Peo v. Erickson

21CA1741 Peo v Erickson 11-14-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1741
Douglas County District Court No. 19CR451
Honorable Theresa Slade, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Devon Michael Erickson,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE FOX
Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 14, 2024

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Eric A. Samler, Alternate Defense Counsel, Hollis A. Whitson, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Devon Michael Erickson, appeals the judgment of

conviction entered on a jury verdict finding him guilty of forty-six

counts including, as relevant here: one count of first degree murder

after deliberation; one count of first degree extreme indifference

murder (EIM); one count of conspiracy to commit first degree

murder after deliberation; six counts of attempted first degree

murder after deliberation; twenty-five counts of attempted first

degree extreme indifference murder (AEIM); and twelve counts

unrelated to murder or attempted murder. We affirm in part,

vacate the conviction as to count 31, and reverse and remand in

part to the district court with instructions to merge the sentences

and convictions for counts 1 and 2, 4 and 10, 5 and 20, 6 and 21, 8

and 16, and 9 and 25.

I. Background

¶2 On May 7, 2019, Erickson — then eighteen years old and a

senior at STEM School Highlands Ranch — and a fellow student,

A.M., entered Erickson’s English classroom, room 107, with guns

and started shooting. A.M. fired nine shots and Erickson fired four.

Classmate K.C. was fatally shot after tackling Erickson, and five

1
students suffered gunshot wounds: J.J., J.G., M.K., G.M.O., and

L.A.

¶3 On the day of the shooting, police interviewed A.M. and

Erickson. Erickson told police that A.M. forced him to do cocaine

and then participate in the shooting. Originally, A.M.’s version of

events matched Erickson’s. However, A.M. testified at Erickson’s

trial that he had lied in his police interview; they had in fact

planned the shooting for several weeks, and their original plan was

to have Erickson shoot A.M., who was suicidal, and then blame

A.M. for the shooting.

¶4 Erickson was ultimately charged as noted above. A.M.

pleaded guilty to multiple counts before Erickson’s trial. A.M., who

was sixteen years old at the time of the shooting, received a life

sentence with the possibility of parole.

¶5 Judge Theresa Slade presided over Erickson’s trial and was

initially assigned to A.M.’s case. However, having previously

represented A.M.’s mother, M.M., in a dependency and neglect

(D&N) case, she recused from A.M.’s case. Erickson then moved to

recuse Judge Slade from his case. The court denied his motion for

recusal, which Erickson twice renewed. The court denied both

2
renewed motions. Erickson then filed a C.A.R. 21 petition in the

Colorado Supreme Court concerning Judge Slade’s non-recusal; the

supreme court similarly denied it. Judge Slade presided over

Erickson’s case.

¶6 At trial, the State argued that A.M.’s trial testimony, not his or

Erickson’s police interviews, reflected the actual events.

Specifically, the State argued that Erickson and A.M. had planned

the shooting for weeks, Erickson was a voluntary participant, and

the two fabricated evidence to advance a narrative that A.M. coerced

Erickson. Conversely, Erickson argued, claiming duress, that A.M.

forced him to ingest cocaine and participate in the shooting.

¶7 The jury found Erickson guilty of all forty-six counts. He

received two concurrent life sentences without the possibility of

parole for the first degree murder convictions and various sentences

for the remaining convictions. Erickson now appeals.

¶8 On appeal, Erickson renews his argument that Judge Slade

erred by failing to recuse. Additionally, he argues that, because

AEIM is not a cognizable offense, Erickson’s AEIM convictions

violated his due process rights. In the alternative, Erickson raises

an as-applied equal protection challenge to his AEIM convictions.

3
Next, he argues that the district court erred by refusing to give the

jury an involuntary intoxication instruction on counts 3-46.

Similarly, he asserts that the court erred by refusing to give a

duress instruction on counts 3-34, 36-39, and 42-45.1 Erickson

also asks us to vacate his conviction for count 31, arguing that

there was insufficient evidence to support a conviction for

attempted murder of R.W., a classmate. Finally, Erickson contends

that the district court erred by entering two first degree murder

convictions and sentences for the same victim and two attempted

first degree murder convictions and sentences for each of five

victims.

