The Colorado Supreme Court ruled on Tuesday that a man can stand convicted of murder, even though jurors found he was not the one who shot the victim and the evidence suggested he was not present for the shooting.

There was no dispute that Terrence G. Davis died by gunshot in an Aurora alleyway in 2017.

At the trial of Davis’ suspected killer, jurors reached two conclusions. First, they believed he was guilty of second-degree murder for causing Davis’ death.

Second, they were asked whether the defendant used a gun. No, said the jury, he did not.

That seeming impossibility led the state’s Court of Appeals to overturn the conviction of defendant Jacob Alexander Shockey in 2023. The only way jurors could have believed Shockey caused Davis’ death without being the shooter, the court determined, was by relying on a legal theory the prosecutor discussed extensively during jury selection and was ultimately not grounds for a conviction.

But in a Feb. 17 opinion, the Supreme Court decided it was not problematic that the jury found Shockey had both caused Davis’ death and had not shot him.

A defendant “can commit second degree murder without using a deadly weapon since the crime only requires knowingly causing a person’s death,” wrote Justice Brian D. Boatright, without explaining how Shockey would have caused Davis’ death without using the gun. “By returning a guilty verdict on second degree murder, the jury expressly found that Shockey caused (Davis’) death.”

On the night of Davis’ killing, two men, Shockey and Parus Mayfield, were both present, but each said the other was responsible for shooting Davis. Witness testimony was unreliable and there was evidence suggesting Shockey left the scene prior to Davis’ murder.

Shockey’s jurors convicted him of second-degree murder, but the jury also returned a special form aimed at enhancing Shockey’s sentence, which asked if Shockey used or possessed a deadly weapon. The jury answered no.

The only way jurors could have logically reached that conclusion was by deeming Shockey a “complicitor” — a legal theory holding an accomplice guilty even if another person actually committed the crime.

The idea that Shockey was an accomplice, but not the shooter, arose during jury selection. Although the government advanced the narrative that Shockey alone was the shooter, prosecutor Victoria Klingensmith spent significant time asking jurors to think about and react to the idea of complicity.

She raised the hypothetical scenario of three bank robbers, one of whom is the lookout and another who is the getaway driver. Her goal was to illustrate that they, too, could be guilty of robbery even if they never went inside the bank.

“You’re OK with that?” Klingensmith, who is now a trial judge, asked one juror.

“They’re all still complicit,” the juror acknowledged.

The defense objected on the grounds that jurors would not be asked to evaluate complicity, but then-District Court Judge Michael Spear allowed Klingensmith to continue.

At the end of trial, the prosecution asked Spear to instruct jurors they could find Shockey guilty as an accomplice. Spear refused, reasoning the evidence did not support the idea that Shockey and Mayfield were both involved in the murder.

After the defense sought to vacate Shockey’s conviction, Spear declined to do so while acknowledging the jury apparently relied on the complicity theory to reach its verdict. Two jurors said as much in statements submitted after the fact.

Subsequently, a three-judge Court of Appeals panel agreed Shockey’s conviction could not stand, with the majority believing the jury had functionally acquitted him.

“The prosecution’s entire theory of the case was that Shockey was the shooter,” wrote Judge Rebecca R. Freyre for herself and Judge David H. Yun. “But by finding that the prosecution did not prove beyond a reasonable doubt that Shockey used, possessed, or threatened to use a deadly weapon, the jury inconsistently concluded that the prosecution had not proved that Shockey was the shooter.”

Judge David J. Richman wrote separately to argue prosecutors should be allowed to put Shockey on trial again. In doing so, he detailed the “cascade of errors” that caused the verdict, centered on the discussion of complicity from the outset.

“I understand the inherent discomfort in the inconsistency here,” said Senior Assistant Attorney General Jessica E. Ross during oral arguments to the Supreme Court last year.

“It’s not just inherent discomfort, at least that I have. It’s an inherent fairness,” responded Justice Richard L. Gabriel. “I have a lot of problems with affirming this conviction. Because I think on these facts, Mr. Shockey was convicted on a theory that was never charged and he never got to defend against.”

The Supreme Court upheld Shockey’s conviction.

“We hold that the jury’s finding that Shockey did not use a deadly weapon does not negate an element of his second degree murder conviction, and we can discern the jury’s unambiguous intent,” wrote Boatright. “Hence, no legal or logical inconsistency renders the verdict infirm.”

Mayfield, the other suspect, pleaded guilty to a lesser offense, testified against Shockey and was released on parole in 2021.

The case is People v. Shockey.