Opinion
Court of Appeals No. 20CA0227
03-09-2023
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Carlos Raul SERNA-LOPEZ, Defendant-Appellant.
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE SCHUTZ ¶ 1 After a jury trial, defendant, Carlos Raul Serna-Lopez, was convicted on two counts of aggravated robbery against the same victim: one premised on the use of a deadly weapon, the second on the use of an article fashioned as a deadly weapon. The jury also convicted him on one count of menacing; one count of possession of a controlled substance; two special offender sentence enhancer counts related to the controlled substance charge; and one crime of violence sentence enhancer count, which is not at issue in this appeal. The trial court imposed concurrent prison sentences of twelve years on the two counts of aggravated robbery and a consecutive sentence of three years for menacing. With respect to the possession of a controlled substance charge, the court applied the special offender enhancer counts to increase the offense from a level 4 drug felony to a level 1 drug felony, and it sentenced Serna-Lopez to twelve years in the custody of the Colorado Department of Corrections, to run consecutively to the other two sentences.
¶ 2 Serna-Lopez appeals. He asserts that (1) the trial court's failure to merge the two counts of aggravated robbery resulted in a violation of his protection against double jeopardy; (2) the trial court erred by failing to ensure the unanimity of the jury's verdict on the special offender sentence enhancer counts; (3) the prosecution failed to prove beyond a reasonable doubt that a BB gun is a deadly weapon; (4) the trial court erred by constructively amending one of the special offender sentence enhancer counts; and (5) these cumulative errors violated his right to a fair trial.
¶ 3 We agree that the two aggravated robbery counts should merge and therefore vacate Serna-Lopez's conviction on one of them. We also reverse the judgment and sentence on the special offender enhancer counts. We affirm Serna-Lopez's remaining convictions and sentences.
I. Factual and Procedural Background
¶ 4 The prosecution presented evidence from which the jury could reasonably find the following facts.
¶ 5 In July 2018, Juanita Salazar and her cousin, Kevin Montoya, were returning to Salazar's home. Two men and a woman were parked nearby in a silver Camaro. One of the men was wearing a white cowboy hat. Salazar and Montoya exchanged pleasantries with the men, and soon after, the men rushed them.
¶ 6 The man in the cowboy hat, who was later identified as Carlos Lopez-Martinez, hit Salazar on the head with a handgun and demanded her purse. Lopez-Martinez threw her to the ground and attempted to take the purse. Salazar asked Montoya for help, but when he tried to intervene, the other man, Serna-Lopez, pulled out what appeared to be a handgun and told him to get back. Montoya moved away at the sight of the weapon, telling Salazar that he could not help her because "he has a gun." Once Lopez-Martinez had possession of Salazar's purse, both men ran back to the Camaro and fled the scene. The woman drove the Camaro. The purse contained IDs, credit cards, and over $500 worth of jewelry. The men did not attempt to rob Montoya.
¶ 7 Salazar called law enforcement and reported the incident. She identified Serna-Lopez as the man who pointed a gun at Montoya, stating she recognized him from a prior social interaction. She also stated that she knew where he lived. Officers drove to the location believed to be Serna-Lopez's home but could not locate him.
¶ 8 The next evening, another officer drove by the same location and spotted a silver Camaro. He saw two men enter the Camaro, and he followed them. The officer noted a straw cowboy hat positioned behind the driver. Believing this to be the same vehicle and individuals involved in the previous night's robbery, the officer conducted a traffic stop.
We note that Salazar identified the cowboy hat as white. The officer described the cowboy hat as straw. Both descriptions are consistent with a light-colored cowboy hat.
¶ 9 Lopez-Martinez was driving the car. Serna-Lopez was in the passenger seat. At Serna-Lopez's feet, on the floorboard of the car, officers found 0.6 grams of methamphetamine and a BB pistol. Additionally, officers located a .22 Sig Sauer handgun that was wrapped in a bandana in the trunk of the vehicle.
¶ 10 The men were arrested. Law enforcement then drove the victims to the scene of the arrest, where Salazar identified Serna-Lopez as the man involved in the previous night's robbery. Montoya identified Lopez-Martinez as the man who had worn a cowboy hat.
¶ 11 We turn now to the legal issues raised by Serna-Lopez.
II. Merger Was Required
¶ 12 Serna-Lopez argues that the trial court failed to merge the aggravated robbery counts in violation of his right to be free from double jeopardy. The United States and Colorado Constitutions prohibit a defendant from receiving multiple punishments for the same criminal act. See U.S. Const. amends. V, XIV ; Colo. Const. art. II, §§ 18, 25. We agree that the two counts of aggravated robbery must be merged to prevent Serna-Lopez from being subjected to double jeopardy.
