People v. Liebler

• Decision Date: 17 February 2022
• Docket Number: Court of Appeals No. 19CA1201
• Citation: 510 P.3d 548,2022 COA 21
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jason Morgan LIEBLER, Defendant-Appellant.
• Court: Colorado Court of Appeals

510 P.3d 548

2022 COA 21

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Jason Morgan LIEBLER, Defendant-Appellant.

Court of Appeals No. 19CA1201

Colorado Court of Appeals, Division VII.

Announced February 17, 2022

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Berger and Johnson, JJ., concur

Opinion by JUDGE BROWN

¶ 1 Defendant, Jason Morgan Liebler, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted aggravated robbery, possession of a controlled substance, theft, two counts of third degree assault, and two counts of felony menacing. On appeal, he contends that (1) there was insufficient evidence to sustain his conviction for attempted aggravated robbery; (2) the lead investigating officer impermissibly testified about the veracity of other witnesses; and (3) the prosecutor committed misconduct during closing argument by expressing personal opinions on witness credibility and by urging the jury to return a conviction based on facts unrelated to the elements of attempted aggravated robbery.

¶ 2 Resolving the first issue requires us to address two matters of first impression. First, we must determine whether witness testimony that is indisputably contradicted by video evidence can nonetheless be sufficient to support a conclusion by a reasonable jury that the prosecution proved an element of the charged offense. Under the circumstances presented, we conclude that it cannot.

¶ 3 Second, we must determine whether a defendant's use of force while fleeing after abandoning his attempt to take something of value from another can be sufficient to satisfy the use of force element of attempted aggravated robbery. In the context of an attempted robbery, and under the facts of this case, we conclude that it cannot.

¶ 4 As a result, we vacate Liebler's conviction for attempted aggravated robbery. Because we reject Liebler's other appellate contentions, however, we otherwise affirm.

I. Background

¶ 5 On December 13, 2017, Liebler went to a Safeway grocery store in Greeley, Colorado. He placed a number of high-end toys and desserts in his shopping cart, which drew the attention of loss prevention officer M.H. Grocery store personnel later determined that the value of the merchandise Liebler put in the shopping cart totaled $311.93.

¶ 6 M.H. alerted his partner, R.A., to a possible shoplifter and the two began surveilling Liebler. M.H. went outside so that he would be able to confront Liebler as Liebler left the store. R.A. stayed inside the store to keep observing Liebler.

¶ 7 Surveillance video from the store shows that Liebler left the main part of the store with a full shopping cart and entered the vestibule between the store and outside without paying for the merchandise in his cart. As Liebler started to push the cart out of the vestibule, he was confronted by M.H., who put his hands on the front of the cart. Liebler then walked backwards, rolled the cart back inside the vestibule, pushed the cart to his side, and ran out the door.

¶ 8 At trial, M.H. testified that Liebler "decided to push the cart into me, pushing us outside the store" as he was trying to get away. R.A. testified that Liebler attempted to shove the cart aside and that he did not think Liebler "tried to shove it into [M.H.]."

¶ 9 M.H. testified that, once Liebler was outside the store, he headbutted M.H. as he was trying to escape. (Liebler's alleged headbutt was not captured on the store's surveillance video.) Both R.A. and M.H. tackled Liebler to prevent him from getting away. M.H. noticed that Liebler had a pocket knife, so M.H. slapped the knife out of Liebler's hand.

¶ 10 Once police officers arrived, they did a pat-down search of Liebler. The officers discovered methamphetamine in Liebler's pocket during the search. And they recovered a knife from the scene, but no officer testified to recovering the knife or documenting where it was found.

¶ 11 Liebler was charged with attempted aggravated robbery, possession of a controlled substance, theft, two counts of third degree assault, and two counts of felony menacing. Following a three-day jury trial, Liebler was convicted as charged and sentenced to ten years in the custody of the Department of Corrections.

