People v. Hood, 92CA0540

• Decision Date: 10 March 1994
• Docket Number: No. 92CA0540,92CA0540
• Citation: 878 P.2d 89
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian Kent HOOD, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 89

878 P.2d 89

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Brian Kent HOOD, Defendant-Appellant.

No. 92CA0540.

Colorado Court of Appeals Div. I.

March 10, 1994.

Rehearing Denied April 7, 1994.

Certiorari Denied Aug. 8, 1994.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Deborah Isenberg Pratt, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Shelley Gilman, Denver, for defendant-appellant.

Opinion by Chief Judge STERNBERG.

Defendant, Brian Kent Hood, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of conspiracy to commit first degree murder and two counts of criminal solicitation. We affirm.

The evidence revealed that defendant's wife was shot and killed by a masked assailant as she was leaving a lupus support group meeting. Defendant had been involved in an intimate relationship with a married woman, Jennifer Reali. Reali eventually confessed to shooting the victim, but claimed that the defendant had manipulated her, employing various tactics, including use of religious doctrine, to induce her to commit the murder. She claimed that defendant had devised several plans to murder his wife and that he had talked her into carrying out the actual killing.

At the time of his wife's death, defendant was the beneficiary of a $100,000 life insurance policy that had an accidental death benefit of $100,000. Suicide was excluded from coverage, but the policy covered death resulting from either an automobile accident or a crime. Several witnesses testified that defendant told them his wife had to die in a particular way if the death was to be covered under this insurance policy.

Defendant was charged and tried on one count of first degree murder, one count of conspiracy to commit first degree murder, and three counts of criminal solicitation. He was acquitted of first degree murder, but was found guilty of conspiracy and of two counts of criminal solicitation, one of which related to Reali and the second to a friend, Michael Maher.

I.

Defendant claims that the acquittal on the first degree murder charge requires that the conspiracy conviction be set aside. He argues that the verdicts are inconsistent because the jury acquitted him of first degree murder based upon the same evidence that it used to find him guilty of conspiracy to commit first degree murder. We do not agree.

Acquittal of a substantive offense precludes a conviction for conspiracy to commit that offense only if the evidence relied upon to establish the conspiracy is the very same evidence which was insufficient to prove the substantive offense. Section 18-2-206(2), C.R.S. (1986 Repl.Vol. 8B); Robles v. People, 160 Colo. 297, 417 P.2d 232 (1966). A jury will not be permitted to believe evidence for the purpose of the conspiracy and disbelieve the identical evidence for the purpose of the substantive crime. Armijo v. People, 170 Colo. 411, 462 P.2d 500 (1969).

However, if there is independent evidence in the record implicating the defendant in the conspiracy, separate and distinct from that supporting the substantive crime, the jury properly may acquit on the substantive charge yet convict on the conspiracy. See People v. Williams, 707 P.2d 1023 (Colo.App.1985).

Every presumption is in favor of the verdict. See Loos v. People, 84 Colo. 166, 268 P. 536 (1928). An appellate court must attempt to reconcile and uphold the verdicts if the evidence so permits, see People v. Moore, 860 P.2d 549 (Colo.App.1993) and, if the verdicts are consistent under any view of the evidence, the presumption is that the jury took that view. Loos v. People, supra. See also Aurora v. Loveless, 639 P.2d 1061 (Colo.1981).

Here, the prosecution relied upon a complicity theory to support the first degree murder charge against defendant. Under the complicity statute, a defendant is held accountable for a criminal offense committed by another if the defendant intentionally aids, abets, or advises the other person in planning or committing the offense. Section 18-1-603, C.R.S. (1986 Repl.Vol. 8B). The essence of the complicity statute is to "punish for participation in the criminal act." See People v. Shannon, 189 Colo. 287, 539 P.2d 480, 482 (1975) (emphasis added). The jury in this case was also instructed that the defendant must have had knowledge that the other person intended to commit the crime.

