Peo v. Anderson

23CA0435 Peo v Anderson 12-19-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0435
Larimer County District Court No. 16CR380
Honorable Stephen J. Jouard, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Chayce Aaron Anderson,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE SULLIVAN
J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 19, 2024

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Kimberly Alderman Penix, Alternate Defense Counsel, Chelsey Bradley,
Alternate Defense Counsel, Fort Collins, Colorado, for Defendant-Appellant
¶1 Defendant, Chayce Aaron Anderson, appeals the

postconviction court’s order denying his Crim. P. 35(c) motion

without an evidentiary hearing. We affirm.

I. Background

¶2 In October 2017, a jury found Anderson guilty of nine counts

related to two construction site burglaries, including four counts of

second degree burglary, two counts of criminal mischief, and one

count each of theft, criminal attempt to commit theft, and criminal

attempt to commit second degree burglary. At trial, the jury heard

evidence from which it could have reasonably found the following

facts.

¶3 Anderson and an acquaintance, Jacob Ansari, stole equipment

from two construction sites — the Cargill site and the Temple site.

On the night of the Temple site burglary, Anderson and Ansari had

been drinking at several bars. Between 1:00 a.m. and 2:00 a.m., an

employee at the Temple site spotted two individuals banging on a

trailer with a sledgehammer. The employee yelled at the

individuals, causing them to flee. The employee then realized that

the trailer had been broken into and contacted law enforcement.

The employee also noticed a pickup truck parked on the outskirts of

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the construction site. After inspecting the truck and finding two

masks and bolt cutters inside, responding officers had the truck

towed to the police department for further investigation.

¶4 The next day, Anderson arrived at the police station to attempt

to retrieve his truck. During a voluntary interview with a detective,

which the detective recorded, Anderson claimed that he didn’t know

why his truck was at the police station and that he had been

drinking heavily the night before.

¶5 Ansari later admitted to law enforcement that he and

Anderson committed the burglaries at both construction sites. Cell

phone location data obtained by law enforcement placed Ansari’s

and Anderson’s phones at the Temple site on the night of the

burglary.

¶6 Anderson appealed his convictions and a division of this court

affirmed. People v. Anderson, (Colo. App. No. 18CA0334, June 11,

2020) (not published pursuant to C.A.R. 35(e)). Anderson then filed

a pro se petition for postconviction relief under Crim. P. 35(c),

asserting fifteen claims for relief, including a claim that his trial

counsel provided ineffective assistance of counsel. The

postconviction court appointed counsel, who supplemented

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Anderson’s pro se petition. The postconviction court subsequently

denied all of Anderson’s claims without a hearing.

¶7 Anderson now appeals. He contends that the postconviction

court erred by denying his Crim. P. 35(c) motion without a hearing

because his factual allegations, taken as true, showed that his trial

counsel provided ineffective assistance of counsel by failing to (1)

assert a voluntary intoxication defense and request a corresponding

voluntary intoxication jury instruction; (2) move to suppress

evidence obtained from his cell phone following a warrantless

search; (3) cross-examine Ansari regarding the terms of his plea

agreement; and (4) introduce the full recording of Anderson’s

voluntary police interview. Anderson also contends that his trial

counsel’s numerous errors, even if harmless in isolation, amounted

to ineffective assistance of counsel when considered cumulatively.

We disagree with these contentions and affirm.

II. Standard of Review

¶8 We review de novo the postconviction court’s denial of a

defendant’s Crim. P. 35(c) motion without a hearing. People v.

Trujillo, 169 P.3d 235, 237 (Colo. App. 2007).

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III. Applicable Law

¶9 A court may deny a defendant’s postconviction motion under

Crim. P. 35(c) without an evidentiary hearing only where the

motion, files, and record in the case clearly establish that the

allegations presented in the motion are without merit and don’t

warrant postconviction relief. Ardolino v. People, 69 P.3d 73, 77

(Colo. 2003). The court must determine whether the defendant’s

allegations, even if proven true, would fail to establish either of the

two required prongs under the Strickland test for ineffective

assistance of counsel. Id. (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)).

