     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 31, 2018

                                2018COA79

No. 2016CA0854 — Constitutional Law — Fifth Amendment —
Double Jeopardy; Crimes — Murder in the First Degree —
Inchoate Offenses — Criminal Attempt

     When a defendant attempts to deliberately kill one person but

mistakenly kills a different person and is convicted of both the

attempted murder of the intended victim and the actual murder of

the unintended victim, a division of the court of appeals concludes

that the attempted murder conviction must be vacated because it is

a lesser included offense of the murder conviction.

     The division also affirms the trial court’s rulings granting the

prosecution’s motion for a mistrial, admitting an unavailable

witness’s statements under the doctrine of forfeiture by wrongdoing

and CRE 807, and rejecting the defense’s proposed complicity

instruction.
     The judgment is affirmed in part and vacated in part, and the

case is remanded for correction of the mittimus.
COLORADO COURT OF APPEALS                                      2018COA79


Court of Appeals No. 16CA0854
Arapahoe County District Court No. 14CR1968
Honorable Frederick T. Martinez, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brandon D. Jackson,

Defendant-Appellant.


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

                                 Division VI
                         Opinion by JUDGE FREYRE
                        Terry and Navarro, JJ., concur

                           Announced May 31, 2018


Cynthia H. Coffman, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Nicole D. Wiggins, Assistant Attorney General, Denver,
Colorado, for Plaintiff-Appellee

Eric A. Samler, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1    Defendant, Brandon D. Jackson, appeals the judgment of

 conviction for first degree murder after deliberation, attempted first

 degree murder after deliberation, attempted first degree murder

 with extreme indifference, conspiracy to commit first degree

 murder, and accessory. The court declared a mistrial after defense

 counsel elicited undisclosed alibi evidence during Jackson’s ex-

 wife’s cross-examination. In a second trial, a jury convicted him as

 charged.

¶2    Jackson challenges the trial court’s decision to declare a

 mistrial over his objection. He also contends that at the second

 trial, the court erred in (1) allowing testimonial hearsay under the

 forfeiture by wrongdoing doctrine; (2) rejecting his tendered

 complicity instruction; and (3) imposing separate convictions and

 sentences for attempted murder after deliberation and murder after

 deliberation — a novel issue raised by the unique facts of this case.

 We affirm in part, vacate in part, and remand for correction of the

 mittimus.

                           I.   Background

¶3    Jackson and his friends, Amin El-Howeris, Devon

 Grant-Washington, Bruce Roberts, Quinten Sauls, Tyrel Walker,


                                    1
 and Roderick Ruben, were members of “Sicc Made,” a subset of the

 Crips gang. Victim E.O. belonged to a rival gang called “Most

 Hated.” In August 2011, members of Most Hated fired gunshots

 into Jackson’s apartment. At a party on the night of December 23

 and into the morning of December 24, 2011, E.O. shot El-Howeris,

 but El-Howeris survived.

¶4    On the night of December 25, 2011, and into the early

 morning hours of December 26, Jackson, El-Howeris,

 Grant-Washington, Roberts, Sauls, Walker, and Ruben gathered at

 Aisha Amin’s apartment to discuss retaliating against E.O. Sauls

 said, “They mess with one of us, they mess with all of us.” They

 passed around a black gun with a laser sight and discussed killing

 E.O. They knew where E.O. lived and that he drove a gold SUV.

 The men left in two Ford Explorers — Jackson drove the green Ford

 Explorer with Sauls as his passenger. The others left in a blue Ford

 Explorer. They met at E.O.’s apartment complex and

 Grant-Washington got into the green Ford Explorer with Jackson

 and Sauls. Cell phone tower records placed Jackson, Roberts, and

 Grant-Washington at the same location.




                                  2
¶5    Victim Y.M. lived in E.O.’s apartment complex. He arrived

 home from work at 3 a.m. driving a gold SUV similar to E.O.’s and

 parked across the street from E.O.’s apartment. Believing Y.M. was

 E.O., either Sauls or Grant-Washington got out of Jackson’s car,

 walked over to the SUV, and shot Y.M. twice in the head, killing him

 instantly. When they realized they had killed the wrong man, the

 men turned and fired numerous shots into E.O.’s apartment.

                   II.   Mistrial — Double Jeopardy

¶6    Jackson first challenges the court’s decision to declare a

 mistrial after cross-examination of Leah Jackson (his ex-wife)

 revealed an undisclosed alibi defense. He contends that the trial

 court failed to consider less drastic alternatives, that no manifest

 necessity for a mistrial existed, and that his retrial is barred by

 double jeopardy. We perceive no grounds for reversal.

                         A.    Additional Facts

¶7    Five months after Y.M.’s murder, Law Enforcement

 Investigator Kim Johnston interviewed Ms. Jackson concerning

 Jackson’s whereabouts the previous December. Ms. Jackson said

 Jackson had spent the night at her house either on December 24

 into December 25 or on December 25 into December 26. The


                                    3
 investigator said she knew it “had to have been the 24th into the

 25th.”

¶8    Several years later and in preparation for the trial of a

 codefendant, a different investigator re-interviewed Ms. Jackson.

 Ms. Jackson said that Jackson spent the night with her on

 Christmas Eve and was at her house when she left the next

 morning to visit her parents. When she returned at 8 p.m.,

 Jackson was gone and she did not recall him coming to her house

 the next day, December 26.

¶9    Unbeknownst to the prosecution, approximately one month

 before the first trial, Ms. Jackson contacted the defense to provide

 new information. She told defense counsel and a defense

 investigator that she was now certain that Jackson had spent the

 night of December 25 with her and that he woke up at her house

 the morning of December 26, contrary to the information contained

 in the two previous reports. She explained that she came home

 from her parents’ house and had to clean her house. She finished

 cleaning late — between 11 p.m. and midnight — and that Jackson

 arrived shortly thereafter. The defense did not endorse an alibi

 defense or move to continue the trial to do so.


                                   4
¶ 10   During opening statement, the prosecutor explained that

  Jackson did not shoot Y.M. and that he sought a conviction based

  on complicity. He said the evidence would show that Jackson and

  the others spent the evening of December 25 into the early morning

  of December 26 discussing and planning to retaliate against E.O. by

  killing him. This meeting occurred at Amin’s apartment. The

  defense waived opening statement and did not reveal its theory of

  defense.

¶ 11   During the prosecution’s case, Ms. Jackson testified on direct

  examination that Jackson stayed overnight on Christmas Eve and

  that they opened presents with their kids Christmas morning. She

  said “after that, I got the kids dressed and I got myself dressed and

  we left to my mom’s early, around 10:00.” She returned home later

  that night — “probably like around 10:00, between 9:00 and 10:00”

  — and Jackson was not there.

¶ 12   During cross-examination, Ms. Jackson confirmed the same

  sequence of events. However, she then added, when asked, that

  Jackson had returned later that night and spent the night of

  December 25 with her. Defense counsel asked her the following:




                                    5
             DEFENSE COUNSEL: And as you’re sitting
             here today, Ms. Jackson, is there any doubt in
             your mind that it was Christmas night, the
             early morning hours of the 26th, that Mr.
             Jackson came back to your house?

             MS. JACKSON: I have no doubt.

