People v. Jones , 434 P.3d 760 ( 2018 )

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
August 9, 2018
2018COA112
No. 15CA1365 Peo v Jones — Criminal Law — Jury Instructions
— Use of Physical Force, Including Deadly Physical Force
(Intruder Into A Dwelling); Affirmative Defenses — Self-Defense
— Use of Physical Force in Defense of a Person
The defendant, charged with assaulting two occupants of a
home, alleged that he had inadvertently trespassed into the home
and asserted a self-defense defense. The prosecution requested an
instruction pursuant to Colorado’s make-my-day statute, which
gives homeowners who satisfy the statutory elements the exclusive
right to use force in a homeowner-trespasser encounter, thereby
negating a trespasser’s right to claim self-defense.
The division holds that the trial court erred in failing to
instruct the jury that the make-my-day statute requires a
“knowingly” unlawful entry into the home. Because the jury could
have found the defendant’s entry to be mistaken or accidental, it
could have further determined that the homeowners did not have
the exclusive right to use force during the encounter. Under those
circumstances, the jury could then have considered the defendant’s
self-defense defense. But the omission of the “knowingly” element
effectively negated the defendant’s defense. And because the
evidence supported such a defense, the instructional error was not
harmless.
The dissent concludes that the district court properly
instructed the jury on the make-my-day statute and, in any event,
any error was harmless because the defendant did not have a viable
self-defense defense.
The division reverses the judgment and remands for a new
trial.
COLORADO COURT OF APPEALS 2018COA112
Court of Appeals No. 15CA1365
City and County of Denver District Court No. 14CR1481
Honorable Elizabeth A. Starrs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Gregory Ray Jones,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE HARRIS
Terry, J., concurs
Casebolt*, J., dissents
Announced August 9, 2018
Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Michael J. Sheehan, Centennial, 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. 2017
¶1 Gregory Ray Jones was convicted of assault after he entered
an apartment occupied by four young men and a physical
altercation ensued.
¶2 At trial, he argued that he had mistakenly entered the
apartment and had used force against the homeowners only in self-
defense. Finding there was some evidence to support Jones’s
theory of defense, the court gave a self-defense instruction,
explaining that a person is entitled to use force to defend himself
against any unlawful use of force.
¶3 But the court also instructed the jury that, under Colorado’s
“make-my-day” statute, a homeowner has the right to use any
degree of physical force against a person who makes an “unlawful
entry” into the home. In other words, where the make-my-day
statute applies, the homeowner’s use of force is necessarily lawful
and therefore a trespasser has no right to use self-defense.
¶4 On appeal, Jones argues that the make-my-day instruction
was overly broad. He says the trial court erred in failing to instruct
the jury that only a “knowingly” unlawful entry, rather than a
mistaken entry, triggers the statute. He contends that the court’s
error allowed the jury to determine that even a mistaken entry gave
1
the homeowners the exclusive right to use force during the
altercation which, in turn, prevented the jury from properly
considering his claim of self-defense.
¶5 We agree and, because we conclude that the error was not
harmless, we reverse Jones’s conviction and remand for a new trial.
I. Background
¶6 Late one night, in March 2014, Jones opened the unlocked
door of an apartment located in a large, gated apartment complex.
He turned on the hall light and walked into one of the bedrooms.
¶7 The apartment was occupied by two brothers, Daniel and
Ruben Peacemaker, and the brothers’ two cousins (the
homeowners). Jones and the homeowners had never met each
other, and the homeowners all characterized Jones’s entry into the
apartment as a “completely random” occurrence.
¶8 It turned out that Jones’s cousin lived in an apartment at the
complex. Sometime in the previous year, the cousin had moved to a
different apartment in the same complex. According to the
testimony of various witnesses, the apartment complex was laid out
in a confusing way: the five buildings all looked alike, and neither
the buildings nor the apartments were numbered sequentially. One
2
of the police officers who responded to the scene got lost looking for
the homeowners’ apartment. He testified that the complex was
“really confusing” because the “numbers are labeled really odd,”
and that a person would “really have to spend a lot of time in that
complex so that [he] would remember which building is which.”
¶9 Jones had visited his cousin at the complex on multiple
occasions, sometimes late at night. But on that night in March
2014, Jones had been drinking. His wife estimated that the couple
started drinking at 6:00 that evening and that Jones drank about
five glasses of brandy before she went to bed. When Jones woke
her up at around 2:00 a.m. to tell her a joke, she thought he was
drunk.
¶ 10 About an hour later, after parking his car at roughly the
midpoint between his cousin’s former and current apartments,
Jones walked into the homeowners’ apartment.
¶ 11 One of the occupants, a cousin, was sleeping on the couch.
He heard Jones come in and turn on the light, but he assumed —
because the person who had entered acted as though he “belonged
there” and was not “somebody who was busting into the place” —
3
that it was one of the Peacemaker brothers coming home late from
work.
¶ 12 Jones walked past the cousin on the couch and through the
open bedroom door where Daniel Peacemaker was sleeping.
According to Daniel’s testimony, he woke up to find Jones on top of
him, punching him repeatedly in the head. Daniel yelled, then
rolled out of bed, and both men fell to the floor, where Jones
continued to punch Daniel.
¶ 13 The cousin on the couch heard Daniel yell and ran into the
bedroom. He saw that Daniel, who was bleeding, had Jones
“pinn[ed] against the wall,” and that the two men were punching
each other. He ran over and punched Jones “as hard as [he] could”
in the face.
¶ 14 The other cousin arrived in the bedroom at almost the same
time. He started punching Jones, as many times as he could, to try
to knock him down. The fighting between Jones and the three men
was “really fast, really aggressive”; there were “fists flying from
everyone.”
¶ 15 But within ten or fifteen seconds, the fight started to move out
of the bedroom. Jones was “shuffling” with his back to the wall,
4
moving toward the hallway, while he swung at the three men. One
cousin described it as Jones “trying to fight his way out” of the
apartment. But the homeowners “weren’t letting him get out.”
¶ 16 Eventually, though, Jones moved into the hallway. Daniel
grabbed Jones’s hoodie to try to prevent him from leaving, and
Jones tripped near the front door. As he tripped, Jones dropped a
knife on the floor. He then “slipped out the door.”
¶ 17 Daniel’s brother, Ruben, who had woken to the commotion
just before Jones ran out of the apartment, chased Jones out the
front door, with one of the cousins in tow. Ruben and the cousin
caught up with Jones, tackled him to the ground, and detained him
until police arrived a few minutes later.
¶ 18 It was not until after Jones had left the apartment that Daniel
realized he had been stabbed. He sustained injuries to his ears,
neck, shoulders, and arm. One cousin also sustained less serious
injuries.
