23CA0908 Peo v Aschenbrenner 07-09-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0908 Adams County District Court No. 21CR3878 Honorable Kyle Seedorf, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jeffrey Robert Aschenbrenner,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE SCHOCK Welling and Lum, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 9, 2026
Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jeffrey Robert Aschenbrenner, appeals his
convictions for first degree extreme indifference murder and
attempted second degree murder, as well as his sentence of life
imprisonment without the possibility of parole (LWOP). He argues
that (1) the district court erred by excluding evidence of one victim’s
drug possession; (2) the prosecutor committed misconduct during
closing argument; (3) the district court erred by not instructing the
jury on defense of property; (4) the cumulative effect of these errors
requires reversal; and (5) his LWOP sentence is unconstitutionally
disproportionate to the crime of first degree extreme indifference
murder. We reject each of Aschenbrenner’s contentions and affirm.
I. Background
¶2 G.M. agreed to help his daughter, M.M., move out of a home
where she had been living with Aschenbrenner. After they had
finished packing M.M.’s belongings into a trailer, M.M. told G.M.
she also wanted to “move both of [her] vehicles” — a Mercedes that
M.M. was “using” but that was titled in Aschenbrenner’s name, and
an Audi that M.M. had “purchased” but did not yet have title to.
M.M. and G.M. drove the cars to a nearby gas station, left the
Mercedes, and drove the Audi back to the home to get the trailer.
1 ¶3 G.M. testified at trial that when they returned to the trailer a
block from the home, Aschenbrenner’s SUV was parked nearby. As
M.M. stopped, G.M. heard gunshots. Aschenbrenner then opened
the door of the Audi, holding a gun, and said, “Get the fuck out of
my car.” M.M. sped off in the Audi, and the SUV followed her.
¶4 While M.M. was driving away, with the SUV in close pursuit,
she was shot in the stomach. M.M. pulled over, and G.M. called
911. Another vehicle also stopped. Although G.M. could not see
the other vehicle or its driver, he “presumed” it was Aschenbrenner
because “he’s the only one who would’ve followed [them] and would
be behind [them].” The two men yelled at one another, and G.M.
testified at trial that he recognized Aschenbrenner’s voice in the
background of the 911 call. The other vehicle then drove off.
¶5 M.M. died from her injuries. The gun that fired the fatal shots
was not found, but there were three bullet holes in the Audi, and a
bullet found at the scene of the first gunshots (near the trailer) was
fired from the same gun as the bullet that struck and killed M.M.
¶6 Aschenbrenner was charged with two counts of first degree
murder for the death of M.M. — one for after deliberation and one
for extreme indifference — and one count of attempted first degree
2 extreme indifference murder for G.M.1 At trial, Aschenbrenner’s
primary defense was that the prosecution failed to prove beyond a
reasonable doubt that he was the shooter. Defense counsel also
argued that the location of the bullet holes in the Audi — none more
than two feet high — was inconsistent with an intent to kill.
¶7 The jury did not find Aschenbrenner guilty of first degree
murder after deliberation, convicting him instead of the lesser
included offense of second degree murder. But the jury convicted
him of first degree extreme indifference murder. It also convicted
him of attempted second degree murder as a lesser included offense
of attempted first degree extreme indifference murder.
¶8 The district court merged the two murder convictions and
sentenced Aschenbrenner to mandatory LWOP for the first degree
extreme indifference murder count, with a concurrent sentence for
the attempted second degree murder count.
1 The prosecution charged these counts as crimes of domestic
violence under sections 18-6-800.3(1) and 18-6-801, C.R.S. 2025. Aschenbrenner was also charged with possession of a weapon by a previous offender and a crime of violence sentence enhancer.
3 II. Exclusion of Evidence of M.M.’s Methamphetamine Possession
¶9 Aschenbrenner first argues that the district court erred by
excluding evidence that M.M. possessed a nonuser quantity of
suspected methamphetamine at the time of the shooting. He
contends that the evidence should have been admitted to challenge
the adequacy of the police investigation. We are not persuaded.
