Peo v. Stone , 2020 COA 23 ( 2020 )

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
Date, February 13, 2020
2020COA23
No. 15CA2076, Peo v Stone — Criminal Law — Provisions
Applicable to Offenses Generally — Intoxication
Section 18-1-804(1), C.R.S. 2019, states that “[i]ntoxication of
the accused is not a defense to a criminal charge . . . .” This
opinion of a division of the court of appeals addresses, for the first
time in a published opinion in Colorado, the contention that this
statutory subsection is unconstitutional because it bars the
defendant from presenting evidence of voluntary intoxication to
contest his guilt in a trial involving only general intent crimes.
COLORADO COURT OF APPEALS 2020COA23
Court of Appeals No. 15CA2076
Douglas County District Court No. 14CR154
Honorable Paul A. King, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ryan Cole Stone,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by CHIEF JUDGE BERNARD
Taubman and Navarro, JJ., concur
Announced February 13, 2020
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 “Qui peccat ebrius, luat sobrius” means “[h]e who offends
while drunk suffers punishment when sober.” Ballentine’s Law
Dictionary 1043 (3d ed. 1969). This venerable Latin legal maxim is
expressed in Colorado in section 18-1-804(1), C.R.S. 2019, which
states that “[i]ntoxication of the accused is not a defense to a
criminal charge . . . .”
¶2 There is an express exception to this general rule, which is
found in section 18-1-804(3): involuntary intoxication is an
affirmative defense to a criminal charge. As an affirmative defense,
involuntary intoxication does not “simply challenge the existence of
an element of the offense, but [it] seek[s] to justify or mitigate the
entire crime, and [is] therefore [a] complete defense[].” People v.
Miller, 113 P.3d 743, 750 (Colo. 2005).
¶3 As is pertinent to our discussion, section 18-1-804(1), which
we will shorten to “subsection (1)” for the rest of this opinion, does
two other things.
¶4 First, subsection (1) states that a defendant may introduce
evidence of voluntary, self-induced intoxication to “negative the
existence” of specific intent. § 18-1-804(1). But such evidence does
not create an affirmative defense. Miller, 113 P.3d at 750. Rather,
1
this evidence only challenges the existence of an element of the
crime, i.e., specific intent. See id. As a result, the introduction of
such evidence establishes only a partial defense. See Brown v.
People, 239 P.3d 764, 769 (Colo. 2010). “[V]oluntary intoxication is
not a true element-negating defense because it is possible for an
intoxicated person to form specific intent.” People v. Lara, 224 P.3d
388, 394 n.4 (Colo. App. 2009), overruled on other grounds by
People v. Pickering, 276 P.3d 553 (Colo. 2011).
¶5 Second, by expressing the general rule that intoxication is not
a defense to a criminal charge, subsection (1) makes clear that
voluntary intoxication is not a defense to general intent crimes.
People v. Vigil, 127 P.3d 916, 930-31 (Colo. 2006). To phrase this
concept differently, evidence of voluntary intoxication “is
incompetent as a defense to general intent crimes,” People v. Low,
732 P.2d 622, 628 (Colo. 1987), and “[i]t is the settled law of
[Colorado] that evidence of self-induced intoxication is not
admissible to negate the culpability element of ‘knowingly,’” People
v. Aragon, 653 P.2d 715, 719 (Colo. 1982).
¶6 The rationale for barring defendants from introducing evidence
of voluntary, self-induced intoxication to negate general intent
2
arises from a recognition that “voluntary impairment of one’s
mental faculties with knowledge that the resulting condition is a
source of potential danger to others” involves “moral
blameworthiness.” Hendershott v. People, 653 P.2d 385, 396 (Colo.
1982). Indeed, “[i]t is a matter of common knowledge that the
excessive use of liquor or drugs impairs the perceptual, judgmental
and volitional faculties of the user.” Id.
