People v. Perez
| Citation | 972 P.2d 1072 |
| Decision Date | 03 September 1998 |
| Docket Number | No. 96CA1587,96CA1587 |
| Parties | 98 CJ C.A.R. 4616 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jesus Xavier PEREZ, Defendant-Appellant. . II |
| Court | Court of Appeals of Colorado |
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Peter J. Cannici, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge BRIGGS.
Defendant, Jesus Xavier Perez, appeals the judgment of conviction entered on jury verdicts finding him guilty of attempted extreme indifference murder, sexual assault on a child by one in a position of trust, and sexual assault on a child by a pattern of abuse. We reverse the conviction for attempted extreme indifference murder and affirm the convictions for sexual assault.
Defendant had custody of five children, four of whom were his children from a previous marriage. The fifth and oldest child was his stepdaughter.
Defendant was diagnosed as being HIV positive and told that he had less than two years to live. Approximately a year later, he made arrangements for the children to be raised by two women with whom he was acquainted.
After the children began living in their new home, one of the women became concerned about the stepdaughter's behavior. She asked the girl, who was ten years old, whether anyone had "messed with her." The girl disclosed that defendant on several occasions had fondled her and made her engage in masturbation, oral sex, and intercourse.
The woman contacted social services. The stepdaughter repeated the story to a caseworker and, later, to an examining doctor.
Defendant was initially charged with the two counts of sexual assault. However, because he had allegedly committed the sexual assaults while knowing he was HIV positive, the prosecutor amended the information to add the count of attempted extreme indifference murder.
At trial, the girl testified consistent with her earlier statements. Defendant did not challenge the assertion that the girl had been sexually assaulted. Instead, his theory of defense was that he was not the perpetrator and that the girl had been coached to make the allegations. The jury found to the contrary.
Defendant first contends the trial court erred in denying his motion for judgment of acquittal on the attempted extreme indifference murder count. He asserts that, because his alleged conduct had been directed specifically at his stepdaughter, the evidence failed to establish the "universal malice" necessary for a conviction of attempted extreme indifference murder. We agree.
The crime of extreme indifference murder requires that: (1) under circumstances evidencing an attitude of universal malice manifesting an extreme indifference to the value of human life generally, (2) the defendant knowingly engages in conduct which creates a grave risk of death to another person, or persons, (3) and thereby causes the death of another. Section 18-3-102(1)(d), C.R.S.1997.
"Universal malice" is "that depravity of the human heart which determines to take life upon slight or insufficient provocation, without knowing or caring who may be the victim." Longinotti v. People, 46 Colo. 173, 181, 102 P. 165, 168 (1909). It is evinced by acts that are calculated to put the lives of many persons in danger, without being aimed at anyone in particular. People v. Ramos, 708 P.2d 1347 (Colo.1985). Thus, to support a conviction for extreme indifference murder, the killing conduct must be "of a type which is not directed against a particular person at all." People v. Jefferson, 748 P.2d 1223, 1233 (Colo.1988).
Here, defendant knew the victim and his conduct was directed toward that particular person. Hence, evidence of the element of "universal malice" was lacking. See People v. Jefferson, supra; cf. People v. Atkins, 844 P.2d 1196, 1199 (Colo.App.1992)("[I]f the evidence establishes that a perpetrator possessed the specific intent to cause the death of the person whom he killed, then the death of that individual cannot support a conviction under the extreme indifference murder statute.").
We are not persuaded to the contrary by the holding of another division in People v. Moore, 902 P.2d 366 (Colo.App.1994), aff'd on other grounds, Moore v. People, 925 P.2d 264 (Colo.1996). In that case, the defendant and a group of his high school friends had initiated a fight with several soldiers. Some time after the fight ended, the defendant and his friends observed two other soldiers they did not know walking towards them. They attacked the soldiers, killing one of them and injuring the other. The division concluded that, because the jury could find the defendant had indiscriminately attacked the next soldier who happened by, the defendant had properly been charged with extreme indifference murder.
Even if we were to agree with the division's conclusion in Moore, an issue we do not address, here it was undisputed that defendant's conduct was directed at a particular person he knew well, his own stepdaughter. Therefore, defendant's conviction for attempted extreme indifference murder cannot stand. See People v. Jefferson, supra; cf. People v. Atkins.
Defendant next contends the trial court erred in excluding evidence of an alternate suspect, the son of the woman who reported the sexual assaults. He asserts that, because the son was also living in the house with the two women and the children, defense counsel should have been allowed to introduce evidence that the son was on probation for a misdemeanor sexual assault. We disagree.
A defendant may prove his innocence by establishing the guilt of an alternate suspect. However, evidence that another person had an opportunity to commit the crime for which defendant is being tried is not sufficient. The defendant must prove that the other person committed some act directly connecting that person with the crime charged. See People v. Armstrong, 704 P.2d 877 (Colo.App.1985); People in Interest of R.L., 660 P.2d 26 (Colo.App.1983).
This rule is premised on the need to place reasonable limits on collateral testimony and to avoid encouraging the jury to speculate. Thus, the evidence must create more than an...
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