People v. Ashford Nathaniel Archer ( 2022 )


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  •      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
    July 7, 2022
    
    2022COA71
    No. 19CA1364, People v. Archer — Crimes — Child Abuse
    Resulting in Death
    A division of the court of appeals holds that a defendant’s
    conviction for child abuse resulting in death is supported by
    sufficient evidence despite the fact that he himself did not
    physically mistreat the victims.
    COLORADO COURT OF APPEALS                                        
    2022COA71
    Court of Appeals No. 19CA1364
    San Miguel County District Court No. 17CR28
    Honorable Keri A. Yoder, Judge
    The People of the State of Colorado,
    Plaintiff-Appellee,
    v.
    Ashford Nathaniel Archer,
    Defendant-Appellant.
    JUDGMENT AFFIRMED
    Division II
    Opinion by JUDGE GROVE
    Yun and Taubman*, JJ., concur
    Announced July 7, 2022
    Philip J. Weiser, Attorney General, Erin K. Grundy, Senior Assistant Attorney
    General, Denver, Colorado, for Plaintiff-Appellee
    Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for
    Defendant-Appellant
    *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
    VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
    ¶1    Defendant, Ashford Nathaniel Archer, appeals his convictions
    for two counts of child abuse resulting in death and one count of
    accessory to a crime. Although Archer himself did not physically
    mistreat the victims, we conclude that his active participation in the
    decision-making process that led to their deaths was sufficient to
    support his convictions. We therefore affirm.
    I.    Background
    ¶2    At trial, the People presented evidence from which the jury
    could find the following facts. Archer was part of an itinerant
    religious group that, in the summer of 2017, met Alec Blair by
    chance at a gas station east of Grand Junction. Blair owned twenty
    acres of land near Norwood where he was attempting to grow
    vegetables and marijuana. The land was undeveloped and had no
    electricity, plumbing, power, or water rights, but, after getting to
    know some of the members of the group during their chance
    meeting, Blair invited them to stay there.
    ¶3    When Archer and the others met Blair, their group was made
    up of of five adults and four children traveling in two vehicles.
    Codefendant Madani Ceus was the group’s spiritual leader; she and
    Archer were the biological parents of two of the children. The other
    1
    two children — the victims, who were approximately ten and eight
    years old — were the daughters of codefendant Nashika Bramble,
    another member.
    ¶4    Blair’s property had no permanent structures, so when the
    group arrived, they set up camp in tents, shacks, and their cars.
    Their spiritual beliefs were complex, but, as relevant here, they
    claimed to be “metaphysical healers” and sought spiritual purity by
    observing strict dietary rules and limiting personal possessions.
    Adhering rigorously to the group’s rules was the only way that
    followers could acquire “light bodies” that would be able to enter
    heaven after the coming “purge.”
    ¶5    Although Ceus was the group’s spiritual head, she did not
    make decisions on her own. Rather, according to Blair, a
    three-person “hierarchy” including Ceus and Archer1 “collectively as
    a unit ma[de] decisions for things.”
    1 The third member of the leadership trio was initially Cory
    Sutherland, but Blair explained that his behavior became
    “extremely erratic” and that he was expelled from the group. Blair
    then took his place.
    2
    ¶6    The victims died after they were banished to a vehicle in an
    isolated part of the property to work on their spiritual development.
    Ceus declared that the victims were no longer allowed to eat the
    food that she cooked, so on one occasion Blair and others gave
    them food that they had collected at a local food bank. But then
    Ceus barred anyone from leaving the property to obtain provisions,
    and no one gave the victims food, water, or other assistance again.
    They died some time later and, a month after that, Archer and Blair
    covered the car with a tarp to hide the bodies from law enforcement
    officers coming to the farm for periodic marijuana compliance
    checks.