A. Additional Background
¶ 10 When M.M. was shot, she was carrying a bag of suspected
methamphetamine. The prosecution moved pretrial to exclude
evidence of the methamphetamine, arguing that it was irrelevant
and would be unfairly prejudicial and confusing under CRE 403.
¶ 11 Aschenbrenner objected. He argued that the quantity of
suspected methamphetamine that M.M. possessed (24.51 grams)
was consistent with distribution and “could have been investigated
as a reason for her homicide.” He therefore asserted that the
evidence was relevant to show (1) an alternative theory as to who
killed M.M. and (2) the inadequacy of the police investigation.
¶ 12 At a hearing on the motion, the prosecution argued that the
probative value of the evidence was low and its prejudicial effect
was high. More specifically, the prosecution argued that (1) it was
4 “purely speculative” to suggest that the drugs played any role in
M.M.’s death, and (2) any such suggestion would open the door to
evidence that Aschenbrenner was a known drug dealer. The
prosecution also reiterated that any insinuation that M.M. was a
drug dealer would be unduly prejudicial and confusing to the jury.
¶ 13 The district court excluded the evidence. It reasoned that
Aschenbrenner did not make “a sufficient causal link” to support
his apparent theory that “somebody may have been chasing them
down to kill them . . . simply based on a presence of drugs.” It
noted there was no evidence of any alternate suspect nor anything
to suggest that the “mere presence of drugs” should have caused
the police to investigate other suspects. The court also concluded
that the prejudicial impact of the evidence would outweigh any
minimal probative value because it risked the jury “devaluing
[M.M.’s] life” and “not tak[ing] [the charges] seriously . . . based on a
view or impression” that M.M. was a drug addict or a drug dealer.
B. Standard of Review and Applicable Law
¶ 14 The district court exercises broad discretion in determining
the admissibility of evidence based on its relevance, probative value,
and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. We
5 review evidentiary rulings for an abuse of discretion, which means
we will reverse only if the ruling is “manifestly arbitrary,
unreasonable, unfair, or based on an incorrect understanding of the
law.” People v. Owens, 2024 CO 10, ¶ 105. We review de novo
whether the defendant was denied the constitutional right to
present a defense. Rios-Vargas v. People, 2023 CO 35, ¶ 19.
¶ 15 Evidence must be relevant to be admissible. CRE 402. That
means the evidence must have a “tendency to make the existence of
any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the
evidence.” CRE 401. Even if relevant, evidence may be excluded if
“its probative value is substantially outweighed by,” among other
things, “unfair prejudice, confusion of the issues, or misleading the
jury.” CRE 403. The constitutional right to present a defense is
“subject to, and constrained by,” these limitations. Elmarr, ¶ 27.
¶ 16 Alternate suspect evidence — “evidence indicating that
someone else committed the crime” — may be relevant to the
material element of the defendant’s identity. Id. at ¶ 29. But to be
admissible, such evidence must “establish a non-speculative
connection or nexus between the alternate suspect and the crime
6 charged.” Id. at ¶ 34. It is not enough to show merely that
someone else had a motive or opportunity to commit the crime. Id.
C. Analysis
¶ 17 The People frame the evidence of M.M.’s drug possession as
alternate suspect evidence. And it is true that Aschenbrenner’s
theory of relevance depends on the premise that “someone else
committed the crime” — albeit someone police failed to identify due
to their faulty investigation. Id. at ¶ 29. But see Commonwealth v.
Moore, 109 N.E.3d 484, 496 (Mass. 2018) (noting that alternate
suspect and inadequate investigation defenses are analytically
distinct). As alternate suspect evidence, the evidence would be
inadmissible because Aschenbrenner did not identify an alternate
suspect — much less one with “additional evidence circumstantially
or inferentially linking [them] to the charged crime.” Elmarr, ¶ 34;
see also People v. Mulligan, 568 P.2d 449, 457 (Colo. 1977) (holding
that alternate suspect evidence was properly excluded where the
defendant “failed to identify any other person or show that such
person committed any act linking him with the crimes charged”).
