Peo v. Fletcher

22CA1269 Peo v Fletcher 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1269
Weld County District Court No. 20CR952
Honorable Vincente G. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Robert Fletcher,

Defendant-Appellant.

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

Division V
Opinion by JUDGE BROWN
Harris and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Brian Robert Fletcher, appeals the judgment of

conviction entered upon jury verdicts finding him guilty of the

attempted reckless manslaughter and felony menacing of Roger

Skeers. Fletcher contends that (1) the evidence was insufficient to

support his convictions for attempted reckless manslaughter and

menacing; (2) his conviction for attempted reckless manslaughter

violates his equal protection rights; and (3) the mittimus incorrectly

lists crime of violence sentence enhancers. Because we agree that

the evidence was insufficient to support Fletcher’s conviction for

menacing Skeers, we reverse that conviction. We also agree that

the mittimus incorrectly lists crime of violence sentence enhancers.

Therefore, we remand to the district court to vacate Fletcher’s

menacing conviction against Skeers and to correct the mittimus.

We otherwise affirm.

I. Background

¶2 The evidence presented during a four-day jury trial allowed the

jury to find the following facts.

¶3 Fletcher lived on a 7-acre property owned by his common law

wife, Whitney Moore. They rented out a portion of the property to

Fletcher’s friend, Richard Marsaw, to store six fifty-three-foot

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trailers. In March of 2018, Marsaw started to live on the property

in an RV next to Moore and Fletcher’s house. Marsaw did not

consistently pay the monthly rent and stored more than what was

agreed on the property. By May or June of 2019, Marsaw had

stopped paying any rent. And in August, Moore gave Marsaw a

notice to vacate the property, but he ignored it.

¶4 Around February of 2020, Marsaw invited his and Fletcher’s

friend, Roger Skeers, to live on the property. Moore did not give

Skeers permission to live on the property, but Skeers told Fletcher

he was purchasing a camper that Marsaw had stored there. Skeers

lived in the camper next to Marsaw’s RV.

¶5 In March, Weld County notified Moore that she was violating

zoning regulations because of the “business” on the property — i.e.,

the trailers, trucks, and cars Marsaw worked on and stored there.

Moore again gave Marsaw a notice to vacate, but he again ignored

it.

¶6 On the morning of May 5, Fletcher was agitated and told

Moore that he “would like to go shoot [Marsaw].” Fletcher was still

agitated that afternoon and unable to calm down. Moore

remembered smelling alcohol on Fletcher’s breath. Moore saw

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Fletcher go outside with his gun and thought he was going to shoot

prairie dogs.

¶7 Instead, Fletcher approached Marsaw, who was working on

the property about forty to fifty feet from a blue metal storage

container called a Conex. Marsaw was not aware Fletcher had

come up to him until he heard Fletcher yell that he had to get off

the property immediately. Marsaw responded by asking, “What are

you talking about?” Fletcher then raised his gun, pointed it at

Marsaw, and started shooting from about fifteen to twenty feet

away. Marsaw testified that Fletcher remained stationary while

shooting at him.

¶8 After Fletcher fired the first shot, Marsaw turned and started

running toward the forty-foot-long Conex. Marsaw remembered

hearing four shots total. Marsaw said that he ran behind an open

door of the Conex and heard one of the shots, possibly the third, hit

the door.

¶9 Meanwhile, Skeers had been working about twenty feet inside

the Conex when he heard Fletcher yell and fire his gun. Skeers was

grazed by a bullet that ricocheted off the Conex door and into the

container. Skeers yelled that he had been hit. After Fletcher asked,

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“Are you sure? Are you sure?”, he turned and walked back to his

house.

¶ 10 The prosecution charged Fletcher with two counts of

attempted murder in the first degree and two counts of felony

menacing — one count of each as to Marsaw and one count of each

as to Skeers. It also charged Fletcher with one count of second

degree assault as to Skeers and two crime of violence sentence

enhancers. After considering lesser included offenses, a jury

convicted Fletcher of two counts of attempted reckless

manslaughter, two counts of menacing, and one count of third

degree assault. The district court merged the third degree assault

conviction into the attempted reckless manslaughter conviction for

Skeers.