    ¶7    By the time the authorities learned what had happened and
    conducted an investigation, the victims’ bodies were so badly
    decomposed that the medical examiner was unable to determine the
    cause of death. But the medical examiner testified that they likely
    died from starvation, dehydration, hyperthermia, or some
    combination of these factors. In addition, scientific evidence
    suggested that they had been periodically undernourished in the
    last fifteen months of their lives.
    3
    ¶8     The police learned of the girls’ deaths from Blair’s father, who
    had come to the farm from Texas to check on his son’s well-being.
    When contacted by police, Archer said that the victims had been
    placed in the car as punishment.
    II.   Analysis
    ¶9     On appeal, Archer contends that (1) the evidence presented at
    trial was insufficient to sustain his convictions for child abuse
    resulting in death; (2) the trial court erroneously admitted
    unreliable scientific evidence; and (3) the trial court reversibly erred
    by admitting certain hearsay statements made by Ceus. We
    address each issue in turn.
    A.    Sufficiency of the Evidence
    ¶ 10   We first conclude that because the prosecution presented
    sufficient evidence to support the jury’s verdict on the two charges
    of child abuse resulting in death, the trial court properly denied
    Archer’s motion for judgment of acquittal.
    1.   Standard of Review
    ¶ 11   When a defendant challenges the sufficiency of the evidence,
    we review the record de novo to determine whether the evidence,
    viewed in the light most favorable to the prosecution, is substantial
    4
    and sufficient to support the conviction beyond a reasonable doubt.
    Dempsey v. People, 
    117 P.3d 800
    , 807 (Colo. 2005). In doing so, we
    do not act as a thirteenth juror; whether we would have found the
    defendant guilty beyond a reasonable doubt based on the evidence
    presented is irrelevant. Clark v. People, 
    232 P.3d 1287
    , 1291 (Colo.
    2010). Instead, the pertinent question for us is whether a rational
    trier of fact could have found the essential elements of the offense
    beyond a reasonable doubt when viewing the evidence in the light
    most favorable to the prosecution. Id.
    2.   Act or Omission
    ¶ 12   Under section 18-6-401(1)(a), C.R.S. 2021, a person commits
    child abuse if he
    causes an injury to a child’s life or health, or
    permits a child to be unreasonably placed in a
    situation that poses a threat of injury to the
    child’s life or health, or engages in a continued
    pattern of conduct that results in
    malnourishment, lack of proper medical care,
    cruel punishment, mistreatment, or an
    accumulation of injuries that ultimately
    results in the death of a child or serious bodily
    injury to a child.
    ¶ 13   Archer contends that he did not engage in conduct prohibited
    by this statute, and thus cannot stand convicted of child abuse
    5
    resulting in death, because he (1) did not take any actions that
    injured the victims, and (2) had no special relationship with the
    victims that required him to take any action to save them from the
    neglect that he claims was the fault of their mother and others on
    the property. We disagree with both arguments.
    ¶ 14   First, although the parties dispute whether Archer was
    required under section 18-6-401(1)(a) to intervene on the victims’
    behalf despite the fact that he was not their biological father, the
    prosecution presented substantial evidence that Archer did not
    simply fail to intervene; to the contrary, he engaged in affirmative
    acts of mistreatment, thereby rendering irrelevant the question of
    his relationship with the victims. For example, as we have already
    discussed, there was evidence at trial that, as a member of the
    group’s inner circle, Archer regularly participated in council
    meetings in which he, along with the other members, “collectively
    as a unit ma[de] decisions for things.” And although the girls’
    banishment and deprivation may have been pronounced by Ceus,
    there was ample evidence that it resulted from a collective decision
    in which Archer participated. For example, Blair testified that
    Archer participated in conversations about the two girls during
    6
    council meetings, and that Archer had not revealed to him that
    there were four children with the group, rather than three, until
    they had been on the property for nearly two months. When he
    overheard a conversation about a fourth child, Blair asked Ceus
    and Archer about that child because no one had ever mentioned her
    to him and he had not seen her around the property. After they
    “stepped aside and conferred,” Archer “brought [Blair] over to the
    gray sedan[,] . . . opened up the door of the vehicle[,] and showed
    [Blair] that there were two children inside of the vehicle, one of
    [whom Blair] had never seen before.” This testimony supports an
    inference that the younger child had been confined to the vehicle for
    many weeks, during the summer, with Archer’s full knowledge and
    participation, even before the group began to deprive her and her
    sister of food and water.