¶ 13   Following cross-examination and in a bench conference, the

  prosecutor objected to this new information and said, “This is

  clearly alibi information. We received no notice of an alibi defense

  by the defense.” He explained that the new testimony placed

  Jackson with his ex-wife, rather than at Amin’s apartment when

  the killing was planned or at E.O.’s apartment complex. The

  prosecutor moved for a mistrial and argued that less drastic

  alternatives would not undo the prejudice created to its case.

¶ 14   Defense counsel argued that she was not pursuing an alibi

  defense or requesting an alibi instruction. She explained that the

  cross-examination concerned Ms. Jackson’s initial statement to

  Investigator Johnston and was intended to rebut Ms. Jackson’s

  direct examination concerning when Jackson stayed at her house.

  Defense counsel denied trying to “come in on the 11th hour and

  provide an alibi.”




                                    6
¶ 15   The court said it had three potential options: (1) instruct the

  jury that this was not alibi evidence; (2) strike the testimony; or (3)

  declare a mistrial. It noted that no one had asked the crucial

  question — whether Jackson ever left Ms. Jackson’s house the

  morning of December 26.

¶ 16   The court questioned Ms. Jackson outside the jury’s presence

  concerning how and when this information was disclosed to the

  defense. Ms. Jackson said she had provided the new information to

  the defense “last month” and confirmed she had never revealed it to

  the prosecution. The prosecutor renewed his mistrial motion. He

  asserted that (1) the defense had violated its Crim. P. 16 obligation

  to disclose this alibi evidence; (2) a twenty-four to forty-eight hour

  delay would be insufficient time to investigate and to remedy the

  prejudice; and (3) striking the testimony would be insufficient

  because the “bell just can’t be unrung at this point and it’s not

  something that can just be sanitized or scrubbed from the jury’s

  mind” given that the jury already heard the evidence. Defense

  counsel objected to the mistrial, but otherwise agreed with the

  alternate remedies of striking the testimony or instructing the jury.

  The court deferred ruling until the end of Ms. Jackson’s testimony.


                                     7
¶ 17   On redirect examination, Ms. Jackson then confirmed that

  Jackson was with her the entire night and had never left during the

  early morning hours of December 26. She also revealed that she

  initiated contact with the defense to provide the new information

  and denied having done so at Jackson’s behest.

¶ 18   The court then ruled that although it had a variety of potential

  remedies, it believed a mistrial was appropriate “as a result of the

  defendant’s misconduct.” It found that the information was new, it

  constituted alibi evidence, and it had never been disclosed to the

  prosecution. The court found that these circumstances amounted

  to manifest necessity to declare a mistrial, explaining that it did not

  know how the prosecution could recover from evidence in the

  defense’s possession for more than a month that was sprung on it

  midtrial.

               B.   Standard of Review and Relevant Law

¶ 19   A trial court has broad discretion in ruling on a mistrial

  motion, and we will not disturb the court’s decision in the absence

  of an abuse of discretion resulting in prejudice to the defendant.

  People v. Chastain, 733 P.2d 1206, 1213 (Colo. 1987). A trial court

  is better able than a reviewing court to determine whether improper


                                     8
  testimony had any adverse effect on the jury. People v. Ellis, 30

  P.3d 774, 777-78 (Colo. App. 2001).

¶ 20   Declaring a mistrial is “the most drastic of remedies” and is

  warranted only when the prejudice is too substantial to be remedied

  by other means. See People v. Santana, 255 P.3d 1126, 1132 (Colo.

  2011); see also People v. Pagan, 165 P.3d 724, 728 (Colo. App.

  2006). The Federal and Colorado Double Jeopardy Clauses bar a

  retrial unless the defendant consents to the mistrial or the mistrial

  is legally justified. U.S. Const. amend. V; Colo. Const. art. II, § 18;

  People v. Berreth, 13 P.3d 1214, 1216 (Colo. 2000).

¶ 21   A trial court is justified in declaring a mistrial when the

  circumstances amount to “manifest necessity” or when it finds, in

  its discretion, that the ends of public justice would not be served by

  continuing the proceedings. People v. Segovia, 196 P.3d 1126, 1133

  (Colo. 2008); see also Berreth, 13 P.3d at 1216.

¶ 22   Manifest necessity includes circumstances that are

  “substantial and real, [and] that interfere with or retard ‘the

  administration of honest, fair, even-handed justice to either, both,

  or any, of the parties to the proceeding.’” Segovia, 196 P.3d at 1133

  (quoting People v. Castro, 657 P.2d 932, 942 (Colo. 1983)). The


                                     9
  General Assembly has identified circumstances where a mistrial is

  justified in section 18-1-301(2)(b), C.R.S. 2017. They include (1) a

  physical impossibility to proceed with the trial in conformity with

  the law; (2) a legal defect in the proceedings that would make any

  judgment entered upon a verdict reversible as a matter of law; (3)

  prejudicial conduct that has occurred in or outside the courtroom

  making it unjust to either the defendant or the State to proceed

  with the trial; (4) the jury’s inability to render a verdict; and (5) a

  juror’s false statement in voir dire. Id. The statute and cases

  establish that manifest necessity arises where circumstances are

  serious and outside of the court’s control. Segovia, 196 P.3d at

  1133. Moreover, a mistrial is justified only when other reasonable

  alternatives are no longer available. Id.; Paul v. People, 105 P.3d

  628, 633 (Colo. 2005); Doumbouya v. Cty. Court, 224 P.3d 425, 428

  (Colo. App. 2009).

                              C.    Application

¶ 23   We begin by noting that Jackson does not challenge the

  court’s ruling that Ms. Jackson’s testimony constituted alibi

  evidence. For our analysis, we presume that it is. A defendant may

  not elicit alibi evidence, absent good cause, without first complying


                                      10
  with the alibi disclosure requirements of Crim. P. 16 (II)(d). See

  People v. Hampton, 696 P.2d 765, 775-76 (Colo. 1985) (upholding

  the exclusion of alibi evidence under previous version of the rule

  when defense did not comply with disclosure requirements); see

  also Crim. P. 16(III)(g) (allowing the court to impose sanctions for a

  failure to comply with the rules); People v. Greenwell, 830 P.2d

  1116, 1119 (Colo. App. 1992) (finding the district court did not

  abuse its discretion in excluding a defense witness not properly

  endorsed by the defense under the rules). Because the prosecution

  must often prove a defendant’s presence during the commission of a

  crime, the rule’s disclosure requirements are designed to provide

  the prosecution with adequate means to evaluate and meet the alibi

  testimony of defense witnesses. Hampton, 696 P.2d at 775.

¶ 24   The undisputed record shows that the defense provided no

  notice to the prosecution of Ms. Jackson’s new claim that Jackson

  was with her during the planning and commission of the crimes,

  despite receiving it one month before trial. It also shows that the

  defense elicited this new information during Ms. Jackson’s cross-

  examination in violation of Crim. P. 16(II)(d). We are not persuaded

  that the court’s decision to permit Ms. Jackson’s redirect


                                    11
examination in front of the jury created the need for a mistrial

because her response was unknown and, as the court noted, may

have mooted the parties’ arguments had she testified that Jackson

left during the early morning hours of December 26.1 Instead, it

was the defense’s decision not to disclose the new information but

nevertheless to elicit it on cross-examination in violation of Rule 16,

which shows the circumstances giving rise to the mistrial were

outside the court’s control, and which supports the trial court’s

finding that the mistrial resulted from the defense’s misconduct.