¶ 19 Jones was charged with burglary, attempted first degree
murder, and two counts of second degree assault. The jury
convicted him of one count of second degree assault and one count
5
of third degree assault, but acquitted him of the attempted murder
and burglary charges.
II. Jury Instructions
¶ 20 At trial, Jones argued that he had entered the apartment by
mistake. Then, when the homeowners used force against him, he
justifiably defended himself, using the knife he carried for
protection.1
¶ 21 The court gave two instructions relevant to the issue on
appeal: a self-defense instruction, requested by Jones, and an
instruction pursuant to section 18-1-704.5, C.R.S. 2017, known as
the “make-my-day” statute, requested by the prosecution.
¶ 22 The self-defense instruction allowed the jury to acquit Jones of
the assault charges if it found that Jones had used physical force to
defend himself from the use of unlawful physical force by the
homeowners. The make-my-day instruction, however, directed the
jury that, if the statutory elements were met, the homeowners’ use
1 Jones’s tendered theory of defense instruction read: “The
defendant, Gregory Ray Jones, asserts that he did not knowingly
make an unlawful entry into the apartment occupied by [the
homeowners]. Mr. Jones asserts that after [going] inside the
incorrect apartment, he attempted to retreat and leave the
apartment.”
6
of force against Jones was lawful. Thus, because self-defense
applies only where the defendant confronts unlawful force, a finding
that the make-my-day statute applied would necessarily negate
Jones’s defense.
¶ 23 On appeal, Jones contends that the trial court erred in
instructing the jury that the make-my-day statute is triggered upon
any unlawful entry into a dwelling, rather than upon a “knowingly”
unlawful entry. The error, Jones says, meant that the jury could
have concluded that the make-my-day statute applied even though
Jones’s unlawful entry into the homeowners’ apartment was
mistaken or accidental, not “knowing.” As a result, he argues, the
erroneous make-my-day instruction negated his otherwise valid
claim of self-defense.
A. Standard of Review
¶ 24 A trial court has a duty to instruct the jury correctly on the
applicable law. People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).
We review jury instructions de novo to determine whether the
instructions as a whole accurately informed the jury of the
governing law. People v. Lucas, 232 P.3d 155, 162 (Colo. App.
2009).
7
¶ 25 We review a preserved objection to a jury instruction for
harmless error. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). A
jury instruction error is not harmless when the error permits the
jury “to hold [the] defendant to a higher standard in establishing
self-defense than is required by law.” People v. Ferguson, 43 P.3d
705, 708 (Colo. App. 2001).
B. Affirmative Defense of Self-Defense
¶ 26 Under section 18-1-704(1), C.R.S. 2017, a person has the right
to use force to defend himself from the use or imminent use of
unlawful physical force by another person, and he may use a degree
of force that he reasonably believes is necessary for that purpose.
¶ 27 That right is not absolute, however. As relevant here, an
“initial aggressor” may use physical force to defend himself only if,
after he withdraws from the encounter and effectively
communicates to the other person his intent to do so, the other
person nevertheless continues the use of unlawful physical force.
§ 18-1-704(3)(b).
¶ 28 As a general matter, though, a person’s ability to defend
himself — even an initial aggressor’s — does not turn on whether he
is where he has a right to be. People v. Toler, 9 P.3d 341, 352 (Colo.
8
2000). “[T]respassers do not forfeit their rights to self-defense
merely by the act of trespassing.” Id. Thus, a trespasser may use
physical force to defend himself where, for example, the occupant of
the property confronts him with unlawful physical force. Id. And
even an initial aggressor may assert self-defense, irrespective of his
status as a trespasser, so long as he “withdraws and communicates
as required by the statute.” Id.
¶ 29 These rules animate the principle that the touchstone of
self-defense is a belief that one is defending against the unlawful
use of force. People v. Silva, 987 P.2d 909, 915 (Colo. App. 1999).
The corollary to that principle is that a person is not justified in
using force to defend against another person’s lawful use of force.
C. The Make-My-Day Statute
¶ 30 Under the make-my-day statute, any degree of physical force
by a homeowner against certain trespassers is lawful. Thus, when
the make-my-day statute applies, it operates as a bar to a
trespasser’s claim of self-defense. See People v. Chirico, 2012 COA
16, ¶ 15.
¶ 31 Section 18-1-704.5(2) provides, in relevant part, as follows:
9
Notwithstanding the provisions of section 18-
1-704 [the self-defense statute], any occupant
of a dwelling is justified in using any degree of
physical force, including deadly physical force,
against another person when that other person
has made an unlawful entry into the dwelling,
and when the occupant has a reasonable belief
that such other person has committed a crime
in the dwelling in addition to the uninvited
entry, or is committing or intends to commit a
crime against a person or property in addition
to the uninvited entry, and when the occupant
reasonably believes that such other person
might use any physical force, no matter how
slight, against any occupant.
¶ 32 The make-my-day statute therefore has three elements: (1) an
unlawful entry; (2) the occupant’s reasonable belief that the person
entering unlawfully has committed, is committing, or intends to
commit a crime other than the entry; and (3) the occupant’s
reasonable belief that the person entering unlawfully might use
physical force against an occupant. See People v. Zukowski, 260
P.3d 339, 343 (Colo. App. 2010). Only the first element is at issue
here.
¶ 33 The “vexing question” of the proper definition of “unlawful
entry” was resolved in People v. McNeese, 892 P.2d 304, 310 (Colo.
1995): “[A]n unlawful entry means a knowing, criminal entry into a
dwelling.” Though the statute does not contain the word
10
“knowingly,” the supreme court construed the statute to require a
“culpable mental state” because, without such a requirement, the
occupant of a dwelling could lawfully use physical force, even
deadly physical force, against “any unanticipated or unexpected
‘intruder.’” Id. at 311. And surely, the court reasoned, the
legislature did not intend the statute to justify the use of physical
force against “persons who enter a dwelling accidentally or in good
faith.” Id. Thus, the statutory language justifies an occupant’s use
of physical force against another person only when the other person
has made “an entry in knowing violation of the criminal law” — that
is, when the other person is “knowingly engaging in criminal
conduct.” Id. at 310-11.
¶ 34 Jury Instruction Number 29 instructed the jury that any
occupant of a dwelling is justified in using any degree of physical
force, including deadly physical force, against another person when
that other person “has made an unlawful entry into the dwelling,”
and the other elements of the make-my-day statute are established.
Over defense counsel’s objection, the court declined to add the word
“knowingly” to modify the “unlawful entry” element.