¶7 Subsection (1)’s distinction between specific intent and general
intent crimes is not new. In fact, in 1906, our supreme court
observed that the common law “uniformly held that drunkenness is
not an excuse for crime.” Brennan v. People, 37 Colo. 256, 261, 86
P. 79, 81 (1906). But, if the mental state for a crime was “willful,
deliberate, and premeditated,” evidence of intoxication was “a
material and necessary subject of consideration by the jury whether
the accused [was] in such condition of mind by reason of
drunkenness . . . to be capable of deliberation and premeditation.”
Id. at 262, 86 P. at 81.
¶8 In the course of appealing a judgment of conviction,
defendant, Ryan Cole Stone, submits that subsection (1) is
unconstitutional. He says that it violates his due process rights
3
because it is “an evidentiary rule” that prohibited him “from
presenting reliable and relevant evidence to contest his guilt,” and
that it is unconstitutional as applied because it “preclude[d]” him
from introducing evidence of voluntary intoxication where general
intent crimes are charged.” He adds that the trial court should not
have instructed the jury that voluntary intoxication was not a
defense to these general intent crimes. We disagree with both
contentions, so we affirm. (In a separate appeal, we address
defendant’s contentions concerning a restitution order. See People
v. Stone, 2020COA24.)
I. Background
¶9 A group of firefighters found defendant wandering the streets
and agreed to give him a ride. He asked them to drop him off at a
“warming” station. They instead let him out at a gas station.
¶ 10 Outside the gas station, he found a parked car. Its engine was
running, and a four-year-old boy was in the back seat.
¶ 11 Defendant got in the car and drove it away. Police officers
located the stolen car, and they followed it. After leading them on a
high-speed chase, defendant abandoned the car. He
commandeered a second car, and the chase continued.
4
¶ 12 The officers deployed “stop sticks” — sticks with spikes on
them designed to puncture a car’s tires to disable it — but
defendant swerved around them, driving onto the shoulder of the
road. In doing so, he hit an officer with the car, causing him
serious injuries.
¶ 13 Defendant continued driving, eventually abandoning the
second car and hijacking a third one. His subsequent attempt to
steal a fourth car was thwarted, so he ran off. The officers finally
caught up with him, and they arrested him.
¶ 14 The prosecution charged him with several general intent
crimes. See § 18-1-501(6), C.R.S. 2019 (stating that offenses using
“knowingly” are “general intent crimes”). The prosecution also
charged him with theft, which contained an element of specific
intent. § 18-1-501(5) (stating that offenses using “intentionally”
and “with intent” are “specific intent offenses”).
¶ 15 Before trial, defendant raised the defense of “voluntary
intoxication,” and he said that he would present the testimony of
two expert witnesses. The prosecution asked the trial court to bar
defendant from raising the voluntary intoxication defense.
5
¶ 16 At a motions hearing, defendant contended that he should be
allowed to present “any information that tends to negate an element
of the crime,” including evidence of voluntary intoxication. The
prosecutor asserted that subsection (1) prohibited him from using
voluntary intoxication as a defense to a general intent crime.
¶ 17 The trial court agreed with the prosecutor. It concluded that,
“[i]f there are no specific intent crimes listed, then the defense is not
entitled to present any evidence as it relates to intoxication because
it’s simply not relevant.” After this ruling, the prosecutor asked the
court to dismiss a count of theft, the only specific intent crime that
the prosecution had charged. The court granted the request.
¶ 18 Defendant asked the court to reconsider its ruling barring him
from introducing evidence that he was intoxicated at the time of the
crimes. He argued that the ruling violated his due process rights
for reasons that we describe in more detail below. The court denied
this request.
¶ 19 The jury convicted defendant of attempted manslaughter, first
degree assault, vehicular eluding, criminal mischief, six counts of
leaving the scene of an accident, two counts of robbery, two counts
of child abuse, and three counts of aggravated motor vehicle theft.
6
II. Constitutionality of the Voluntary Intoxication Statute
¶ 20 Defendant contends that subsection (1) is unconstitutional
because it (1) lightens the prosecution’s burden to prove every
element of a crime beyond a reasonable doubt; and (2) prevents a
defendant from presenting a complete defense. We disagree.
