23CA1314 Peo v Herrington 06-12-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1314 El Paso County District Court No. 21CR4809 Honorable Chad Miller, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jacob Herrington,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE GROVE Welling and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 12, 2025
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jacob Herrington, appeals the judgment of
conviction entered after a jury found him guilty of obstructing a
peace officer. We affirm.
I. Background
¶2 The prosecution charged Herrington based on his conduct
surrounding an August 2021 incident at an El Paso County gas
station. Following an altercation with another individual outside
the gas station, Herrington entered the establishment and began
yelling. An employee called the police, and Herrington exited the
gas station at the behest of a customer.
¶3 Officers arrived to find Herrington in the parking lot with “a
knife sheath on his side,” describing him during later testimony as
“loud,” “yelling,” “erratic,” “making a lot of nonsensical statements,”
“belligerent,” “[a]gitated, upset, yelling, cursing, just causing a
scene,” and “[e]xtremely loud.” Herrington initially complied with
officers’ directives, and they detained him. But after being
handcuffed, Herrington refused to identify himself and balled up his
fingers as officers attempted to scan them with a fingerprint reader.
Herrington indicated his desire to remain silent as he lay limply on
the ground and rolled over in response to officers’ attempts to
1 restrain him. Officers transported Herrington to jail to identify him,
where he continued to resist being restrained and allegedly spat in
an officer’s face.
¶4 Herrington went to trial on the following charges: (1) second
degree assault (based on the spitting allegation); (2) obstructing a
peace officer; and (3) disorderly conduct. A jury found Herrington
guilty of the obstruction charge only.
II. Suppression
¶5 Herrington contends that the district court reversibly erred by
not suppressing “evidence obtained after [his] arrest” on the basis
that officers lacked probable cause to arrest him for disorderly
conduct. Specifically, he argues, probable cause was absent
because no evidence established that his yelling while at the gas
station was not constitutionally protected speech. According to
Herrington, the “evidence of [his] alleged obstruction flowed directly
from his actions after he was placed under arrest without probable
cause,” and, therefore, this evidence should have been suppressed.
¶6 The parties dispute preservation of this issue. Yet even if we
assume Herrington’s argument on appeal was preserved, and even
if we assume that Herrington is correct that his arrest lacked
2 probable cause, his suppression argument is unavailing because
the evidence that Herrington obstructed a peace officer still would
have been admissible.
¶7 In People v. Doke, 171 P.3d 237 (Colo. 2007), our supreme
court explained that evidence of a defendant’s criminal conduct is
admissible even if that conduct occurred in response to an illegal
search or seizure. Specifically, a person whose Fourth Amendment
rights are violated by an officer may not respond by committing a
new crime “and then rely on the exclusionary rule to suppress
evidence pertaining to that criminal act.” Id. at 239; see also People
v. Smith, 870 P.2d 617, 619 (Colo. App. 1994) (“[I]f, following an
illegal stop or attempted stop, the detained person's response is
itself a new, distinct crime, then the police constitutionally may
arrest the person for that crime and the evidentiary fruit of that
arrest will not be suppressed.”). A new criminal act “breaks the
causal connection between the police illegality and the evidence of
the new crime so that sufficient attenuation occurs to treat evidence
of the new crime as admissible, and therefore the evidence should
not be suppressed under the derivative evidence rule.” Doke, 171
P.3d at 240. “Evidence is not necessarily excluded ‘simply because
3 it would not have come to light but for the illegal action of the
police.’” Id. (quoting People v. Lewis, 975 P.2d 160, 170 (Colo.
1999)).
¶8 Moreover, the obstruction statute itself states that “[i]t is not a
defense to a prosecution under this section that the peace officer
was acting in an illegal manner, if he or she was acting under color
of his or her official authority.” § 18-8-104(2), C.R.S. 2024.
¶9 Thus, even if Herrington’s arrest for disorderly conduct was an
illegal seizure, evidence of Herrington’s obstruction of a peace officer
following that arrest was still admissible and the district court did
not err in refusing to suppress it.1
1 In supplemental briefing that we ordered and the parties
submitted after oral argument, Herrington urges us to interpret the rule outlined in People v. Doke, 171 P.3d 237 (Colo. 2007), as applying only to violent offenses. We decline to do so. Nothing in Doke suggests such a limitation on the holding in that case. See People v. Tomaske, 2019 CO 35, ¶ 18 (holding that the exclusionary rule does not apply where police misconduct led to the commission of a “new crime”); see also People in Interest of K.D.W., 2020 COA 110, ¶ 29 (“[T]he search of K.D.W.’s pockets was attenuated from the illegal seizure because K.D.W.’s independent and willful criminal actions of trespass and obstructing a peace officer broke the causal chain between the police officers’ misconduct and their discovery of the evidence of K.D.W.’s criminal conduct.”).