    ¶ 15   Moreover, Archer’s actions led to Ceus’s decree that the girls
    should be abandoned in the car. For example, after Archer
    siphoned gas from the car, Ceus declared that he had “gray energy,”
    and then “cleansed him by performing a blessing,” but then
    “essentially ordered [the members of the group]” to stay away from
    the car. Someone drew a “physical perimeter” around the vehicle
    7
    that no one was allowed to enter, and the group then moved to
    another part of the property, leaving the victims to die.
    ¶ 16   Second, even if Archer had not affirmatively contributed to the
    conditions that led to the girls’ deaths, and even if section 18-6-
    401(1)(a) does not broadly impose a duty to rescue,2 there was
    ample evidence at trial showing that he was far more than an
    innocent bystander. Indeed, he admitted to the investigating police
    officer that the girls had been placed in the car as punishment, and
    he was a leader of a nine-member group that had traveled around
    the country in two vehicles for years, moved to the Blair property
    together, and referred to itself as a “family” as it proselytized and
    attempted to recruit new followers like Blair. Under these
    circumstances, whether Archer had a formal familial relationship
    with the victims is beside the point. He was responsible, along with
    2 At least one division of this court has held that the statute does
    impose such a duty. See People v. Arevalo, 
    725 P.2d 41
    , 48 (Colo.
    App. 1986) (“The statute refers to no external source of duty, and
    we do not believe the general assembly intended that a duty
    between an adult and a child [must] necessarily be established
    before a person may be charged with child abuse. The law is
    intended to prevent child abuse, and it applies to any person.”).
    8
    all the other adults, for the well-being of those children who were in
    the group’s care.
    3.    Knowing or Reckless
    ¶ 17   The prosecution also presented sufficient evidence to establish
    that Archer’s actions were knowing or reckless.
    ¶ 18   As relevant here, child abuse requires that the defendant
    knowingly or recklessly causes serious bodily injury to a child.
    § 18-6-401(1)(a), (7)(a)(III). For most offenses, “knowingly” means
    that the defendant is aware that his or her conduct is practically
    certain to cause a particular result. § 18-1-501(6), C.R.S. 2021.
    And “recklessly” means that the defendant consciously disregards
    an unjustifiable risk that a result will occur or a circumstance
    exists. § 18-1-501(8). In other words, for most offenses, the mental
    states of knowingly and recklessly relate to the result of the conduct
    (often an injury to the victim).
    ¶ 19   But child abuse is different. For this offense, the culpable
    mental states relate “to the nature of the offender’s conduct in
    relation to the child or to the circumstances under which the act or
    omission occurred,” not a particular injury to the child. People v.
    Deskins, 
    927 P.2d 368
    , 371 (Colo. 1996). Thus, “knowing” child
    9
    abuse does not require that the defendant is aware that his conduct
    will cause serious bodily injury. Instead, to knowingly commit child
    abuse, a defendant need only be aware of the conduct he is
    engaging in with the child. Similarly, to recklessly commit child
    abuse, a defendant need only consciously disregard a substantial
    and unjustifiable risk that, given the child’s circumstances, the
    child may be injured. 
    Id.
    ¶ 20   There was sufficient evidence that Archer acted knowingly or
    recklessly because, even though he was aware that the victims were
    confined to a car during the summer and then abandoned there
    without food or water, he did nothing to help them, and in fact he
    consciously disregarded the substantial risk that they would die as
    a result of being abandoned. Accordingly, the evidence presented at
    trial was sufficient to support Archer’s convictions for child abuse
    resulting in death.