11
D. McNeese’s Definition of “Unlawful Entry” is Not Limited to
Immunity Cases
¶ 35 The People contend that the supreme court’s interpretation of
the term “unlawful entry” in the make-my-day statute is limited to
cases in which the homeowner, not the trespasser, asserts the
affirmative defense of self-defense.2 We are not persuaded.
¶ 36 To be sure, the make-my-day statute can apply outside the
immunity context. See People v. Hayward, 55 P.3d 803, 805 (Colo.
App. 2002). The question is whether the supreme court intended
“unlawful entry” to have a different meaning depending on whether
the homeowner or the trespasser is on trial.
2 The People raised this argument for the first time at oral
argument. Though we ordinarily decline to consider arguments
raised for the first time at oral argument, see People v. Becker, 2014
COA 36, ¶ 23, we exercised our discretion to consider the argument
and ordered the parties to file supplemental briefing on the issue of
whether the definition of “unlawful entry” articulated in People v.
McNeese, 892 P.2d 304, 310 (Colo. 1995), applies to this case. In
addition to addressing the supplemental issue, Jones argued for the
first time that we should review his challenge to the make-my-day
instruction under a constitutional harmless error standard.
Because we conclude that Jones prevails under a harmless error
standard, we decline to address his new argument. The People also
raised new, nonresponsive arguments in their supplemental
briefing. We likewise decline to consider those arguments.
12
¶ 37 We begin with the uncontroversial proposition that we are
“bound to follow supreme court precedent.” In re Estate of
Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250
P.3d 762, 768 n.3 (Colo. App. 2010)). Our obligation takes on even
greater import when it comes to statutory interpretation, because
our departure from supreme court precedent amounts to an
amendment of the statute that the legislature has not approved.
See Kimble v. Marvel Entm’t, 576 U.S. ___, ___, 135 S. Ct. 2401,
2410 (2015).
¶ 38 Nonetheless, the People urge us to abandon the definition of
“unlawful entry” articulated in McNeese. They contend the McNeese
court adopted the “knowing” element of the “unlawful entry”
requirement to temper the statute’s grant of immunity to
homeowners who use what would otherwise amount to excessive
force against trespassers. See 892 P.2d at 310-11. We agree that
this concern informed the supreme court’s statutory interpretation,
at least in part, but the People do not explain why this concern
would not be present in cases where an unwitting trespasser is
prosecuted and seeks to invoke self-defense.
13
¶ 39 As the McNeese court observed, the make-my-day statute “is
similar to self-defense,” but is much broader because it justifies
deadly physical force, not just physical force, against an intruder,
even when the intruder threatens the slightest use of force against
the homeowner. Id. at 309. Thus, the court construed the statute
to shield the homeowner only when the intruder made a “knowing,
criminal entry” into the home. Id. at 310. Otherwise, a homeowner
could take advantage of the statute’s grant of immunity to use
otherwise excessive force against a person who had a good faith
belief that he was making a lawful entry. At bottom, the purpose of
the “knowing” element is to protect the accidental trespasser. See
id. at 310-11. (The supreme court apparently did not consider the
second and third statutory requirements sufficient to achieve that
goal.)
¶ 40 Given that purpose, we do not see why the knowing element
would suddenly become irrelevant simply because the trespasser,
not the homeowner, is ultimately prosecuted. An accidental
trespasser who is confronted by a homeowner’s excessive force
would be unable to lawfully use force to defend himself, giving the
homeowner a “license” to use unnecessary force against any
14
intruder — the same scenario the supreme court intended to
discourage in McNeese. Id. at 309; see also id. at 311 (“The
immunity was not intended to justify use of physical force against
persons who enter a dwelling accidentally or in good faith.”).
¶ 41 The dissent raises a different reason to disregard McNeese’s
definition of “unlawful entry.” According to the dissent, the
“knowing” element is tied not to the consequences of granting
immunity, but instead to the burden of proof. In an immunity case,
when the defendant homeowner raises the make-my-day defense at
trial, it operates as an affirmative defense, meaning the prosecution
bears the burden to disprove the defense beyond a reasonable
doubt, including that the victim’s entry was knowingly unlawful.
People v. Janes, 982 P.2d 300, 303 (Colo. 1999). But in a case
where the trespasser is prosecuted, the dissent says, the
prosecution’s task is to prove the elements of the charged offenses;
it should not bear the additional burden of proving that the
homeowner used lawful force against the trespasser under the
make-my-day statute.
¶ 42 The issue on appeal, though, is simply whether the instruction
should have included the “knowingly” element of the statute’s
15
unlawful entry requirement. The dissent’s argument goes to a
different issue: Who should bear the burden of proof when the
make-my-day statute is not raised by the homeowner as an
affirmative defense?
¶ 43 Assuming the burden of proof were our concern, though, we
note that the prosecution requested the make-my-day instruction in
this case. It asked the jury to find that, at the moment Jones
“unlawfully” entered the apartment, the homeowners were “justified
in using any degree of physical force, including deadly physical
force,” against him. The instruction’s effect — and, presumably, its
purpose — was to give the homeowners the exclusive right to self-
defense and thereby negate any such claim by Jones.
¶ 44 But regardless of whose burden it was to prove the application
(or nonapplication) of the make-my-day statute, the jury had to be
correctly instructed as to its elements. The dissent does not explain
why the prosecution should be entitled to the benefit of a broader
definition of “unlawful entry” simply because Jones was on trial, not
the homeowners. Indeed, even if Jones should have borne the
burden of proof (and we do not decide that issue, as it was not
raised in the trial court or on appeal), he could not have disproved
16
the homeowner’s exclusive right to use physical force unless the
instruction included the disputed “knowingly” element.
¶ 45 Accordingly, we see no reason to depart from McNeese’s
definition of “unlawful entry.”
E. The Make-My-Day Instruction Improperly Abridged Jones’s
Self-Defense Defense
¶ 46 Jones presented two theories of self-defense, both of which
started from the premise that Jones had unlawfully, but
mistakenly, entered the homeowners’ apartment. Under the first
theory, after the mistaken entry, Daniel was the initial aggressor,
and Jones’s use of physical force was justified as a reasonable
response to the homeowners’ unlawful use of force. Under the
alternative theory, even if, after the mistaken entry, Jones was the
initial aggressor, he tried to retreat by leaving the apartment, but
the homeowners nevertheless used unlawful physical force to try to
detain him, and therefore Jones’s use of physical force after his
attempt to retreat was justified as self-defense.
¶ 47 But if the make-my-day statute applied — that is, if Jones
made an “unlawful entry” into the apartment (and the other
statutory criteria were met) — then he would not be justified in
17
using physical force against the homeowners. That is true because,
under those circumstances, the homeowners’ use of physical force
against Jones was necessarily lawful, and, as we have noted, self-
defense is only a defense to another’s use of unlawful physical
force.