II. The Judge’s Non-Recusal Does Not Require Reversal

A. Standard of Review and Applicable Law

¶9 We review de novo whether a district court judge’s recusal was

required. People v. Garcia, 2024 CO 41M, ¶ 20. Several bodies of

law govern a judge’s duty to recuse. First, the Fourteenth

Amendment’s Due Process Clause requires recusal when the

1 The court gave a duress instruction for counts 35, 40, 41 and 46,
and Erickson concedes that he was not entitled to a duress
instruction for first degree murder — counts 1 and 2.

4
objective “probability of actual bias . . . is too high to be

constitutionally tolerable.” Sanders v. People, 2024 CO 33, ¶ 29

(quoting Rippo v. Baker, 580 U.S. 285, 287 (2017)). This occurs

when a judge has “a direct, personal, substantial, [or] pecuniary

interest” in the case. Id. at ¶ 27 (quoting Caperton v. A.T. Massey

Coal Co., 556 U.S. 868, 876 (2009)).

¶ 10 Second, section 16-6-201(1)(d), C.R.S. 2024, and Crim. P.

21(b)(1)(IV) provide that a judge must recuse when she “is in any

way interested or prejudiced with respect to the case, the parties, or

counsel.” However, a mere showing of “possible or arguable bias or

prejudice” is insufficient; there must be a reasonable inference that

the judge cannot deal fairly with a party. Sanders, ¶ 41. This

requires “a direct, certain, and immediate interest, and not one

which is indirect, contingent, incidental, or remote.” Id. (citation

omitted).

¶ 11 Third, our supreme court has interpreted Code of Judicial

Conduct Rule 2.11(A) as requiring recusal if a judge is actually

biased or if there is an “appearance of partiality.” Sanders, ¶ 45. If

a judge has personal knowledge of disputed facts or “served as a

lawyer in the matter in controversy,” C.J.C. 2.11(A)(1), (5)(a), we

5
may find an appearance of partiality, Sanders, ¶ 45. While evidence

of actual bias is not necessary to support a disqualification motion,

reversal is only appropriate under this rule if the judge was actually

biased. Sanders, ¶¶ 2, 30, 50 (citation omitted).

¶ 12 Finally, a party seeking a judge’s disqualification must allege

concrete facts; “conclusory statements, conjecture, and innuendo

do not suffice.” Black v. Black, 2020 COA 64M, ¶ 117 (quoting

Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 639 (Colo. 1987)). A

reversal based on bias or prejudice requires “more than mere

speculation concerning the possibility of prejudice.” People v.

Schupper, 2014 COA 80M, ¶ 59 (quoting People v. Coria, 937 P.2d

386, 391 (Colo. 1997)).

B. Analysis

¶ 13 Erickson argues that the above principles required Judge

Slade’s recusal from his case and warrant reversal on appeal.

Without citing to specific portions of the record to support his

argument, Erickson contends that because Judge Slade

represented A.M.’s mother in a D&N case more than a decade

before Erickson’s trial, she had “information about [A.M.] she would

not otherwise have been exposed to.” Erickson further alleges that

6
Judge Slade may have had “information . . . about [A.M.’s] behavior,

culpability, and credibility.” Finally, Erickson argues that Judge

Slade’s decision to recuse from A.M.’s case likewise required her

recusal in Erickson’s case. We disagree and conclude that these

conclusory speculations are legally insufficient. We reach this

determination for two reasons.

¶ 14 First, there is no allegation, let alone evidence, that Judge

Slade had any direct, concrete interest in Erickson’s case. See

Sanders, ¶¶ 27, 41. The fact that she possibly had some dated

familiarity with A.M. from the D&N case is insufficient to show that

she would be unable to deal fairly with Erickson in his trial. See id.

at ¶ 41. Although Erickson relies heavily on the judicial code’s

caution against an appearance of partiality, he points to no actual,

specific bias sufficient to warrant reversal. See id. at ¶ 50. Judge

Slade had no prior interaction with Erickson. Additionally,

Erickson does not allege any disputed facts in his case that Judge

Slade obtained when representing A.M.’s mother. See C.J.C.

2.11(A)(1). The D&N case occurred a decade-plus before A.M. and

Erickson met.

7
¶ 15 Our cases require more than alleged here to support a judge’s

disqualification. In one case, the mere fact that a judge presiding

over a case had formerly prosecuted a defendant on similar charges

was insufficient to create an appearance of partiality requiring

recusal. People v. Flockhart, 2013 CO 42, ¶¶ 43, 46, 54. While the

cases were similar, the court reasoned that they were not materially

related, seven years had elapsed between them, and nothing from

the earlier case was relevant to the later case. Id. at ¶¶ 53-54.

