12CA2134 Peo v Wilson 01-28-2016

COLORADO COURT OF APPEALS

Court of Appeals No. 12CA2134
City and County of Denver District Court No. 11CR20001
Honorable Martin Egelhoff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Billy Wilson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE FOX
Taubman and Miller, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(f)
Announced January 28, 2016
Cynthia H. Coffman, Attorney General, Nicole D. Wiggins, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

Defendant, Billy Wilson, appeals from the judgment, entered

on jury verdicts, convicting him of second degree murder and felony
murder, with attempted sexual assault as the predicate offense. We
affirm.
I.

Background

On August 21, 2004, a twenty-seven-year-old womans body

was discovered in a breezeway between two houses on Lafayette
Street in Denver. Medical reports indicated that she died of a stab
wound to her neck that severed her carotid artery.
Seven years later, Wilson was linked to the victim by DNA
evidence from the crime scene, and he was arrested. The People
charged Wilson with three counts of first degree murder, second
degree kidnapping, attempted sexual assault, and robbery.
Following an eight-day trial, the jury convicted Wilson of second
degree murder, felony murder with attempted sexual assault as the
predicate offense, and attempted sexual assault. The court merged
the attempted sexual assault and felony murder convictions and
sentenced Wilson to life in prison without the possibility of parole.
II. Sufficiency of the Evidence

Wilson first contends that the trial court erred in denying his
motion for a judgment of acquittal because the People failed to
present sufficient evidence that he committed the predicate offense
to felony murder attempted sexual assault. We are not
persuaded.
A. Preservation and Standard of Review
Although Wilson moved for a judgment of acquittal in the trial
court, he did not articulate the statutory claim he makes on appeal,
which relies on sections 18-2-101(1) and 18-3-402(1)(a), C.R.S.
2015. For this reason, the People urge us to review his sufficiency
claim for plain error.1 Pursuant to the analysis in People v. McCoy,
2015 COA 76M, 6-38, we decline to do so. Instead, we review
Wilsons sufficiency contention de novo. Id.
When reviewing the sufficiency of the evidence de novo, we
consider whether the evidence, viewed as a whole and in the light
The People cite People v. Lacallo, 2014 COA 78, 5-24, and a
federal case, in support of the proposition that Wilsons challenge is
unpreserved and should be reviewed for plain error, without citing
to the substantial body of Colorado law to the contrary. E.g., People
v. Serra, 2015 COA 130, 20 n.1; People v. McCoy, 2015 COA 76M,
6-38 (citing cases). Counsel has an obligation to disclose to the
tribunal legal authority in the controlling jurisdiction known to the
lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel. Colo. RPC 3.3.

most favorable to the People, is sufficient in quantity and quality to

support a rational conclusion that the defendant is guilty of the
crime charged beyond a reasonable doubt. Dempsey v. People, 117
P.3d 800, 807 (Colo. 2005); People v. Gonzales, 666 P.2d 123, 127
(Colo. 1983). The standard requires us to give the People the
benefit of every inference that may fairly be drawn from the
evidence. McCoy, 37.
A criminal conviction cannot be based upon speculation,
conjecture, or guessing. Gonzales, 666 P.2d at 128. We may not,
however, sit as a thirteenth juror and set aside a verdict simply
because we might have drawn a different conclusion from the same
evidence. Cokley v. People, 168 Colo. 52, 58, 449 P.2d 824, 827
(1969).
B. Attempted Sexual Assault Law
A person commits attempted sexual assault when he engages
in conduct constituting a substantial step towards knowingly
inflicting sexual intrusion or sexual penetration on a victim. 182-101(1); 18-3-402(1)(a). Sexual intrusion means
any intrusion, however slight, by any object or
any part of a persons body, except the mouth,
tongue, or penis, into the genital or anal
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opening of another persons body if that sexual

intrusion can reasonably be construed as
being for the purposes of sexual arousal,
gratification, or abuse.
18-3-401(5), C.R.S. 2015. Sexual penetration means sexual
intercourse, cunnilingus, fellatio, analingus, or anal
intercourse. . . . Any penetration, however slight, is sufficient to
complete the crime. 18-3-401(6).
A substantial step is any conduct which is strongly
corroborative of the firmness of the actors purpose to complete the
commission of the offense. 18-2-101(1); People v. Lehnert, 163
P.3d 1111, 1113 (Colo. 2007); see People v. Miranda, 2014 COA
102, 76-78 (cert. granted Aug. 31, 2015).
C. Analysis
As pertinent here, the prosecution presented the following
evidence at trial:
The victim was found lying on her back with her belt
unbuckled and her pants unzipped. Her pants were low
enough that part of her pubic area was visible but not her
vagina. Her abdomen was exposed, but she was otherwise
clothed.