¶ 18 But assuming Aschenbrenner’s challenge to the adequacy of
the investigation takes the evidence out of the alternate suspect
7 rubric, the district court did not abuse its discretion by concluding
that M.M.’s drug possession was not relevant. Other than the mere
presence of the methamphetamine, there was nothing else to
suggest that the shooting had anything to do with drugs. To the
contrary, the shooting happened near Aschenbrenner’s home
shortly after M.M. had been with him, and G.M. told the police the
night of the shooting that Aschenbrenner had been chasing them
when M.M. was shot. Given this evidence, the district court could
reasonably conclude that any inference that the drugs alone should
have prompted an investigation into someone other than
Aschenbrenner — and into some theory other than the one
recounted by the eyewitness — was too speculative to be relevant.
¶ 19 Moreover, even if the evidence was minimally probative, the
district court did not abuse its discretion by concluding that any
probative value was substantially outweighed by the danger of
unfair prejudice.2 See CRE 403. As noted above, the probative
2 Aschenbrenner asserts that the district court misapplied CRE 403
by saying the prejudicial impact of the evidence “outweigh[ed]” — rather than substantially outweighed — its probative value. But despite its omission of “substantially” in paraphrasing the rule, we see no indication that the court applied the wrong standard.
8 value of the evidence depended on the premise that someone else
could have committed the crime; otherwise, how could the police be
faulted for failing to pursue that possibility? But with no alternate
suspect identified, the jury would have been left with little more
than the suggestion that M.M. was a drug dealer who may have
created an enemy along the way. Not only could such evidence
have unfairly “tainted” M.M., People v. Toro-Ospina, 2023 COA 45,
¶ 53, but given the prosecution’s proffer that Aschenbrenner was
himself a drug dealer, it could have led to a minitrial on drug
dealing in a case with no apparent connection to drug dealing.
¶ 20 Thus, we conclude that the district court did not abuse its
discretion by excluding evidence of M.M.’s methamphetamine
possession under CRE 402 and 403. And because the evidence was
properly excluded under those rules, its exclusion did not violate
Aschenbrenner’s right to present a defense. See Elmarr, ¶ 27.
III. Prosecutorial Misconduct
¶ 21 Aschenbrenner next contends that the prosecutor committed
reversible misconduct during closing argument by (1) shifting the
burden of proof; (2) commenting on Aschenbrenner’s failure to
9 testify; and (3) misstating the applicable mens rea for attempted
first degree extreme indifference murder. We disagree.
¶ 22 The prosecutor began his closing argument by asserting that
M.M. “is dead . . . because of [Aschenbrenner].” He continued:
You know what [Aschenbrenner] did in the early morning hours of November 27th of 2021. And now in the face of all this evidence, this defendant, through his lawyers and in his theory of the case, comes before you and says, “It must be somebody else. It wasn’t me.”
¶ 23 Later in the argument, the prosecutor reviewed the reasonable
doubt instruction and noted that reasonable doubt may arise from
“a fair and rational consideration of all of the evidence or lack of
evidence in the case.” After repeating the phrase “[l]ack of evidence
in the case,” he stated, “Lack of any evidence that somebody other
than this defendant came down —.” At this point, defense counsel
objected on the ground that “referring to the lack of evidence that
any other person committed this is burden shifting.” The district
court overruled the objection but instructed the jury, “I will remind
you that the burden of proof, as defined in the instructions you’ve
received . . . rests with the People to prove the elements of the case.”
10 ¶ 24 Near the end of closing argument, the prosecutor returned to
the defense theory that someone else committed the shooting:
There’s no question that [M.M.] was chased down and killed. This isn’t an unknown shooting. This is a deliberate shooting. And a shooting with universal malice.
And, again, the only question is who did it? There is no evidence that anybody else other than [Aschenbrenner] was upset with [M.M.] about the cars. The theory is that [Aschenbrenner] is upset with [M.M.] about the cars. Some other dude jumps in his car and follows her and shoots her? That makes no sense. There is no evidence before you that anybody other than [Aschenbrenner] committed these crimes.
