People v. Manzanares, 94CA2125

• Decision Date: 29 November 1996
• Docket Number: No. 94CA2125,94CA2125
• Citation: 942 P.2d 1235
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher L. MANZANARES, Defendant-Appellant. . III
• Court: Colorado Court of Appeals

Page 1235

942 P.2d 1235

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher L. MANZANARES, Defendant-Appellant.

No. 94CA2125.

Colorado Court of Appeals Div. III.

Nov. 29, 1996.

Rehearing Denied Jan. 3, 1997.

Certiorari Denied Sept. 15, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, A. William Bonner, Assistant Attorney General, Laurie A. Booras, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, C. Keith Pope, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge BRIGGS.

Defendant, Christopher L. Manzanares, appeals a judgment of conviction entered on a jury verdict finding him guilty of felony menacing. Defendant contends the trial court committed reversible error in denying his motions for mistrial and for judgment of acquittal, in rejecting several of his requests pertaining to instructions, and in permitting the prosecution to amend the information during trial. We affirm.

Defendant attended a party at a house with several of his friends. One of these friends became involved in an altercation with a member of another group. Defendant was not involved in the initial fight. However, afterwards he went to his car, drove around the block, returned, got out of his car, and fired a handgun.

At trial, defendant and another witness testified that defendant fired in response to shots fired by someone on the front porch of the house. Other witnesses testified defendant was the first to fire. Although several witnesses stated defendant shot at, and hit, the house, defendant testified he fired only into the air and only to scatter the crowd and protect his friends. Police investigators found no bullet holes or markings on the house.

Defendant was tried on charges of attempted first degree assault, second degree assault, and felony menacing. He was found guilty only of felony menacing.

I.

Defendant asserts the trial court abused its discretion in refusing to grant a mistrial because of alleged juror misconduct. We disagree.

Mistrial is a drastic remedy. The trial court has broad discretion to grant or deny a mistrial, and its decision will not be disturbed on appeal absent a clear showing of abuse of that discretion and prejudice to the defendant. People v. Chastain, 733 P.2d 1206 (Colo.1987).

The mere possibility of prejudice resulting from the asserted juror misconduct is not sufficient to warrant reversal. People v. Gladney, 194 Colo. 68, 570 P.2d 231 (1977). Instead, there must be a reasonable possibility that extraneous information or influence affected the verdict. Wiser v. People, 732 P.2d 1139 (Colo.1987).

Here, defendant bases his argument on a juror's disclosure, after the jury had been sworn, that he had recognized defendant's father in the courtroom and that it would be difficult for him to judge defendant. The juror further stated that a prosecution witness had accompanied his son home approximately two weeks before the trial and he had asked his son not to bring home friends the juror did not know. Although the juror was later discharged, in camera testimony revealed he had expressed parts of this information to at least some of the remaining jurors.

However, no evidence suggests that any statements made by the discharged juror influenced or affected the verdict. In camera questioning revealed that two jurors had heard nothing. Three other jurors stated they had heard the discharged juror "knew somebody" but that they either paid no attention to the statement or did not know whom the dismissed juror was talking about. Six jurors stated they heard the discharged juror say only that he knew defendant's father. None of the jurors remembered any statements regarding the discharged juror's son bringing home a prosecution witness.

Nothing in the record indicates the dismissed juror expressed an opinion on the substance of the case, the evidence, or any prospective witness, or made any comment that would create enmity toward or bias against defendant. Hence, the prejudice asserted was not "substantial and real." People v. Chastain, supra, 733 P.2d at 1213. The trial court therefore did not abuse its discretion in refusing to grant a mistrial.

II.

Defendant next asserts the trial court erred in refusing to grant his motion for judgment of acquittal because the evidence was insufficient to show he knowingly placed or attempted to place the persons named in the menacing count in fear of imminent serious bodily injury. He argues that, because the victims were situated in two distinct locations in front of the house and no evidence was offered to establish that he fired in both directions, he could not have knowingly placed each of the victims in each of the locations in fear of imminent serious bodily injury. We conclude the evidence was sufficient to sustain his conviction on a single count of felony menacing.