¶ 11 The district court sentenced Fletcher to two consecutive

three-year sentences in the custody of the Department of

Corrections (DOC) for the attempted reckless manslaughter

convictions, and two concurrent three-year sentences in the DOC

for the menacing convictions. Fletcher does not appeal his

convictions involving Marsaw as the victim.

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II. Sufficiency of the Evidence

¶ 12 Fletcher contends that there was insufficient evidence to

sustain his convictions for attempted reckless manslaughter and

menacing as to Skeers. We conclude that Fletcher may not raise a

sufficiency challenge to his conviction for attempted reckless

manslaughter, but we agree with Fletcher that the prosecution

presented insufficient evidence to sustain his menacing conviction.

A. Standard of Review

¶ 13 “We review the record de novo to determine whether the

evidence presented was sufficient in both quantity and quality to

sustain a defendant’s conviction.” McCoy v. People, 2019 CO 44,

¶¶ 34, 63. We must 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.” Id. (quoting Clark

v. People, 232 P.3d 1287, 1291 (Colo. 2010)). “The pertinent

question is whether, after viewing the evidence in the light most

favorable to the prosecution, a rational trier of fact could have

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found the essential elements of the crime beyond a reasonable

doubt.” Clark, 232 P.3d at 1292.

B. Fletcher Invited Any Error as to Attempted Reckless
Manslaughter

¶ 14 Fletcher contends that the prosecution failed to present

sufficient evidence to sustain his conviction for attempted reckless

manslaughter as to Skeers. The People argue that Fletcher invited

any error by asking the district court to instruct the jury on

attempted reckless manslaughter. In response, Fletcher argues

that defense counsel’s request for a lesser included jury instruction

was only in relation to Marsaw, not Skeers. We agree with the

People.

1. Additional Background

¶ 15 At trial, the defense theory of the case was that Fletcher was

drunk and reckless but never intended to kill anyone. Defense

counsel asked the district court to instruct the jury on attempted

reckless manslaughter as a lesser included offense of attempted

murder as to both Marsaw and Skeers. The court confirmed

counsel’s request for the lesser included offense instruction several

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times, and counsel never indicated that the instruction should

apply only as to Marsaw.

¶ 16 Defense counsel approved the final version of the jury

instructions. Instruction 19 provides, in relevant part, that

[i]f you are not satisfied beyond a reasonable
doubt that Mr. Fletcher is guilty of the offense
charged, he may, however, be found guilty of
any lesser offense, the commission of which is
necessarily included in the offense charged if
the evidence is sufficient to establish his guilty
of the lesser offense by a reasonable doubt.

The offense of [a]ttempted [m]urder in the
[f]irst [d]egree, as charged in the information in
this case necessarily includes the lesser
offense of [a]ttempted [m]anslaughter.

Instruction 19 then sets forth the elements of attempted

manslaughter. Unlike the elemental instruction for second degree

assault — which specifically names Skeers as the victim —

Instruction 19 does not specify that it applies to a single or

particular victim.

¶ 17 Defense counsel also approved the final verdict forms, which

included one verdict form that listed charges for attempted murder

and attempted manslaughter as to Marsaw and a separate verdict

form that listed charges for attempted murder and attempted

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manslaughter as to Skeers. In fact, the only change defense

counsel requested be made to the verdict forms was to include

Marsaw’s and Skeers’ names in the body as well as the title of the

instruction.

2. Analysis

¶ 18 The invited error doctrine prevents a party from complaining

on appeal of an error they have invited or injected into the case.

