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People v. Strickler.

2022 COA 1. No. 18CA2334. Deadly Weapon—Arson—Crime of Violence—Sentence Enhancer—Attempted Criminal Mischief—Attempted First Degree Arson—Attempted Extreme Indifference Murder—Lesser Included Offense—Merger.

January 6, 2022

Defendant intentionally set a fire in his apartment. A jury found him guilty of attempted extreme indifference murder in regard to the tenants of the apartment building, attempted first degree arson, and attempted criminal mischief.

On appeal, defendant contended that fire does not meet the statutory definition of a deadly weapon and therefore he should not have been subject to the crime of violence sentence enhancer. Attempted first degree murder is subject to a crime of violence sentence enhancement if the defendant used, or possessed and threatened the use of, a deadly weapon. Fire qualifies as a “deadly weapon” under CRS § 18-1-901(3)(e)(II). Here, there was sufficient evidence to support a finding that defendant’s use of fire rendered it capable of producing death or serious bodily injury and to support his conviction for the crime of violence sentence enhancer. Therefore, defendant was properly convicted of a crime of violence.

Defendant also contended that the trial court improperly allowed the lead detective to testify about the unexplained disappearance of fire suppression and detection equipment and damage to exit signs that occurred sometime before defendant set fire to his apartment. Even if the evidence was improperly admitted, any error was harmless due to the overwhelming proof of defendant’s actions and intent.

Defendant also argued that attempted criminal mischief is a lesser included offense of attempted first degree arson, so the trial court erred by failing to merge the conviction for attempted criminal mischief into his conviction for attempted first degree arson. The people conceded this point.

The conviction for attempted criminal mischief was vacated and the case was remanded with directions to merge defendant’s attempted criminal mischief conviction into his attempted first degree arson conviction and for correction of the mittimus. The judgment was affirmed in all other respects.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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