A. Standard of Review and General Legal Principles
¶ 21 Defendant’s contention requires us to interpret section 18-1-
804. Our review is de novo. People v. Jenkins, 2013 COA 76, ¶ 12.
¶ 22 When we interpret a statute, we must determine and
effectuate the legislature’s intent. Colo. Dep’t of Revenue v. Creager
Mercantile Co., 2017 CO 41M, ¶ 16. “We construe the entire
statutory scheme to give consistent, harmonious, and sensible
effect to all [of its] parts,” and “[w]e give effect to words and phrases
according to their plain and ordinary meaning[s].” Denver Post
Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). If a statute’s
language is clear, we apply it as written. Id.
¶ 23 We also review de novo the constitutionality of a statute. Dean
v. People, 2016 CO 14, ¶ 8. Because we presume a statute to be
constitutional, the challenging party must prove that it is
unconstitutional beyond a reasonable doubt. Id.
7
B. Montana v. Egelhoff
¶ 24 Relying on Montana v. Egelhoff, 518 U.S. 37 (1996), defendant
asserts that subsection (1) is unconstitutional because it
constitutes an evidentiary rule that prohibits a defendant from
presenting relevant and exculpatory evidence. In Egelhoff, the
prosecution charged the defendant with “deliberate homicide, a
crime defined by Montana law as ‘purposely’ or ‘knowingly’ causing
the death of another human being.” Id. at 40 (opinion of Scalia,
J.)(quoting Mont. Code Ann. § 45-5-102 (1995)). Montana’s
intoxication statute provides that “an intoxicated condition is not a
defense to any offense and may not be taken into consideration in
determining the existence of a mental state that is an element of the
offense.” Mont. Code Ann. § 45-2-203 (West 2019). The court at
the defendant’s trial allowed him to present evidence of his
intoxication, but it instructed the jury on Montana’s intoxication
statute. Egelhoff, 518 U.S. at 41 (opinion of Scalia, J.). The jury
convicted the defendant of deliberate homicide. Id.
¶ 25 The Montana Supreme Court reversed the conviction. State v.
Egelhoff, 900 P.2d 260, 265 (Mont. 1995), rev’d, 518 U.S. 37. It
8
concluded that Montana’s statutorily required instruction violated
the due process clause because
• the instruction lessened the burden of proof by
precluding the defendant from “presenting arguments
concerning the prosecution’s ‘failure of proof’ of the
subjective mental state element required for conviction of
a crime which includes the mental state of acting
‘knowingly’ or ‘purposely[,]’” id. at 266; and
• “the defendant had a due process right to present and
have considered by the jury all relevant evidence to rebut
the State’s evidence on all elements of the offense
charged[,]” id.
¶ 26 The United States Supreme Court reversed the Montana
Supreme Court in a fractured opinion. For the purposes of our
discussion, we focus on the four-justice plurality written by Justice
Scalia, the opinion concurring in the judgment written by Justice
Ginsburg, and a four-justice dissent.
¶ 27 Justice Ginsburg stood astride the rift zone between the
plurality and the dissent, and she described their disagreement.
She wrote that Montana’s statute was, according to the plurality, a
9
“redefinition of the mental-state element of the offense,” Egelhoff,
518 U.S. at 57 (Ginsburg, J., concurring in the judgment), or,
according to the dissent, a rule that “removed from the jury’s
consideration a category of evidence relevant to determination of
mental state where that mental state [was] an essential element of
the offense that must be proved beyond a reasonable doubt[,]” id. at
61 (O’Connor, J., dissenting).
¶ 28 The resolution of this disagreement, Justice Ginsburg thought,
depended on the answer to this fundamental question: “Can a
State, without offense to the Federal Constitution, make the
judgment that two people are equally culpable where one commits
an act stone cold sober, and the other engages in the same conduct
after his voluntary intoxication has reduced his capacity for
self-control?” Id. at 57 (Ginsburg, J., concurring in the judgment).