Here, the claimed connection between the proceedings is even more

attenuated. Judge Slade’s prior representation did not concern the

same parties or subject matter as Erickson’s case. Like Flockhart,

the two cases were not related, occurred years apart, and any facts

from the D&N case were irrelevant to Erickson’s trial.

¶ 16 Second, Erickson relies on a case in which a division of this

court held that Judge Slade’s involvement as guardian ad litem in a

case involving a mother’s older child required her recusal from a

D&N case concerning the mother’s younger children. People in

Interest of C.Y., 2018 COA 50, ¶¶ 10, 24. Finding an impermissible

appearance of partiality, the court described the earlier case as

“highly relevant during this termination proceeding” in part because

8
the judge was statutorily required to consider it. Id. at ¶¶ 18, 20-24

(noting that the judge also took a position adverse to the mother in

the first proceeding).

¶ 17 Not so, here. A.M.’s mother was neither a party nor a witness

in Erickson’s case. And Erickson has not identified any specific

information Judge Slade could have obtained about A.M. in the

course of representing the mother that would have been relevant to

the charges against Erickson. Moreover, nothing in the record

suggests that the D&N case caused Judge Slade to harbor any bias

against A.M. or Erickson. In short, because Erickson’s concerns

about Judge Slade’s partiality were “purely speculative” and lacked

any suggestion of actual bias, Judge Slade did not err by refusing to

recuse. Schupper, ¶ 59.

III. AEIM is a Cognizable Colorado Offense

¶ 18 Erickson asks us to depart from established precedent holding

that AEIM2 is a cognizable offense. Erickson initially stated that

2 Attempted extreme indifference murder (AEIM) is derived from

section 18-3-102(1)(d), C.R.S. 2024, extreme indifference murder
(EIM), and section 18-2-101(1), C.R.S. 2024, criminal attempt.

9
this issue was unpreserved, but the State points to various parts of

the record where Erickson preserved this argument.

¶ 19 We review questions of law de novo. Washington v. People,

2024 CO 26, ¶ 14, and our “[supreme court] alone can overrule [its]

prior precedents concerning matters of state law,” People v.

Novotny, 2014 CO 18, ¶ 26. Our supreme court has explicitly held

that AEIM is a cognizable crime under Colorado law. People v.

Castro, 657 P.2d 932, 937-38 (Colo. 1983), overruled in part on

other grounds by West v. People, 2015 CO 5. Castro’s validity is not

in question. See, e.g., Montoya v. People, 2017 CO 40, ¶ 17 & n.3

(affirming AEIM’s validity under section 18-3-102(1)(d), C.R.S.

2024’s current language); People v. Anderson, 2019 CO 34, ¶¶ 17-

18 (discussing AEIM’s elements). Because we are bound by

controlling precedent, Novotny, ¶ 26, we reject Erickson’s invitation

to depart from Castro.

IV. The Unpreserved As-Applied Constitutional Challenge Fails

¶ 20 Alternatively, Erickson raises an unpreserved as-applied equal

protection challenge to his AEIM convictions for individuals neither

shot at nor injured. Specifically, he contends that these convictions

cannot stand because AEIM and attempted first degree extreme

10
indifference assault (AEIA) proscribe the same conduct with vastly

different penalties. Because we conclude that the two crimes do not

proscribe identical conduct and thus do not violate equal

protection, we affirm Erickson’s AEIM convictions.

A. Preservation and Standard of Review

¶ 21 We generally do not consider unpreserved as-applied

challenges because a factual record is typically imperative. See

People v. Stone, 2020 COA 23, ¶ 49 (citation omitted). However, we

may exercise our discretion to consider such claims “where doing so

would clearly further judicial economy” or when the factual record

is sufficient to facilitate our review. People v. Price, 2023 COA 96, ¶

47 (citation omitted).

¶ 22 In Price, a division of this court exercised its discretion to

consider an unpreserved as-applied equal protection challenge

where the defendant argued that one statute prohibited “essentially

the same conduct as [another] statute but carrie[d] a much higher

sentence.” Id. at ¶¶ 46-47 (finding a sufficient factual record).