4 III. Arguello Advisement
¶ 10 Herrington contends that the district court violated his right to
represent himself. Specifically, Herrington asserts structural error
due to the district court’s refusal to provide an Arguello advisement.
See People v. Arguello, 772 P.2d 87 (Colo. 1989). We disagree.
A. Additional Facts
¶ 11 After Herrington’s arrest, the court appointed a public
defender to represent him. During his arraignment, Herrington
made the first of what would become several requests to represent
himself. The court postponed discussing his request until
Herrington first had a chance to meet with his counsel to discuss
the matter. Soon afterward, Herrington began submitting pro se
motions while counsel continued to represent him. Defense counsel
then raised the issue of Herrington’s competency, and the court
delayed addressing the self-representation matter until that issue
was resolved.
¶ 12 An evaluator opined that Herrington was incompetent, and
Herrington began the process of restoration. After two months of
restoration treatment, Herrington received another evaluation; this
time the evaluator opined that Herrington was competent.
5 ¶ 13 At Herrington’s next court appearance, the court, Herrington,
and defense counsel had the following colloquy:
[HERRINGTON]: I’m wanting to withdraw the Public Defenders.
THE COURT: Okay. Well, sir, you’re not able to do that unless there’s a conflict. Are you suggesting there’s a conflict with the Public Defender’s Office? Because I can hold a Conflict Hearing if you believe that to be the case.
[HERRINGTON]: Well, that and now that I’m deemed competent, I should be able to exercise my right of representing myself.
THE COURT: Okay. And, I’ve reviewed some of the motions that you’ve filed, which indicate to me that you’re not capable of representing yourself. But we can have a hearing on that as well, if you’d like. We can proceed with that discussion, at this time . . .
[HERRINGTON]: Well, yeah.
THE COURT: . . . but I’m not going to let you represent yourself if you’re not capable of doing so.
[HERRINGTON]: I don’t know why I’m not able to.
THE COURT: Well, then we can talk about that. Let’s -- I think we have to talk about that first. Well, either way I’m going to reset the cases for trial and Prelim. So, I guess we can get new dates first and then talk about . . . .
6 [DEFENSE COUNSEL]: Does the Court want to have a Conflict Hearing first and then discuss?
[HERRINGTON]: I’ve been told by my Public Defender, you too, that the victims of the crime -- that they were not going to gather any evidence whatsoever that had a double potential of assisting me in further litigations in civil matters.
THE COURT: Okay. Well, hang on. That sounds like he’s raising a potential conflict issue. Sir, we’ll hear that, but a conflict issue’s heard outside the presence of the District Attorney so that it can’t hurt your case. So, I want you to hold on a second. That sounds like a request for a Conflict Hearing. [Prosecutor], I’m going to ask you to leave the courtroom.
¶ 14 The court then held a conflict hearing, during which it
concluded that no conflict existed.
¶ 15 Immediately after the conflict hearing, as the court was about
to provide Herrington an Arguello advisement and assess his
request to represent himself, Herrington’s counsel again raised the
issue of competency “[b]ased on some of the things that were said in
the conflict hearing.” Noting that it “ha[d] concerns, as well” about
Herrington’s competency based on “things being said that just don’t
make sense,” the court explained that “it [was] too early for an
7 Arguello advisement if the finding of competence is being
challenged” and that it “[could not] get to the issue of self-
representation today.” The court informed Herrington that he could
“re-raise that issue after we have the new evaluation resolved. Once
I have a second evaluation, if it reaches the same conclusion, Mr.
Herrington, then we can move forward with your request to
represent yourself, at that time if you are still asking to.”
¶ 16 The following month, the court held a second conflict hearing
at the request of Herrington’s counsel, during which it found
Herrington had a conflict with his public defender and appointed
alternate defense counsel. Several weeks later, the competency
evaluator opined that Herrington was competent, and the court
subsequently found Herrington competent to proceed. Herrington
did not renew his request to represent himself, and alternate
defense counsel represented him at the trial.
B. Relevant Law and Standard of Review
¶ 17 A criminal defendant has a fundamental constitutional right to
counsel and a correlative right to self-representation. See id. at 92.