See Berreth, 13 P.3d at 1217 (“[B]oth case law and statutory criteria

show that circumstances must be serious and outside the control of

the trial court in order to justify a finding of ‘manifest necessity’” to

justify a mistrial.); see also State v. Carter, 2016 WL 4268774,

2016-Ohio-5371 (Ohio Ct. App. 2016) (declaring a mistrial was not

an abuse of discretion for defense’s failure to properly disclose alibi

evidence).


1For the same reasons, we reject Jackson’s argument that the
prosecutor’s failure to object until the end of cross-examination
created the prejudice. Because the prosecutor did not know what
Ms. Jackson would say, he could not object until the alibi evidence
was elicited.


                                   12
¶ 25   We next address and reject Jackson’s contention that the trial

  court failed to consider less drastic alternatives to a mistrial. To the

  contrary, the record reveals that the court considered the factors set

  forth in Segovia and the statute. It discussed the possibility of

  striking the testimony, noting that the jury heard pure alibi

  evidence that Jackson was nowhere near the crime. Given the

  noncompliance with the disclosure rule and the significance of this

  new evidence, it found this option insufficient to cure the prejudice

  to the prosecution. See Williamsen v. People, 735 P.2d 176, 183

  (Colo. 1987) (“Questions of the probative value and possible

  prejudicial impact of evidence are addressed to the sound discretion

  of the trial court, and the trial judge’s rulings will not be disturbed

  absent a clear abuse of discretion.”).

¶ 26   Implicit in the court’s finding that striking the testimony

  would not ameliorate the prejudice was its determination that an

  instruction requiring the jury to disregard the evidence would be

  equally insufficient. Indeed, the court said it could not see how the

  prosecution could recover from what had been given to the defense

  a month earlier. See Paul, 105 P.3d at 633 (The trial court did not




                                     13
  abuse its discretion by implicitly determining that “other reasonable

  alternatives [were] no longer available.”).

¶ 27   Next, the record shows that the trial court considered a short

  delay in the trial (forty-eight hours) for the prosecution to

  investigate and meet the new evidence. However, it found that the

  time required just to sort through the hundreds of jail calls to

  ascertain whether Jackson had influenced his ex-wife’s new

  testimony would far exceed forty-eight hours. Noting that this was

  a cold case, the court found “the prosecution cannot reasonably be

  expected to attempt to uncover any impeachment information, . . .

  whether it [be] during trial or during a . . . break in the

  proceedings.” After considering the factors outlined in Hampton —

  reason for nondisclosure, degree of culpability associated with

  nondisclosure, extent of prejudice to the other party, and

  reasonable lesser alternatives to exclusion of the alibi evidence —

  the court ultimately concluded that the alibi evidence was

  particularly significant because it completely exculpated Jackson

  from criminal conduct, and that justice to both parties could only

  “be served by either rebutting this information or the case being




                                     14
  dismissed if this alibi is, in fact, true.” Noting this was not an easy

  decision, the court granted the People’s request for a mistrial.

¶ 28   Because the trial court carefully considered the parties’

  arguments and its available options, and because it was in the best

  position to assess the prejudicial impact, we discern no abuse of

  discretion in its decision to declare a mistrial. To deprive trial

  courts of their ability to declare mistrials in circumstances such as

  these would cripple their ability to control and sanction counsel’s

  conduct in their courtroom. See Arizona v. Washington, 434 U.S.

  497, 513 (1978). Indeed, “[n]either party has a right to have his

  case decided by a jury which may be tainted by bias; in these

  circumstances, ‘the public’s interest in fair trials designed to end in

  just judgements’ must prevail over the defendant’s ‘valued right’ to

  have his trial concluded before the first jury impaneled.” Id. at 516

  (footnotes omitted) (quoting Wade v. Hunter, 336 U.S. 684, 689

  (1949))).

¶ 29   Accordingly, we affirm the court’s ruling declaring a mistrial.




                                     15
       III.   Walker’s Hearsay Statements are Admissible Under the
                       Doctrine of Forfeiture by Wrongdoing

¶ 30    Jackson next contends that the trial court erroneously

  admitted testimonial hearsay statements of uncharged

  co-conspirator Tyrel Walker to law enforcement officials under the

  doctrine of forfeiture by wrongdoing and under the residual hearsay

  exception, CRE 807. He argues that insufficient evidence shows

  that Walker’s decision not to testify related to him and that Walker’s

  statements were unreliable and therefore inadmissible. We disagree

  and conclude that (1) the prosecution proved by a preponderance of

  the evidence that Jackson forfeited his right to confront Walker and

  (2) the trial court did not abuse its discretion in admitting Walker’s

  statements.

                           A.   Additional Facts

¶ 31    Walker spoke twice with Investigator Craig Tangeman about

  the shooting — first on February 23, 2012, and again on February

  28, 2012. Walker disavowed any knowledge of the shooting in the

  first interview. However, during the February 28 interview, he

  admitted being with the group of people involved in the shooting.

  Walker said that Jackson drove the green Ford Explorer and that



                                    16
  Walker was a passenger in the blue Ford Explorer. Walker did not

  witness the shooting but heard the fired shots. According to

  Walker, after the shots were fired, Jackson drove up to the blue

  Ford Explorer, said that the wrong person had been shot, and said

  they then shot into E.O.’s apartment.

¶ 32   On August 18, 2015, Walker wrote a letter to the prosecution

  saying he did not want nor intend to participate in the upcoming

  trial. He explained that he was already serving a seventy-year

  prison sentence, that he was not a star witness, and that he did not

  remember the day or crime in question and would say so if brought

  to court. Thereafter, the prosecution moved to admit Walker’s

  February 28 statements, alleging that Jackson had forfeited his

  right to confront Walker by causing him not to testify.

¶ 33   At the hearing, the prosecutor produced evidence of jail

  telephone calls between Jackson and other members of Sicc Made,

  as well as law enforcement officials’ investigation concerning the

  identities of the persons named in the phone calls. That evidence

  revealed that Jackson’s cousin, Mikey Clopton, was in the Sterling

  prison where Walker was also housed. In a phone call to Juhn

  Simmons (a Sicc Made member), Jackson asked Simmons to ask


                                   17
  Clopton to ask Walker if he intended to take the stand and also to

  relay that Walker was the prosecution’s star witness. In a second

  call to Simmons, Jackson directed that Walker contact the defense

  investigator and “see if he’s willing to recant, pretty much.”

¶ 34   Jackson argued that the forfeiture by wrongdoing doctrine did

  not apply because the prosecution failed to prove that he caused

  Walker’s unavailability with the intent to prevent him from

  testifying. He further argued that the statements constituted

  inadmissible hearsay. He makes the same arguments on appeal.

¶ 35   In a detailed oral order, the trial court found that (1) the

  prosecution proved, by a preponderance of the evidence, that

  Jackson forfeited his right to confrontation because he caused

  Walker’s refusal to testify; and (2) Walker’s statements were

  admissible under CRE 807.