Erickson raises a nearly identical challenge, which we similarly

exercise our discretion to address. “We review de novo whether two

statutes prohibit the same or different conduct.” Id. at ¶ 47. We

11
reverse unpreserved constitutional errors only upon a finding of

plain error. Id. (citing Hagos v. People, 2012 CO 63, ¶ 14).

B. Applicable Law

¶ 23 Under our state constitution, “equal protection is violated

where two criminal statutes proscribe identical conduct, yet one

punishes that conduct more harshly.” Dean v. People, 2016 CO 14,

¶ 14. We look to each statute’s elements to determine whether they

proscribe identical conduct. People v. Curtis, 2021 COA 103, ¶ 31.

There is no equal protection violation when “one statute requires

proof of an element that the other does not.” Id. (citation omitted).

¶ 24 While the General Assembly may prescribe harsher penalties

for conduct that it views as more reprehensible, such differences

must be rationally justified, Dean, ¶ 16, and distinguishable by “a

person of average intelligence,” People v. Griego, 2018 CO 5, ¶ 36

(citation omitted).

C. Analysis

¶ 25 A person commits EIM when, “[u]nder circumstances

evidencing an attitude of universal malice manifesting extreme

indifference to the value of human life generally, [one] knowingly

engages in conduct which creates a grave risk of death to a person,

12
or persons, other than himself, and thereby causes the death of

another.” § 18-3-102(1)(d) (emphasis added). EIA occurs when,

“[u]nder circumstances manifesting extreme indifference to the

value of human life, [one] knowingly engages in conduct which

creates a grave risk of death to another person, and thereby causes

serious bodily injury to any person.” § 18-3-202(1)(c), C.R.S. 2024.

Erickson argues that, because the only difference between the two

statutes is the result, the attempted offenses are identical. For

three reasons, we are not persuaded: (1) unlike AEIA, AEIM requires

a finding of universal malice; (2) AEIM requires a substantial step

towards causing death, while AEIA requires a substantial step

towards causing bodily injury; and (3) there is a rational

justification for more harshly punishing conduct that satisfies those

two elements.

¶ 26 First, a division of this court has held that EIM’s “universal

malice” requirement distinguishes it from EIA. People v. Baker, 178

P.3d 1225, 1229-30 (Colo. App. 2007) (concluding that universal

malice is not a required finding for an EIA conviction). Universal

malice is “conduct ‘evidenc[ing] a willingness to take human life

indiscriminately, without knowing or caring who the victim may be

13
or without having an understandable motive or provocation.’”

Garcia v. People, 2023 CO 30, ¶ 16 (alteration in original) (citation

omitted). Erickson contends that this definition is indistinguishable

from “circumstances manifesting an extreme indifference to human

life.” § 18-3-202(1)(c). Not so.

¶ 27 Baker’s holding undermines this argument as does the fact

that “we will not interpret a statutory provision in a way that

renders any of its words or phrases meaningless.” People v. Warren,

2024 COA 60, ¶ 20. EIM requires universal malice and “extreme

indifference to human life.” § 18-3-102(1)(d). If the phrases have

identical meanings, one necessarily becomes meaningless.

Furthermore, criminal attempt requires “acting with the kind of

culpability otherwise required for commission of an offense.” § 18-

2-101(1), C.R.S. 2024. Therefore, one must act with universal

malice and extreme indifference to commit AEIM, while AEIA

requires only extreme indifference. See Baker, 178 P.3d at 1229-

30.

¶ 28 Second, our supreme court has distinguished AEIM from AEIA

on an additional ground; namely, that AEIM requires a substantial

14
step towards causing death, while AEIA does not.3 See Castro, 657

P.2d at 940-41 (concluding that completed EIA and AEIM are

sufficiently different so as not to violate equal protection). Erickson

distinguishes Castro by arguing that the court did not consider two

attempted offenses, and the “heightened risk of death to the victim”

that distinguishes the attempted murder offense (AEIM) from the

completed assault (EIA) is not present when victims are neither shot

at nor injured. Id. at 941. We disagree.

¶ 29 Erickson asserts that Castro’s reasoning depended on the fact

that the defendant’s act would have resulted in death if the victim,

who was shot, had not survived. First, this part of Castro dealt with

the sufficiency of evidence to uphold an AEIM conviction, not the

equal protection claim. See id. Second, we do not read Castro as

holding that a heightened risk of death requires injury. The court

specifically described the defendant’s conduct as “manifest[ing]

extreme indifference towards the lives of the victim . . . and of those

3 People v. Castro, 657 P.2d 932, 940-41 (Colo. 1983), overruled in

part on other grounds by West v. People, 2015 CO 5, primarily
compared AEIM with completed EIA but alluded to both attempted
offenses when it described AEIM as requiring a substantial step
towards causing death, while “assault in the first degree . . . does
not require . . . a substantial step towards” causing another’s death.