A. Preservation and Standard of Review
¶ 13 The People argue that this issue either is not reviewable because any error was invited, or was not sufficiently preserved and, as a result, is reviewable only for plain error. The People acknowledge that Serna-Lopez initially requested merger of the two aggravated robbery convictions but argue that Serna-Lopez subsequently abandoned his merger argument, and invited any error by agreeing that the two counts should run concurrently. While we agree that defense counsel argued that both principles of merger and concurrent sentencing applied, we conclude his argument for concurrent sentences did not amount to a waiver of the request for merger. Rather than an intentional waiver of a known right, we conclude the record indicates counsel preserved the contention that merger was required, but if the court refused to merge the two counts, concurrent sentences was mandated. See People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893 (Waiver is an "intentional relinquishment of a known right.") (citation omitted). Nor can we conclude that counsel's argument invited the trial court to reject merger of the two offenses. Thus, we conclude that Serna-Lopez adequately preserved his merger argument and therefore review for constitutional harmless error, which requires reversal unless the error was harmless beyond a reasonable doubt. See Hagos v. People , 2012 CO 63, ¶ 11, 288 P.3d 116.
¶ 14 We review de novo whether merger is required. People v. Sauser , 2020 COA 174, ¶ 109, 490 P.3d 1018. We also review de novo matters of statutory interpretation. See People v. Dennel , 2022 COA 115M, ¶ 10, 523 P.3d 471. Our polestar is to determine and give effect to the intent of the General Assembly by first looking to the plain language of the statute. Id. The words and phrases within the statute are read according to their common usage "and in a manner that is harmonious with other provisions" of the statute. Id. If the "language is clear and unambiguous, we won't engage in further statutory analysis. ... [I]t is only when a statute is ambiguous that we may employ other tools ... such as considering the consequences of a given construction, the end to be achieved by the statute, and legislative history." Id. at ¶ 11.
B. Double Jeopardy
¶ 15 Multiplicity occurs when a defendant is charged with multiple counts and faces multiple punishments for the same criminal act. See Woellhaf v. People , 105 P.3d 209, 214 (Colo. 2005). Multiplicity principles are intended to prevent a defendant from receiving duplicative convictions for the same crime. People v. Wagner , 2018 COA 68, ¶ 11, 434 P.3d 731. However, the General Assembly is not prohibited by double jeopardy principles from creating multiple crimes based on one event. Woellhaf , 105 P.3d at 214. To determine whether the legislature meant to create multiple offenses or alternative ways to prove a particular offense, we must construe the statute defining the offense.
¶ 16 A defendant may not be convicted of more than one crime for the same actions unless his "conduct constitutes factually distinct offenses." People v. Barry , 2015 COA 4, ¶ 97, 349 P.3d 1139. If a single statute defines alternative ways of committing the same offense, a single conviction is required. Id. at ¶ 96. When a statute describes alternative ways of committing the same crime, the alternative descriptions often appear disjunctively, separated by the word "or." Id. But the use of the word "or" is not necessarily determinative of whether a single or separate offense is intended. See People v. Viduya , 703 P.2d 1281, 1292 (Colo. 1985) ("The fact that the alternative ways ... are not joined in the statute by the disjunctive ‘or’ is of no importance" because "[t]he statute is divided into two subsections ‘which are disjunctive in the very nature of the construction of the section.’ " (quoting Cortez v. People , 155 Colo. 317, 320, 394 P.2d 346, 348 (1964) )).
¶ 17 Moreover, the location of the alternative descriptions within the criminal code often makes the General Assembly's intent clear. When conduct is described in separate statutory sections and, in turn, those provisions are given different titles, the "intent to establish more than one offense is generally clear." Barry , ¶ 109 (quoting People v. Abiodun , 111 P.3d 462, 465 (Colo. 2005) ). If a defendant is charged and convicted under a single statute defining alternative means of committing the same offense, the two convictions must be merged. See Wagner , ¶ 14.
C. Analysis
¶ 18 Section 18-4-302, C.R.S. 2022, as pertinent to this appeal, provides as follows:
(1) A person who commits robbery is guilty of aggravated robbery if during the act of robbery or immediate flight therefrom:
....
(b) He knowingly wounds or strikes the person robbed or any other person with a deadly weapon or by the use of force, threats, or intimidation with a deadly weapon knowingly puts the person robbed or any other person in reasonable fear of death or bodily injury; or
....
