Peo v. Birch

22CA0928 Peo v Birch 04-17-2025

COLORADO COURT OF APPEALS


Court of Appeals No. 22CA0928
Arapahoe County District Court No. 20CR3054
Honorable Ryan J. Stuart, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Samuel Isaiah Birch,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division III
                         Opinion by JUDGE MEIRINK
                         Dunn and Tow, JJ., concur

                 NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
                         Announced April 17, 2025


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

Mark G. Walta, Alternate Defense Counsel, Littleton, Colorado, for Defendant-
Appellant
¶1    Defendant, Samuel Isaiah Birch, appeals his judgment of

 conviction and sentence imposed by the trial court. We affirm.

                            I.   Background

¶2    In December 2020, Douglas County Sheriff’s Office deputies

 responded to a hit-and-run report involving a dark-colored vehicle.

 The driver, later identified as Birch, was arrested after a failed

 attempt to flee the scene of the accident. At the scene, Birch

 appeared to be intoxicated.

¶3    Shortly after Birch’s arrest, his ex-girlfriend called the

 Arapahoe County Sheriff’s Office and identified Birch as the

 perpetrator of two armed robberies that took place in November

 2020, the second of which resulted in the death of the store clerk.

¶4    The People then charged Birch with first degree murder after

 deliberation, first degree felony murder, two counts of aggravated

 robbery with a deadly weapon, and tampering with physical

 evidence. Birch pleaded not guilty to all counts, and the case

 proceeded to trial.

¶5    On the fourth day of trial, the People expressed concerns that

 Birch was attempting to introduce alternate suspect evidence

 without a hearing on its admissibility under People v. Elmarr, 2015


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 CO 53. The People asked the court to exclude such evidence. In

 response, Birch argued that his defense strategy was not to

 introduce alternate suspect evidence but to impeach the credibility

 of law enforcement witnesses by addressing the investigators’

 failure to explore other leads. The trial court found that the

 evidence Birch sought to introduce was, in fact, alternate suspect

 evidence and that Birch had failed to present evidence that

 connected the specific alternate suspect to the crime, as required by

 Elmarr. Nevertheless, the trial court permitted Birch to cross-

 examine the investigator as to the sufficiency of the investigation

 and law enforcement’s alleged failure to investigate an alternate

 lead.

¶6       The jury found Birch guilty as charged. Birch was sentenced

 to the custody of the Department of Corrections for life without

 possibility of parole (LWOP) on the first degree murder after

 deliberation conviction (the court merged the felony murder

 conviction into the conviction for murder after deliberation); for

 thirty-two years on the aggravated robbery with a deadly weapon

 convictions; and for eighteen months on the tampering with

 physical evidence conviction.


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¶7    Birch now appeals.

                             II.   Analysis

¶8    Birch argues that the trial court erred by (1) construing his

 challenge to the adequacy of the investigation as an alternate

 suspect defense under Elmarr and (2) incorrectly instructing the

 jury that self-induced voluntary intoxication is not a defense to

 tampering with physical evidence. He also contends that his LWOP

 sentence for first degree felony murder is constitutionally

 disproportionate because of recent amendments reclassifying felony

 murder as second degree murder. We disagree with each of these

 contentions.

                   A.    Alternate Suspect Evidence

¶9    Birch defended on the theory that he was not the individual

 who committed the charged crimes. He contends that the trial

 court violated his constitutional right to present a defense.

 Specifically, Birch argues that the trial court erroneously construed

 his defense — that the police conducted an inadequate

 investigation — as an alternate suspect defense triggering the

 procedural requirements set forth in Elmarr.




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¶ 10   We review a trial court’s evidentiary decisions for an abuse of

  discretion. Elmarr, ¶ 20. The court abuses its discretion when its

  decision is manifestly arbitrary, unreasonable, or unfair or is based

  on a misapprehension of the law. Id.