¶ 10 Under Strickland, a defendant must prove that (1) trial

counsel’s performance was deficient and (2) such deficient

performance prejudiced the defense. 466 U.S. at 687. An

attorney’s performance is deficient if it falls “below an objective

standard of reasonableness.” Id. at 688. To prove that an

attorney’s deficient performance prejudiced the defense, a

defendant must show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. We “must indulge a strong

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presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance,” id. at 689, while also

evaluating counsel’s performance from counsel’s perspective at the

time of the representation, People v. Garcia, 815 P.2d 937, 941

(Colo. 1991).

IV. Analysis

A. Voluntary Intoxication Defense

¶ 11 Anderson first contends that the postconviction court erred by

denying his Crim. P. 35(c) motion without a hearing because he set

forth facts showing that his trial counsel provided ineffective

assistance of counsel by failing to (1) investigate and assert a

voluntary intoxication defense and (2) request a corresponding

voluntary intoxication jury instruction. He argues that, but for his

trial counsel’s failure to pursue this defense, the jury wouldn’t have

convicted him because a reasonable juror would have concluded

that he couldn’t have formed the requisite intent on the night of the

Temple site burglary. The postconviction court found, in part, that

trial counsel’s decision to refrain from pursuing a voluntary

intoxication defense “was a strategic decision,” and thus didn’t

constitute deficient performance.

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¶ 12 We agree with the postconviction court that trial counsel’s

decision to forgo a voluntary intoxication defense could have been

based on sound trial strategy. Anderson’s theory of defense at trial

was a general denial. He argued that he never went to the Temple

site on the night of the burglary. According to Anderson’s theory of

defense, because he was “extremely drunk” on the night of the

burglary, he agreed to let two men “borrow his truck overnight” in

exchange for giving him marijuana and a ride home. Anderson

argued that the two men used his truck to commit the burglary

after dropping him off at home.

¶ 13 In contrast to a general denial, a voluntary intoxication

defense would have required Anderson’s trial counsel to argue that,

to the extent Anderson participated in criminal activity, he couldn’t

have formed the requisite specific intent, negating an essential

element of the charged offense. See Brown v. People, 239 P.3d 764,

769 (Colo. 2010) (voluntary intoxication “is a partial defense that,

under appropriate circumstances, negates the specific intent

necessary to carry out certain offenses”). As a result, a voluntary

intoxication defense would have conflicted with Anderson’s theory

that he was at home at the time of the burglary. While Anderson

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conceivably could have advanced both alternative theories, doing so

would have risked damaging the defense’s credibility in the jurors’

eyes. See, e.g., People v. Garner, 2015 COA 174, ¶¶ 66-67 (defense

counsel’s explanation that a voluntary intoxication instruction

would have been inconsistent with the defense’s chosen general

denial theory, and would have undermined the defense’s credibility

with the jury, “was a reasonable explanation”); see also Jackson v.

Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998) (“[C]ounsel’s failure

to seek an intoxication instruction was reasonable, because the

instruction would have conflicted with his chosen trial strategy.”).

Pursuing a voluntary intoxication defense also would have risked

the jury “pictur[ing] [Anderson] at the scene,” rather than at home.

People v. Villarreal, 231 P.3d 29, 35 (Colo. App. 2009) (defense

counsel didn’t provide ineffective assistance of counsel by failing to

request a voluntary intoxication instruction that would have

“entice[d] the jury to . . . imagine the defendant in proximity to the

victim”), aff’d, 2012 CO 64.

¶ 14 “[I]n applying the presumption that the challenged action

might be considered sound strategy, courts are ‘required not simply

to give [the] attorneys the benefit of the doubt, but to affirmatively

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entertain the range of possible reasons . . . counsel may have had

for proceeding as they did.’” Garner, ¶ 70 (quoting Cullen v.

Pinholster, 563 U.S. 170, 196 (2011)). Given the recognized risks

associated with pursuing a voluntary intoxication defense alongside

a general denial defense, we can’t conclude that Anderson alleged

facts that would overcome the presumption that his trial counsel’s

conduct was grounded in sound trial strategy. See People v.

Houser, 2020 COA 128, ¶ 36 (“Strickland cautioned that ‘[i]t is all

too tempting for a defendant to second-guess counsel’s assistance

after conviction or adverse sentence, and it is all too easy for a

court, examining counsel’s defense after it has proved unsuccessful,

to conclude that a particular act or omission of counsel was

unreasonable.’” (quoting Strickland, 466 U.S. at 689)); see also

Strickland, 466 U.S. at 689 (“There are countless ways to provide

effective assistance in any given case. Even the best criminal

defense attorneys would not defend a particular client in the same

way.”).