15
in the immediate vicinity” and that firing a gun “in the general

direction of the victim and other persons” created a grave risk of

death. Id. (emphasis added). Therefore, while the conviction there

related only to the injured victim, Castro did not foreclose the

possibility of an AEIM conviction for uninjured victims.

¶ 30 Finally, there is a rational justification, readily apparent to

those of average intelligence, for punishing conduct committed with

universal malice and constituting a substantial step toward causing

death more harshly than conduct that does not. See Griego, ¶ 36.

¶ 31 In short, because there is a rational basis for AEIM’s

heightened penalty and because AEIM “requires proof of . . .

element[s] that [AEIA] does not,” we conclude that Erickson’s AEIM

convictions do not violate equal protection as applied to him.

Curtis, ¶ 31.

V. The District Court Did Not Err by Refusing to Give an
Involuntary Intoxication Instruction

A. Additional Facts

¶ 32 Defense counsel originally asked for a jury instruction on

involuntary intoxication for all counts. This instruction was based

on Erickson’s theory that A.M. forced him, at gunpoint, to ingest

16
cocaine. After a somewhat lengthy discussion, the district court

ultimately refused to give the instruction because there was no

evidence that Erickson (1) did not knowingly ingest an intoxicant, or

(2) did not know the substance at issue was an intoxicant.

Although the court denied the involuntary intoxication instruction,

Erickson received a voluntary intoxication instruction for counts 1,

3-9, 37-39, and 42-46.

¶ 33 On appeal, Erickson argues that he presented evidence of

involuntary intoxication, and the district court therefore erred by

failing to allow the instruction under section 18-1-804(5), C.R.S.

2024, which provides an exception to voluntary intoxication if a

defendant’s intoxication stems from “circumstances that would

afford a defense” to a charged crime. He does not direct us to

exactly where in the record he presented evidence of involuntary

intoxication. However, when cross-examining A.M., defense counsel

focused briefly on A.M.’s initial statements to police that, on the day

of the shooting, he forced Erickson to consume cocaine.

B. Standard of Review

¶ 34 We review de novo whether a defendant met the burden of

presenting “some credible evidence” to support an affirmative

17
defense instruction. Pearson v. People, 2022 CO 4, ¶ 16 (citations

omitted). If the district court erroneously refused to give an

affirmative defense instruction, we review for constitutional

harmless error. Id. Under this standard, we reverse “unless the

error was harmless beyond a reasonable doubt.” Id.

C. Applicable Law

¶ 35 Generally, there are two types of defenses that criminal

defendants may raise. First, affirmative defenses “seek to justify or

mitigate the entire crime,” not just a single element of the offense.

People v. Miller, 113 P.3d 743, 750 (Colo. 2005). Second, traverse

defenses “negate[] one or more elements of the offense, serving to

undermine or cast doubt on the possibility that a defendant

committed the charged offense.” Pearson, ¶ 19. Involuntary

intoxication is an affirmative defense. Miller, 113 P.3d at 750.

Voluntary intoxication, by contrast, is not an affirmative defense

because it seeks to negate evidence of specific intent. Id.; see also §

18-1-804(1).

¶ 36 Colorado appellate courts have broadly determined that

defendants cannot assert a traverse defense and an affirmative

defense for the same crime. E.g., Pearson, ¶ 19 (citations omitted).

18
Our cases have not explicitly decided whether this rule applies

when a defendant seeks voluntary and involuntary intoxication

instructions for the same offenses. See Miller, 113 P.3d at 750-52

(noting that both instructions were given but considering only the

disputed voluntary intoxication instruction). However, we need not

decide that issue here for the reasons set forth below.

D. Analysis

¶ 37 It is unclear whether Erickson asserts error in the court’s

refusal to give an involuntary intoxication instruction instead of —

or in addition to — the voluntary intoxication instruction.