    B.   Expert Testimony
    ¶ 21   Archer contends that the trial court abused its discretion by
    admitting, and then declining to strike, expert scientific testimony
    on hair follicle analysis. We are not persuaded.
    10
    1.    Standard of Review
    ¶ 22   “Trial courts are vested with broad discretion to determine the
    admissibility of expert testimony, and the exercise of that discretion
    will not be overturned unless manifestly erroneous.” People v.
    Wallin, 
    167 P.3d 183
    , 187 (Colo. App. 2007) (citing People v.
    Martinez, 
    74 P.3d 316
    , 322 (Colo. 2003)). “An abuse of discretion
    occurs when a trial court’s ruling is manifestly arbitrary,
    unreasonable, or unfair, or if it misapplies the law.” People v.
    Payne, 
    2019 COA 167
    , ¶ 5.
    ¶ 23   “In assessing whether a trial court’s decision is manifestly
    unreasonable, arbitrary, or unfair, we ask not whether we would
    have reached a different result but, rather, whether the trial court’s
    decision fell within the range of reasonable options.” Hall v.
    Moreno, 
    2012 CO 14
    , ¶ 54 (quoting E-470 Pub. Highway Auth. v.
    Revenig, 
    140 P.3d 227
    , 230-31 (Colo. App. 2006)).
    2.   The Testimony was Properly Admitted
    ¶ 24   CRE 702 is a liberal rule that favors admissibility of scientific
    evidence if it is reliable and relevant. See People v. Shreck, 
    22 P.3d 68
    , 77, 79 (Colo. 2001). To determine the admissibility of scientific
    evidence under CRE 702, the trial court must analyze whether (1)
    11
    the scientific principles underlying the expert’s testimony are
    reliable; (2) the expert is qualified to give an opinion on the subject;
    (3) the testimony will be helpful to the jury; and (4) the probative
    value of the testimony is substantially outweighed by the danger of
    unfair prejudice. People v. Rector, 
    248 P.3d 1196
    , 1200 (Colo.
    2011); Shreck, 22 P.3d at 77.
    ¶ 25   “A trial court’s reliability inquiry under CRE 702 should be
    broad in nature and consider the totality of the circumstances of
    each specific case.” Shreck, 22 P.3d at 77; accord People v.
    Ramirez, 
    155 P.3d 371
    , 378 (Colo. 2007). In conducting this
    inquiry, a trial court may consider a wide range of factors pertinent
    to the case, including (1) whether the technique can be and has
    been tested; (2) whether the technique has been subject to peer
    review and publication; (3) the existence and maintenance of
    standards controlling the technique’s operation; (4) the frequency
    and type of error generated by the technique; and (5) whether such
    evidence has been offered in previous cases to support or dispute
    the merits of a particular scientific procedure. Shreck, 22 P.3d at
    77-78; see also People v. Laurent, 
    194 P.3d 1053
    , 1058 (Colo. App.
    2008).
    12
    ¶ 26   Before trial, the prosecution endorsed as experts two chemists
    employed by IsoForensics, Inc., who had conducted isotope
    chemical analysis on the victims’ hair in an effort to determine what
    had caused their deaths. In essence, the prosecution’s goal in
    presenting this testimony was to establish that the children had
    died due to starvation — a showing that, according to the
    IsoForensics experts, could be made by conducting a stable isotope
    analysis on hair samples taken from the victims and comparing the
    ratios of carbon and nitrogen isotopes to typical baseline figures.
    ¶ 27   Archer’s attorney objected to the endorsement of the
    IsoForensics experts, but the court ruled that the testimony would
    be admitted after holding a two-day Shreck hearing. It found that
    the scientific principles underlying the stable isotope analysis were
    reasonably reliable and that the “testing methods for isotopes are
    well-established and each step of the technique has been
    documented in peer-reviewed literature.” The court also found that
    the evidence would be helpful to the jury because “[t]he victims’
    causes of death are in dispute.”