B. Failure to Move to Suppress Cell Phone Evidence

¶ 15 Anderson next contends that the postconviction court erred by

denying his Crim. P. 35(c) motion without a hearing because he set

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forth facts showing that his trial counsel provided ineffective

assistance by failing to move to suppress evidence obtained from

his cell phone that law enforcement seized upon his arrest.

¶ 16 At the outset, we reject the People’s argument that Anderson’s

contention raises a new argument on appeal that he didn’t present

to the postconviction court. Anderson argued in his postconviction

motion that his trial counsel provided ineffective assistance by

failing to move to suppress evidence that law enforcement obtained

from his cell phone without a warrant, “resulting in the fruits of an

illegal and unconstitutional search and seizure.” Thus, Anderson

adequately drew the postconviction court’s attention to the alleged

ineffective assistance that he now asserts on appeal, allowing the

court a meaningful chance to consider it. Rael v. People, 2017 CO

67, ¶ 17 (“We do not require that parties use ‘talismanic language’

to preserve an argument for appeal.” (quoting People v. Melendez,

102 P.3d 315, 322 (Colo. 2004))).

¶ 17 We nonetheless conclude that Anderson failed to allege facts

that, when considered in light of the record, would establish

prejudice under Strickland’s second prong. See Strickland, 466 U.S.

at 694; see also Kimmelman v. Morrison, 477 U.S. 365, 375 (1986)

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(“Where defense counsel’s failure to litigate a Fourth Amendment

claim competently is the principal allegation of ineffectiveness, the

defendant must also prove that his Fourth Amendment claim is

meritorious and that there is a reasonable probability that the

verdict would have been different absent the excludable evidence in

order to demonstrate actual prejudice.”).

¶ 18 According to Anderson, his trial counsel should have moved to

suppress evidence obtained from his cell phone that law

enforcement seized upon his arrest because an officer looked

through it before obtaining a warrant. At trial, the prosecution’s

evidence related to Anderson’s cell phone fell into two categories: (1)

evidence stemming from law enforcement’s search of the cell

phone’s contents and (2) location information for the cell phone

from AT&T, Anderson’s service provider.

¶ 19 Regarding the first category, a detective testified at trial that

Anderson’s cell phone contained pictures and screenshots of

internet searches of construction equipment similar to the items

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taken from the Temple site.1 The detective also noticed that the

phone’s user made a variety of internet searches for “very specific

tools.”

¶ 20 The detective also testified at length, however, regarding the

second category. Specifically, the detective explained that he

obtained a warrant for the production of Anderson’s cell phone

records from AT&T, including location data, and that the

information received from AT&T was separate from the information

extracted from Anderson’s cell phone itself. The records that AT&T

provided to the detective included date, time, and location

information for Anderson’s cell phone on the night of the Temple

site burglary. (The detective also obtained similar information for

Ansari’s cell phone.) The detective then input this information into

a computer program that mapped the locations of Anderson’s and

1 Law enforcement collected a second cell phone, a “ZTE” phone,

from Anderson’s truck when it was towed. An officer searched the
ZTE phone’s contents after obtaining a warrant. Anderson doesn’t
argue that his trial counsel should have challenged that search.
But as both parties point out, the detective’s trial testimony is
unclear which cell phone contained the arguably inculpatory
pictures and internet searches. For purposes of our analysis, we
will assume, without deciding, that law enforcement found the
pictures and internet searches on the cell phone that law
enforcement seized from Anderson upon his arrest.

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Ansari’s phones over time. The detective testified that the map

showed that both Anderson’s and Ansari’s phones accessed two cell

phone towers just before and after the Temple site burglary. The

Temple site fell “right in between those two towers.” According to

the detective, the phones went silent for about fifteen minutes but

reactivated “just after” the construction site employee called 911 to

report the burglary.

¶ 21 The map, which the prosecution admitted into evidence and

published to the jury, largely corroborated the detective’s testimony.

It showed Anderson’s and Ansari’s phones within a mile of the

Temple site starting at approximately 1:00 a.m. until the phones

went silent at 1:34 a.m. The phones reactivated again in the same

area at approximately 2:00 a.m. and then moved away from the

Temple site starting at 2:37 a.m. The construction site employee

called 911 to report the burglary at 1:46 a.m.