       B.    Confrontation Clause and Forfeiture by Wrongdoing

              1.   Standard of Review and Applicable Law

¶ 36   We review de novo a trial court’s ruling on whether a

  confrontation claim is barred under the forfeiture by wrongdoing

  doctrine. Vasquez v. People, 173 P.3d 1099, 1103 (Colo. 2007). We

  review for clear error the court’s factual findings made at the


                                    18
  forfeiture hearing, and we will not disturb those findings unless

  they are clearly erroneous. Id. at 1105. A finding is clearly

  erroneous if it has no support in the record. People v. Alaniz, 2016

  COA 101, ¶ 40.

¶ 37   We review a trial court’s evidentiary rulings for an abuse of

  discretion. See People v. McFee, 2016 COA 97, ¶ 17. A court

  abuses its discretion when its ruling is manifestly arbitrary,

  unreasonable, or unfair, or when it is based on an erroneous

  understanding or application of the law. Id.

¶ 38   A defendant forfeits his right to confront a witness at any

  proceeding in which the witness’s statements are otherwise

  admissible where “a court finds that (1) the witness is unavailable;

  (2) the defendant was involved in, or responsible for, procuring the

  unavailability of the witness; and (3) the defendant acted with the

  intent to deprive the criminal justice system of evidence.” Vasquez,

  173 P.3d at 1103-04; see also People v. Moreno, 160 P.3d 242, 247

  (Colo. 2007). The prosecution must prove, by a preponderance of

  the evidence, the elements of forfeiture by wrongdoing. Vasquez,

  173 P.3d at 1105. Any forfeiture applies to confrontation rights

  under the Federal and Colorado Constitutions. Id. at 1101.


                                    19
                              2.    Analysis

¶ 39    We conclude that the trial court applied the proper forfeiture

  test, weighing each of the three factors and assessing them in light

  of the proper preponderance burden. Vasquez, 173 P.3d at 1104-

  05.

¶ 40    First, the parties do not dispute, and we conclude the record

  sufficiently shows, that Walker was unavailable. Jackson’s sole

  related argument is that the prosecution did not prove he directly

  caused Walker’s unavailability. He relies on the contents of

  Walker’s letter, which he argues reflects Walker’s voluntary decision

  not to testify and refers to no threats associated with testifying. He

  further argues that Giles v. California, 554 U.S. 353 (2008), decided

  after his trial, limits the scope of the forfeiture by wrongdoing

  doctrine to circumstances where a defendant’s sole purpose for

  silencing a witness is to prevent the witness from testifying. Thus,

  he argues, even if there was some evidence that he wished Walker

  would not testify, the prosecution needed to prove Jackson had a

  specific intent to silence Walker. Courts in other jurisdictions,

  however, have explicitly rejected this interpretation of Giles. See,

  e.g., United States v. Jackson, 706 F.3d 264, 268 (4th Cir. 2013)


                                     20
  (“The [Giles] Court made no mention of any requirement that the

  defendant’s desire to silence the witness be the sole or primary

  motivation for his misconduct.”); People v. Banos, 100 Cal. Rptr. 3d

  476, 493 (Cal. Ct. App. 2009) (“[N]othing in Crawford, Davis, Giles I

  or Giles II suggests that the defendant’s sole purpose in killing the

  victim must be to stop the victim from cooperating with authorities

  or testifying against the defendant. It strikes us as illogical and

  inconsistent with the equitable nature of the doctrine to hold that a

  defendant who otherwise would forfeit confrontation rights by his

  wrongdoing . . . suddenly regains those confrontation rights if he

  can demonstrate another evil motive for his conduct.”); State v.

  Supanchick, 263 P.3d 378, 383 (Or. Ct. App. 2011) (“[T]he Court’s

  opinion in Giles does not suggest that [a defendant’s] sole or even

  primary purpose in making the victim unavailable must have been

  to prevent the victim from reporting defendant to the authorities or

  testifying against him.”), aff’d, 323 P.3d 231 (Or. 2014). We agree

  with these courts and conclude that our supreme court’s decision

  in Vasquez supports this view.

¶ 41   In Vasquez, 173 P.3d at 1103, the defendant killed his wife

  during the pendency of other criminal proceedings. He argued that


                                    21
  the prosecution was required to prove his intent to silence her

  testimony in each case separately, and that no intent evidence

  existed for the homicide case. Our supreme court rejected this

  narrow interpretation of the intent requirement and held that

  evidence of a defendant’s interference with a witness can work a

  forfeiture of the defendant’s confrontation rights in all proceedings

  in which the witness’s statements are admissible. Id. Consistent

  with this holding, we conclude that Jackson’s communications to

  Walker, through other members of Sicc Made, about whether he

  planned to “take the stand” and to contact the defense investigator

  to “recant” constitute sufficient evidence to establish his

  interference with Walker’s testimony by a preponderance of the

  evidence. Moreover, the existence of other reasons for Walker’s

  unavailability (as stated in his letter) does not alter our conclusion.

  See id. at 1104-05 (“[P]reventing the witness’s testimony does not

  have to be the defendant’s sole motivation, but need be only one

  reason for the defendant’s actions.”).

¶ 42   As with the interference factor of Vasquez, the record

  sufficiently supports the trial court’s factual findings that Jackson

  contacted others with the intent of depriving the court of key


                                    22
  evidence. Jackson described Walker as a “star witness” for the

  prosecution, and he said in one phone call that Walker “is their only

  witness against me, pretty much.” These statements show that

  Jackson knew Walker possessed damaging evidence (irrespective of

  its truth). And, Jackson’s request that Walker contact the defense

  investigator to “recant” evidences his intent to remove this

  damaging evidence from the trial.

¶ 43   We are not persuaded that Moreno, 160 P.3d 242 , requires a

  different result. There, the child victim was medically unavailable

  to testify due to the criminal conduct charged, so the trial court

  admitted the child’s videotaped interview over the defendant’s

  objection. The supreme court reversed, holding that a defendant

  does not forfeit his right to confrontation if the only evidence of

  wrongdoing is the offense itself, apart from any design or attempt to

  subvert the trial testimony. Id. at 246.

¶ 44   Unlike in Moreno, Walker’s refusal to testify had nothing to do

  with the criminal conduct charged, but instead was motivated in

  part by Jackson’s communications through Sicc Made

  intermediaries asking him to recant. As the forfeiture hearing

  unfolded, the trial court, as fact finder, was in the best position to


                                     23
  weigh the credibility of the witnesses and evidence presented, and

  we defer to its findings because the record supports them. See

  People v. Friend, 2014 COA 123M, ¶ 8 (trial courts are in the best

  position to determine questions of fact) (cert. granted in part Feb. 8,

  2016).

¶ 45   Finally, because we affirm the trial court’s ruling that Jackson

  forfeited his right to confront Walker, we need not address his

  argument that the introduction of Walker’s statements to law

  enforcement officials infringed his right to confront Walker. See

  Vasquez, 173 P.3d at 1103.

                               C.   Hearsay

¶ 46   Jackson contends that the trial court erroneously admitted

  Walker’s out-of-court statements under the residual hearsay

  exception, CRE 807. We disagree.

