People v. Ashford Nathaniel Archer

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

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 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.

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¶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.

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¶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

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 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

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 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

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 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

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 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.”).

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 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.

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 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).

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¶ 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.”

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¶ 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).

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 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):

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  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.

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¶ 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.

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