¶ 22 The map and the detective’s testimony are also consistent with

Ansari’s testimony. Ansari testified that he and Anderson both had

their phones with them when they burglarized the Temple site, but

he believed that he “turned [his] phone off” at some point because

he feared it would reveal his location. After the burglary, Ansari

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turned his phone back on and used it to call a friend to pick them

up at a nearby school.

¶ 23 Thus, even without the evidence obtained from the search of

Anderson’s cell phone, the jury still would have heard evidence that

Anderson’s and Ansari’s phones were near the Temple site just

before the employee’s 911 call; Anderson and Ansari burglarized the

Temple site; their phones weren’t active during the burglary; and

their phones reactivated shortly after the burglary and then moved

away from the Temple site. Given this evidence — which law

enforcement obtained separately from their search of Anderson’s

cell phone — we can’t say that Anderson alleged facts showing a

reasonable probability that, but for counsel’s failure to move to

suppress the contents of his cell phone, the result of the trial would

have been different. See Strickland, 466 U.S. at 694; see also

Dunlap v. People, 173 P.3d 1054, 1068-69 (Colo. 2007) (the

defendant failed to establish Strickland’s prejudice prong where

overwhelming evidence supported the jury’s guilty verdict).

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C. Failure to Cross-Examine Ansari Regarding His Plea
Agreement

¶ 24 Anderson also contends that the postconviction court erred by

denying his Crim. P. 35(c) motion without a hearing because he set

forth facts showing that his trial counsel provided ineffective

assistance of counsel by failing to cross-examine Ansari regarding

the terms of his plea agreement.2 The postconviction court rejected

Anderson’s argument, concluding that Anderson failed to allege

sufficient facts showing that he suffered prejudice from his trial

counsel’s performance.

¶ 25 At trial, Ansari testified to the following:

• he was currently incarcerated at the Department of

Corrections;

• among other convictions, he was convicted in 2016 of

second degree burglary, a class 4 felony, for burglarizing

the two construction sites;

• he and Anderson burglarized the sites together;

2 Anderson concedes in his reply brief that his trial counsel didn’t

provide ineffective assistance of counsel by allegedly failing to
impeach Ansari with the recording of Ansari’s first police interview.

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• he had never met the prosecutor in person before and

had only spoken with her for five minutes, “if that,” the

previous week; and

• the prosecutor didn’t offer him anything or make any

promises to him in exchange for his testimony at

Anderson’s trial.

¶ 26 In denying Anderson’s Crim. P. 35(c) motion, the

postconviction court noted that “Ansari was sentenced before his

trial testimony was given and there is no provision in his plea

agreement that his plea was conditioned, in any way, on providing

truthful testimony in [Anderson’s] subsequent trial.”

¶ 27 Based on Ansari’s testimony, the jury heard most of the

relevant terms of his plea agreement, including that he was

convicted of burglarizing the two construction sites, the conviction

was a class 4 felony, and the prosecutor didn’t promise Ansari

anything in exchange for his testimony at Anderson’s trial. In light

of these details, we fail to see how defense counsel’s further cross-

examination of Ansari regarding the plea agreement would have so

undermined Ansari’s credibility that it would have created a

reasonable probability of a different outcome. See Strickland, 466

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U.S. at 694; see also People v. Washington, 2014 COA 41, ¶ 35

(concluding defense counsel wasn’t constitutionally ineffective for

failing to present evidence that would have been cumulative).

¶ 28 Anderson nonetheless argues that his trial counsel should

have elicited through cross-examination that Ansari received a

light, four-year stipulated prison sentence as part of his plea

agreement. But Anderson cites no authority, and we’ve located

none, indicating that defense counsel provides ineffective assistance

of counsel by failing to cross-examine a fellow suspect who accepts

a plea deal on the exact length of the fellow suspect’s stipulated

prison sentence.

¶ 29 Moreover, Ansari explained during the prosecutor’s direct

examination that he was currently incarcerated and that he had

been previously convicted of several offenses, including but not

limited to identity theft and false reporting. Ansari’s direct

testimony therefore already provided grounds for the jury to

question his credibility. Cf. State v. Tkacz, 2002 WI App 281, ¶ 22,

654 N.W.2d 37, 45 (the defendant wasn’t prejudiced by defense

counsel’s failure to impeach the prosecution’s key witness with the

exact number of her prior criminal convictions because the jury

16
already had reason to question the witness’s credibility).