In the course of answering this question “yes,” Justice Ginsburg
decided that Montana’s statute was, as the plurality had
characterized it, a redefinition of the mental-state element of a
crime.
¶ 29 Rejecting the dissent’s position, Justice Ginsburg first decided
that Montana’s statute was not an evidentiary rule. Id. It did not
10
appear among the statutes listing evidentiary rules, but among the
statutes addressing general principles of criminal liability, such as
duress and entrapment. Such placement “embodie[d] a legislative
judgment regarding the circumstances under which individuals
may be held criminally responsible for their actions.” Id.
¶ 30 She next concluded that Montana’s statute removed the issue
of voluntary intoxication from the analysis of a defendant’s mental
state, “thereby rendering evidence of voluntary intoxication logically
irrelevant to proof of the requisite mental state.” Id. at 58. As a
result, the statute did not lighten the prosecution’s burden of proof
because “[t]he applicability of the reasonable-doubt standard . . .
has always been dependent on how a State defines the offense that
is charged.” Id. (quoting Patterson v. New York, 432 U.S. 197, 211
n.12 (1977)).
¶ 31 Third, statutory redefinitions of mental states in criminal
cases “encounter[] no constitutional shoal” because “States enjoy
wide latitude in defining the elements of criminal offenses,
particularly when determining ‘the extent to which moral culpability
should be a prerequisite to conviction of a crime.’” Id. (citations
omitted)(quoting Powell v. Texas, 392 U.S. 514, 545 (1968)(Black,
11
J., concurring)). Indeed, defining the culpable mental state “to
eliminate the exculpatory value of voluntary intoxication does not
offend a ‘fundamental principle of justice,’ given the lengthy
common-law tradition, and the adherence of a significant minority
of the States to that position today.” Id. at 59 (Ginsburg, J.,
concurring in the judgment)(quoting id. at 43 (opinion of Scalia, J.)).
¶ 32 The reference to a “fundamental principle of justice” was a nod
to the plurality opinion, which observed that the defendant’s
burden for establishing a due process violation was heavy. Id. at 43
(opinion of Scalia, J.). Because it is normally within a State’s power
to establish the procedures for enforcing its laws, the plurality
wrote, statutes such as Montana’s are “not subject to proscription
under the Due Process Clause” unless they “offend[] some principle
of justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.’” Id. at 43 (quoting Patterson, 432
U.S. at 201-02).
¶ 33 Continuing its analysis, the plurality described the relevant
traditions in England and in the United States, concluding that a
“stern rejection of inebriation as a defense” had become fixed in
American jurisprudence. Id. at 44. The plurality also recognized
12
the emergence of the exception in some states allowing juries to
consider whether a defendant’s inebriation negated specific intent.
Id. at 46. But it nonetheless concluded that this trend was “of too
recent vintage, and has not received sufficiently uniform and
permanent allegiance, to qualify as fundamental, especially since it
displaces a lengthy common-law tradition which remains supported
by valid justifications today.” Id. at 51.
¶ 34 And the plurality noted that the Due Process Clause does not
give defendants an “unfettered right” to introduce relevant evidence.
Id. at 42 (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). For
just two examples, procedural and evidentiary rules “authorize the
exclusion of relevant evidence.” Id.
¶ 35 Returning to Justice Ginsburg’s opinion, she next pointed out
that other states had upheld statutes like Montana’s, “not simply as
evidentiary rules, but as legislative redefinitions of the mental-state
element.” Id. at 59 (Ginsburg, J., concurring in the judgment).
Circling back to the fundamental question that she raised at the
beginning, Justice Ginsburg reasoned that, if it was within the
power of Montana’s legislature “to instruct courts to treat a sober
person and a voluntarily intoxicated person as equally responsible
13
for conduct — to place a voluntarily intoxicated person on a level
with a sober person” — then Montana’s statute was “no less tenable
under the Federal Constitution” than the laws upheld by these
other states. Id. at 59-60.