¶ 25 Finally, during rebuttal, the prosecutor summarized G.M.’s
testimony and then argued as follows:
All of that is consistent. And all of that when considered with the rest of the evidence shows what happened, that [Aschenbrenner] killed [M.M.]. And by recklessly and with universal malice and extreme indifference to the value of human life that he attempted to kill [G.M.].
B. Applicable Law and Standard of Review
¶ 26 We apply a two-step analysis to claims of prosecutorial
misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
We first determine “whether the prosecutor’s questionable conduct
11 was improper based on the totality of the circumstances.” Id. If it
was, we then consider whether that conduct warrants reversal. Id.
¶ 27 We review a district court’s ruling on a preserved prosecutorial
misconduct objection for an abuse of discretion and apply harmless
error. People v. Monroe, 2020 CO 67, ¶¶ 16-17. We review
unpreserved claims of prosecutorial misconduct for plain error.
Liggett v. People, 135 P.3d 725, 735 (Colo. 2006). Prosecutorial
misconduct does not constitute plain error unless it is “flagrantly,
glaringly, or tremendously improper” and “so undermine[s] the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.” Id. (citation omitted).
C. Burden Shifting
¶ 28 Aschenbrenner first argues that by highlighting the “lack of
any evidence” that anyone other than Aschenbrenner committed the
crimes, the prosecutor improperly shifted the burden of proof to the
defense. We will assume that defense counsel’s objection to the
prosecutor’s first reference to the lack of evidence preserved an
objection to the later such reference. Even so, we discern no error.
¶ 29 A prosecutor may not make comments that shift the burden of
proof to the defendant. People v. Santana, 255 P.3d 1126, 1130
12 (Colo. 2011). In determining whether a prosecutor’s comment
impermissibly shifted the burden of proof, we must consider the
strength of the comment “in light of the entire record to assess
whether the burden was actually shifted.” Id. at 1131. In doing so,
we consider the degree to which (1) the prosecutor specifically
argued or intended to establish that the defendant carried the
burden of proof; (2) the prosecutor’s comments were a fair response
to defense counsel’s argument; and (3) the jury was informed by
counsel and the court about the presumption of innocence and the
prosecution’s burden of proof. Id. at 1131-32. A prosecutor’s
comments on the lack of evidence to support a theory of defense do
not shift the burden of proof. People v. Walker, 2022 COA 15, ¶ 41.
¶ 30 Applying the Santana factors, we conclude that the
prosecutor’s comments did not impermissibly shift the burden of
proof. First, the prosecutor did not argue, or even suggest, that
Aschenbrenner “need[ed] to prove his innocence.” Santana, 255
P.3d at 1131. Nor did he argue that Aschenbrenner had to present
any evidence. To the contrary, the first “lack of evidence” comment
came in the context of addressing the reasonable doubt instruction
and the prosecution’s burden of proof. The prosecutor went on to
13 argue that the prosecution had met its burden of proving that
Aschenbrenner had been the shooter, in part by dispelling any
inference that it could have been someone else. See id. at 1135
(holding that prosecutor did not shift burden of proof by making
comments “meant to highlight the strength of the prosecution’s
case, dispelling negative implications raised by defense counsel”).
¶ 31 Second, the prosecutor’s reference to the lack of evidence that
anyone other than Aschenbrenner was the shooter was a fair
response to the defense theory of the case. See id. at 1131. The
jury was instructed that Aschenbrenner’s theory of defense was
that he was not the shooter, and the defense pursued that theory
throughout trial. The prosecutor did not argue that Aschenbrenner
had to prove someone else was the shooter. He “merely highlighted
the lack of evidence” to support that theory. People v. Duncan,
2023 COA 122, ¶ 38.
¶ 32 Third, the jury was repeatedly informed by the prosecutor and
the court (and defense counsel) of the prosecution’s burden of proof.
See Santana, 255 P.3d at 1131-32. Indeed, the prosecutor’s first
reference to the lack of evidence was sandwiched between such
advisements. The prosecutor addressed the burden of proof
14 immediately before the comment. Then, after defense counsel’s
objection, the court reminded the jury of the burden of proof. And
then, when the prosecutor picked back up, he again reiterated that
the prosecution had to prove the case beyond a reasonable doubt.