    ¶ 28   At trial, one of the IsoForensics experts surprised the
    prosecution by expressing concerns about potential contamination
    13
    of one of the two samples, and as a result the trial court excluded
    that sample. After the IsoForensics testimony was complete, the
    prosecutor followed up with the witness to assess the source of his
    concerns. The witness emailed the prosecutor regarding his doubts
    about the excluded sample. The prosecutor then disclosed that
    email to the defense, which raised the issue with the court the next
    day.
    ¶ 29     The court noted that the sample it had excluded was the only
    one that was possibly contaminated and that “[t]here was no
    testimony received about the test results that did come in that were
    cause for concern.” Nonetheless, because there were questions
    about the integrity of the IsoForensics data, the court ordered that
    the IsoForensics experts return for a follow-up in camera hearing on
    the issues that had been raised. After that hearing, the court
    reaffirmed its ruling that “the People did not lay proper foundation
    to admit the [excluded] sample.” But the court also found that it
    had not “heard anything that[] changed [its] mind about the
    reliability of the first sample” and ruled that it was “properly before
    the jury.”
    14
    ¶ 30   We conclude that the court’s ruling was well within its broad
    discretion. When concerns about the general integrity of the
    IsoForensics data and analysis arose, the court went to great
    lengths to determine whether those concerns undermined its initial
    ruling that the testimony was reliable and generally admissible
    under CRE 702. The court’s determination that its initial reliability
    findings were not undermined by the additional testimony has
    substantial record support, and, thus, we will not disturb it.
    ¶ 31   We reach the same conclusion with respect to Archer’s
    argument that the court should have excluded the IsoForensics
    experts’ testimony under CRE 403. Archer asserts that “the
    IsoForensics evidence was unfairly prejudicial because it was
    unreliable,” but as we have already held, the trial court’s reliability
    determination was not an abuse of its broad discretion.
    C.   Co-Conspirator Statements
    ¶ 32   Last, Archer contends that the trial court erroneously relied on
    CRE 801(d)(2)(E) to admit out-of-court statements made by Ceus,
    15
    who the prosecution argued was Archer’s co-conspirator in the
    deaths of the two victims.3 We disagree.
    1.   Standard of Review and Preservation
    ¶ 33   As with other evidentiary rulings, we review the court’s
    admission of statements under CRE 801(d)(2)(E) for an abuse of
    discretion. People v. Faussett, 2016 COA 94M, ¶ 33. In
    determining whether the court abused its discretion, however, we
    not only consider whether the court’s ruling was manifestly
    arbitrary, unreasonable, or unfair, but also whether the court
    correctly applied the law when making its evidentiary ruling. People
    v. Dominguez, 
    2019 COA 78
    , ¶ 13. We review the latter issue de
    novo. 
    Id.
    ¶ 34   The parties agree that this issue is preserved for our review.
    3 To the extent that Archer contends that the admission of Ceus’s
    statements under CRE 801(d)(2)(E) amounted to a violation of his
    confrontation rights under the United States and Colorado
    Constitutions, we decline to consider the issue because it is not
    developed in the opening brief. See People v. Wallin, 
    167 P.3d 183
    ,
    187 (Colo. App. 2007) (declining to address arguments presented in
    a perfunctory or conclusory manner).
    16
    2.   Legal Principles
    ¶ 35   CRE 801(d)(2)(E) authorizes admission of a “statement by a
    co-conspirator of a party during the course and in furtherance of
    the conspiracy.” These statements are considered an admission of
    a party-opponent and therefore do not fall within the definition of
    hearsay. People v. Montoya, 
    753 P.2d 729
    , 732 n.2 (Colo. 1988).
    ¶ 36   However, as a prerequisite to admitting these statements, the
    trial court must find by a preponderance of the evidence that a
    conspiracy existed and that the statement was made in furtherance
    of the conspiracy. Montoya, 753 P.2d at 734; see CRE 801(d)(2)(E).