¶ 36 Last, Justice Ginsburg concluded that the mistake made by
the Montana Supreme Court was that it had not “undertake[n] an
analysis in line with the principle that legislative enactments plainly
capable of a constitutional construction ordinarily should be given
that construction.” Id. at 60.
C. Discussion
¶ 37 Defendant asserts that Justice Ginsburg’s concurrence in
Egelhoff controls this case because our supreme court once
characterized subsection (1) as “a rule concerning the admissibility
of evidence of intoxication by the defendant to counter the
prosecution’s evidence that the defendant had the requisite specific
intent of the charged offense.” People v. Harlan, 8 P.3d 448, 471
(Colo. 2000), overruled on other grounds by Miller, 113 P.3d 743. If
it is such an evidentiary rule instead of a redefinition of the mental
state element of a crime, defendant continues, Justice Ginsburg’s
opinion concurring in the judgment, when combined with the
14
opinion of the four dissenters, renders subsection (1)
unconstitutional. See Verigan v. People, 2018 CO 53, ¶ 31 (When
the United States Supreme Court “issues a fractured opinion
providing no clear holding, the holding ‘may be viewed as that
position taken by those [Justices] who concurred in the judgments
on the narrowest grounds.’” (ultimately quoting Marks v. United
States, 430 U.S. 188, 193 (1977))). We disagree for the following
reasons.
¶ 38 First, we recognize that the Montana statute in Egelhoff differs
from subsection (1) in a meaningful way. Subsection (1) contains
an exception for specific intent crimes; the Montana statute
categorically prohibited the use of voluntary intoxication as a
defense in all cases. But the categorical exclusion in the Montana
statute, which the United States Supreme Court found to be
constitutional, is, for the purposes of this case, the same as the
general rule of subsection (1) that “[i]ntoxication of the accused is
not a defense to a criminal charge[,]” section 18-1-804(1), because
Montana’s statute and subsection (1) both bar the use of voluntary
intoxication as a defense to general intent crimes.
15
¶ 39 Second, Harlan specifically and clearly limited its statement
that subsection (1) was an evidentiary rule to specific intent
offenses. The opinion states that, after introducing intoxication
evidence to counter the prosecution’s evidence that the defendant
acted with specific intent, a defendant “nonetheless remains liable
for a lesser included general intent offense . . . .” 8 P.3d at 471. In
other words, while subsection (1) might create an evidentiary rule
for specific intent offenses, our supreme court expressly made clear
that it did not apply to general intent offenses.
¶ 40 Third, Harlan’s statement that subsection (1) is an evidentiary
rule was not accompanied by a citation to Egelhoff, which had been
decided about four years before Harlan was released, or to any
other authority. As a result, we cannot read Harlan as even a tacit
incorporation of the dissenters’ reasoning in Egelhoff.
¶ 41 Fourth, our supreme court has pulled back from its statement
in Harlan characterizing subsection (1) as an “evidentiary rule.” In
Brown, 239 P.3d at 769, the court did not describe subsection (1)
as an evidentiary rule; it instead described it as a “partial defense.”
¶ 42 Fifth, it was important to Justice Ginsburg that the Montana
statute appeared among the statutes addressing general principles
16
of criminal liability, and not among statutes setting forth
evidentiary rules. Subsection (1) does not appear in Title 13, Article
25 of Colorado’s Revised Statutes containing evidentiary rules or in
the Colorado Rules of Evidence, “the expected placement of a
provision regulating solely the admissibility of evidence at trial.”
Egelhoff, 518 U.S. at 57 (Ginsburg, J, concurring in the judgment).
Rather, its home is among the statutes that discuss general
criminal liability. We find it in Article 1 of Title 18, which includes
“Provisions Applicable to Offenses Generally.” Part 8 of that article
includes provisions that deal with “[r]esponsibility.” As Justice
Ginsburg observed, such placement reflects a legislative choice
“regarding the circumstances under which individuals may be held
criminally responsible for their actions.” Egelhoff, 518 U.S. at 57
(Ginsburg, J., concurring in the judgment).