¶ 48 The trial court, however, declined to instruct the jury that
Jones’s entry was not an “unlawful entry” for purposes of the make-
my-day statute unless it was made “knowingly” — meaning, with a
“mental state [that] reflect[s] an entry in knowing violation of the
criminal code.” McNeese, 892 P.2d at 312. A mistaken or
accidental entry is not a knowingly unlawful entry. Id. at 312.
¶ 49 Although it is generally true that “an instruction couched in
terms of the language of the statute is proper,” a trial court must
tailor those instructions to the particular circumstances of the case.
Idrogo v. People, 818 P.2d 752, 754 (Colo. 1991). Therefore, an
instruction clarifying the meaning of “unlawful entry” is necessary
where the evidence supports a theory that the defendant
accidentally entered the dwelling or otherwise entered without the
requisite mental state. Cf. Hayward, 55 P.3d at 805 (perceiving no
error in the trial court’s decision to give the make-my-day
18
instruction in the exact terms of the statute, where the evidence
was undisputed that the defendant’s attempted entry into his
estranged wife’s home was knowingly unlawful).
¶ 50 Here, in the absence of any further instructions to the jury
about the meaning of “unlawful entry,” the jury could have
erroneously concluded that even an accidental entry into the
apartment triggered application of the make-my-day statute. A
mistaken entry, after all, could still be unlawful under the criminal
code, see § 18-4-504, C.R.S. 2017 (criminal trespass in the third
degree); see also McNeese, 892 P.2d at 316 (Scott, J., dissenting)
(“[U]nder the majority’s definition [of unlawful entry], third degree
criminal trespass would not fulfill the ‘unlawful entry’ requirement
because it lacks the culpable mental state of knowingly.”), even if it
does not count as “knowingly” unlawful for purposes of the make-
my-day statute.
¶ 51 We therefore conclude that the court erred in failing to
instruct the jury that the make-my-day statute’s “unlawful entry”
element requires that the unlawful entry be made “knowingly.”
¶ 52 We further conclude that the instructional error was not
harmless. The evidence supported Jones’s theory that he entered
19
the apartment accidentally, under the mistaken belief that he was
entering his cousin’s apartment: Jones’s cousin lived in the
complex, the cousin had recently moved, the complex was difficult
to navigate, and Jones was apparently drunk. Indeed, after
receiving an instruction on “mistaken belief of fact,”3 the jury
acquitted Jones of first degree burglary.
¶ 53 Accordingly, the record supported a determination by the jury
that Jones’s entry was accidental and that the make-my-day statute
did not apply.
¶ 54 Under those circumstances, the jury would then have
evaluated Jones’s claim of self-defense under ordinary self-defense
principles. If the jury determined that Daniel was the initial
aggressor, Jones was entitled to use physical force to defend himself
from the moment Daniel used unlawful physical force against him.
But even if the jury determined that Jones was the initial aggressor,
3 The “mistaken belief of fact” instruction applied only to the
burglary charge and provided, in relevant part, that “[t]he
defendant’s conduct was legally authorized if: (1) the defendant
engaged in prohibited conduct under a mistaken belief and (2) due
to this mistaken belief he did not form the particular mental state
required in order to commit the offense.” The requisite mental state
for burglary is “knowingly.”
20
it could nonetheless have credited Jones’s theory of self-defense if it
also determined that Jones had attempted to withdraw from the
encounter and had effectively communicated his intent to the
homeowners, but that the homeowners nevertheless continued the
use of unlawful physical force against him.
¶ 55 The erroneous make-my-day instruction, though, meant that
the jury might not have evaluated the claim of self-defense even
though it found that Jones’s entry was not “knowingly” unlawful.
See Ferguson, 43 P.3d at 708 (An error in the self-defense
instruction is not harmless where “we simply cannot determine the
manner in which the jury applied the self-defense instruction, if at
all.”).
¶ 56 The People contend that any error was harmless because
Jones’s acquittal on the burglary charge rendered the make-my-day
instruction “moot.” According to the People, in acquitting Jones of
burglary, the jury necessarily determined that Jones had not made
a knowingly unlawful entry. Therefore, the jury would have known
that the make-my-day instruction did not apply and would have
considered Jones’s self-defense defense.
21
¶ 57 Not true, because only the burglary instruction required a
“knowingly” unlawful entry; the make-my-day instruction required
only an “unlawful” entry. Thus, the jury could have determined
that Jones did not “knowingly” enter the homeowners’ apartment
unlawfully, for purposes of the burglary statute, because his entry
was accidental or mistaken. But it could still have concluded, for
purposes of the make-my-day statute, which did not include a
“knowingly” element, that Jones committed an unlawful (though
accidental or mistaken) entry — i.e., a third degree trespass. See §
18-4-504.
¶ 58 The likelihood that this precise problem occurred was only
increased by the mistaken-belief-of-fact instruction. The jury was
told that, for purposes of the burglary charge only, if Jones engaged
in prohibited conduct — presumably, entering the apartment —
under a mistaken belief, and the mistaken belief precluded him
from forming the requisite mens rea (knowingly), his conduct was
“legally authorized.” The jury, following this instruction, could have
concluded that Jones’s entry into the apartment was made under a
mistaken belief that he was entering his cousin’s apartment and it
could have acquitted Jones of burglary on that basis. But because
22
the instruction applied only to the burglary charge, the jury could
reasonably have understood that it could not consider the
“mistaken” or “accidental” nature of the entry for any other
purpose, including applicability of the make-my-day statute.
¶ 59 Nor are we persuaded by the People’s alternative argument,
that the error was harmless because the evidence overwhelmingly
disproved Jones’s claim of self-defense.
¶ 60 True, Daniel testified that he awoke to Jones jumping on top
of him and “throwing blows to [his] head . . . more [times than he]
could count.” That testimony was sufficient to establish that Jones
was the initial aggressor and not entitled to claim self-defense
unless he met other criteria. But other evidence contradicted
Daniel’s testimony. Despite the nearly twenty punches to his head
and face, on cross-examination he admitted that he did not sustain
any injuries to his face, and he agreed that photographs taken just
after the fight and a week later showed no facial injuries. There was
also the lack of any motive. The homeowners testified that they had
never met Jones and that his entry into their apartment was
“completely random.” A rational juror was not compelled to accept
Daniel’s testimony that Jones was the initial aggressor. And if
23
Jones was not the initial aggressor, and the make-my-day statute
did not apply, he was entitled to use physical force against Daniel
from the inception of the incident.