Regardless, even if the district court found Erickson’s evidence of

involuntary intoxication credible — and even if Erickson could seek

both instructions for the same counts — the court did not err by

refusing to give the proffered involuntary intoxication instruction

because it had no basis upon which to conclude that the jury could

differentiate Erickson’s voluntary intoxication from his involuntary

intoxication. See Pearson, ¶ 16.

¶ 38 Regarding section 18-1-804(5), no Colorado appellate court

has interpreted whether involuntary intoxication “under

circumstances that would afford a defense to a charge of crime”

19
includes intoxication by force or duress. Erickson cites People v.

Mion, 2023 COA 110M, ¶¶ 32-22, (cert. granted Aug. 19, 2024), to

support his argument that coerced intoxication is a cognizable form

of involuntary intoxication. We are not persuaded. Mion involved a

defendant who voluntarily ingested what he believed was solely

marijuana and later sought an “innocent mistake” involuntary

intoxication instruction after suggesting that the marijuana may

have been laced with another substance. Id. at ¶¶ 12, 16-19, 26,

34. Here, Erickson argues that A.M. forced him to ingest cocaine.

Thus, unlike Mion, this issue is not “what substance caused the

intoxication” but what circumstances caused the intoxication. Id.

at ¶ 31.

¶ 39 However, we need not decide whether coerced intoxication is a

cognizable defense under section 18-1-804(5) because the evidence

presented at trial was insufficient to distinguish the effects of

Erickson’s voluntary drug use on May 7 from his alleged

involuntary cocaine use. Entitlement to an involuntary intoxication

defense requires proof that the involuntary intoxication resulted in

the defendant “lack[ing] capacity to conform his conduct to the

requirements of the law.” § 18-1-804(3). Here, because there was

20
insufficient evidence to conclude that Erickson’s involuntary

intoxication — alone — met this standard, the court’s decision to

refuse the involuntary intoxication instruction was not erroneous.

That Erickson simultaneously argued A.M. forced him to use

cocaine and that his long-term cocaine use impacted his conduct

also weighs against finding error. See People v. Brown, 218 P.3d

733, 737 (Colo. App. 2009), aff’d, 239 P.3d 764 (Colo. 2010) (citing

People v. Garcia, 826 P.2d 1259 (Colo. 1992), for the proposition

that “a defendant is not entitled to a theory of defense instruction

inconsistent with his own principal theory”).

¶ 40 There was evidence that Erickson ingested drugs at least three

separate times on May 7. First, A.M. testified that he and Erickson

did cocaine around 7:00 a.m. Erickson does not appear to argue

that this was involuntary. Second, D.S. testified that he and

Erickson did cocaine and smoked marijuana between 8:00 a.m. and

10:00 a.m. Third, A.M. testified that he and Erickson did cocaine

multiple times between 11:00 a.m. and approximately 12:45 p.m.

The latter instance is the cocaine use that Erickson claimed was

involuntary. Finally, a defense expert testified that Erickon had a

21
long history of drug use and “used marijuana, cocaine, and cough

medicine up until the day he was arrested.”

¶ 41 The defense expert testified about cocaine’s half-life,

estimating that the drug leaves a person’s system in approximately

five hours depending on the amount consumed. However, the

expert did not clarify the half-life for specific amounts and admitted

that Erickson tested positive for cocaine more than five hours after

his last use. Additionally, she noted that a person may feel

cocaine’s effects even after it leaves the bloodstream. The expert

also did not testify in depth about the half-lives or effects of

marijuana and cough medicine or how these substances interact

with cocaine. Therefore, even if the court gave an involuntary

intoxication instruction on some counts, the jury would have been

unable to determine which “episode” of intoxication — voluntary or

involuntary — potentially negated Erickson’s culpability.4

4 This analysis applies equally to counts for which Erickson sought

only an involuntary intoxication instruction and those for which he
may have sought both voluntary and involuntary intoxication
instructions. Even if the court had given the involuntary
intoxication instruction on different counts from which it gave a
voluntary intoxication instruction, the jury still could not have
considered each type of intoxication in isolation because of the
potential overlap between the effects of each.

22
¶ 42 On this record, we affirm the district court’s order refusing an

involuntary intoxication instruction. See Pearson, ¶ 16.