¶ 33 Thus, viewed in light of the entire record, the prosecutor’s
comment on the lack of evidence to support the defense theory that
someone else was the shooter did not shift the burden of proof.
D. Comment on Failure to Testify
¶ 34 Aschenbrenner next argues that the prosecutor improperly
commented on his failure to testify when he said, “[T]his defendant,
through his lawyers and in his theory of the case, comes before you
and says, ‘It must be somebody else. It wasn’t me.’” We disagree.
¶ 35 A prosecutor may not comment on a defendant’s decision not
to testify. People v. Trujillo, 2018 COA 12, ¶ 38. Such a comment
requires reversal when the prosecution used the defendant’s silence
to “creat[e] an inference of guilt.” Id. at ¶ 43 (citation omitted).
¶ 36 That is not what happened here. The prosecutor did not
mention Aschenbrenner’s failure to testify or comment on what
Aschenbrenner did not say. Instead, he commented on what
Aschenbrenner did say — albeit “through his lawyers.” Although
15 Aschenbrenner contends that the reference to speaking “through
his lawyers” implicitly directed the jury’s attention to his failure to
testify, we do not view that, in context, as either the intended or
likely effect of the remark. See Donnelly v. DeChristoforo, 416 U.S.
637, 647 (1974) (“[A] court should not lightly infer that a prosecutor
intends an ambiguous remark to have its most damaging meaning
or that a jury, sitting through lengthy exhortation, will draw that
meaning from the plethora of less damaging interpretations.”).
¶ 37 Moreover, even if the remark could have been understood in
that manner, the prosecution did not make it “as a means of
implying guilt” from Aschenbrenner’s silence. People v. Gibson, 203
P.3d 571, 577 (Colo. App. 2008). Rather, the clear intent and gist of
the statement was to address the theory of defense. See id.
E. Misstatement of the Law
¶ 38 Finally, Aschenbrenner argues that the prosecutor misstated
the law by asserting that Aschenbrenner “recklessly” — rather than
knowingly — “and with universal malice and extreme indifference to
the value of human life . . . attempted to kill [G.M.].” Because
Aschenbrenner did not object to this statement in the district court,
we review it for plain error. See Liggett, 135 P.3d at 735.
16 ¶ 39 To the extent the prosecutor’s statement implied that the
mens rea for first degree extreme indifference murder was
“recklessly,” it was incorrect.3 A person commits first degree
extreme indifference murder if, “[u]nder circumstances evidencing
an attitude of universal malice manifesting extreme indifference to
the value of human life generally, he knowingly engages in conduct
which creates a grave risk of death to a person, or persons, other
than himself, and thereby causes the death of another.” § 18-3-
102(1)(d), C.R.S. 2025 (emphasis added). The required mental state
for extreme indifference murder — which applies to both the nature
and the result of the defendant’s conduct — is therefore
“knowingly,” not recklessly. See Montoya v. People, 2017 CO 40,
¶ 11. And attempted extreme indifference murder requires the jury
to find that the defendant “knowingly engaged in conduct strongly
corroborative of his purpose” to commit that crime. Id. at ¶ 16.
¶ 40 But the prosecutor’s misstatement of the applicable mens rea
for attempted first degree extreme indifference murder was not plain
error because Aschenbrenner was not convicted of that offense. Cf.
3 The prosecutor did not expressly identify the elements of the
offense. He just said that Aschenbrenner acted recklessly.
17 Moore v. People, 925 P.2d 264, 267 (Colo. 1996) (holding that
challenge to jury instruction on extreme indifference murder charge
was moot because the defendant was acquitted of that charge). The
prosecutor’s misstatement of the mens rea for attempted first
degree extreme indifference murder did not undermine or cast
doubt on Aschenbrenner’s conviction for the lesser offense of
attempted second degree murder. See Liggett, 135 P.3d at 735.