¶ 11   In Elmarr, the supreme court held that “the admissibility of

  alternate suspect evidence ultimately depends on the strength of

  the connection between the alternate suspect and the charged

  crime.” Id. at ¶ 22. To be admissible, the alternate suspect

  evidence must be relevant, and its probative value must not be

  sufficiently outweighed by the danger that the jury will be misled or

  confused. Id. In this context, the touchstone of relevance is

  “whether the alternate suspect evidence establishes a non-

  speculative connection or nexus between the alternate suspect and

  the crime charged.” Id. at ¶ 23.

¶ 12   At trial, Birch sought to introduce details of a specific lead that

  law enforcement did not pursue concerning someone who lived in

  the area, met Birch’s height description, wore the same style of

  glasses, and was known to be armed and dangerous. While the

  potential suspect was arrested and interrogated, law enforcement

  released him. The People argued that these details amounted to


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  inadmissible alternate suspect evidence. Birch disagreed, arguing

  that the evidence would only be introduced to highlight law

  enforcement’s failure to investigate and pursue other leads. The

  trial court agreed with the People, holding that there was no

  evidence connecting the alternate suspect to the crime charged and

  that this was the exact evidence the Elmarr court determined was

  inappropriate to present to a jury because it would invite

  speculation.

¶ 13   Birch contends that the trial court’s application of Elmarr

  deprived him of his right to present a complete defense, which rose

  to the magnitude of reversible constitutional error. We disagree.

¶ 14   While the Constitution guarantees criminal defendants the

  opportunity to present a complete defense, Holmes v. South

  Carolina, 547 U.S. 319, 324 (2006), this right is still subject to and

  constrained by, familiar and well-established limits on the

  admissibility of evidence, Elmarr, ¶ 27. To be admissible, evidence

  must be relevant, CRE 402, and even relevant evidence may be

  excluded if its probative value is substantially outweighed by the

  danger of unfair prejudice, confusion of the issues, or misleading

  the jury, CRE 403.


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¶ 15   The trial court did not abuse its discretion and properly

  exercised its gatekeeping function by weighing the relevance of the

  evidence concerning the alternate suspect and ultimately deciding

  to exclude it because it could have misled the jury.

¶ 16   Moreover, we are unpersuaded by Birch’s argument that he

  was denied the ability to argue that the criminal investigation was

  inadequate or that law enforcement failed to explore potential leads

  that may have identified alternate suspects. On the contrary, the

  court later permitted Birch to question the adequacy of the

  investigation by identifying possible leads law enforcement failed to

  follow. Birch cross-examined the lead investigator on law

  enforcement’s decision to not follow up on a tip provided by the

  manager of a restaurant near the shooting site. The tip alleged that

  someone who resembled the shooter placed and picked up an

  online order at a nearby restaurant. Though the People objected to

  this line of questioning based on the court’s earlier ruling, the court

  nonetheless permitted Birch to continue his examination.

                 B.   Voluntary Intoxication Instruction

¶ 17   Birch next contends that the trial court plainly erred by

  instructing the jury that voluntary intoxication did not apply to the


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  crime of tampering with physical evidence. We decline to address

  this claim’s merits, however, because Birch invited the error he

  raises on appeal.

¶ 18   Birch submitted the proposed voluntary intoxication

  instruction to the trial court. The proposed instruction was limited

  to the first degree murder charge and specifically indicated, in

  relevant part, that the jury “c[ould] [not] consider evidence of self-

  induced intoxication for purposes of deciding whether the

  prosecution has proved the elements of . . . Tampering with

  Physical Evidence.”1

¶ 19   A defendant “may not complain on appeal of an error that he

  has invited or injected into the case; he must abide the

  consequences of his acts.” People v. Zapata, 779 P.2d 1307, 1309

  (Colo. 1989). The “invited error doctrine precludes plain error

  review of a defense-tendered instruction” because “the defendant’s

  trial counsel made a deliberate, strategic decision to request it.”

  People v. Gross, 2012 CO 60M, ¶ 2.


  1 Although the trial court slightly revised the instruction to match

  the “may” or “may not” language used in the Colorado pattern
  criminal jury instructions, the language largely tracked what
  defense counsel proposed.

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¶ 20   Because Birch affirmatively tendered the voluntary

  intoxication jury instruction, and the trial court granted his request

  to include it, Birch cannot now argue that the court erred by doing

  what Birch asked it to do.