(d) He possesses any article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or represents verbally or otherwise that he is then and there so armed.
The People charged Serna-Lopez with separate crimes based on these two alternatives. The jury returned two separate convictions for aggravated robbery, one based on each count. The trial court entered judgments of conviction on both counts and ordered the sentences to run concurrently, but it did not merge the two counts into a single conviction.
¶ 19 Applying multiplicity principles, we conclude the General Assembly has not defined separate offenses under section 18-4-302 but, rather, alternative means of committing the same offense. That conclusion is illustrated by use of the term "or" between paragraphs (a) – (d) of section 18-4-302(1). Also, consistent with our interpretation, the People cite no case law stating that the multiple paragraphs of section 18-4-302(1) create separate offenses.
¶ 20 We also note that this robbery involved one victim, one location, and one event. During the course of the robbery, Serna-Lopez's conduct was continuous and did not entail multiple, factually distinct events. On both aggravated robbery counts, the People named only Salazar as the victim. These facts also support our conclusion that this was one crime supporting a single conviction. See Wagner , ¶ 13 ("In determining whether offenses are factually distinct, we consider factors including the time and location of the events, the defendant's intent, and whether the People presented the acts as legally separable."); cf. People v. Borghesi , 66 P.3d 93, 99–103 (Colo. 2003) (same act of aggravated robbery may support separate convictions if charges relate to two or more separate victims when they control the property that was taken). ¶ 21 Because the two counts of aggravated robbery establish a single offense, these two counts must be merged. The failure to merge the two offenses is not harmless beyond a reasonable doubt. See Hagos , ¶ 12 (We reverse for constitutional error if there is a reasonable possibility the error contributed to the conviction.). Accordingly, we vacate Serna-Lopez's conviction on count 6. On remand, the trial court must correct the mittimus to vacate count 6 and merge it into count 1.
III. Unanimity Instruction and Prosecutorial Election
¶ 22 Serna-Lopez claims that the trial court erred because it did not ensure a unanimous verdict on the two special offender sentence enhancer counts by requiring the prosecution to elect one of the provisions or, alternatively, giving a modified unanimity instruction. He argues that the enhanced sentence on the possession of a controlled substance charge must therefore be reversed. We agree.
¶ 23 A defendant has a right to a jury trial, and the jury's verdict must be unanimous. See U.S. Const. amends. VI, XIV ; Colo. Const. art. II, §§ 16, 25 ; see also § 16-10-108, C.R.S. 2022; Crim. P. 23(a)(8) ; Crim. P. 31(a)(3). To that end, in virtually all criminal trials—as in this one—the court instructs the jury that "the verdict for each charge must represent the considered judgment of each juror, and it must be unanimous." See COLJI-Crim. E:23 (2022). But if the prosecution presents evidence of multiple distinct acts, "any one of which could constitute the offense charged, and the jury could reasonably disagree regarding which act was committed, the district court must either" (1) require the prosecution to elect the act it is relying on to establish the count; or (2) provide a modified unanimity instruction to the jury, explaining that it must "unanimously agree that the defendant committed the same act or all of the acts." People v. Hines , 2021 COA 45, ¶ 50, 491 P.3d 578. In this case, the trial court combined the two special offender sentence enhancers into a single instruction, did not require the prosecution to elect the special offender sentence enhancer it was relying upon, and did not give a modified unanimity instruction.
A. Additional Facts
¶ 24 As previously noted, Serna-Lopez was charged with and convicted of possession of a controlled substance. In conjunction with that charge, the prosecution also charged him with two special offender sentence enhancers, count 4 and count 5:
COUNT 4-SPECIAL OFFENDER (DF1) Between and including July 15, 2018 and July 16, 2018, Carlos Raul Serna-Lopez ... committed the felony offense charged in count 3 and used, displayed, or possessed on his person or within his immediate reach, a deadly weapon, namely: firearm, at the time of the commission of the offense; in violation of section 18-18-407(1)(d)(I), C.R.S.
COUNT 5-SPECIAL OFFENDER (DF1) Between and including July 15, 2018 and July 16, 2018, Carlos Raul Serna-Lopez ... committed the felony offense charged in count three and the defendant or a confederate of the defendant possessed a firearm to which the defendant or confederate had access in a manner that posed a risk to others or in a vehicle the defendant was occupying during the commission of the offense; in violation of section 18-18-407(1)(d)(II), C.R.S.