II. Analysis

A. Sufficiency of the Evidence

¶ 12 Liebler contends that the prosecution presented insufficient evidence to sustain his conviction for attempted aggravated robbery because it did not establish that he attempted to take the items "by the use of force." While he concedes that he used force after he abandoned the shopping cart and tried to flee, he argues that attempted aggravated robbery requires the use of force during the attempted taking. And because the only evidence of force during the attempt to take the items from the store — M.H.’s testimony that Liebler pushed the cart into him — was contradicted by the store surveillance video, Liebler contends that there was insufficient evidence to establish the force element of the crime. Liebler also contends that he did not take the merchandise from "the person or presence of another" because he abandoned the merchandise once the loss prevention officers were present.

¶ 13 We agree with Liebler that the evidence was not substantial and sufficient for a reasonable jury to conclude that the prosecution proved beyond a reasonable doubt that Liebler attempted to take the merchandise "by the use of force." Thus, we conclude that there was insufficient evidence to sustain his conviction for attempted aggravated robbery. As a result, we need not address whether there was sufficient evidence that Liebler took the merchandise from "the person or presence of another."

1. Standard of Review and Applicable Law

¶ 14 We review the sufficiency of the evidence de novo. See People v. Strock , 252 P.3d 1148, 1155 (Colo. App. 2010). We must determine "whether the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." Clark v. People , 232 P.3d 1287, 1291 (Colo. 2010) (citation omitted). It does not matter whether we might have reached a different conclusion were we the trier of fact. Id. "The pertinent question is whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id . Still, the verdict must be supported by more than "guessing, speculation, conjecture, or a mere modicum of relevant evidence." People v. Perez , 2016 CO 12, ¶ 25, 367 P.3d 695.

¶ 15 Because Liebler was charged with attempted aggravated robbery, the prosecution had to show that he engaged "in conduct constituting a substantial step toward the commission of the offense." § 18-2-101(1), C.R.S. 2021.

¶ 16 A person commits robbery when the person "knowingly takes anything of value from the person or presence of another by the use of force , threats, or intimidation." § 18-4-301(1), C.R.S. 2021 (emphasis added). As relevant here, a person who commits robbery is guilty of aggravated robbery "if during the act of robbery or immediate flight therefrom," the person "knowingly wounds or strikes the person robbed or any other person with a deadly weapon or by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person robbed or any other person in reasonable fear of death or bodily injury." § 18-4-302(1)(b), C.R.S. 2021.

2. The Evidence Was Insufficient to Support Liebler's Conviction for Attempted Aggravated Robbery

¶ 17 For Liebler to be convicted of attempted aggravated robbery, the prosecution first had to prove that he committed attempted robbery. Cf. People v. Borghesi , 66 P.3d 93, 97 (Colo. 2003) (explaining that aggravated robbery includes all the elements of robbery plus additional elements and that one who commits aggravated robbery necessarily has committed the lesser included offense of robbery). At trial, the prosecution argued that Liebler committed attempted robbery by using force, not by using threats or intimidation. See § 18-4-301(1) ("A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.") (emphasis added). Thus, to prove that Liebler committed attempted aggravated robbery, the prosecution was required to first prove beyond a reasonable doubt that Liebler took a substantial step towards taking anything of value from the person or presence of another by the use of force. See id.

¶ 18 The prosecution's theory at trial was that Liebler used force by pushing the cart into M.H. and by headbutting M.H. in an attempt to flee. Accordingly, we must determine whether (1) there was sufficient evidence that Liebler used force against M.H. by pushing the cart into him; and (2) Liebler's headbutting of M.H. after abandoning the shopping cart can satisfy the use of force element of attempted robbery.

i. The Surveillance Recording Indisputably Contradicts M.H.’s Testimony That Liebler Pushed the Cart into Him

¶ 19 The People contend that the evidence was sufficient to establish that Liebler tried to take items from the store "by use of force" because M.H. testified that Liebler pushed the cart into him. The surveillance video, however, does not support M.H.’s testimony on this point. For example, M.H. testified that Liebler "decided to push the cart into me." However, the video shows that, when Liebler began to push the cart out the door, M.H. put his hands on the front of the cart Liebler was pushing. Liebler then pulled the cart back into the vestibule away from M.H. M.H. also testified...