¶ 41 Nor did the statement “cast serious doubt on the reliability” of
Aschenbrenner’s conviction for first degree extreme indifference
murder of M.M. Id. (citation omitted). The prosecutor used the
word “recklessly” only when referring to Aschenbrenner’s attempt to
kill G.M. The prosecutor made no statement about the mens rea for
the charged murder of M.M. The jury was correctly instructed on
the elements of that offense — separately from the attempt
charge — and we presume the jury followed that instruction. See
People v. Dominguez-Castor, 2020 COA 1, ¶ 91; see also Moore, 925
P.2d at 267 (rejecting argument that an error related to a count for
which the defendant was acquitted “may have adversely affected the
jury’s consideration of the offense for which he was found guilty”).
18 IV. Defense of Property Instruction
¶ 42 At trial, defense counsel requested an instruction on defense
of property under section 18-1-706, C.R.S. 2025, arguing that there
was some evidence that Aschenbrenner used physical force to
prevent the theft of his vehicles. Relying on People v. Oslund, 2012
COA 62, the district court rejected the tendered instruction on the
ground that any theft had been completed before the confrontation.
Aschenbrenner argues that this was error. We again disagree.
A. Applicable Law and Standard of Review
¶ 43 When the evidence raises the issue of an affirmative defense,
the affirmative defense becomes an additional element of the
charged offense that must be disproved beyond a reasonable doubt.
Galvan v. People, 2020 CO 82, ¶ 21. A defendant is entitled to a
jury instruction on an affirmative defense if there is “some credible
evidence” to support it. Pearson v. People, 2022 CO 4, ¶ 16 (quoting
§ 18-1-407(1), C.R.S. 2025). We review de novo whether the
defendant met this burden, viewing the evidence in the light most
favorable to the defendant. People v. Newell, 2017 COA 27, ¶ 19.
¶ 44 Section 18-1-706 sets forth the affirmative defense of the use
of physical force in defense of property:
19 A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18- 1-704[, C.R.S. 2025].
¶ 45 The defense is available only to prevent an attempted theft.
See Oslund, ¶ 25; People v. Goedecke, 730 P.2d 900, 901 (Colo.
App. 1986). It does not justify the use of physical force to recover
stolen property after it has been taken. See Oslund, ¶¶ 24-25.
B. Analysis
¶ 46 We agree with the district court that there was no credible
evidence to support a defense of property instruction.
¶ 47 As an initial matter, we note that such a defense — which
explicitly presumes the use of force — would have directly conflicted
with Aschenbrenner’s theory of defense that he was not the shooter.
See Pearson, ¶ 18 (“In asserting an affirmative defense, a defendant
admits to the conduct that gives rise to the charged offense.”);
People v. Snider, 2021 COA 19, ¶ 16 (“[A] defendant is not entitled
to a[] [self-defense] affirmative defense instruction if he denies
20 committing the charged crime.”). It is also inconsistent with the
extreme indifference and universal malice elements of first degree
extreme indifference murder. See People v. Pickering, 276 P.3d 553,
556 (Colo. 2011) (explaining that self-defense is not an affirmative
defense to crimes requiring extreme indifference because “acts
committed . . . with extreme indifference . . . are ‘totally
inconsistent’ with self-defense” (citation omitted)).
¶ 48 But even setting aside these inconsistencies, there was no
credible evidence that Aschenbrenner shot M.M., and attempted to
shoot G.M., to prevent an attempted theft. The only car for which
there was any evidence of Aschenbrenner’s ownership was the
Mercedes, which was titled in Aschenbrenner’s name. And M.M.
and G.M. had moved that car to a gas station a several-minute drive
from Aschenbrenner’s home before their confrontation with
Aschenbrenner. Thus, as in Oslund, any alleged theft of the
Mercedes had been completed before the shooting. See Oslund,
¶ 24; Martinez v. People, 2024 CO 6M, ¶ 40 (“A theft is completed
when a thief ‘exercise[s] control of the property’ and ‘move[s] it away
from an area within [the] defendant’s control.’” (citation omitted)).