              1.    Standard of Review and Applicable Law

¶ 47   We review the trial court’s evidentiary decisions, including

  whether the residual hearsay exception applies, for an abuse of

  discretion. Vasquez, 173 P.3d at 1106 n.7. A court abuses its

  discretion when its decision is manifestly arbitrary, unfair, or




                                    24
  unreasonable, or contrary to law. See People v. Hoskins, 2014 CO

  70, ¶ 17.

¶ 48   CRE 807 provides that a statement not specifically covered by

  the other hearsay exceptions “but having equivalent circumstantial

  guarantees of trustworthiness” is not excluded by the prohibition

  against hearsay if certain requirements are met. A statement may

  be admitted under the rule if (1) it is offered as evidence of a

  material fact; (2) it is more probative on the point for which it is

  offered than any other evidence that could be reasonably procured;

  (3) the general purposes of the rules of evidence and the interests of

  justice are best served by its admission; and (4) the adverse party

  had adequate notice in advance of trial of the intention to offer it

  into evidence. People v. Fuller, 788 P.2d 741, 744 (Colo. 1990);

  People v. Shifrin, 2014 COA 14, ¶ 59.

¶ 49   “In considering the trustworthiness of a statement, courts

  should examine the nature and character of the statement, the

  relationship of the parties, the probable motivation of the declarant

  in making the statement, and the circumstances under which the

  statement was made.” People v. Jensen, 55 P.3d 135, 139 (Colo.

  App. 2001); see also Fuller, 788 P.2d at 745. The proponent must


                                     25
  establish the trustworthiness of the statement by a preponderance

  of the evidence. People v. Preciado-Flores, 66 P.3d 155, 164 (Colo.

  App. 2002).

                               2.   Analysis

¶ 50   We discern no abuse of discretion in the court’s admission of

  Walker’s hearsay statements under CRE 807 and conclude that the

  trial court’s findings, to which we defer, are supported by the

  record. People v. Brown, 2014 COA 155M-2, ¶ 29 (“[W]e defer to the

  trial court’s findings of fact which are supported by the record.”).

¶ 51   First, Walker’s statements were evidence of a material fact —

  the circumstances surrounding the shooting and Jackson’s

  involvement in it. Because Walker was present, heard the shots

  fired, and heard Jackson’s inculpatory statements immediately

  following the shooting, and because Walker’s statements were

  consistent with the physical evidence, his statements were more

  probative of what occurred at the apartment complex than the other

  circumstantial evidence that was available. Further, the jury’s

  truth-finding function, and thereby the interests of justice, are

  better served by firsthand accounts. See McFee, ¶ 76 (“Lay opinion

  testimony is permitted . . . because ‘it has the effect of describing


                                     26
  something that the jurors could not otherwise experience for

  themselves by drawing upon the witness’s sensory and experiential

  observations that were made as a firsthand witness to a particular

  event.’” (quoting United States v. Freeman, 730 F.3d 590, 595 (6th

  Cir. 2013))). Moreover, the undisputed record shows that the

  prosecution provided advance notice of its intent to admit Walker’s

  hearsay statements.

¶ 52   Concerning indicia of reliability, the trial court found “from a

  lay perspective admitting to things that seem to be candid and true,

  and then . . . not [being] able to remember certain things based on

  his position or passage of time . . . has an indicia of reliability.” It

  also found that Walker had no more motivation to implicate

  Jackson than any of the other individuals involved because Walker

  and Jackson were not close, although they knew each other. And,

  it found that the circumstances of the interview — specifically, that

  the prosecutor was making decisions about whom to charge —

  provided reliability to Walker’s statements.

¶ 53   We are not persuaded by Jackson’s argument that the trial

  court gave insufficient weight to Walker’s motivation to avoid first

  degree murder charges himself, and “downplayed this rather


                                      27
  important factor.” The record contradicts this assertion and shows

  that the court carefully analyzed each statement to determine its

  trustworthiness. The court specifically considered the impact of

  Walker’s motive:

            [T]he question as to his motive is always going
            to be suspect, but I think that internally within
            the statement he circles back around in terms
            of time, place, location, he corroborates
            statements that he had made earlier, he came
            back to the same statements, he identified
            individuals that he was familiar with, and he
            also stated when he was not able to identify
            individuals. He identified the position of his
            vehicle, what his observations were, what he
            saw, what he heard, the fact that gunshots
            had rung out and that they left immediately
            after [Jackson] told him that this guy’s house
            had been shot up and he describes the
            direction of travel. So based on the totality of
            circumstances, I will allow this evidence to
            come in.

¶ 54   The court acknowledged that while Walker may have been

  trying to avoid culpability, he nevertheless inculpated himself as a

  complicitor by admitting that he was at the scene, heard gunshots,

  heard Jackson’s inculpatory statements, and thus was a

  participant.

¶ 55   For the same reasons, we reject Jackson’s argument that the

  court improperly distinguished this case from Bernal v. People, 44


                                   28
  P.3d 184 (Colo. 2002), where our supreme court held that a

  co-conspirator’s statements minimizing his own blame and

  maximizing others’ did not possess the requisite “particularized

  guarantees of trustworthiness” to be admissible under CRE

  804(b)(3). Id. at 197, 200. To be sure, Walker’s statements

  minimized his participation in the actual murder; however, he

  admitted participating in the planning, driving to the apartment

  complex, and hearing gunshots. And, as found by the court,

  nothing in the record shows why he would implicate Jackson over

  the other participants.

¶ 56   Finally, the court noted that unlike in Bernal, where the

  witness made numerous inconsistent statements, Walker’s

  statements remained consistent, even when the investigator moved

  on and then returned to earlier questions. True enough, Walker

  could not recall a number of details; however, unlike the

  circumstances in Bernal, the investigator never caught Walker in

  lies. See id. at 200 (“Even Grose, a detective and witness for the

  prosecution, recognized the untrustworthiness of [the

  codefendant’s] statement. . . . Grose responded to the court’s

  question of why [the codefendant] was upset during the interviews


                                   29
  with the following explanation: ‘Because he was caught in several

  lies, and he was being confused as to time, where he was at. And

  he was getting frustrated because I was going back over his

  statements and he was changing his statements, and he was

  confused.”).

¶ 57   Accordingly, we conclude that the decision to admit Walker’s

  statements under CRE 807 was not manifestly unreasonable,

  arbitrary, or unfair.

                          IV.   Complicity Instruction

¶ 58   Jackson next contends that the complicity instruction was

  erroneous for three reasons. First, he asserts that the jury should

  have been required to find that he was aware the shooter was acting

  after deliberation and with the conscious objective to kill the victim.

  He also argues that a separate complicity instruction should have

  been given for each offense because each offense contained a

  different mens rea. Finally, he argues that the tendered complicity

  instruction allowed the jury to convict him of first degree murder

  after deliberation with a lesser mens rea than that possessed by the

  shooter. Because we are bound by our supreme court’s decision in




                                       30
  People v. Childress, 2015 CO 65M, we conclude the complicity

  instruction was proper.

