial step toward the commission of the offense. Section 18-2-101(1), C.R.S.2002. Where a defendant is charged with attempted first degree murder after deliberation, the "substantial step" element requires proof of the intent to commit first degree murder. First degree murder after deliberation requires that the act in question be committed after deliberation and with the intent to kill the victim. Section 18-3-102(1)(a), C.R.S.2002; Gann v. People, 736 P.2d 37 (Colo.1987); People v. Caldwell, 43 P.3d 663 (Colo.App. 2001).

An instruction defining attempted first degree murder after deliberation is erroneous if it omits any reference to the requirement that the defendant must have acted after deliberation and with the intent to kill. The preferable practice is to include the mens rea element of an offense in the instruction defining the offense. Gann v. People, supra.

However, "[t]he failure to include the culpable mental state in the instruction defining the offense is not plain error so long as the instructions, read and considered in their entirety, clearly instruct the jury as to the required mens rea." Gann v. People, supra, 736 P.2d at 39; see People v. Caldwell, supra.

Here, the jury was instructed that the elements of attempted first degree murder after deliberation are that defendant intentionally engaged in conduct constituting a substantial step toward the commission of murder in the first degree after deliberation. Defendant argues that this instruction is deficient because it omits any reference to the requirement that defendant intended to cause the death of another person after deliberation. However, the jury was separately instructed that first degree murder after deliberation includes the elements that defendant acted with intent to cause the death of another person and after deliberation.

Thus, the instructions taken as a whole clearly instructed the jury on the requisite elements of attempted first degree murder after deliberation, and any error in the attempt instruction is not plain error. See People v. Caldwell, supra.

II.

Defendant also contends that the trial court erred in denying his motion for a judgment of acquittal because insufficient evidence was presented to show that he acted with the requisite intent for attempted first degree murder after deliberation. Again, we disagree.

In assessing the sufficiency of the evidence supporting a guilty verdict, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Sprouse, 983 P.2d 771 (Colo.1999); Kogan v. People, 756 P.2d 945 (Colo.1988).

When ruling on a motion for judgment of acquittal, the trial court must consider both the prosecution and the defense evidence. In performing this function, the court is bound by five well-established principles of law. First, the court must give the prosecution the benefit of every reasonable inference, which might be fairly drawn from the evidence. Second, the determination of the credibility of witnesses is solely within the province of the jury. Third, the trial court may not serve as a thirteenth juror and determine what specific weight should be accorded to various pieces of evidence or by resolving conflicts in the evidence. Fourth, a modicum of relevant evidence will not rationally support a conviction beyond a reasonable doubt. Finally, verdicts in criminal cases may not be based on guessing, speculation, or conjecture.

People v. Sprouse, supra, 983 P.2d at 778 (citations omitted); see Kogan v. People, supra.

Here, defendant argues that insufficient evidence was presented to prove that he specifically intended to cause the father's death after deliberation because there was little evidence that defendant was the shooter and no credible evidence that he intended to kill the father.

However, there was evidence of a verbal conflict between the father and defendant on the night of the shooting, which conflict was precipitated by an encounter between the father and defendant at a grocery store the previous week. There was also evidence that defendant expressed hostility toward the father after the verbal conflict. Although the driver of the white car recanted her pretrial statements, there was evidence that she told the police that defendant got into the front seat of the car, directed her to pursue the victims' car, and fired two shots. Further, the father testified that the white car began to pursue the victims shortly after the verbal conflict and that he saw defendant in the front passenger seat with a gun and then heard gunshots.

Based on this evidence, a rational finder of fact could find the prosecution met its burden of proving beyond a reasonable doubt that defendant specifically intended to kill the father after deliberation.

III.

Defendant contends that the verdicts for attempted extreme indifference murder of the mother and the child and attempted first degree assault of the mother and the child were inconsistent as to each victim. He also contends that the verdicts for attempted first degree murder after deliberation and reckless endangerment of the father were inconsistent. We agree in part.

Generally, consistency among verdicts is unnecessary, but if an element of one crime negates an element of another crime, guilty verdicts on both crimes are legally and logically inconsistent and should not be sustained. People v. Frye, 898 P.2d 559 (Colo. 1995); People v. Jones, 990 P.2d 1098 (Colo. App.1999).

A.

We agree with defendant that the attempted extreme indifference murder and attempted first degree assault convictions as to the mother and as to the child are inconsistent.

Attempted first degree assault with a deadly weapon, as charged here, requires that a defendant act intending to cause serious bodily injury to any person by means of a deadly weapon. Sections 18-2-101(1), 18-3-202(1), C.R.S.2002. Attempted first degree assault is a specific intent crime. See § 18-1-501(5), C.R.S.2002.

Attempted extreme indifference murder is a general intent crime that requires that a defendant act with universal malice that is not directed at a particular person. People v. Ellis, 30 P.3d 774 (Colo. App.2001).

In People v. Lee, 914 P.2d 441 (Co...