¶ 61 But even if Jones was the initial aggressor, he was entitled to
claim self-defense if he attempted to withdraw from the encounter
and effectively communicated his intent to do so but the
homeowners nonetheless continued any unlawful use of physical
force. See § 18-1-704(3)(b). Each of the four occupants testified
that very quickly after the altercation started — within ten or fifteen
seconds, according to one of the cousins — Jones attempted to
extricate himself from the melee and leave the apartment. But each
of the four occupants also testified that they continued to use
physical force against Jones in an effort to detain him. Some
evidence, or at least reasonable inferences drawn from it, also
supported Jones’s argument that he did not use the knife until after
he had attempted to withdraw from the altercation and get out of
the apartment.
¶ 62 The dissent says Jones’s efforts to extricate himself from the
altercation were merely an “attempt to flee a crime scene.” The jury
could have adopted that view, but we cannot say that it is the only
24
reasonable view of the evidence. See State v. Jones, 165 So. 3d 74,
87 (La. Ct. App. 2013) (the jury is the “ultimate fact-finder” in
determining whether the defendant acted in self-defense, including
whether the defendant was the initial aggressor who had withdrawn
from the conflict); see also People v. Hernandez, 3 Cal. Rptr. 3d 586,
588 (Cal. Ct. App. 2003) (an initial aggressor may communicate
withdrawal either by words or conduct; verbal notification is not
required).
¶ 63 In sum, we cannot say that the evidence was so overwhelming
that the instructional error was harmless. See Garcia, 28 P.3d at
344 (error in jury instruction is not harmless where the language of
the instruction creates a reasonable probability that the jury could
have been misled in reaching a verdict).
¶ 64 Finally, to the extent the People argue that defense counsel’s
closing argument cured the effect of an erroneous jury instruction,
we reject that argument. True, in his closing argument, defense
counsel told the jury that Jones’s mistaken or accidental entry into
the apartment did not constitute a “knowing unlawful entry,” and
therefore Jones could use physical force to defend himself from the
homeowners’ use of physical force against him. But defense
25
counsel’s closing argument, even if a correct statement of the law,
did not remove the taint of the court’s error. “[A]rguments by
counsel cannot substitute for instructions by the court.” Taylor v.
Kentucky, 436 U.S. 478, 488-89 (1978). It is the duty of the trial
court — not counsel — to “correctly instruct the jury on all matters
of law for which there is sufficient evidence to support giving
instructions.” People v. Jacobson, 2017 COA 92, ¶ 10 (quoting
People v. Carbajal, 2014 COA 60, ¶ 10). Consistent with its
obligation, the trial court repeatedly admonished the jury to “go
with the instructions,” reminding the jury that “if the lawyers say
the law is something and it’s something different in the
instructions, then you go with the instructions.”
¶ 65 The language of the make-my-day instruction improperly
abridged Jones’s claim of self-defense and created a reasonable
probability that the jury could have been misled in reaching a
verdict. Accordingly, we reverse Jones’s convictions and remand for
a new trial.
III. Remaining Contentions
¶ 66 Jones also contends that the trial court erred in denying his
motion for a mistrial after he sought to add a dismissed juror to his
26
witness list and in denying his request for the juror’s contact
information. In light of our disposition, we do not address these
additional claims.
IV. Conclusion
¶ 67 The judgment of conviction is reversed, and the case is
remanded to the trial court for a new trial.
JUDGE TERRY concurs.
JUDGE CASEBOLT dissents.
27
JUDGE CASEBOLT, dissenting.
¶ 68 For a number of reasons, I perceive no error by the trial court
that prejudiced defendant’s substantial rights. Therefore, I
respectfully dissent.
¶ 69 At approximately 3:30 a.m., defendant opened the unlocked
door of an apartment, turned on the hall light, and walked into the
bedroom of Daniel Peacemaker, who woke up to find defendant on
top of him. Defendant struck Daniel at least seven times in the
head, face, and shoulder areas. Testimony at trial established that
Daniel yelled, “Who are you?” and “What are you doing here?” The
two then rolled out of the bed and fell to the floor, where defendant
continued to punch Daniel approximately ten more times. Daniel
testified that he did not return defendant’s strikes until after the
two men rolled onto the floor and defendant continued to pummel
him there. Daniel then responded with his own blows.
¶ 70 Another resident of the apartment heard Daniel’s yells and ran
into the bedroom. He saw that Daniel was bleeding but had
defendant pinned against the wall, and that the two men were
punching each other. The resident joined in the altercation and
28
punched defendant multiple times. A third resident ran into the
bedroom and joined the fray.
¶ 71 After ten or fifteen seconds, the fight started to move out of the
bedroom. All the occupants testified that defendant appeared to be
attempting to get out of the apartment while the fight continued.
After additional blows and pushing occurred, defendant dropped a
knife (on which Daniel’s blood was found) onto the floor and slipped
out the front door. Two of the apartment residents chased
defendant and detained him until police arrived.
¶ 72 Meanwhile, Daniel realized he had been stabbed. He
sustained injuries to his ears, neck, shoulders, and arm. Daniel’s
cousin, another resident, also sustained less serious injuries.
¶ 73 The prosecution charged defendant with first degree burglary
as to Daniel and the cousin; attempted first degree murder of
Daniel; and two counts of second degree assault, one as to Daniel
and one as to the cousin.
¶ 74 Defendant did not testify at trial. His theory of the case
instruction asserted that he did not knowingly make an unlawful
entry into the apartment and that, after he realized he was in the
incorrect apartment, he attempted to retreat and leave.
29
¶ 75 The jury convicted defendant of one count of second degree
assault as to Daniel and one count of the lesser included offense of
third degree assault (knowing) as to the cousin, but acquitted him
of the attempted murder and burglary charges.
I. Jury Instructions
¶ 76 During the jury instruction conference, defense counsel
argued that there was sufficient evidence to warrant instructing the
jury on self-defense. Over the prosecutor’s objection, the trial court
agreed that there was at least a scintilla of evidence on the issue
and instructed the jury, pursuant to the self-defense statute,
section 18-1-704, C.R.S. 2017, in pertinent part, as follows:
The defendant was legally authorized to use
physical force upon another person without
first retreating if:
(1) he used that physical force in order to
defend himself or a third person from what he
reasonably believed to be the use or imminent
use of unlawful physical force by that other
person, and:
(2) he used a degree of force which he
reasonably believed to be necessary for that
purpose, and
(3) he did not, with intent to cause bodily
injury or death to another person, provoke the
use of unlawful physical force by that other
person, and
(4) he was not the initial aggressor, or, if he
was the initial aggressor, he had withdrawn
30
from the encounter and effectively
communicated to the other person his intent
to do so, and the other person nevertheless
continued or threatened the use of unlawful
physical force.