21 ¶ 49 Other than Aschenbrenner’s demand to “[g]et the fuck out of
my car,” there was no evidence that he owned the Audi — and thus,
no evidence that M.M. and G.M. were attempting to steal it. See
§ 18-4-401(1), C.R.S. 2025 (“A person commits theft when he or she
knowingly obtains, retains, or exercises control over anything of
value of another . . . .” (emphasis added)). To the contrary, G.M.
testified that M.M. had purchased the Audi “from her best friend’s
landlord.” The only questions about title concerned the seller’s
pending receipt of proper title to the car from her deceased brother.
¶ 50 Moreover, even if there was evidence from which a jury could
reasonably infer that Aschenbrenner owned the Audi, M.M. and
G.M. also exercised control over that car and moved it away from
Aschenbrenner’s property, along with the Mercedes, before the
confrontation. See Oslund, ¶ 24. Unlike in Martinez,
Aschenbrenner did not catch them in the act of attempting to
“steal” the Audi and immediately pursue them.4 See Martinez, ¶ 40.
4 In Martinez v. People, 2024 CO 6M, the issue was whether the
theft victim’s actions were foreseeable, not whether the use of force was legally justified. Martinez, ¶¶ 33, 40 n.3. The court concluded that it was irrelevant to that question whether the conduct was “within the bounds of the defense-of-property statute.” Id. at ¶ 39.
22 If they were stealing the car, they had gotten away. Aschenbrenner
found and began pursuing them (and shot at them) only when they
returned to their trailer — a block away from his property. Cf.
Oslund, ¶ 24 (affirming denial of instruction where the defendant
“set out in fresh pursuit to find and catch” the thief). By that time,
Aschenbrenner could not have been acting to “prevent” an
attempted theft because any alleged “theft” had already occurred.
Id. at ¶ 25. At best, he was attempting to “recover” the car. Id.
¶ 51 Aschenbrenner urges us not to follow Oslund to the extent it
“suggests that a person is not justified in using force to prevent an
attempted theft where that theft is ongoing and in process during
the time the force is used.” But that is not what Oslund holds. It
holds that a person is not justified in using force after the theft has
been completed. See id. at ¶ 24. And that conclusion is dictated by
the language of section 18-1-706, which limits the use of physical
force to “prevent what [the person] reasonably believes to be an
attempt by the other person to commit theft.” (Emphasis added.)
¶ 52 We are not persuaded by Aschenbrenner’s contention that this
rule means the defense will never apply because “once an attempted
theft begins, it has also been completed.” That also is not what
23 Oslund (or the statute) says. Until the would-be thief “exercise[s]
control of the property” and “move[s] it away from an area within
[the] defendant’s control,” the theft is ongoing, and the defendant
may use reasonable and appropriate physical force to prevent it.
Oslund, ¶ 24. But even viewing the evidence in the light most
favorable to Aschenbrenner, there is no evidence that is what
happened here. Rather, it was only after M.M. and G.M. had taken
the vehicles and then returned to get the trailer that Aschenbrenner
pursued them and used physical force. “[E]ven rightful owners
should not be permitted to . . . use force to regain their property,
once it has been taken.” Id. at ¶ 23 (citation omitted).
¶ 53 We therefore conclude that the district court did not err by
declining to give a defense of property jury instruction.
V. Cumulative Error
¶ 54 Aschenbrenner asserts that even if no single error requires
reversal of his convictions, the cumulative effect of the claimed
errors deprived him of a fair trial. See Howard-Walker v. People,
2019 CO 69, ¶ 24. But because we have identified only one
(nonplain) error — the prosecutor’s misstatement of the mens rea
24 for attempted extreme indifference murder — the cumulative error
doctrine does not apply. See People v. Daley, 2021 COA 85, ¶ 142.
VI. LWOP Sentence
¶ 55 Aschenbrenner’s final contention is that his LWOP sentence —
the statutorily mandated sentence for first degree murder — is
grossly disproportionate to his offense. Applying the framework
dictated by Wells-Yates v. People, 2019 CO 90M, we disagree.
¶ 56 When a defendant challenges the proportionality of a sentence,
the court must first conduct an abbreviated proportionality review,
comparing the gravity or seriousness of the offense with the
harshness of the penalty to determine whether the sentence gives
rise to an inference of gross disproportionality. Id. at ¶¶ 7, 8. 11.
