People v. Vasquez.

2022 COA 100. No. 18CA1486. Felony Murder—Fourth Degree Arson.

September 8, 2022

Vasquez and the victim had an argument while camping with the victim’s two sons. Vasquez picked up a can of gasoline, poured gas on the victim, and lit her clothing on fire. The victim ultimately died of her injuries. A jury found Vasquez guilty of felony murder (with arson as the predicate felony), second degree murder, first degree assault, fourth degree arson, two counts of child abuse, criminal impersonation, and two counts of violation of a protection order.

On appeal, Vasquez argued there was insufficient evidence to support his conviction for arson because, as a matter of law, one cannot be convicted of arson for lighting another person’s clothing on fire while that person is wearing the clothing, and the prosecution failed to establish that he set fire to anyone’s property. Fourth degree arson applies to a fire that is set or maintained on property in Colorado that, for the purposes of this case, places the victim in danger of death or serious bodily injury. The statute’s plain language does not qualify the term “property” or its location or proximity to the person involved. Therefore, it is irrelevant that the victim was wearing the clothing that Vasquez ignited; the relevant facts are that Vasquez knowingly started a fire on the property of another (a campground) and that fire placed the victim in danger of death or serious bodily injury. Further, the prosecution presented ample evidence that Vasquez doused the victim with gasoline, lit her on fire, and caused her death.

Vasquez also contended that his felony murder conviction cannot stand because felony murder requires that the predicate felony be independent of the killing itself, and lighting the victim on fire was not independent of the homicide. However, Colorado law is clear that arson can serve as a predicate offense for felony murder.

Vasquez further argued that his felony murder conviction is unsupported because the prosecution did not prove beyond a reasonable doubt that he intended to commit arson “either before or contemporaneous with the killing act.” However, the felony murder statute does not require the prosecution to prove beyond a reasonable doubt that the defendant formed the intent to commit the predicate offense either before or contemporaneously with the killing act.

Vasquez also contended that the court erroneously admitted expert testimony from three witnesses about the origin and cause of the fire that killed the victim. Vasquez’s contentions concerning two witnesses go to the weight of the testimony, not its admissibility. As to the third witness, any relevant deficiencies in his investigative experience could have been brought out on cross-examination, and his testimony about the fire’s cause did not usurp the jury’s role.

Vasquez also argued that the prosecutor engaged in misconduct during cross-examination of his fire expert and during closing argument. While some of the prosecutor’s statements were improper, they do not require reversal.

Vasquez further asserted that the court erred by allowing the prosecution to introduce (1) evidence of an argument between Vasquez and the victim that resulted in Vasquez damaging the victim’s television and (2) evidence that Vasquez had hit the victim’s sons. However, the television incident was admissible to rebut Vasquez’s accident defense, and the abuse evidence was admissible to explain that the child had told different stories about how the victim died because he was afraid of Vasquez.

Vasquez also contended that he is entitled to a new trial due to the cumulative effect of the errors. However, the errors did not deprive Vasquez of a fair trial because they were not so prejudicial that, collectively, they substantially affected the trial’s fairness or the integrity of the trial’s fact-finding process.

Lastly, Vasquez argued that his mittimus must be corrected to reflect that his conviction for second degree murder merges into his conviction for felony murder. Here, the appropriate remedy is to return the case to the trial court to vacate defendant’s conviction for second degree murder, leaving his felony murder conviction intact.

The judgment was affirmed and the case was remanded with directions.