VI. Any Error in the District Court’s Refusal to Give a Duress
Instruction Was Harmless Beyond a Reasonable Doubt

¶ 43 Erickson similarly challenges the district court’s refusal to give

a duress instruction. Erickson acknowledges that he was not

entitled to a duress instruction for first degree murder (counts 1

and 2), and he received a duress instruction on counts 35, 40, 41,

and 46. Therefore, he contends that the court erroneously denied

the instruction as to the remaining counts (except counts 1 and 2).

We disagree.

A. Standard of Review and Applicable Law

¶ 44 Duress, like involuntary intoxication, is an affirmative defense.

See § 18-1-708, C.R.S. 2024 (defining duress); § 18-1-710, C.R.S.

2024 (describing sections 18-1-701 to -709, C.R.S. 2024, as

affirmative defenses). As discussed above, a defendant must

present “some credible evidence” to support an affirmative defense

instruction, which we review de novo. Pearson, ¶ 16. We review

erroneous denials of affirmative defense instructions for

constitutional harmless error and reverse “unless the error was

23
harmless beyond a reasonable doubt.” Id. An error is not harmless

beyond a reasonable doubt and requires reversal when “there is a

reasonable possibility that [it] might have contributed to the

conviction.” Hagos, ¶ 11.

B. Analysis

¶ 45 We conclude that, even if the court erred in refusing to give a

duress instruction, the error was harmless beyond a reasonable

doubt.

¶ 46 First, because the jury found Erickson guilty of all counts, it

clearly rejected the duress instruction given for several counts.

Because this instruction was given, the prosecution carried the

burden of disproving the duress defense for some counts. Cf.

People v. Coahran, 2019 COA 6, ¶ 38 (failing to give a self-defense

instruction eliminated the burden of disproving self-defense). We

have no reason to believe the jury would have accepted the defense

had it applied to more counts. Cf. People v. DeGreat, 2018 CO 83,

¶¶ 33-34 (refusing a self-defense instruction on one count that

resulted in a conviction was not harmless when the defendant was

acquitted of other counts for which the instruction was given).

24
¶ 47 The evidence negating duress was significant. Duress requires

proof that the defendant engaged in conduct because of force or

threatened force that “a reasonable person in his situation would

have been unable to resist.” § 18-1-708. Yet the evidence showed

that, once inside the school, Erickson had several opportunities to

safely warn others of the threat, outside of A.M.’s presence.

Erickson was also the first to pull out a gun and begin shooting.

Even if Erickson felt peer pressure from A.M., the jury had ample

evidence to conclude that such pressure did not rise to the level

required for duress.

¶ 48 From these facts, we cannot say there was a reasonable

possibility that giving a duress instruction on additional counts

would have yielded a different result. See Hagos, ¶ 11. Therefore,

any error in rejecting the duress instruction was harmless beyond a

reasonable doubt and does not require reversal. Id.

VII. There Was Insufficient Evidence to Support Erickson’s
Conviction on Count 31

¶ 49 Erickson next contends that there was insufficient evidence to

support his conviction for AEIM of R.W., a student allegedly in the

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classroom at the time of the shooting. We agree and vacate

Erickson’s conviction for count 31.

A. Standard of Review and Applicable Law

¶ 50 Even when unpreserved, we review sufficiency of the evidence

claims de novo and will not uphold convictions based on legally

insufficient evidence. McCoy v. People, 2019 CO 44, ¶¶ 2, 27.

Considering the evidence “as a whole and in the light most favorable

to the prosecution,” we ask whether it is “substantial and sufficient

to support a conclusion by a reasonable mind that the defendant is

guilty . . . beyond a reasonable doubt.” People v. Harrison, 2020 CO

57, ¶ 32 (citation omitted). While we “give the prosecution the

benefit of all reasonable inferences that might fairly be drawn from

the evidence,” convictions cannot be based on “guessing,

speculation, conjecture, or a mere modicum of relevant evidence.”

People v. Donald, 2020 CO 24, ¶ 19 (citation omitted).

B. Analysis

¶ 51 At trial, Laura Harper, the teacher in whose classroom the

shooting occurred, testified about where each student in the class

usually sat and, for some students, whether they were present on

May 7. The only evidence of R.W.’s presence was Harper’s

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testimony that “[he] usually sat somewhere in the middle.” Because

this evidence could not establish R.W.’s presence beyond a

reasonable doubt, it is legally insufficient to support Erickson’s

conviction for the attempted murder of R.W.