 The victim had fresh bruises and abrasions on her nose, her
upper left eyelid, the left side of her face specifically on
her jaw and cheekbones and inside her upper lip. The
medical examiner testified that these bruises indicated
repeated blows or punches to the face.
The victim had fresh bruising on her right arm and
shoulder, fresh scrapes on her elbow, and defensive hand
wounds. She also had what appeared to be a fresh human
bite wound containing Wilsons DNA on her left wrist.
She had a number of bruises on her inner thighs. Many
of the bruises were dark, indicating that they were fresh
abrasions; others were yellow, indicating that they were
older.
The victim had no injury to her genitals.
Wilson alleged that the victim was intoxicated when he
encountered her and that she had unbuckled and unzipped her
pants to urinate in the breezeway where she was eventually found.
A medical examiner testified that the victims bladder was pretty
full and that most people with a bladder that full would feel the
need to urinate. An expert witness stated that it is possible that
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the victim unzipped her pants to urinate in the breezeway and that
in a typical sexual assault case, the victims pants would be much
lower. As well, a fireman, who was among those who arrived on the
scene first, testified that the victims shirt was closer to being down
rather than all the way up and that the paramedics had lifted the
victims shirt to check for wounds. Wilson presented no evidence to
dispute or explain the bruising on the victims body particularly
on her inner thighs.
Viewing this evidence as a whole and in the light most
favorable to the People, we conclude that the People presented
sufficient evidence to sustain Wilsons conviction for felony murder
and the predicate offense, attempted sexual assault. See Miranda,
77-78. The jury could have reasonably concluded, based on the
victims unbuckled and unzipped pants, body positioning, and
significant bruising, particularly on her inner thighs, that Wilson
took a substantial step toward sexually assaulting her. See People
v. Jackson, 972 P.2d 698, 701 (Colo. App. 1998) (An attempt
merely requires some overt act beyond preparation. The overt act,
however, need not be the last proximate act necessary to complete
the offense.).
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III. Jury Instruction

Wilson next contends that the court committed reversible error
when it instructed the jury that the prosecution must disprove at
least one element of the affirmative defense beyond a reasonable
doubt. The People contend that the invited error doctrine
precludes Wilson from appealing this issue because he tendered the
self-defense instruction and acquiesced in the inclusion of this
specific language at trial. We agree with the People.
A. Invited Error
The invited error doctrine prevents a party from appealing an
error that he invited or injected into the case. People v. Wittrein,
221 P.3d 1076, 1082 (Colo. 2009). The doctrine is narrow and
applies to errors in trial strategy but not errors that result from
inadvertence or attorney incompetence. Id.; People v. Stewart, 55
P.3d 107, 119 (Colo. 2002). A jury instruction proposed by a
defendant or a defendants affirmative acquiescence to a jury
instruction can trigger the invited error doctrine. People v. Gregor,
26 P.3d 530, 532 (Colo. App. 2000); see also People v. Butler, 251
P.3d 519, 522-23 (Colo. App. 2010).
B. Analysis
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The record reflects that Wilson tendered a self-defense

instruction to the court. The People proposed various alterations to
the instruction, one of which addressed the language that Wilson
challenges on appeal. The prosecutor stated
with regard to the paragraph that reads after
considering all the evidence if you decide the
prosecution has failed to disprove beyond a
reasonable doubt any one or more elements of
the affirmative defense you must return a
verdict of not guilty, that is an incorrect
statement of the law. The prosecution need
only disprove one of the elements. So I would
just propose that the language read after
considering all the evidence if you decide the
prosecution has failed to disprove beyond a
reasonable doubt any one of the elements of
the affirmative defense you must return a
verdict of not guilty.
Defense counsel responded, I think it is appropriate as written. I
think it says if they fail to prove or disprove in this case any one of
the elements or more of the elements. But, when the prosecutor
further explained her position, defense counsel stated, I do see now
. . . what she is saying.
Defense counsel, the court, and the prosecutor then worked
together to draft the instruction that was ultimately used. Defense
counsel expressly agreed numerous times to the inclusion of the

general legal principle underlying the instruction. Counsel also

suggested ways of rephrasing the instruction to address the
prosecutors concerns and prevent jury confusion. When the
prosecutor suggested the language that was ultimately used,
defense counsel responded, Perfect. The court also accepted the
prosecutors proposed language and then asked the parties, Is this
how you think the instruction needs to look? Defense counsel
replied, Yes, your Honor.
Thus, not only did defense counsel fail to object to the
instruction that Wilson now disapproves, counsel affirmatively
acquiesced and helped the court draft it. And, Wilson does not
contend that his counsels acquiescence was due to an oversight or
incompetence. See Butler, 251 P.3d at 522-23. Indeed, Wilsons
briefs do not address the invited error doctrine at all.
Because Wilson invited this instruction into the case, he is
precluded from now claiming that the court erred in giving it. See
id. Thus, we decline to review this issue.
IV.

Conclusion

The judgment is affirmed.

JUDGE TAUBMAN and JUDGE MILLER concur.
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