¶ 43 Sixth, subsection (1) does not lighten the prosecution’s burden
to prove the culpable mental state beyond a reasonable doubt. The
prosecution still has to prove beyond a reasonable doubt that a
defendant acted “knowingly,” and “[t]he applicability of the
reasonable-doubt standard . . . has always been dependent on how
17
a State defines the offense that is charged.” Id. at 58 (quoting
Patterson v. New York, 432 U.S. at 211 n.12).
¶ 44 Seventh, the legislature has “wide latitude” to redefine
elements of criminal conduct, especially when determining “the
extent to which moral culpability should be a prerequisite to
conviction of a crime.” Id. (quoting Powell, 392 U.S. at 545
(1968)(Black, J., concurring)). In Colorado, our legislature has
determined that “[s]elf-induced intoxication . . . by its very nature
involves a degree of moral culpability” and has therefore limited a
defendant’s ability to use it as a defense to general intent crimes.
Hendershott, 653 P.2d at 396. By doing so, the legislature
instructed courts trying cases involving general intent crimes “to
treat a sober person and a voluntarily intoxicated person as equally
responsible for conduct,” thus “plac[ing] a voluntarily intoxicated
person on a level with a sober person.” Egelhoff, 518 U.S. at 59
(Ginsburg, J., concurring in the judgment). Subsection (1) is
therefore “no less tenable under the Federal Constitution” than the
Montana statute that the Supreme Court upheld in Egelhoff. Id. at
59-60.
18
¶ 45 Eighth, because our legislature has exercised its authority to
define criminal conduct, “we inquire only whether the law ‘offends
some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental.’” Id. at 58 (quoting
Patterson, 432 U.S. at 202). As the Egelhoff plurality pointed out,
there is a “lengthy common-law tradition” of barring defendants
from using voluntary intoxication as an excuse to a crime. Id. at
44-51 (opinion of Scalia, J.).
¶ 46 Last, if we were to declare subsection (1) unconstitutional for
the reasons that defendant presses upon us, we would make the
same mistake that Justice Ginsburg attributed to the Montana
Supreme Court: not “undertak[ing] an analysis in line with the
principle that legislative enactments plainly capable of a
constitutional construction ordinarily should be given that
construction.” Id. at 60 (Ginsburg, J., concurring in the judgment).
III. As-Applied Challenge to the Voluntary Intoxication Statute
¶ 47 We now turn to the question of whether subsection (1) is
unconstitutional as applied to defendant’s case. We conclude that
he did not preserve this issue in the trial court, so we will not
address it.
19
¶ 48 Defendant asserts that he made the same claim in the trial
court that he makes on appeal: Subsection (1) “could not be used to
deprive him of his constitutional right to present a defense and to
require the prosecution to prove, beyond a reasonable [doubt], all
elements of the charged offense.” True, defendant made this claim
in the trial court, but it is the claim that we already addressed in
Part II.
¶ 49 Defendant makes a different as-applied claim on appeal:
subsection (1) is unconstitutional as applied because it allowed the
prosecution to present evidence of his voluntary intoxication to
prove his guilt, but it prohibited him from offering the same
evidence to prove his innocence. We do not consider as-applied
challenges that are not presented to the trial court, People v.
Thompson, 2017 COA 56, ¶ 199, because “it is imperative that the
trial court make some factual record that indicates what causes the
statute to be unconstitutional as applied,” People v. Veren, 140 P.3d
131, 140 (Colo. App. 2005).
20
IV. Voluntary Intoxication Instruction
¶ 50 Defendant contends that the trial court erred when it
instructed the jury that voluntary intoxication was not a defense to
any of the charged general intent crimes. We disagree.
A. Additional Facts
¶ 51 The prosecutor asked the trial court to instruct the jury that
“intoxication is not a defense to any of the charges in this case”
because the evidence had “raised the specter of intoxication in the
jury’s mind.” Defendant asserted that the instruction was
inappropriate because he had not presented any evidence of
intoxication and did not intend to argue intoxication in closing
argument.