                            A.   Additional Facts

¶ 59   Jackson tendered the following complicity instruction:

            A person is guilty of an offense committed by
            another person if he is a complicitor. To be
            guilty as a complicitor, the following must be
            established beyond a reasonable doubt:

            1. The crime must have been committed,

            2. another person must have committed all or
            part of the crime,

            3. the defendant must have had knowledge
            that the other person intended to commit all or
            part of the crime,

            4. the defendant be actually aware of or know
            that the principal was acting after deliberation,
            and with the conscious objective of causing the
            death of another,

            5. the defendant must have had the intent to
            promote or facilitate the commission of the
            crime,

            6. the defendant must have aided, abetted,
            advised, or encouraged the other person(s) in
            the commission or planning of the crime.

¶ 60   The tendered instruction included a source note at the bottom

  that read as follows:




                                     31
            This instruction is not supported by People v.
            Childress, --- P.3d ---, 2015 WL 7423068
            (Colo. 2015). However, this proposed
            instruction is being submitted in support of D-
            30 titled, “Motion to Find C.R.S. 1[8]-1-603
            Unconstitutional on its Face And as Applied,
            or in the Alternative, Motion for an Alternative
            Jury Instruction.”

¶ 61   During the instruction conference, defense counsel argued,

            I understand the Court had denied the motion
            [to find section 18-1-603 unconstitutional], but
            I think the Court said I could still follow up
            with the jury instruction to create a record
            that we were seeking to introduce it. But I
            wanted to obviously note that this was not
            supported by the [Childress] case. It might
            have been supported by the dissent, but that
            has already been ruled upon by the Court.

¶ 62   The court denied Jackson’s tendered instruction, ruling that

  (1) the fourth paragraph was subsumed within the third paragraph

  and (2) the fourth paragraph only considered the mens rea for first

  degree murder while the instruction applied to all charges.

¶ 63   The court instructed the jury as follows:

            A person is guilty of an offense committed by
            another person if he is a complicitor. To be
            guilty as a complicitor, the following must be
            established beyond a reasonable doubt:

            1. The crime must have been committed,

            2. another person must have committed all or
            part of the crime,

                                   32
            3. the defendant must have had knowledge
            that the other person intended to commit all or
            part of the crime,

            4. the defendant must have had the intent to
            promote or facilitate the commission of the
            crime,

            5. the defendant must have aided, abetted,
            advised, or encouraged the other person(s) in
            the commission or planning of the crime.

              B.   Standard of Review and Applicable Law

¶ 64   Trial courts have a duty to correctly instruct the jury on all

  matters of law. People v. Garcia, 28 P.3d 340, 343 (Colo. 2001).

  We review de novo whether jury instructions accurately reflect the

  law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011). Generally,

  instructions that accurately track the language of applicable

  statutes and pattern instructions are sufficient. People v. Gallegos,

  260 P.3d 15, 26 (Colo. App. 2010). However, “pattern instructions

  are not law, not authoritative, and not binding on this court, but

  they are grounded in our longstanding practice and are regularly

  consulted to determine whether jury instructions are erroneous.”

  People v. Flockhart, 2013 CO 42, ¶ 12.

¶ 65   Under the complicity statute, “[a] person is legally accountable

  as [a] principal for the behavior of another constituting a criminal


                                    33
offense if, with the intent to promote or facilitate the commission of

the offense, he or she aids, abets, advises, or encourages the other

person in planning or committing the offense.” § 18-1-603, C.R.S.

2017. Section 18-1-603 therefore dictates

          that a person is legally accountable as a
          principal for the behavior of another
          constituting a criminal offense if he aids,
          abets, advises, or encourages the other person
          in planning or committing that offense, and he
          does so with: (1) the intent to aid, abet, advise,
          or encourage the other person in his criminal
          act or conduct, and (2) an awareness of
          circumstances attending the act or conduct he
          seeks to further, including a required mental
          state, if any, that are necessary for commission
          of the offense in question.

Childress, ¶ 34.

          With regard to causing a particular result that
          is an element of the offense in question, rather
          than mandating that a complicitor himself act
          with the kind of culpability otherwise required
          for commission of the offense, complicitor
          liability as defined by statute in this
          jurisdiction mandates that the complicitor act
          with an awareness the principal is or would be
          acting with that required mental state.

Id. at ¶ 29 (emphasis added). “[C]ircumstances attending the act or

conduct,” refers to “those elements of the offense describing the

prohibited act itself and the circumstances surrounding its



                                  34
  commission, including a required mental state, if any.” Id.

  (emphasis added).

                             C.    Application

¶ 66   We conclude that the tendered instruction properly required

  the jury to find that Jackson knew that the shooter intended to

  “commit all or part of the crime.” A separate jury instruction

  defined first degree murder after deliberation:

             The elements of the crime of Murder in the
             First Degree (After Deliberation) are:

             1. That the defendant,

             2. in the State of Colorado, on or about
             December 26, 2011,

             3. after deliberation, and

             4. with the intent,

             5. to cause the death of a person other than
             himself,

             6. caused the death of that person or of
             another person.

  “[A]fter deliberation” and “with the intent” “to cause the death of a

  person” are separate elements of “the crime.” Thus, this

  instruction, when read with the complicity instruction, accurately

  required the jury to find that Jackson was aware that the shooter



                                      35
  acted after deliberation and with the intent to cause the death of

  the victim. Accordingly, we perceive no error in the complicity

  instruction.

¶ 67   Next, we address, and reject, Jackson’s contention that the

  court should have tailored the complicity instruction to each offense

  by providing separate complicity instructions for each offense.

  Because Jackson makes this “separate instruction” argument for

  the first time on appeal, we review his argument for plain error.

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

¶ 68   First, Jackson does not cite, nor are we aware of, any

  authority requiring a separate complicity instruction for each

  offense to which complicity applies. Thus, the alleged error could

  not have been “obvious.” See People v. Pollard, 2013 COA 31M, ¶

  40 (To be obvious, an error “must contravene (1) a clear statutory

  command; (2) a well-settled legal principle; or ([3]) Colorado case

  law.”) (citations omitted). Additionally, the court instructed the jury

  that each count charged “a separate and distinct offense” and that

  “the evidence and the law applicable to each count had to be

  considered separately, uninfluenced by [the jury’s] decision as to

  any other count.” Because we presume the jury followed the court’s


                                    36
  instructions, we similarly presume that it considered and applied

  the complicity instruction to each count separately. People v.

  Moody, 676 P.2d 691, 697 (Colo. 1984). Therefore, no error

  occurred.

¶ 69   Finally, we conclude that Jackson preserved his “lesser mental

  state” argument by arguing the unconstitutionality of section

  18-1-603 both facially and as applied (though he does not challenge

  the trial court’s ruling denying those claims). However, we reject

  his argument for the reasons described above and because we are

  bound by Childress, which holds,

              with regard to crimes of specific intent[,] . . .
              the mental state requirements of
              complicity . . . arguably require a less culpable
              state of mind on the part of the complicitor
              than of the principal; and as a practical
              matter, any difference between having both the
              knowledge that the principal is acting with a
              conscious objective to cause a prohibited
              result and the design or desire to promote or
              facilitate that act, on the one hand, and
              actually having the conscious objective that
              the prohibited result occur, on the other, is
              largely academic. In any event, it could hardly
              be said that a complicitor’s act of aiding,
              abetting, advising, or encouraging another
              person with both an awareness that the other
              person is engaging in behavior, the conscious
              objective of which is to cause a prohibited
              result, and a design that he do so, is any less


                                     37
              culpable than having that conscious objective
              himself.