The prosecution has the burden to prove,
beyond a reasonable doubt, that the
defendant’s conduct was not legally authorized
by this defense. In order to meet this burden
of proof, the prosecution must disprove,
beyond a reasonable doubt, at least one of the
above numbered conditions.
¶ 77 Pursuant to the prosecutor’s request and over defense
counsel’s objection, the court also instructed the jury on the
Colorado “make-my-day” statute, section 18-1-704.5(2), C.R.S.
2017. The instruction, which quoted that statute almost verbatim,
stated as follows:
Any occupant of a dwelling is justified in using
any degree of physical force, including deadly
physical force, against another person when
that other person has made an unlawful entry
into the dwelling, and when the occupant has
a reasonable belief that such other person has
committed a crime in the dwelling in addition
to the uninvited entry, or is committing or
intends to commit a crime against a person or
property in addition to the uninvited entry,
and when the occupant reasonably believes
that such other person might use any physical
force, no matter how slight, against any
occupant.
31
¶ 78 Defense counsel objected that the instruction was extraneous
and confusing, “especially when it comes to [defendant’s] right to
defend himself when he is attempting to retreat to the wall” and
that “even if [defendant] was the initial aggressor he is still allowed
to use force to defend himself when he is effectively communicating
to these people his intent to retreat to the wall.” Counsel also
stated that, “I don’t feel that it’s necessary or relevant to advise the
jury on what the rights of these four occupants of the apartment
are, because they are not on trial.” Defense counsel further argued
that, if the court was going to give the instruction, it should insert
the word “knowing” before the word “unlawful,” such that an
intruder entering the dwelling had to have made a knowing
unlawful entry before the occupants could use physical force.
Counsel asserted:
[T]he point I’m trying to make is that a person
may have known that they were walking
through a door, but they may not have
believed that it was unlawful. So I think it’s
important to make that distinction in there
because without it, all it was is knowingly
walked through a door, when really, the crux
of the argument when it comes to burglary is
whether [defendant] knew he was breaking the
law when he walked through the door.
32
¶ 79 Over the prosecutor’s objection, the court also determined that
it would instruct the jury on mistake of fact as an affirmative
defense. The court found that there was at least a scintilla of
evidence that defendant was intoxicated on the night of the
occurrence, that his cousin lived in the apartment complex and
defendant had visited him there previously, and that the complex
was extremely confusing in its configuration and numbering.
Accordingly, it instructed the jury, in pertinent part, that
[t]he evidence in this case has raised the
affirmative defense of “mistaken belief of fact”
as a defense to First Degree Burglary. The
defendant’s conduct was legally authorized if:
(1) the defendant engaged in prohibited
conduct under a mistaken belief and
(2) due to this mistaken belief he did not form
the particular mental state required in order to
commit the offense.
¶ 80 Without objection, the court also instructed the jury on second
degree assault on Daniel and third degree assault (knowing) on the
cousin. Those instructions provided, again as pertinent here, as
follows:
The elements of the crime of Second Degree
Assault [Daniel] are:
(1) that the defendant
...
33
(3) with intent to cause bodily injury to
another person
(4) caused such injury to any person, namely:
[Daniel]
(5) by means of a deadly weapon, namely: knife
[and]
(6) that the defendant’s conduct was not legally
authorized by the affirmative defense [of self-
defense].
The elements of the crime of Assault in the
Third Degree- (Knowing) [the cousin] are:
(1) that the defendant
...
(3) knowingly . . .
(4) caused bodily injury to another person,
namely: [the cousin], and
(5) that the defendant’s conduct was not legally
authorized by the affirmative defense [of self-
defense].
II. Self-Defense and Make-My-Day Instruction
¶ 81 Unlike the majority, I do not perceive that the trial court erred
in giving the make-my-day instruction without inserting the
modifier “knowing” as requested by defendant.
A. Standard of Review
¶ 82 The trial court has a duty to instruct the jury on all matters of
law. People v. Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009).
“The district court has substantial discretion in formulating the jury
34
instructions, so long as they are correct statements of the law and
fairly and adequately cover the issues presented.” Id.
¶ 83 We review de novo whether a particular jury instruction
correctly states the law. Day v. Johnson, 255 P.3d 1064, 1067
(Colo. 2011). We review a trial court’s decision to give a particular
jury instruction for an abuse of discretion. Id. We also review the
question whether the trial court erred when it denied a defendant’s
request for a particular instruction for an abuse of discretion. See
People v. Marks, 2015 COA 173, ¶ 53. A trial court abuses its
discretion if its decision is manifestly arbitrary, unreasonable, or
unfair. Id. A court may also abuse its discretion if its decision is
based on an erroneous understanding or application of the law.
People v. Ortiz, 2016 COA 58, ¶ 14.
¶ 84 A trial court should not instruct a jury on abstract principles
of law unrelated to the issues in controversy. People v. Silva, 987
P.2d 909, 913 (Colo. App. 1999). “Although it is appropriate for the
jury to resolve questions of fact, the court has the duty to determine
first which issues have been raised by the evidence
presented.” Id. at 915.
35
B. Applicability of People v. McNeese
¶ 85 The majority relies on People v. McNeese, 892 P.2d 304, 310
(Colo. 1995), for the proposition that the phrase “unlawful entry” in
section 18-1-704.5(2) must be construed to mean a “knowing”
criminal entry into a dwelling, and the jury must be so instructed.
While that construction of the statute makes sense when an
occupant of a dwelling seeks immunity from prosecution for (or as
an affirmative defense justifying) the employment of physical or
deadly force against an intruder, the same cannot be said when the
defendant is the intruder, as here, and seeks to justify his use of
physical force against the occupant of a dwelling. An examination
of the factual circumstances and rationale of McNeese reveals why.
¶ 86 In McNeese, the defendant was the occupant of a dwelling who
was bound over for trial on attempted first degree murder and first
degree assault charges arising out of the stabbing of Vivian Daniels,
his roommate, and two counts of second degree murder as to
victims John Daniels, the roommate’s estranged husband, and
David Wessels. The defendant pleaded not guilty and filed a motion
to dismiss, asserting that he was immune from prosecution under
the make-my-day statute. Id. The trial court granted his motion as
36
to the second degree murder charge for the stabbing death of John
Daniels, but denied the motion as to the remaining charges. Id.
The prosecution appealed the grant of immunity and a division of
this court affirmed. See People v. McNeese, 865 P.2d 881 (Colo.
App. 1993).