¶ 25 The trial court combined these two counts into a single instruction, which provided alternative means of proving that the drug possession count involved the possession of a deadly weapon or firearm. The single instruction read as follows:
The offense involved a deadly weapon or firearm only if:
1. the defendant used, displayed, or possessed on his person or within his immediate reach, a deadly weapon, as that term is defined in your instructions, at the time of the commission of unlawful possession of a controlled substance.
OR
2. the defendant or a confederate of the defendant possessed a firearm, as that term is defined in your instructions, to which the defendant or confederate had
access in a manner that posed a risk to others or in a vehicle the defendant was occupying at the time of the commission of unlawful possession of a controlled substance.
¶ 26 Consistent with this single instruction, the verdict form for the drug possession count asked the jury to answer only one special offender enhancer question:
Did the offense involve a deadly weapon or firearm?
[____] Yes [____] No
The jury answered "yes," thus requiring the trial court to sentence the drug possession as a level 1 drug felony (presumptive sentence of eight to thirty-two years) instead of a level 4 drug felony (presumptive sentence of six months to one year). § 18-1.3-401.5(2)(a), C.R.S. 2022.
B. Standard of Review
¶ 27 We review de novo whether the trial court should have given a modified unanimity instruction. Hines , ¶ 48. Because Serna-Lopez did not demand a prosecutorial election or request the trial court to provide a modified unanimity instruction, the issue was not preserved. Thus, we review for plain error. People v. Wester-Gravelle , 2020 CO 64, ¶ 27, 465 P.3d 570. "An error is plain if it is obvious and substantial and so undermines the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction." Id. at ¶ 28 (quoting Rediger , ¶ 48 ).
C. Did the Trial Court Obviously Err by Not Providing a Modified Unanimity Instruction?
¶ 28 The prosecutor prepared the proposed instruction that combined the two special offender sentence enhancer counts. But at the jury instruction conference, the prosecutor acknowledged, "[T]he gun that was recovered under the seat was stated to be a BB gun. I think it's definitely possible the Court could have issues with ... the first enhancer." Despite this concession, the trial court nonetheless decided to give the instruction that combined both special offender sentence enhancer counts separated by the disjunctive "or." As a result, the jury could find the existence of a deadly weapon or firearm by accepting either alternative or some combination of both alternatives.
¶ 29 The People argue no unanimity instruction was required because, based on the evidence presented at trial, no reasonable juror could have concluded that the BB gun was a deadly weapon. But this argument is belied by the giving of the first special offender sentence enhancer alternative, which was predicated upon a weapon within the defendant's immediate reach. If a reasonable juror could not have concluded that the BB gun was a deadly weapon, then why was this instruction given? We cannot conclude that the prosecution included this alternative without a good faith belief that a reasonable juror could in fact conclude that the first alternative was satisfied by the evidence. Moreover, the argument is belied by the prosecutor's closing argument:
Recall that the Sig Sauer pistol was in the trunk, not within immediate reach of either Serna-Lopez or his confederate, Lopez-Martinez.
Under the seat where Carlos Serna-Lopez ... was seated, you have what [was] described as a BB gun. [The officer] said he didn't know it was a BB gun until he manipulated it. That's testimony from a trained law enforcement officer telling you that he didn't know that that gun was a BB gun until he picked it up.
¶ 30 The combined effect of including the first alternative in the instruction, and then arguing that a BB gun was within the reach of where Serna-Lopez was seated, could have persuaded a reasonable juror that this first alternative established Serna-Lopez's possession of a deadly weapon. By the same token, however, we cannot say that all jurors would have reached the same result on this alternative.
¶ 31 Nor are we persuaded by the People's argument that no modified unanimity instruction was required because the possession of a controlled substance count was predicated upon a single instance of conduct—namely, possession of the 0.6 grams of methamphetamine. As Serna-Lopez points out, this argument misses the mark. The special offender sentence enhancers, though both related to the possession of a controlled substance charge, are separate counts that involve two distinct acts. These separate counts are subject to the modified unanimity instruction requirement. See People v. Brown , 70 P.3d 489, 492 (Colo. App. 2002) (a jury must unanimously agree on a sentence enhancer count).