Anderson’s trial counsel could have reasonably concluded that

eliciting additional information about Ansari’s plea agreement

would have been “cumulative and unnecessary” to further

undermine his credibility. Id. at ¶ 25 n.5, 654 N.W.2d at 45 n.5;

accord Washington, ¶ 35. As a result, we can’t conclude that a

reasonable probability exists that the jury would have reached a

different verdict had it been made aware of the precise length of

Ansari’s stipulated prison sentence. See People v. Villanueva, 2016

COA 70, ¶ 70 (“Villanueva has failed to establish a reasonable

probability that the result of the trial would have been different had

this evidence been introduced.”); People v. Tackett, 742 P.2d 957,

960 (Colo. App. 1987) (counsel’s failure to present “inconsequential”

evidence didn’t create a reasonable probability that the trial result

would have been different).

D. Failure to Introduce the Full Recording of Anderson’s
Voluntary Police Interview

¶ 30 Anderson next contends that the postconviction court erred by

denying his Crim. P. 35(c) motion without a hearing because he set

forth facts showing that his trial counsel provided ineffective

17
assistance of counsel by failing to introduce the full recording of his

voluntary police interview. According to Anderson, the edited

recording that the prosecutor played for jury omitted his statements

that he was too intoxicated to “even walk straight,” that he had no

knowledge of the burglary, and that he lent his truck to two

acquaintances in exchange for marijuana and a ride home.

¶ 31 The postconviction court determined that trial counsel’s

decisions regarding the edits to the recording were strategic and, in

any event, Anderson failed to establish prejudice under Strickland’s

second prong.

¶ 32 As a threshold matter, we note that Anderson’s description of

the edited recording doesn’t align with the recording in the appellate

record. Although certain parts of the recording appear to be

omitted, the recording includes Anderson discussing his (1) heavy

drinking and intoxication on the night of the Temple site burglary;

(2) decision to loan his truck to two acquaintances in exchange for

marijuana and a ride home; and (3) fierce denials of any

involvement in the Temple site burglary. Because the jury heard

these statements in the portion of the recording that the prosecutor

18
played at trial, we don’t perceive how Anderson suffered prejudice

from the edited recording. See Strickland, 466 U.S. at 687.

¶ 33 We also agree with the postconviction court that trial counsel’s

decisions regarding the recording edits could have been rooted in

sound trial strategy. Anderson argued in his pro se petition for

postconviction relief that his trial counsel permitted the prosecution

to edit the recording to remove, among other things, his statements

about his “distrust for detectives” and his juvenile record.

Anderson’s trial counsel could have reasonably decided that

removing these irrelevant and potentially prejudicial statements

from the jury’s consideration best served Anderson’s theory of

defense. See People v. Bradley, 25 P.3d 1271, 1275 (Colo. App.

2001) (“Mere disagreement as to trial strategy will not support a

claim for ineffective assistance of counsel.”); see also Strickland,

466 U.S. at 689 (explaining that the defendant must overcome the

presumption that “the challenged action might be considered sound

trial strategy”) (citation omitted).

¶ 34 Accordingly, the postconviction court didn’t err by denying

without a hearing Anderson’s postconviction claim that his trial

counsel provided ineffective assistance of counsel.

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V. Cumulative Error

¶ 35 Anderson last contends that his trial counsel’s numerous

errors, even if harmless in isolation, amount to ineffective

assistance of counsel when considered cumulatively.

¶ 36 Even if we assume that the cumulative error doctrine applies

to ineffective assistance of counsel claims — an issue we don’t

decide — we have found no error in the postconviction court’s order

denying Anderson’s claims. A cumulative error analysis is therefore

unnecessary. See People v. Villa, 240 P.3d 343, 359 (Colo. App.

2009) (cumulative error analysis is required only when multiple

errors have been identified).

VI. Abandoned Claims

¶ 37 On appeal, Anderson doesn’t challenge the postconviction

court’s denial of the other ineffective assistance of counsel claims in

his pro se Crim. P. 35(c) petition. We therefore deem those claims

abandoned. See People v. Brooks, 250 P.3d 771, 772 (Colo. App.

2010) (“[A]ny arguments defendant made in his Crim. P. 35 motions

that are not specifically reasserted on appeal are abandoned, and

we therefore do not address them.”).

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VII. Disposition

¶ 38 We affirm the order.

JUDGE J. JONES and JUDGE LIPINSKY concur.

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