People v. Strickler

507 P.3d 1018

2022 COA 1

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

v.Joshua Alan STRICKLER, Defendant-Appellant.

Court of Appeals No. 18CA2334

Colorado Court of Appeals, Division VII.

Announced January 6, 2022

Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE GROVE

¶ 1 Defendant, Joshua Alan Strickler, appeals his convictions for attempted first degree extreme indifference murder, attempted first degree arson, and attempted criminal mischief. We affirm the convictions for attempted first degree extreme indifference murder and attempted first degree arson, and in doing so conclude that Strickler was properly convicted of a crime of violence because fire, as Strickler used it, met the statutory definition of "deadly weapon." However, we remand with directions to merge Strickler's conviction for attempted criminal mischief into his conviction for attempted first degree arson.

I. Background

¶ 2 After receiving a report of a structure fire at the Lone Rose Apartments, first responders entered the building and noticed a haze of smoke in the second floor hallway. Firefighters pinpointed one apartment as the source of the smoke, and, when forcing entry through the deadbolted door saw towels jammed into the spaces at the top and bottom of the doorframe. As the firefighters opened the door, a large amount of smoke escaped.

¶ 3 The apartment was Strickler's. It was unoccupied when the firefighters entered, but they observed burners on the gas stovetop that were lit and heaped with burning clothes and what appeared to be charcoal. Behind the stove, which was pulled away from the wall, the firefighters found a smoldering portable grill. The grill was placed under the gas line that connected the stove to the wall, and materials in it were on fire.

¶ 4 Earlier that day, Strickler had called the police to report a threat made by a man named Gary Cox, who was staying in an apartment in the same building with his wife, Stefanie Reel.¹ Strickler reported that Cox had tried to kick in his apartment door, and he showed the officer text messages sent by Reel from around the same time warning Strickler not to answer his door because "Gary" was "pisse[d]." The officer spoke to Cox on the phone and Reel in person. Reel did not deny sending the text messages, but as the officer recalled at trial, she claimed that they were referring to "a different Gary than Gary Cox." The officer did not take any further action.

¶ 5 According to the officer, Strickler became "upset" when he learned that she "wasn't making or wasn't able to make an arrest on the case," and, as the officer prepared to leave, Strickler said, "I'll do what I have to do then." Strickler set the fires in his apartment a few hours after the officer left. He passed by another tenant as he left the building, and as he did so, he said, "[W]ell, let's see how this goes."

¶ 6 Strickler called 911 to report the smell of smoke at his apartment nearly twenty minutes after he left it with clothes burning on the stove and a lit portable grill placed directly under the gas line. A fire investigator testified that the plastic portions of the gas line had melted from the heat, and that "the manner in which [the portable grill] was placed could have caused significant damage — not only structurally to the building, but potential mass loss of life for all involved — not only the occupants of this building, but responders called to the scene, as well."

¶ 7 Strickler was tried on charges of first degree arson, attempted first degree arson, attempted criminal mischief, and two counts of attempted extreme indifference murder. One of the attempted extreme indifference murder charges named Stefanie Reel as the victim; the other named as victims "tenants or residents of the Lone Rose Apartments." Both attempted extreme indifference murder charges were alleged to be crimes of violence.

¶ 8 The jury acquitted Strickler of first degree arson and of attempting to murder Stefanie Reel specifically. It found Strickler guilty of the other count of attempted extreme indifference murder, attempted first degree arson, and attempted criminal mischief.

II. Analysis

¶ 9 Strickler contends that (1) he was improperly convicted of a crime of violence because fire does not meet the statutory definition of "deadly weapon"; (2) the trial court improperly admitted evidence about the disappearance of fire extinguishers and damage to exit signs in the building during the weeks before the fire; and (3) attempted criminal mischief is a lesser included offense of attempted first degree arson. We address each issue in turn.

A. Fire as a "Deadly Weapon"

¶ 10 Strickler contends that fire does not meet the statutory definition of deadly weapon, and that he therefore should not have been subject to the crime of violence sentence enhancer. We disagree.