¶ 87 The supreme court reversed, concluding that the General
Assembly did not intend that the occupant of a dwelling be granted
immunity from prosecution for a suspected unlawful entry by an
intruder. McNeese, 892 P.2d at 308. “[Because] the occupant of a
dwelling is granted immunity from criminal prosecution for
homicide . . . safeguards must be imposed. Because the statute
readily grants immunity for the taking of a life, the ‘knowingly’
mens rea is required to carry out the principles of self-defense.” Id.
at 309. Thus, the court ultimately concluded that the defendant
occupant of a dwelling who seeks immunity from prosecution for
his or her use of physical or deadly force against an intruder “must
prove” that there was a knowing criminal entry. Id. at 310-13.
¶ 88 Hence, the court’s imposition of the “knowing” requirement is
based on there being charges brought against an occupant of a
dwelling, who then has the burden to prove, by a preponderance of
37
the evidence, that the intruder entered in knowing violation of the
criminal law to obtain immunity. Id. at 308-09; see People v.
Zukowski, 260 P.3d 339, 344 (Colo. App. 2010) (under McNeese, an
intruder must knowingly engage in criminal conduct).
¶ 89 The factual circumstances of McNeese and the focus of the
court’s attention were on the burden of proof to be imposed on the
occupant, who was charged with killing an intruder, to prove the
intruder’s state of mind on entry.
¶ 90 Here, of course, defendant was not the occupant of a dwelling
facing a criminal charge because he employed force against an
intruder. Instead, he was a trespassing intruder, at least as that
term is defined under third degree criminal trespass, see § 18-4-
504, C.R.S. 2017 (defining the crime as unlawfully entering or
remaining in or on premises of another). This trespass offense does
not contain a “knowing” element or any other specific mens rea.
See also § 18-4-201(3), C.R.S. 2017 (“A person ‘enters unlawfully’ or
‘remains unlawfully’ in or upon premises when the person is not
licensed, invited, or otherwise privileged to do so.”).
¶ 91 Under such circumstances, I do not perceive that the McNeese
rationale for imposing the “knowing” requirement for unlawful entry
38
in the make-my-day statute is applicable here. See People v. Janes,
982 P.2d 300, 302 (Colo. 1999) (stating that the McNeese court’s
imposition of a condition requiring a homeowner defendant to prove
by a preponderance of the evidence that the victim “knowingly made
an unlawful entry” was interpreting the “unlawful entry” language
“in [the] context of a defendant’s motion for pretrial statutory
immunity”).
¶ 92 Furthermore, imposing a “knowing” requirement here would,
contrary to McNeese’s imposition of the burden of proof on the
occupant to show by a preponderance of the evidence that the
intruder entered in knowing violation of the criminal law, impose on
the prosecution the burden to prove beyond a reasonable doubt that
the intruder entered knowingly, which essentially would turn the
McNeese rationale on its head.
¶ 93 Thus, the trial court’s refusal to include the “knowing” element
was, in my view, correct.
C. Propriety of the Make-My-Day Instruction
¶ 94 If, as I believe, McNeese does not apply here, the question is
simply whether, as given, the make-my-day instruction was proper.
39
In my view it was, as an examination of People v. Hayward, 55 P.3d
803 (Colo. App. 2002), reveals.
¶ 95 In Hayward, the defendant was charged with second degree
assault on his estranged wife. The victim testified that she
answered the door of her residence and encountered the defendant,
who then forced his way into the residence and repeatedly stabbed
her with a knife. In contrast, the defendant testified that the victim
answered the door brandishing a knife, and she sustained
accidental injuries during a struggle for control of the knife. The
defendant admitted he was aware of the restraining order that
prohibited him from being at the victim’s residence. Id. at 804.
¶ 96 At trial, the defendant requested and received an instruction
on self-defense couched in the language of section 18-1-704. The
prosecution sought to limit the applicability of self-defense by
explaining the victim’s right to use force in her home under the
make-my-day statute. Id. at 805. Over the defendant’s objection,
the trial court instructed the jury concerning the victim’s right to
defend herself in her dwelling and gave an instruction essentially
identical to the make-my-day statute. Id. at 805.
40
¶ 97 On appeal, the Hayward division perceived no error in the trial
court’s giving of the make-my-day instruction, noting that it tracked
the statute verbatim and provided an explanation of appropriate
legal principles at issue in the case. Id.; see People v. Gilbert, 12
P.3d 331, 340 (Colo. App. 2000) (the trial court may instruct the
jury concerning a principle of law that is related to an issue in
controversy); People v. Burke, 937 P.2d 886 (Colo. App. 1996) (jury
instructions framed in the language of statutes are generally
adequate and proper).
¶ 98 The Hayward division then noted that, whether the defendant
was legally entitled to employ force in self-defense and further to
obtain an instruction at trial concerning it were dependent on
whether he made an unlawful entry into the dwelling. Because
those facts were in dispute, the instruction there was properly
given. Hayward, 55 P.3d at 805-06.
¶ 99 Here, the instruction was proper because (1) there was a
factual dispute over whether defendant unlawfully entered the
apartment; (2) defendant sought and received a general self-defense
instruction; and (3) the make-my-day instruction explained that the
victims and other occupants were entitled to employ force against
41
defendant because he was an intruder into their apartment and it
explained a legal proposition that was raised in the case. See id. at
805.
¶ 100 The make-my-day instruction did not, contrary to defendant’s
further contention, unduly limit his right to assert and argue
self-defense.
¶ 101 The court’s instructions concerning second and third degree
assault, recited above, noted that the prosecution had to prove,
beyond a reasonable doubt, that defendant’s conduct was not
legally authorized by the affirmative defense of self-defense. In
addition, defense counsel specifically argued in closing that “the
only reasonable, the only plausible explanation for what happened
here is that [defendant] mistakenly walked into the wrong
apartment; and that what happened in the aftermath, it was
necessary for him to defend himself against what he believed to be
the threat of serious bodily injury.”
¶ 102 Counsel also argued that Daniel was the initial aggressor in
the altercation, but, even if he was not, the evidence only proved
defendant committed third degree assault as to Daniel and that no
resident of the apartment testified that he saw defendant with a
42
knife until other people joined the altercation and defendant, being
outnumbered, then employed it to defend himself. Finally, with
regard to the make-my-day instruction, defense counsel stated:
One thing you cannot lose sight of within the
context of this instruction that talks about
occupants of a dwelling being able to use force
against a person that makes unlawful
entries . . . [t]hat law does not prevent Mr.
Jones from using reasonable force himself if he
makes a mistaken entry into that apartment.
If his entry into the apartment is a mistake, it
is not a knowing unlawful entry into the
apartment; and he maintains the right to
defend himself in a situation like that.
¶ 103 Thus, defendant argued that he was entitled to use
self-defense against the occupants and that he had to have acted
knowing he had violated the criminal law in making an entry into
the apartment.