¶ 32 In sum, because the trial court combined the two distinct special offender sentence enhancers into a single instruction, it allowed the prosecution to prove the existence of a deadly weapon or firearm by two independent alternatives. The potential for a lack of unanimity created by the single instruction was compounded by asking the jury the single question of whether the offense involved a deadly weapon or a firearm, and then collapsing the two alternatives’ answers into a single "yes" or "no" response. The effect of the jury instruction and verdict form is that they permitted various outcomes lacking unanimity: (1) a reasonable juror could have concluded that the BB gun was a deadly weapon within Serna-Lopez's reach; or (2) a reasonable juror could have concluded that Serna-Lopez or his confederate possessed the firearm in the trunk but did not believe the BB gun to be a deadly weapon.
¶ 33 Under these circumstances, we conclude that the trial court committed obvious error either by not requiring the prosecution to elect a specific special offender sentence enhancer or by not providing a modified unanimity instruction. People v. Devine , 74 P.3d 440, 443 (Colo. App. 2003) ("If the evidence presents a reasonable likelihood that jurors may disagree upon which acts the defendant committed ... jurors should be instructed that they must unanimously agree as to a specific act or agree that the defendant committed all the acts alleged.").
D. Did the Failure to Give a Modified Unanimity Instruction Undermine the Fundamental Fairness of the Trial?
¶ 34 The above conclusion does not end our query as to the second special offender sentence enhancer. If no reasonable juror could have rejected the second enhancer, then any error resulting from the failure to give a modified unanimity instruction would be harmless. Stated differently, if we conclude that no reasonable juror could have rejected the second special offender sentence enhancer, then Serna-Lopez would have been convicted anyway had the proper modified unanimity instruction been given, and reversal is unnecessary. But we cannot say with confidence that a reasonable juror would necessarily conclude that Serna-Lopez or Lopez-Martinez possessed the firearm in the trunk.
¶ 35 Recall that at the time of the robbery, the silver Camaro was driven by a woman. Additionally, the men were stopped almost twenty-four hours after the robbery, a period of time in which the female driver and others may have had access to the vehicle and its trunk.
¶ 36 The second special offender sentence enhancer instruction asked the jury to determine if Serna-Lopez or Lopez-Martinez possessed a firearm in the vehicle that Serna-Lopez occupied at the time of the offense. The definitional jury instruction also stated, "Possession constitutes a voluntary act if the actor is aware of his physical possession or control thereof for a sufficient period to have been able to terminate it." "Voluntary act," in turn, was defined to mean "an act performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it."
¶ 37 We agree with the prosecution that a reasonable juror could indeed conclude that either Serna-Lopez or Lopez-Martinez was aware of the presence of the firearm in the trunk for a sufficient period to have been able to remove it before the commission of the drug possession offense. But given the presence of at least one third party who had access to the vehicle, the absence of evidence concerning how or when the Sig Sauer was placed in the trunk, and the passage of hours between the robbery and the recovery of the Sig Sauer, a reasonable juror could have also concluded that the People failed to prove beyond a reasonable doubt that either Serna-Lopez or Lopez-Martinez possessed the firearm as defined by the jury instructions. We therefore conclude a reasonable juror could have concluded that the drug offense did not involve the possession of a firearm.
E. Remedy
¶ 38 Based on the possibility that a reasonable juror could have rejected either special offender sentence enhancer alternative, we conclude that the failure to give the modified unanimity instruction casts serious doubt on the special offender sentence enhancer conviction. We accordingly reverse Serna-Lopez's sentence on the possession of a controlled substance charge and remand to the trial court to allow the prosecution to elect between resentencing on the controlled substance count as a level 4 drug felony or proceeding with a new trial on the two special offender sentence enhancer counts. See, e.g. , People v. Sepulveda , 65 P.3d 1002, 1007–08 (Colo. 2003) (remanding for election by prosecution to accept resentencing on lesser included offense or retrial on reversed count).
IV. BB Gun as a Deadly Weapon
¶ 39 Serna-Lopez asserts that there was insufficient evidence for a reasonable juror to conclude that a BB gun is a deadly weapon. If this contention is correct, retrial on this component of the sentence enhancement would be barred. We therefore address this claim and, in doing so, reject it.
A. Standard of Review
¶ 40 We review the record de novo to determine whether the evidence before the jury was sufficient to support a conviction. People v. Martinez , 165 P.3d 907, 909 (Colo. App. 2007). We also review de novo whether there was sufficient evidence to establish a special offender sentence enhancer. Id. at 913.
B. Analysis
¶ 41 Serna-Lopez contends that the BB gun found at his feet during the traffic stop was not proved to be a deadly weapon as defined under section 18-1-901(3)(e), C.R.S. 2022: "[a] firearm, whether loaded or unloaded; or ... [a] knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury."