  Childress, ¶ 32. Indeed, Jackson conceded as much in the source

  note on his tendered instruction and in his instruction conference

  argument. Accordingly, we conclude no error occurred.

                  V.   Double Jeopardy and Multiplicity

¶ 70   Jackson last contends that the court erred in imposing two

  convictions and consecutive sentences for his attempted murder

  convictions. He asks us to vacate one of the convictions and

  sentences. The People concede that the sentences for first degree

  murder and attempted first degree murder after deliberation should

  run concurrently, but argue that two convictions are justified

  because these convictions name different victims (Y.M. and E.O.).

  We agree with Jackson. To maximize the jury’s verdict, we vacate

  his attempted first degree murder after deliberation conviction and

  sentence (because it is a lesser included offense of first degree

  murder after deliberation) and remand for correction of the

  mittimus.




                                    38
               A.   Standard of Review and Relevant Law

¶ 71   We review unpreserved double jeopardy issues for plain error.

  See Reyna-Abarca v. People, 2017 CO 15, ¶ 47 (“[W]e conclude that

  an appellate court may review an unpreserved double jeopardy

  claim and that the court should ordinarily review such a claim for

  plain error.”). Plain error is ‘“obvious and substantial,’ and must

  have ‘so undermined the fundamental fairness of the [proceeding]

  so as to cast serious doubt on the reliability of the judgment.’”

  People v. Davis, 2015 CO 36M, ¶ 32 (citations omitted).

¶ 72   The Double Jeopardy Clauses of the United States and

  Colorado Constitutions protect an accused against being twice

  placed in jeopardy for the same crime. U.S. Const. amend. V; Colo.

  Const. art. II, § 18; Woellhaf v. People, 105 P.3d 209, 214 (Colo.

  2005). As pertinent here, the Double Jeopardy Clauses protect not

  only against a second trial for the same offense, but also “against

  multiple punishments for the same offense.” Woellhaf, 105 P.3d at

  214 (quoting Whalen v. United States, 445 U.S. 684, 688 (1980)).

¶ 73   Additionally, a defendant may not be convicted of an offense

  that is included in another offense. § 18-1-408(1), C.R.S. 2017.

  One offense is a lesser included offense of another offense “if the


                                    39
  elements of the lesser offense are a subset of the elements of the

  greater offense, such that the lesser offense contains only elements

  that are also included in the elements of the greater offense.”

  Reyna-Abarca, ¶ 64. The lesser offense and greater offense may

  only stand “if the offenses were committed by distinctly different

  conduct.” People v. Rock, 2017 CO 84, ¶ 17. Thus, if the same

  conduct led to the two convictions and establishing the greater

  offense establishes “any set of elements sufficient for commission of

  that lesser offense,” then the lesser offense is included. Id. at

  ¶¶ 16-17.

¶ 74     To determine whether an offense is a lesser included offense,

  we examine the statutes at issue. In construing a statute, we must

  determine and effectuate the intent of the General Assembly.

  Whenever possible, we discern such intent from the plain and

  ordinary meaning of the statutory language. Woellhaf, 105 P.3d at

  215.

¶ 75     Section 18-3-102, C.R.S. 2017, provides as follows:

              (1) A person commits the crime of murder in
              the first degree if:

              (a) After deliberation and with the intent to
              cause the death of a person other than


                                     40
             himself, he causes the death of that person or
             of another person; or

             ....

             (d) Under circumstances evidencing an
             attitude of universal malice manifesting
             extreme indifference to the value of human life
             generally, he knowingly engages in conduct
             which creates a grave risk of death to a person,
             or persons, other than himself, and thereby
             causes the death of another . . . .

  (Emphasis added.)

¶ 76   Attempted first degree murder requires that the defendant

  engage in conduct constituting a substantial step toward the

  commission of first degree murder, as defined in section 18-3-

  102(1)(a) and (d). See § 18-2-101(1), C.R.S. 2017 (“A person

  commits criminal attempt if, acting with the kind of culpability

  otherwise required for commission of an offense, he engages in

  conduct constituting a substantial step toward the commission of

  the offense.”).

¶ 77   Finally, section 18-1-408 governs the prosecution of multiple

  counts for the same act. It mandates that a defendant

             may not be convicted of more than one offense
             if:

             (a) One offense is included in the other . . . ; or


                                     41
            (b) One offense consists only of an attempt to
            commit the other; or

            (c) Inconsistent findings of fact are required to
            establish the commission of the offense; or

            (d) The offenses differ only in that one is
            defined to prohibit a designated kind of
            conduct generally and the other to prohibit a
            specific instance of such conduct; or

            (e) The offense is defined as a continuing
            course of conduct and the defendant’s course
            of conduct was uninterrupted, unless the law
            provides that specific periods or instances of
            such conduct constitute separate offenses.

  § 18-1-408(1).

¶ 78   If a defendant is convicted and receives multiple punishments

  for the same offense, the convictions merge. See People v. Rhea,

  2014 COA 60, ¶ 17 (“Merger has the same effect as vacating one of

  the multiplicitous sentences.”).

                            B.       Discussion

¶ 79   The prosecution charged Jackson with first degree murder

  after deliberation for killing Y.M. It also charged him with two

  counts of attempted first degree murder as to E.O. under different

  theories — after deliberation and extreme indifference. During

  closing arguments, the prosecutor urged the jury to convict

  Jackson of the two attempted murder counts based on the five

                                      42
  shots fired into E.O.’s apartment. He argued that Jackson’s

  “substantial step” toward murdering E.O. was driving to E.O.’s

  apartment. On appeal, however, the People abandon this argument

  and instead assert that the shooting of Y.M. encompasses two

  separate crimes — first degree murder after deliberation and

  attempt — and that two convictions can be entered because the

  counts name separate victims (Y.M. for murder and E.O. for

  attempted murder).2

¶ 80   We first address and reject the prosecutor’s argument in

  closing that was challenged by Jackson in this appeal.

¶ 81   Under that argument, both attempts were based on identical

  evidence — the five shots fired into E.O.’s apartment. Although we

  recognize our duty to maximize the jury’s verdict, see People v.

  Delgado, 2016 COA 174, ¶ 29 (cert. granted Dec. 11, 2017), two

  convictions for attempted first degree murder based upon the same

  evidence and the same victim cannot stand. See Candelaria v.

  People, 148 P.3d 178, 180-81 (Colo. 2006) (“We therefore found that


  2The People may defend the judgment on any grounds supported
  by the record. See People v. Aarness, 150 P.3d 1271, 1277 (Colo.
  2006).


                                   43
  the legislature intended to permit the same defendant to suffer only

  one conviction of murder for the killing of any single victim. We

  also considered it important, however, that the prosecution be

  permitted to charge multiple theories of first degree murder in

  separate counts . . . .”) (citation omitted); see also § 18-1-408(1)(e)

  (One conviction must be vacated when “[t]he offense is defined as a

  continuing course of conduct and the defendant’s course of conduct

  was uninterrupted, unless the law provides that specific periods or

  instances of such conduct constitute separate offenses.”).