¶ 52 The State argues that the jury could infer R.W.’s presence

from Harper’s testimony because the prosecution asked her to

confirm whether students were absent on May 7, and her testimony

about R.W. was consistent with her testimony about other

students. However, as the prosecution listed names, Harper

focused more on where students sat than their attendance. Only

when prompted did she indicate whether she remembered students

being present.

¶ 53 Of the twenty-five names listed, Harper did not explicitly

confirm whether fourteen students were present. Of these fourteen

students, eleven testified. Only three of the fourteen students,

R.W., K.M., and N.W., did not testify. However, other witnesses’

testimony confirmed K.M.’s and N.W.’s presence on May 7. No

witness, other than Harper, mentioned R.W. or testified about his

presence. Therefore, while Harper’s testimony about R.W. was

consistent with her testimony about other students, the evidence

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about R.W. was substantially weaker than that of other students.

See Harrison, ¶ 32. Because Erickson’s conviction for count 31 was

supported by little more than speculation, it cannot stand. See

Donald, ¶ 19.

VIII. The District Court Erred by Failing to Merge Two Murder
Counts for the Same Victim and Two Attempted Murder
Counts for the Same Five Victims

¶ 54 Erickson next raises an unpreserved argument that several of

his convictions and sentences violate double jeopardy and must

merge. The State agrees that merger is the proper remedy. The

counts, convictions, and sentences at issue are as follows:

Victim Conviction and Sentence Conviction and Sentence
K.C. First degree murder, after First degree murder, extreme
deliberation (AD): count 1 indifference (EI): count 2
Life without parole, Life without parole, concurrent
concurrent to count 2 to count 1
L.A. Attempted first degree Attempted first degree murder,
murder, AD: count 4 EI: count 10
48 years, consecutive to 48 years, concurrent to count
counts 1-3 4, consecutive to all others
J.J. Attempted first degree Attempted first degree murder,
murder, AD: count 5 EI: count 20
48 years, consecutive to 48 years, consecutive to all
counts 1-4 others
M.K. Attempted first degree Attempted first degree murder,
murder, AD: count 6 EI: count 21
48 years, consecutive to 48 years, consecutive to all
counts 1-5 others

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Victim Conviction and Sentence Conviction and Sentence
J.G. Attempted first degree Attempted first degree murder,
murder, AD: count 8 EI: count 16
48 years, consecutive to 48 years, consecutive to all
counts 1-7 others
G.M.O. Attempted first degree Attempted first degree murder,
murder, AD: count 9 EI: count 25
48 years, consecutive to 48 years, consecutive to all
counts 1-8 others

A. Standard of Review

¶ 55 We review de novo whether merger of multiple criminal

offenses is required. People v. Thompson, 2018 COA 83, ¶ 39.

Under the Double Jeopardy Clauses of the United States and

Colorado Constitutions, absent express statutory authorization,

identical criminal conduct cannot be subject to multiple

punishments under different statutes. Id. at ¶ 40 (citations

omitted). If a district court erroneously “entered multiplicitous

punishments in violation of double jeopardy principles, merger is

the remedy.” Whiteaker v. People, 2024 CO 25, ¶¶ 22-24.

B. Applicable Law and Analysis

¶ 56 Under our criminal code, first degree murder is a single

offense, “which can be committed in four different ways,” rather

than four distinct offenses. Candelaria v. People, 148 P.3d 178, 180

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(Colo. 2006) (citation omitted). Therefore, a defendant cannot

receive multiple convictions for killing a single victim. Id. at 180-

81. A division of this court has reached a similar conclusion

regarding attempted first degree murder. People v. Jackson, 2018

COA 79, ¶¶ 79, 81 (“[T]wo convictions for attempted first degree

murder based upon the same evidence and the same victim cannot

stand.”), aff’d, 2020 CO 75. We remand to the district court to

correct the mittimus to reflect only one conviction and sentence for

the above-listed victims. Whiteaker, ¶ 24. Specifically, we instruct

the court to merge:

• Counts 1 and 2;

• Counts 4 and 10;

• Counts 5 and 20;

• Counts 6 and 21;

• Counts 8 and 16; and

• Counts 9 and 25.

IX. Disposition

¶ 57 The judgment of conviction is affirmed in part, vacated as to

the conviction for count 31, and reversed and remanded to the

district court, in part, with instructions to correct the mittimus and

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merge the judgments of convictions and sentences as set forth

above.

JUDGE JOHNSON and JUDGE SCHOCK concur.

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