In contrast, the essence of the crime of conspiracy is an illegal agreement or combination, see People v. Shannon, supra, plus an overt act in furtherance of that agreement. Section 18-2-201, C.R.S. (1986 Repl.Vol. 8B). Therefore, if there is any evidence in the record which supports the prosecution's conspiracy charge that is separate and distinct from the evidence supporting a complicity theory, the verdicts are not inconsistent. See Pooley v. People, 164 Colo. 484, 436 P.2d 118 (1968).

In this case, Reali testified that her relationship with defendant commenced in March of 1990. They had frequent conversations about religion, during which defendant told Reali that it is in man's nature to commit adultery and murder and that God will understand and forgive such sins. In May or June of 1990, defendant also began discussing with Reali the possibility of harming his wife. He stated that he was unhappy and that he hated his wife, but that divorce was not an option because of his religious beliefs.

Reali stated that defendant also described the details of the insurance policy. He told her that the payoff was $100,000, and that they could split the money. Defendant also mentioned some of the things he wanted to do with the money, such as buying a car or a house.

Reali testified that defendant told her about various plans he had devised to accomplish the murder of his wife, such as causing his wife's death in a car accident and staging a robbery at a convenience store during which someone would shoot her. Other ideas involved hitting her over the head with a fallen tree branch so that it would look like an accident or staging a burglary of his house during which she would be shot. Defendant also considered killing his wife in a drive-by shooting as she waited for him to retrieve his car at a restaurant. Yet another plan involved either staging a drug overdose by increasing her dosage of pain pills or putting a placebo in place of medication she needed to combat her medical condition.

With respect to the plans to stage a robbery, Reali testified that, sometime in August of 1990, defendant asked if Reali would be willing to pose as the robber and kill his wife and she agreed. Defendant then found a suitable 24-hour convenience store, scouted the neighborhood around it, discussed how Reali would disguise herself, and selected a date on which to execute the plan. Reali stated that she collected clothes to use as a disguise and purchased ammunition. She claimed that defendant assisted her in preparing a disguise by providing her with gloves and a mask, but other testimony indicated that Reali purchased the mask herself. Defendant also brought his wife to the convenience store on three different occasions so that Reali could stage the robbery and complete the murder. The robbery did not take place, however, because Reali claimed she was too frightened to carry out the plan.

Reali testified that, after the convenience store robbery plan fell through, defendant developed another scheme to kill his wife. His new idea involved Reali grabbing his wife's purse and shooting her as she walked out of a lupus support group meeting. Reali claimed that he described the area and suggested a nearby alley where she could change and conceal her clothing. Reali stated that they discussed the details of their arrangement on the morning of September 12 and, later that day, she shot and killed defendant's wife as planned.

Reali's testimony about the conspiracy was corroborated by others. Several witnesses described defendant's religious beliefs and his deteriorating relationship with his wife. According to the testimony, defendant often expressed his frustrations with his wife's disease and stated that he did not love her, but married her only because she was pregnant. Several witnesses testified that defendant had explained to them that divorce was not an option because of his religious beliefs. He told some of them that he wished his wife would die, but that she would have to die in a particular manner for the death to be covered by the life insurance policy.

In our view, the record reveals ample evidence from which the jury could infer that there was an agreement between defendant and Reali to murder his wife which was completely independent from the evidence linking defendant to the murder as a complicitor. See Robles v. People, supra.

The testimony indicated at least two different discussions between Reali and defendant about murdering defendant's wife. The jury could have believed that defendant in August entered into an agreement with Reali to kill his wife during a staged robbery of a convenience store. Evidence of the conspiracy to kill defendant's wife at the convenience store is not so insignificant that it can be ignored merely because the plans were frustrated. See People v. Shannon, supra.

This evidence is sufficient to satisfy the element of conspiracy that the parties agree to commit a crime. And, since Reali admittedly committed overt acts in furtherance of the agreement, the evidence was sufficient to sustain the conspiracy conviction. See People v. Harrison, 746 P.2d 66 (Colo.App.1987).

Despite the evidence supporting a conspiracy, however, the jury also could have found that defendant's involvement in the actual murder several months later did not rise to the degree of involvement required under the complicity statute. Because separate parts of Reali's testimony independently supported conspiracy and complicity, the jury could have believed those parts...