¶ 21   We are unpersuaded by Birch’s argument that the error was

  not invited because “trial counsel — along with the prosecution and

  trial court — simply had no idea that the defense of self-induced

  intoxication applied to tampering with physical evidence.” Invited

  error “is sometimes referred to as a strategic error,” but the strategy

  need not “be competent or well planned.” People v. Perez-Rodriguez,

  2017 COA 77, ¶ 25. Rather, the action that results in the invited

  error must simply be deliberate rather than inadvertent. Id.

  Defense counsel deliberately proposed the instruction, and “we

  cannot consider the trial court to be in error for giving an

  instruction demanded by the defense.” Gross, ¶ 8 (alteration

  omitted) (quoting Gray v. People, 342 P.2d 627, 630 (Colo. 1959)).

                C.   Life Without the Possibility of Parole

¶ 22   For the first time on appeal, Birch contends that his LWOP

  sentence for felony murder is constitutionally disproportionate.




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¶ 23   The People respond that the issue is moot because the trial

  court sentenced Birch to LWOP for first degree murder after

  deliberation, not felony murder. We agree.

¶ 24   We review de novo whether an issue is moot. People in Interest

  of C.G., 2015 COA 106, ¶ 11. An issue is moot when the relief

  granted by the court would not have a practical effect upon an

  existing controversy. DePriest v. People, 2021 CO 40, ¶ 8.

¶ 25   At the time Birch committed the killing at issue in this case,

  “[m]urder after deliberation and felony murder [were] not

  denominated by the [Colorado Criminal] Code as separate and

  independent offenses, but only ways in which criminal liability for

  first-degree murder [could] be charged and prosecuted.” People v.

  Lowe, 660 P.2d 1261, 1269 (Colo. 1983), overruled in part on other

  grounds by Callis v. People, 692 P.2d 1045 (Colo. 1984). When the

  evidence supports a conviction for multiple theories of the same

  crime, both theories may be presented to the jury for deliberation so

  long as the trial court enters only one conviction in the event the

  jury returns a guilty verdict under both theories. Id. at 1269-72.

  To avoid infringing on the constitutional prohibition against double

  jeopardy, courts cannot convict a defendant of multiple counts of


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  first degree murder related to a single victim. Candelaria v. People,

  148 P.3d 178, 180-82 (Colo. 2006).

¶ 26   Birch was charged with first degree murder after deliberation

  and first degree felony murder. The jury was instructed on both

  theories and found him guilty of both. But the trial court merged

  the convictions and imposed only one LWOP sentence for first

  degree murder after deliberation.2

¶ 27   Simply put, Birch was not sentenced to LWOP on the felony

  murder charge. The merging of Birch’s convictions and imposing a

  single sentence for first degree murder after deliberation had the

  effect of vacating the conviction for felony murder. See People v.

  Wood, 2019 CO 7, ¶ 29 (“Stated differently, ‘[m]erger ha[d] the same

  effect as vacating one of the multiplicitous’ murder convictions.”

  (quoting People v. Rhea, 2014 COA 60, ¶ 17)). Following the merger

  and imposition of one sentence for first degree after deliberation

  murder, any challenge Birch had relating to felony murder became

  moot.




  2 The mittimus also reflects only one LWOP sentence for first degree

  murder after deliberation.

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¶ 28   Having determined that the felony murder sentencing issue is

  moot, we decline to review Birch’s unpreserved argument that he is

  entitled to an extended proportionality review in light of recent

  amendments reclassifying felony murder as second degree murder.

  See People v. Mountjoy, 2016 COA 86, ¶ 35 (“[A]n appellate court

  ‘may, as a matter of discretion, take up an unpreserved challenge to

  the constitutionality of a statute, but only where doing so would

  clearly further judicial economy.’” (quoting People v. Houser, 2013

  COA 11, ¶ 35)), aff’d on other grounds, 2018 CO 92M.

                            III.   Disposition

¶ 29   We affirm the judgment of conviction.

       JUDGE DUNN and JUDGE TOW concur.




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