People v. Rediger, 2018 CO 32, ¶ 34. Invited error is a narrow

doctrine that applies to errors in trial strategy but not errors

resulting from oversight. Id. Where a defendant makes “the tactical

choice to request” that a lesser included offense be submitted to the

jury, “he is effectively estopped from asserting on appeal that,

notwithstanding his representation at trial, there was actually

insufficient evidence to reach the jury and support conviction of

that charge.” Montoya v. People, 2017 CO 40, ¶ 31.

¶ 19 Contrary to Fletcher’s assertions, the record does not reflect

that defense counsel’s strategic decision to request a jury

instruction on the lesser included offense of attempted reckless

manslaughter related solely to Marsaw. Rather, the record shows

that counsel affirmatively asked for the jury to be instructed on the

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lesser included offense and never clarified that it should apply only

to Marsaw and not Skeers. On the contrary, counsel approved of a

separate verdict form asking the jury whether Fletcher committed

attempted manslaughter as to Skeers. By requesting an instruction

on attempted reckless manslaughter, counsel represented that

there was “a rational basis in the evidence to support a verdict

acquitting him of a greater offense . . . and convicting him of the

lesser offense.” People v. Brown, 218 P.3d 733, 736 (Colo. App.

2009) (quoting People v. Bartowsheski, 661 P.2d 235, 242 (Colo.

1983)).

¶ 20 On this record, we conclude that defense counsel made a

strategic decision to request a jury instruction on attempted

reckless manslaughter as to Skeers and, as a result, Fletcher

cannot assert on appeal that the evidence was insufficient to

sustain that conviction. See Montoya, ¶ 31; Rediger, ¶ 34.

C. The Prosecution Presented Insufficient Evidence to Support
the Felony Menacing Conviction

¶ 21 Fletcher contends that the prosecution failed to present

sufficient evidence to sustain his conviction for felony menacing as

to Skeers.

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¶ 22 A person commits menacing “if, by any threat or physical

action, he or she knowingly places or attempts to place another

person in fear of imminent serious bodily injury.” § 18-3-206,

C.R.S. 2024. At the time of Fletcher’s offense, menacing was a

class 5 felony if committed by using a deadly weapon.

§ 18-3-206(1)(a)-(b), C.R.S. 2021.

¶ 23 Felony menacing is a general intent crime and requires that a

defendant “is aware that his conduct is practically certain to cause

the result.” § 18-1-501(6), C.R.S. 2024; see also People v. Crump,

769 P.2d 496, 498 (Colo. 1989). Direct evidence of the defendant’s

awareness is not necessary; rather, “the defendant’s subjective

awareness may be inferred from his conduct and the surrounding

circumstances.” People v. Manzanares, 942 P.2d 1235, 1239 (Colo.

App. 1996).

¶ 24 Fletcher does not contest that he used a deadly weapon — a

gun — or that a reasonable person would be placed in fear of

imminent serious bodily injury by his use of a gun. Rather,

Fletcher asserts that there was no evidence he knowingly placed or

attempted to place Skeers in fear of imminent serious bodily injury

because there was no evidence he was aware Skeers was in the

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storage container or in the general area when he fired his gun at

Marsaw. We agree.

¶ 25 The record shows that Fletcher knew Skeers lived on the

property, but the camper Skeers lived in was on the other side of

the property from where he was working when Fletcher shot at

Marsaw. Nothing in the record even suggests that Fletcher knew

Skeers was in the area when Fletcher aimed or shot his gun at

Marsaw. When Fletcher raised his gun to shoot, he was about

fifteen to twenty feet away from Marsaw, Marsaw was forty to fifty

feet from the Conex, and Skeers was twenty feet inside the Conex.

And Marsaw testified that Fletcher remained standing in the same

place once he started shooting. No one testified that Fletcher heard

or saw Skeers or otherwise had any idea that Skeers was inside the

Conex. And no one testified that Skeers saw Fletcher holding the

gun or shooting at Marsaw.