¶ 104 Furthermore, the prosecutor did not argue, either in his initial
or in his rebuttal closing argument, that defendant did not need to
know that his conduct was criminal or that his unlawful entry into
the apartment did not have to be performed “knowingly.” The
prosecutor asserted that the occupants had a right to use force
against defendant under the make-my-day instruction, but did not
argue the instruction’s language omitting the word “knowing.”
43
¶ 105 The majority perceives that the make-my-day instruction
without the “knowing” element somehow limited defendant’s right to
self-defense. It notes that, when the make-my-day statute applies,
“it operates as a bar to a trespasser’s claim of self-defense” because
the occupant’s use of physical force is lawful, not unlawful. Supra
¶ 30; see People v. Chirico, 2102 COA 16, ¶15; Silva, 987 P.2d at
915 (a reasonable belief that one is defending against the use of
unlawful force is the touchstone of self-defense).
¶ 106 But even acknowledging that this legal proposition is correct,
the jury was not instructed about it. It was not instructed that if it
found defendant had entered unlawfully, he then lost the right of
self-defense or that he was not justified in using force to defend
against the occupants’ physical force. Certainly, the make-my-day
instruction contained no such limitation. It omitted the language
“[n]otwithstanding the provisions of section 18-1-704” which would
have instructed the jury that self-defense was not available if the
provisions of the make-my-day statute were proved. As given, the
make-my-day instruction merely explained the occupants’ right to
employ physical force against a person who had unlawfully entered
their apartment. Furthermore, the prosecutor did not argue that
44
defendant lost his right of self-defense if the elements of the make-
my-day statute were proved.
¶ 107 Nor did the make-my-day instruction defeat or limit
defendant’s theory of the case. He contended, and argued to the
jury, that he accidentally entered the apartment and either: (1)
Daniel was the initial aggressor and his use of force was justified as
a reasonable response to that aggression; or (2), even if defendant
was the initial aggressor, he tried to retreat by leaving the
apartment, but the occupants used unlawful physical force to try to
detain him, and, thus, his use of force after his attempt to retreat
was justified as self-defense.
¶ 108 In addition, the jury was specifically instructed, concerning
second and third degree assault, that it had to find that defendant
either acted with intent to cause bodily injury (second degree
assault) or knowingly caused bodily injury (third degree assault),
and that even if he did, that it had to decide whether his assault
was legally authorized by the affirmative defense of self-defense.
¶ 109 Thus, considering the jury instructions as a whole, as we
must, see Day, 255 P.3d at 1067 (courts must examine whether the
45
instructions as a whole accurately informed the jury of the
governing law), I perceive no reversible error here.
¶ 110 The essence of the majority’s position is that defendant was
deprived of his full right to assert self-defense because the make-
my-day instruction did not contain the “knowingly” modifier
required in McNeese. But it cannot have been wrong to instruct the
jury without the “knowing” modifier when it is clear that a
possessor of property has the privilege to use physical force against
an intruder even when the intruder does not enter in knowing
violation of the criminal law. See § 18-1-705, C.R.S. 2017 (“A
person in possession or control of any . . . premises . . . is justified
in using reasonable and appropriate physical force upon another
person when and to the extent that it is reasonably necessary to
prevent or terminate what he reasonably believes to be the
commission or attempted commission of an unlawful trespass by
the other person.”) (emphasis added).
D. Harmless Error
¶ 111 Even if an instruction is given in error, reversal is not required
if the error can be deemed harmless. People v. Manzanares, 942
P.2d 1235, 1241 (Colo. App. 1996). Reversal is warranted only if
46
the error affected the defendant’s substantial rights; that is, there
must be “a reasonable probability that it contributed to the
defendant’s conviction.” Mata-Medina v. People, 71 P.3d 973, 980
(Colo. 2003). Stated differently, there must be a reasonable
probability that the jury may have been misled in reaching a
verdict. People v. Serra, 2015 COA 130, ¶56. In determining
whether that is so, we review the entire record of the trial, People v.
Gaffney, 769 P.2d 1081, 1088 (Colo. 1989), which includes the jury
instructions, the evidence presented, and arguments of counsel.
People v. Welsh, 58 P.3d 1065, 1072-73 (Colo. App. 2002), aff’d, 80
P.3d 296 (Colo. 2003).
¶ 112 In my view, any error was harmless for a number of reasons:
 The jury instructions (1) did not instruct that defendant
lost the right to or could not assert self-defense if the
make-my-day statute applied; (2) allowed defendant to
assert self-defense and be acquitted if the jury
determined that Daniel was the initial aggressor; and (3)
allowed defendant to assert self-defense and be acquitted
even if he was the initial aggressor if the jury found that
47
he attempted to retreat and effectively communicated
that attempt to the occupants.
 The mistake of fact instruction, while limited by its own
terms to first degree burglary (a limitation defendant does
not contest on appeal), did not preclude defendant from
arguing that he lacked either the intent to cause injury
(for second degree assault) or did not act knowingly in
inflicting bodily injury (for third degree assault); thus, the
jurors could not have understood that they were
precluded from considering the mistaken or accidental
entry theory. Defendant in fact made that argument to
the jury.
 The evidence overwhelmingly disproved defendant’s
theory of self-defense for the following reasons:
o Defendant did not testify, but Daniel testified that he
awoke to find defendant straddling him on the bed;
defendant struck him approximately seven times; the
pair then rolled to the floor and defendant struck him
about ten additional times, but Daniel did not strike
back until after receiving those blows on the floor; and
48
Daniel had not done anything to defendant before he
was struck. Thus, defendant was clearly the initial
aggressor. Further, even if defendant conclusively
proved he mistakenly entered the apartment, the
evidence that he committed assault on Daniel with a
knife is unrebutted.
o Defendant improperly used force as he attempted to
withdraw from the fight. See People v. Toler, 9 P.3d
341, 350 (Colo. 2000) (initial aggressors must retreat
before employing physical force in self-defense).
o Defendant did not effectively communicate any intent
to withdraw from the encounter; in fact, defendant
said nothing at all to the apartment occupants, and
his attempts to get away could not reasonably be
construed as an effective communication of intent to
withdraw as opposed to an attempt to flee a crime
scene.
o Defendant used more force than was reasonably
necessary by employing a knife, given that the
occupants did not use any kind of weapon in the fight,
49
even though weapons were readily available in the
apartment.
¶ 113 Accordingly, the jury was not misled by the make-my-day
instruction, nor was there a reasonable probability that the
instruction contributed to defendant’s convictions for second and
third degree assault. Therefore, I respectfully dissent.
50