¶ 82   Contrary to the prosecutor’s argument, the trial evidence does

  not support “distinct and separate offenses” for each shot fired.

  Quintano v. People, 105 P.3d 585, 592 (Colo. 2005). To determine

  whether each individual shot constitutes a separate offense, we

  examine whether the conduct occurred at different locations, was

  the product of new volitional departures, was separated by time, or

  was separated by intervening events. Woellhaf, 105 P.3d at 214;

  Quintano, 105 P.3d at 591. Because the evidence established that

  the five shots were fired in rapid succession, at the same location,

  not separated by time or any intervening events, and without a new




                                     44
  volitional departure, we conclude that identical evidence supports

  both attempted murder convictions and that only one may stand.

¶ 83   In response to the People’s new argument, Jackson contends

  that we must still vacate one of the attempted murder convictions

  because attempted murder after deliberation is a lesser included

  offense of first degree murder after deliberation. The People

  contend that because the counts named different victims, section

  18-1-408(3) (mandatory concurrent sentences for convictions

  supported by identical evidence) only requires the court to impose

  concurrent sentences to avoid a double jeopardy violation, but does

  not require that the conviction be vacated. This presents a novel

  issue not previously decided by a Colorado appellate court — when

  the greater and the lesser first degree murder offenses name

  different victims under the same theory, do principles of double

  jeopardy require one to be vacated? We answer that question “yes,”

  based on the plain language of the first degree murder statute,

  which incorporates the doctrine of transferred intent, and conclude

  that double jeopardy requires that we vacate Jackson’s conviction

  for the lesser included offense of attempted first degree murder after

  deliberation.


                                   45
¶ 84   The facts of this case implicate the doctrine of transferred

  intent because the victim killed was not the perpetrators’ intended

  target. As described in People v. Hunt, 2016 COA 93, the doctrine

  of transferred intent

             is a legal fiction that is used to hold a
             defendant criminally liable to the full extent of
             his or her criminal culpability. Traditionally,
             the transferred intent theory has been applied
             in so-called “bad aim” situations where a
             defendant, while intending to kill one person,
             accidentally kills an innocent bystander or
             another unintended victim. . . . Thus, the
             perpetrator’s intent to kill or injure a specific
             victim transfers to the unintended victim.

             . . . The purpose of the doctrine is to impose
             criminal liability upon an actor when he or she
             intends to commit a criminal act, and “the
             actual result differs from the result designed or
             contemplated only in that a different person or
             property was injured or affected.”

  Id. at ¶ 24 (citations omitted).

¶ 85   The Hunt division recognized that the first degree murder

  statute “incorporates the doctrine of transferred intent and holds a

  principal liable for the death of an unintended victim” by its plain

  language. Id. at ¶ 21 (quoting People v. Candelaria, 107 P.3d 1080,

  1091 (Colo. App. 2004)). Indeed, as relevant here, the first degree

  murder statute requires that the defendant “cause[] the death of


                                     46
  that person or of another person.” § 18-3-102(1)(a) (emphasis

  added).

¶ 86   We recognize that one commentator suggests that the doctrine

  of transferred intent is limited to “bad aim” cases and does not

  apply to “mistaken identity” cases such as this. See 1 Wayne R.

  LaFave, Substantive Criminal Law § 6.4(d), at 475-78 (2d ed. 2003);

  see also Martinez v. State, 844 S.W.2d 279, 282 (Tex. App. 1992)

  (limiting the transferred intent doctrine to bad aim cases).

¶ 87   However, others take a broader view finding that the purpose

  of the doctrine is to impose criminal liability on a person who

  commits a criminal act and “the actual result differs from the result

  designed or contemplated only in that a different person or property

  was injured or affected” without limiting it to bad aim cases. Model

  Penal Code § 2.03(2)(a) cmt. 3 (Am. Law Inst. 1985); see also State

  v. Austin, 788 N.W.2d 788, 793 (Minn. Ct. App. 2010) (applying the

  doctrine to mistaken identity facts and finding “[t]he doctrine

  applies when a defendant claims that ‘bad aim’ or a mistaken

  identity resulted in the crime affecting a victim other than the

  intended victim”). Indeed, one commentator has suggested that the

  need for the doctrine can be avoided altogether by incorporating the


                                    47
  doctrine into the statutory language. See 1 Paul H. Robinson,

  Criminal Law Defenses § 89(c) (1984) (describing how a homicide

  statute requiring an intent to cause the death of a person or

  another person includes the doctrine of transferred intent).

¶ 88   Because our General Assembly has chosen to include the

  doctrine of transferred intent within the language of the first degree

  murder statute, we are persuaded that the doctrine is implicated by

  the facts of this case and provides a useful framework for resolving

  the legal question presented, even though it involves mistaken

  identity rather than bad aim. We find support for our view in an

  old supreme court case where the court described the nearly

  universal rule that “one who kills another, mistaking him for a third

  person whom he intended to kill, is guilty or innocent of the offense

  charged the same as if the fatal act had killed the person intended

  to be killed.” Ryan v. People, 50 Colo. 99, 102, 114 P. 306, 308

  (1911) (quoting Francis Wharton, The Law of Homicide § 359 (Frank

  H. Bowlby ed., 3d ed.1907)).

¶ 89   Here, the undisputed evidence shows that the shooter and

  Jackson intended to kill E.O. and mistakenly killed Y.M., believing

  him to be E.O. Under the doctrine of transferred intent, Jackson’s


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specific intent to kill E.O. transferred to Y.M. and made him

criminally liable for Y.M.’s death. See State v. Fekete, 901 P.2d 708,

714 (N.M. 1995) (finding that the perpetrator’s intent to kill or

injure a specific victim transfers to the unintended victim). By

proving the first degree murder of Y.M. under this theory, the

prosecution necessarily proved that Jackson intended and

attempted to kill E.O. Therefore, the attempted murder of E.O. after

deliberation is a lesser included offense of the murder after

deliberation of Y.M. Rock, ¶¶ 16-17 (proving elements of the greater

offense necessarily proves all the elements of the lesser offense); see

also Crim. P. 31(c) (“The defendant may be found guilty of an

offense necessarily included in the offense charged or of an attempt

to commit either the offense charged or an offense necessarily

included therein if the attempt is an offense.”). And, because

double jeopardy principles and section 18-1-408(1)(b) preclude

convictions for both the lesser and greater offense, we conclude the

error was obvious, substantial, and undermined the fairness of the

proceeding. Reyna-Abarca, ¶ 81 (“[S]uch a violation requires a

remedy.”).




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¶ 90   Accordingly, we vacate Jackson’s attempted first degree

  murder after deliberation conviction.

                            VI.   Conclusion

¶ 91   The judgment is affirmed as to the convictions of first degree

  murder after deliberation, attempted first degree murder with

  extreme indifference, conspiracy to commit first degree murder, and

  accessory. The judgment for attempted first degree murder after

  deliberation is vacated, and the case is remanded for correction of

  the mittimus. The mittimus should be amended to delete the

  conviction and sentence for attempted first degree murder after

  deliberation.

       JUDGE TERRY and JUDGE NAVARRO concur.




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