A person commits felony menacing when, by the use of a deadly weapon, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Section 18-3-206, C.R.S. (1986 Repl. Vol.). Felony menacing is a general intent crime, People v. Crump, 769 P.2d 496 (Colo.1989), and requires only that the defendant be aware that his or her conduct is practically certain to cause the result. Section 18-1-501(6), C.R.S. (1986 Repl. Vol.); People v. Zieg, 841 P.2d 342 (Colo.App.1992).

Direct evidence need not be offered to demonstrate the defendant's awareness. Rather, the defendant's subjective awareness may be inferred from his conduct and the surrounding circumstances. People v. District Court, 652 P.2d 582 (Colo.1982). Indeed, what the victim saw or heard, and how the victim reacted, are relevant considerations in determining whether defendant had the requisite intent to place the victim in fear. People v. Gagnon, 703 P.2d 661 (Colo.App.1985).

When ruling on a motion for judgment of acquittal, the trial court determines whether the evidence, 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. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973). We will not disturb the trial court's ruling on appeal, absent an abuse of discretion. People v. Palumbo, 192 Colo. 7, 555 P.2d 521 (1976).

Here, one victim testified he saw a muzzle flash and the defendant moving towards the house, which caused him to fear being shot. A second victim testified he saw muzzle flashes and heard shots being fired. Still another victim testified he heard and saw defendant firing shots which struck the house and caused the victim to fear being shot. These statements demonstrate that the victims believed themselves to be in danger of imminent serious bodily harm.

Despite defendant's argument to the contrary, it was not necessary to prove that defendant fired at both or either location. It is sufficient that the weapon was held in the presence of another in a manner that caused the other person to fear imminent serious bodily injury. People v. Hines, 780 P.2d 556 (Colo.1989).

Moreover, defendant is incorrect in his assertion that it must be proved he placed each of the five named victims in fear of imminent serious bodily injury. Defendant was charged with only with one count of felony menacing. The jury was instructed that it need not find the defendant committed the offense charged against each person, but that it must unanimously agree that the defendant committed the offense against the same listed person or persons. Hence, it was sufficient to support his conviction that the jury unanimously agreed he placed any of those five victims in fear. See generally People v. Hansen, 920 P.2d 831 (Colo.App.1995).

Considering the evidence under the appropriate standard and in the light most favorable to the prosecution, we conclude the trial court did not err in denying defendant's motion for judgment of acquittal.

III.

Defendant contends the trial court's instruction that he could employ self-defense to defend himself from the use of physical force or imminent physical force "by the victim" requires reversal because it deprived him of his right to act upon reasonable appearances in a confrontation involving multiple persons. We disagree.

Defendant did not object to the instruction either at trial or in his motion for a new trial. Hence, the standard of review on appeal is one of plain error. People v. Frysig, 628 P.2d 1004 (Colo.1981); People v. Williams, 899 P.2d 306 (Colo.App.1995). Under this standard, the record must show that the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. People v. Kruse, 839 P.2d 1 (Colo.1992); People v. Hampton, 857 P.2d 441 (Colo.App.1992), aff'd, 876 P.2d 1236 (Colo.1994).

Although the defendant has the right to have the jury instructed on his theory of the case, this does not mean the instruction given must be the one tendered by the defendant. Edwards v. People, 160 Colo. 395, 418 P.2d 174 (1966); People v. Gracey, 940 P.2d 1050 (Colo.App. 1996). It is sufficient that the defense theory is embodied in the instructions given by the court. People v. Tippett, 733 P.2d 1183 (Colo.1987); People v. Gracey, supra.

In situations involving multiple participants, the instruction must direct the trier of fact to consider the "totality of the circumstances, including the number of persons reasonably appearing to be threatening the accused." See People v. Jones, 675 P.2d 9, 14 (Colo.1984). Hence, the pattern jury instruction given here for self-defense, standing alone, was not sufficient. People v. Jones, supra; People v. Beasley, 778 P.2d 304 (Colo.App.1989).

However, the trial court gave an additional instruction which...