¶ 42 "Our supreme court has ‘consistently held that whether an object is a deadly weapon ... depends on the manner in which the object is used.’ " People v. Esparza-Treto , 282 P.3d 471, 476 (Colo. App. 2011) (quoting People v. Stewart , 55 P.3d 107, 117 (Colo. 2002) ). The court has also continually held that deadly weapons are objects "specifically directed toward another in an assaultive way." Id.
¶ 43 Serna-Lopez's assertion that the BB gun was not a deadly weapon is predicated upon two arguments: (1) the BB gun could not be a deadly weapon because he did not use it during the robbery; and (2) the prosecution failed to present evidence that the BB gun could cause serious bodily injury because no witnesses testified regarding the type of BB gun that was found, the type and amount of pellets that it could use, or the injuries this particular BB gun could cause.
¶ 44 During the robbery, Montoya was unable to help Salazar for fear that the gun Serna-Lopez wielded would cause serious injury. He testified that when he saw the gun, he was scared and said, "[D]on't shoot me." Montoya also noted that Serna-Lopez "cycled it back," indicating that Serna-Lopez's conduct with the BB gun mimicked loading a bullet into the chamber of a firearm. Thus, while the BB gun was not fired during the robbery, it was specifically used in a manner to keep Montoya in fear and to prevent him from assisting Salazar. "The defendant need not intend to cause serious bodily injury; he must merely use as a weapon an object or instrument that is capable of causing such injury." Id. (citation omitted); see also People in Interest of J.R. , 867 P.2d 125, 127 (Colo. App. 1993) (explaining that "death or serious bodily injury ... not occur[ring] is irrelevant" in determining whether a BB gun is a deadly weapon).
¶ 45 Moreover, contrary to Serna-Lopez's argument, expert testimony was not needed to establish that the BB gun was capable of producing death or serious bodily injury. Serna-Lopez accurately notes that in the J.R. case, a deputy sheriff had provided testimony that "if a person was hit with a BB in a vulnerable area of the body, such as the eyes, it could cause serious bodily injury." 867 P.2d at 127. Serna-Lopez also correctly notes that no similar testimony was provided here. But we reject the notion that such testimony was a necessary prerequisite to a reasonable juror concluding that the BB gun used in the manner Serna-Lopez did could cause serious bodily injury. Indeed, many a child has grown up with an admonition similar to the testimony given by the officer in J.R. , and such lessons have made their way into our national lexicon. See A Christmas Story (Metro-Goldwyn-Mayer 1983) (Ralphie's mother, his teacher, and Santa reply to his requests for a BB gun: "You'll shoot your eye out, kid").
¶ 46 For these reasons, we conclude that the People presented sufficient evidence to permit, but not require, a reasonable juror to conclude beyond a reasonable doubt that the BB gun was capable of causing serious bodily injury and therefore met the definition of a deadly weapon.
V. Cumulative Error
¶ 47 The doctrine of cumulative error is based on the notion that multiple errors, in isolation, may be viewed as harmless, but the synergistic effect of the multiple errors may be so prejudicial that they deprive a defendant of a fair trial. See People v. Vialpando , 2022 CO 28, ¶ 33, 512 P.3d 106.
¶ 48 Here, numerous errors were alleged. We have concluded that two were committed, but we have addressed and cured the merger issue, which is completely independent of the special offender sentence enhancer counts. In addition, we have reversed the drug possession enhanced sentence, and any additional errors associated with those counts are moot. For these reasons, no cumulative error exists.
VI. Additional Issues Raised
¶ 49 Because we cannot determine whether constructive variance issues may arise in the future should the People elect to retry the special offender sentence enhancer counts, we do not address whether the trial court constructively amended the charges by modifying one of those counts to refer to a "deadly weapon" rather than a "firearm." People v. Becker , 2014 COA 36, ¶ 29, 347 P.3d 1168 (appellate courts should resist addressing contentions after reversal on other grounds unless the issue is likely to arise on remand).
VII. Disposition
¶ 50 We vacate Serna-Lopez's conviction on count 6 and direct the trial court on remand to issue a new mittimus indicating count 6 was merged into count 1. We reverse Serna-Lopez's judgment and sentence on the special offender sentence enhancer counts. The case is remanded to the trial court to allow the prosecution to elect between resentencing on the controlled substance count as a level 4 drug felony or proceeding with a new trial on the two special offender sentence enhancer counts. We affirm Serna-Lopez's remaining convictions and sentences.
JUDGE TOW and JUDGE VOGT concur.
Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5 (3), and § 24-51-1105, C.R.S. 2022.