¶ 57 Ordinarily, assessing the gravity or seriousness of an offense
requires a fact-based inquiry into the “harm caused or threatened
to the victim or society” and “the culpability of the offender.” Id. at
¶ 12 (quoting Solem v. Helm, 463 U.S. 277, 292 (1983)). But when
an offense is per se grave or serious — meaning it is “grave or
serious in every potential factual scenario” — the court skips the
25 first step of the analysis (gravity or seriousness) and proceeds
directly to the harshness of the penalty. Id. at ¶¶ 13, 62, 63.
¶ 58 We review de novo whether a sentence raises an inference of
gross disproportionality. Id. at ¶ 35.
¶ 59 We agree with Aschenbrenner that the district court failed to
conduct the required abbreviated proportionality review. Rather
than considering the gravity or seriousness of the offense and the
harshness of the penalty, the court simply concluded that its
“hands [were] tied” because the statute required a LWOP sentence.
But even a mandatory sentence may be grossly disproportionate.
See id. at ¶ 38 (requiring abbreviated proportionality review of
mandatory habitual criminal sentence). The district court therefore
should have conducted an abbreviated proportionality review.
¶ 60 Nevertheless, when there is no “need for a refined analysis
inquiring into the details of the specific offenses . . . , an appellate
court is as well positioned as a [district] court to conduct a
proportionality review” and may do so in the first instance on
appeal. People v. Castillo, 2022 COA 20, ¶ 38 (citation omitted). We
opt to do so here.
26 ¶ 61 As Aschenbrenner concedes, first degree extreme indifference
murder is a per se grave and serious offense. See id. at ¶ 42. We
therefore do not consider the specific facts and circumstances of
Aschenbrenner’s offense. See Wells-Yates, ¶ 62. Instead, we
consider only the harshness of the penalty, affording “great
deference” to the legislature’s determination. Id.; see § 18-1.3-
401(1)(a)(V.5)(a), C.R.S. 2025 (providing for a minimum sentence of
LWOP for a class 1 felony). And although LWOP is the harshest
sentence permitted by law, first degree murder is perhaps the most
serious offense. See People v. Smith, 848 P.2d 365, 374 (Colo.
1993) (noting that first degree murder is “a crime of the utmost
gravity”). Given the gravity of that crime, we conclude, consistent
with Castillo, that Aschenbrenner’s LWOP sentence does not give
rise to an inference of gross disproportionality.5 See Castillo, ¶ 44.
5 Aschenbrenner asserts that Colorado is unique in classifying
extreme indifference murder as first degree murder. But to the extent other states’ treatment of extreme indifference murder might be relevant to “evolving standards of decency,” Wells-Yates v. People, 2019 CO 90M, ¶ 52, the question would not be how the offense is classified, but what punishment is authorized for the offense. Notably, the Colorado legislature has not changed the classification or the mandatory sentence for the offense.
27 ¶ 62 Aschenbrenner challenges the practice of designating offenses
as per se grave or serious, arguing that it effectively allows the most
severe sentences to “escape proportionality review.” And if a recent
concurrence from the supreme court is any indication, he may have
a receptive audience for his argument in that court. See People v.
Kennedy, 2025 CO 63, ¶ 49 (Samour, J., specially concurring)
(“[T]here are compelling reasons . . . to rid our jurisprudence of the
‘per se grave or serious’ designation . . . .”). We tend to agree that
just because an offense is “grave or serious in every potential
factual scenario” does not dispel the notion that some versions of
that offense may be more serious than others. Wells-Yates, ¶ 63;
see People v. Wells-Yates, 2023 COA 120, ¶ 36 (noting that “the
gravity or seriousness inquiry is not binary”). Indeed,
Aschenbrenner’s concerns are particularly well taken in a case like
this one, where only one sentence is available for the offense and it
has been upheld. But regardless of the potential validity of any
challenges to the Wells-Yates analysis, we remain bound by that
analysis. See People v. Melendez, 2024 COA 21M, ¶ 19.
VII. Disposition
¶ 63 The judgment is affirmed.
28 JUDGE WELLING and JUDGE LUM concur.