¶ 52 The prosecutor pointed to two pieces of evidence concerning
defendant’s intoxication that the jury had heard. First, defense
counsel had asked a witness about a “baggie,” which, unbeknownst
to the jury, contained methamphetamine residue. Second, during
cross-examination, a police officer testified that he had thought that
defendant, at the time of his arrest, might have been “on
something,” so the officer asked the defendant whether he was “on
something.”
21
¶ 53 The trial court then instructed the jury that “[s]elf-induced
intoxication is not a defense to any of the charges in this case.”
B. Standard of Review
¶ 54 Trial courts have a duty to correctly instruct the jury on the
applicable law. People v. Garcia, 28 P.3d 340, 343 (Colo. 2001). We
review de novo whether jury instructions accurately reflect the law.
Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).
¶ 55 We also review de novo whether sufficient evidence supports a
requested jury instruction. People v. Rios, 2014 COA 90, ¶ 42. “We
view the evidence in the light most favorable to the giving of the
instruction.” Id.
C. Evidence for the Voluntary Intoxication Instruction
¶ 56 Defendant asserts that the voluntary intoxication instruction
was not supported by sufficient evidence. We disagree.
¶ 57 We conclude that the following evidence supported an
instruction that defendant’s voluntary intoxication was not a
defense to any of the charged crimes:
• One of the firefighters who picked defendant up on the
morning of the crime stated that defendant was “very
talkative, seemed like he had a lot of energy for [six]
22
o’clock in the morning . . . [and he was] moving kind of a
lot.”
• A police officer testified that he found a “baggie” on the
ground outside of a vehicle defendant had stolen.
• One of the arresting officers testified that defendant was
“hyperventilating,” that his “[e]yes were rolled back in his
head,” and that he was “incoherent.”
• The same officer later testified that someone asked
defendant, “What are you on?” The officer clarified that
the question was intended to determine “what type of
narcotics [were] in [defendant’s] system.” The officer said
that defendant’s response to the question was “fear.”
¶ 58 We are not otherwise persuaded by Brown, 239 P.3d at 769-
70; People v. Montez, 197 Colo. 126, 128, 589 P.2d 1368, 1369
(1979); People v. Lucero, 623 P.2d 424, 428 (Colo. App. 1980); and
People v. Brionez, 39 Colo. App. 396, 399, 570 P.2d 1296, 1299
(1979), on which defendant relies. These cases are distinguishable
for the following reasons:
• In all four cases, the defendant requested the instruction,
and the respective trial courts refused to give it.
23
• In Brown, 239 P.3d at 770, the supreme court concluded
that there had been “insufficient evidence for a voluntary
intoxication instruction to issue.” Likewise, in Lucero,
623 P.2d at 428, the trial court refused to give the
instruction because there was no evidence that the
defendant was intoxicated during the commission of
crime.
• Montez, 197 Colo. at 128, 589 P.2d at 1369, and Brionez,
39 Colo. App. at 399, 570 P.2d at 1299, involved a
defendant’s request for an affirmative defense instruction
because voluntary intoxication was considered an
affirmative defense at that time.
¶ 59 People v. Quintana, 996 P.2d 146, 148 (Colo. App. 1998),
disapproved of on other grounds by Harlan, 8 P.3d 448, also
supports our analysis. In Quintana, the defendant, who had been
charged with both general and specific intent crimes, did not raise
voluntary intoxication as a defense, but, based on evidence that the
defendant had elicited, the trial court instructed the jury that
intoxication was not a defense to general intent crimes. The
defendant asserted that the court’s instruction “interfered with his
24
tactical decision” to argue to the jury that he had not committed the
acts with which he had been charged and that the instruction
“misled” the jury into thinking that he had committed the acts. Id.