1. Applicable Law

¶ 11 We review sufficiency of the evidence claims de novo to 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." People v. Donald , 2020 CO 24, ¶ 25, 461 P.3d 4 (citation omitted). We may not reweigh the evidence or substitute our judgment for that of the jury, People v. Rivas , 77 P.3d 882, 891 (Colo. App. 2003), and we must "give the prosecution the benefit of every reasonable inference which might be fairly drawn from the evidence," People v. Perez , 2016 CO 12, ¶ 25, 367 P.3d 695 (citation omitted).

¶ 12 As relevant here, attempted first degree murder is subject to a crime of violence sentence enhancement if the defendant "[u]sed, or possessed and threatened the use of, a deadly weapon." § 18-1.3-406(2)(a)(I)(A), C.R.S. 2021. "Deadly weapon" is defined as "[a] knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury." § 18-1-901(3)(e)(II), C.R.S. 2021.

2. Analysis

¶ 13 The prosecution charged Strickler with a crime of violence sentence enhancer in connection with both attempted extreme indifference murder charges. Count 4 of the "Amended Complaint and Information" alleged that Strickler "unlawfully used, or possessed and threatened the use of, a deadly weapon, namely: fire, a dangerous or deadly weapon, during the commission of, attempted commission of, conspiracy to commit, or the immediate flight from the offense of Attempted Murder – Extreme Indifference." Consistent with the statutory definition, the trial court instructed the jury that "[a] ‘deadly weapon’ means a knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury." On the verdict form for Count 4, the jury found that Strickler "use[d], or possess[ed] and threaten[ed] the use of, a deadly weapon."

¶ 14 Citing People v. Ross , 831 P.2d 1310, 1313 (Colo. 1992), abrogated by Montez v. People, 2012 CO 6, 269 P.3d 1228, which analyzed an earlier but similar version of section 18-1-901(3)(e), Strickler contends that our supreme court has declared that "only a discrete list of ‘objects’ can be deadly weapons." Thus, he argues, because fire is not an "object," it does not fall within the statutory definition of "deadly weapon."²

¶ 15 The People respond that another division of this court has already rejected an argument similar to the one that Strickler raises here. See People v. Magana , 2020 COA 148, 490 P.3d 948 (cert. granted May 24, 2021). But Magana addressed a different issue: whether fire can be the basis for a crime of violence sentence enhancement for first degree arson even though it is also an element of first degree arson. Id. at ¶ 60. The division did not consider the scope of the definition of "deadly weapon" under section 18-1-901(3)(e)(II).

¶ 16 Nonetheless, we reject Strickler's contention because we do not read Ross as limiting the definition of "deadly weapon" to "objects." True, the weapon in question in Ross — a fist — was an "object." 831 P.2d at 1312. And the court noted that it had previously interpreted "[a]ny other weapon, device, instrument, material, or substance" broadly, "to include any object or device." Id. at 1313 ; see Bowers v. People , 617 P.2d 560, 563 (Colo. 1980) (holding that items other than those specifically enumerated in the statute can be deadly weapons); People v. Bramlett , 194 Colo. 205, 573 P.2d 94, 96 (1977) ("[T]he statutory definition of ‘deadly weapon’ includes any object...."). But neither Ross nor any of the cases that it relied on had occasion to consider whether the means of committing the crime must be an "object," as that phrase is commonly understood, in order to qualify as a deadly weapon. That is, while our supreme court has held that using an "object" to commit the crime may be sufficient to satisfy the "deadly weapon" sentence enhancer, it has not held that it is necessary for a defendant to have used an "object" for the definition of "deadly weapon" to apply.

¶ 17 In fact, Ross ’s survey of the "plain meaning of the words ‘weapon, device, instrument, material, [and] substance’ " suggests just the opposite. 831 P.2d at 1313 & n.2. Relying on the dictionary to shed light on each of these terms, the court in Ross defined "weapon" as "an instrument of offensive or defensive combat, ... something ... used in destroying, defeating, or physically injuring an enemy." Id. (quoting Webster's Third New International Dictionary 2589 (1969)). Metaphysical questions about...