    In determining whether a conspiracy existed, the trial court may
    consider the co-conspirator’s statements themselves, “but there
    must also be some independent evidence establishing that the
    defendant and the declarant were members of the conspiracy.”
    Villano, 181 P.3d at 1229; see Montoya, 753 P.2d at 736.
    3.    Admissibility of Ceus’s Statements
    ¶ 37   Archer challenges the admission of three statements made by
    Ceus that the trial court admitted under CRE 801(d)(2)(E):
    17
     The older victim was impure because she was not
    working on her past life.4
     The older victim could not drink water collected from a
    waterfall during a group outing.
     Neither victim could be fed from the group’s special food
    supply.
    ¶ 38   The prosecutor made an extensive offer of proof in support of
    the admission of these statements. The conspiracy was, as he
    described it, “to put these girls in a car, to not give them any food
    and water, to put a perimeter around the car so that no one would
    come in contact with the car, to go down to the north end of the
    property and meditate and hold council for 24 hours a day, ignoring
    the girls, and then the girls ultimately dying in that car.”
    4 When making his offer of proof under CRE 801(d)(2)(E), the
    prosecutor described this statement as follows: “That she was not
    pure; that Mr. Blair told them about a dream he had where [the
    older victim] was sitting with an alligator, and the group started
    talking extensively about this and told him that she doesn’t work on
    her past lives and has lots of setbacks and problems.” In his
    opening brief, Archer mentions only that portion of the statement
    shown in the first bullet point above.
    18
    ¶ 39   The court ruled that the statements in question were
    admissible under CRE 801(d)(2)(E), saying that,
    [b]ased on the totality of the circumstances,
    including all of those statements, including the
    religion that they practiced, including the fact
    that Mr. Archer followed Ms. Ceus, including
    the fact that a lot of these statements were –
    some of them at least were made in his
    presence, I do find by a preponderance of the
    evidence that there was a conspiracy at least
    to . . . banish the girls. I can’t find that there
    was a conspiracy to kill the girls or something,
    but that there was a conspiracy or an
    agreement at least to banish the girls or not
    include them in group activities.
    ¶ 40   The finding of a conspiracy, however, was not the only basis
    for the court’s ruling. With respect to the first two statements
    identified above, the court also found that they were adoptive
    admissions by Archer and thus admissible under CRE 801(d)(2)(B).
    And, as for the third statement, the court found that it was “a
    non-hearsay directive” (that is, it was not offered for the truth of the
    matter asserted in the statement), and thus “would not be hearsay
    in any event if [Ceus] made that assertion.”
    ¶ 41   We find no abuse of discretion in the court’s ruling under CRE
    801(d)(2)(E). As we have already discussed, evidence at trial (and
    the prosecutor’s offer of proof) showed that Archer was a core
    19
    member of the religious group and participated in the council’s
    decision-making process, and the existence of the conspiracy was
    corroborated by, among other things, Blair’s testimony, the physical
    evidence at the scene, and Archer’s admission to the investigating
    officer that the victims had been placed in the car as punishment.
    Given these facts, the prosecutor’s offer of proof was more than
    sufficient to support the court’s findings under a preponderance of
    the evidence standard.
    ¶ 42   In any event, even if the court’s rulings were incorrect under
    CRE 801(d)(2)(E), Archer does not challenge the court’s alternative
    grounds for admitting each of these statements. We would
    therefore be required to conclude that they were properly admitted
    regardless of whether the prosecution adequately established that a
    conspiracy existed. See IBC Denver II, LLC v. City of Wheat Ridge,
    
    183 P.3d 714
    , 717-18 (Colo. App. 2008) (when a trial court gives
    several reasons for a decision, an appellant must challenge all of
    those reasons; failure to do so requires affirmance).
    III.   Conclusion
    ¶ 43   We affirm the judgment of conviction.
    JUDGE YUN and JUDGE TAUBMAN concur.
    20