¶ 26 Even viewing the evidence as a whole and in the light most

favorable to the prosecution, see Clark, 232 P.3d at 1291-92, we

conclude that no rational juror could have found beyond a

reasonable doubt that Fletcher was aware that his conduct was

practically certain to place Skeers in fear of imminent serious bodily

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injury. See People v. Perez, 2016 CO 12, ¶ 25 (“A verdict cannot be

supported by guessing, speculation, conjecture, or a mere modicum

of relevant evidence.”); McBride v. People, 2022 CO 30, ¶ 44

(reversing a defendant’s conviction for a tail lamp violation because

the evidence did not support a reasonable inference of a violation

and “[t]o conclude otherwise would amount to nothing more than

speculation, which cannot support a jury’s verdict”). Thus, we

conclude that the evidence was insufficient to sustain Fletcher’s

conviction for menacing Skeers, and we vacate that conviction.1

III. Equal Protection Challenge

¶ 27 For the first time on appeal, Fletcher contends that his

conviction for class 5 felony attempted reckless manslaughter

violates his right to equal protection under the Colorado

Constitution because, as applied, it proscribes the same conduct as

1 We acknowledge that defense counsel asked the jury to convict

Fletcher of menacing in closing argument. But argument is not
evidence, see People v. Rhea, 2014 COA 60, ¶ 68 (recognizing that
argument is not evidence), and we are not aware of any authority
holding that counsel’s legal concession in closing argument by itself
can waive a defendant’s right to challenge the sufficiency of
evidence.

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reckless endangerment, a class 2 misdemeanor. See

§§ 18-3-104(1)(a), 18-3-208, C.R.S. 2024.

¶ 28 It is undisputed that Fletcher did not preserve this issue. We

have the discretion to address an unpreserved as-applied

constitutional challenge, but only when doing so clearly furthers

judicial economy. People v. Houser, 2013 COA 11, ¶ 35.

¶ 29 To support his as-applied equal protection challenge, Fletcher

reiterates his claim that he was unaware of Skeers’ presence and

argues only that “[t]here is no intelligent means of distinguishing

conduct arguably creating a slight risk of death to an unintended

victim from conduct creating a higher risk of serious bodily injury.”

This argument is underdeveloped and, as articulated, requires

further factual development. Thus, we decline to address it. See

People v. Rodriguez-Morelos, 2022 COA 107M, ¶ 49 (declining to

address a defendant’s conclusory and underdeveloped argument);

People v. Mountjoy, 2016 COA 86, ¶ 37 (inadequacy of the record

disfavors addressing an as-applied challenge for the first time on

appeal); see also People v. Allen, 78 P.3d 751, 752 (Colo. App. 2001)

(declining to address unpreserved claim that, as applied, attempted

reckless manslaughter proscribes conduct identical to reckless

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endangerment), overruled on other grounds by Lopez v. People, 113

P.3d 713 (Colo. 2005).

IV. Mittimus

¶ 30 The parties agree that Fletcher’s mittimus should be amended

to remove two crime of violence convictions because he was not

convicted of any crimes to which the crime of violence sentence

enhancer applies. Reviewing de novo, see People v. Mendenhall,

2015 COA 107M, ¶ 84, we agree. See § 18-1.3-406(2)(a)(II), C.R.S.

2024 (listing crimes subject to “crime of violence” sentence

enhancer). It appears that including the crime of violence

convictions was a clerical error, which can be corrected at any time.

See Crim. P. 36. Accordingly, we remand the case to the district

court to correct the mittimus. See Mendenhall, ¶ 84 (it is proper to

remand to the district court to correct the mittimus to reflect the

court’s rulings).

V. Disposition

¶ 31 We affirm the judgment of conviction for attempted reckless

manslaughter of Skeers but vacate the judgment of conviction for

felony menacing of Skeers. We remand the case to the district court

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to correct the mittimus consistent with this opinion. We leave

undisturbed any part of the judgment not challenged on appeal.

JUDGE HARRIS and JUDGE LUM concur.

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