The division concluded that the defendant’s evidence had “created
circumstances allowing the jury to infer that he was so intoxicated
. . . [that] he lacked the ability to form specific intent . . . .” Id. As a
result, “[t]he instruction . . . properly advised the jury regarding the
legal effect of intoxication on the element of intent.” Id.
¶ 60 Defendant unsuccessfully tries to distinguish Quintana,
contending that “there was evidence of both consumption and
intoxication” in that case, while there was no evidence of either in
this case. We conclude, as we have pointed out above, that there
was such evidence and that, viewing the instruction in the light
most favorable to giving it, the evidence was sufficient. See Rios, ¶
42.
D. Impermissible Presumption of Guilt
We now turn to defendant’s assertion that the instruction
created an impermissible presumption that he possessed the
requisite mental state. We disagree.
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¶ 61 At the outset, defendant maintains that the instruction was
erroneous because it did not appear in Colorado’s Model Criminal
Jury Instructions. COLJI-Crim. H:34 (2018) applies to “Intoxication
(Voluntary).” The final sentence of the instruction reads, in part,
that “you may not consider evidence of self-induced intoxication for
purposes of deciding whether the prosecution has proved the
elements of [insert name(s) of general intent offense(s)].” Id.
Comment 8 states that the above sentence “curtails a jury’s
consideration of evidence of defendant’s intoxication where the
defendant is also charged with general intent crimes.” Id. at cmt. 8.
¶ 62 Although the wording of Instruction H:34 and the instruction
that the trial court read to the jury in this case differ, they mean
much the same. Telling the jury that it could not consider evidence
of voluntary intoxication for purposes of deciding whether the
prosecution had proved the elements of the general intent offenses
is much the same as telling the jury that voluntary intoxication is
not a defense to such crimes.
¶ 63 And a trial court is not required to adhere to the pattern
instructions for us to conclude that the court appropriately
instructed the jury. See People v. Flockhart, 2013 CO 42, ¶ 12 (“The
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pattern instructions are not law, not authoritative, and not binding
on this court . . . .”). In this case, the instruction on voluntary
intoxication essentially tracked the language of subsection (1),
People v. Galvan, 2019 COA 68, ¶ 43 (cert. granted Jan. 13, 2020),
and it was therefore a correct statement of the law, Rios, ¶ 46.
¶ 64 But, relying on a Missouri Supreme Court case, State v. Erwin,
848 S.W.2d 476 (Mo. 1993), defendant maintains that the
instruction created an impermissible presumption that he
possessed the requisite mental state. In other words, defendant
argues that the instruction told the jury that, if he were intoxicated,
it should presume that the prosecution had proved that he had
acted with the requisite culpable mental state. We are not
persuaded.
¶ 65 The instruction told the jury that it could not consider
evidence of intoxication as a defense. Indeed, the instruction made
no reference to the mental state element at all. The court
instructed the jury on the culpable mental states of “knowingly”
and “recklessly,” and it told the jury that the prosecution had the
burden to prove the mental state elements beyond a reasonable
doubt. In each of the elemental instructions, the jury was again
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told that the prosecution had the burden of proving every element
of the charged crime, including the culpable mental state, beyond a
reasonable doubt. When we consider the jury instructions as a
whole, we conclude that the court properly instructed the jury on
the prosecution’s burden to prove all the elements beyond a
reasonable doubt. See Kaufman v. People, 202 P.3d 542, 549 (Colo.
2009).
¶ 66 Defendant also submits that the instruction given by the trial
court was “a far cry from the instruction approved” in People v.
Vanrees, 125 P.3d 403 (Colo. 2005). But Vanrees did not deal with
voluntary intoxication; it dealt with whether a jury could consider
evidence of the defendant’s “mental slowness” when deciding
whether he had acted with general intent. Id. at 404. The issue in
that case was whether an instruction allowed the jury to consider
such evidence. The supreme court did not address the issue of
whether the instruction was proper as far as voluntary intoxication
was concerned. We therefore conclude that Vanrees does not apply
to our analysis.
¶ 67 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE NAVARRO concur.
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