¶ 18 A trial court has a duty to ensure that any waiver by a
defendant of the right to counsel is voluntary, knowing, and
8 intelligent. Id. at 94. Among other things, this duty requires the
court to ensure that the defendant is aware of the dangers and
disadvantages of self-representation. Id. at 95. To facilitate this
analysis, our supreme court has suggested a specific set of
questions that the court should ask before allowing a defendant to
waive the right to counsel. Id. at 98. Ultimately, a defendant must
validly waive the constitutional right to counsel to exercise the right
to self-representation. People v. Davis, 2015 CO 36M, ¶ 15. A
defendant validly waives the right to counsel if he (1) is competent
to waive the right, and (2) makes the waiver voluntarily, knowingly,
and intelligently. Id. Whether a defendant has waived the right to
counsel presents a mixed question of law and fact that we review de
novo. People v. Alengi, 148 P.3d 154, 159 (Colo. 2006).
¶ 19 Due process and Colorado statutes “prohibit trying or
sentencing a defendant who is incompetent to proceed.” People v.
Zimmer, 2021 COA 40, ¶ 17. A defendant is incompetent to proceed
if,
as a result of a mental disability or developmental disability, the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding in order to
9 assist in the defense, or . . . , as a result of a mental disability or developmental disability, the defendant does not have a rational and factual understanding of the criminal proceedings.
§ 16-8.5-101(12), C.R.S. 2024.
¶ 20 When either party or the court raises the question of a
defendant’s competency, “the court may make a preliminary finding
of competency or incompetency to proceed, which is a final
determination unless a party to the case objects within seven days
after the court’s preliminary finding.” § 16-8.5-103(1)(a), C.R.S.
2024. “If either party objects to the court’s preliminary finding, or if
the court determines that it has insufficient information to make a
preliminary finding, the court shall order that the defendant be
evaluated for competency by the department and that the
department prepare a court-ordered report.” § 16-8.5-103(2).
Following receipt of that report, “[i]f neither party requests a hearing
or a second evaluation within the applicable time frame, the court
shall enter a final determination, based on the information then
available to the court, whether the defendant is or is not competent
to proceed.” § 16-8.5-103(5).
10 C. Analysis
¶ 21 Herrington requested to represent himself several times before
trial. However, he did not make any of those requests at a time
during which he could have validly waived his right to counsel. He
made his initial request during his arraignment and prior to
discussing the matter with his counsel, leading the court to
postpone providing an Arguello advisement until after the two
conferred.2 Shortly thereafter, an evaluator opined that Herrington
was incompetent, preventing the court from considering the issue
further at that time. After restoration and a new evaluation opining
that Herrington was competent (but before the court accepted the
results of that evaluation and deemed Herrington competent),
Herrington raised both a conflict issue and made another request to
represent himself. The court addressed the conflict issue first, and
during the conflict hearing Herrington made statements that again
called his competency into question. Accordingly, the court
postponed providing an Arguello advisement, explaining to
2 Because Herrington does not contend that the district court erred
in its approach to his request during his arraignment to represent himself, we express no opinion on the matter.
11 Herrington that they could revisit the issue if he wished once the
court deemed him competent. After the court appointed alternate
defense counsel and made a final determination that Herrington
was competent, Herrington made no further request to represent
himself.
¶ 22 Because a defendant must be competent to validly waive the
right to counsel, Davis, ¶ 15, there was no reason for the district
court to provide Herrington an Arguello advisement until his
competency was established. Put another way, Herrington had to
be competent in order to waive his right to counsel, so the district
court had no obligation to advise him further while his competency
remained in doubt. And every instance of Herrington requesting to
waive counsel that is before us occurred while his competency was
in question. Thus, without having first established Herrington’s
competency, any waiver of his right to counsel would have been
invalid irrespective of his responses to an Arguello advisement.
IV. Batson Challenge
¶ 23 Herrington next alleges that the district court erroneously
denied his challenge pursuant to Batson v. Kentucky, 476 U.S. 79
12 (1986), to the prosecution’s peremptory strike of a Hispanic juror.
We are not persuaded.
¶ 24 Juror 15, whose removal prompted Herrington’s Batson
challenge, was one of two individuals3 in the forty-person venire to
identify as “Hispanic” in response to a juror questionnaire prompt
that read: “I consider myself to be a member of the following
racial/ethnic/minority group.” In response to another question
from the questionnaire about whether the juror had “had a
particularly good or bad experience with law enforcement,” Juror 15
wrote: “Good, I Guess Not Particularly Negative or Positive.” Juror
15 also noted in his questionnaire that he had “had 2 cousins killed
unrightfully By Police in the Last 10 yrs,” and that he did not think
he could be fair in a case involving a police shooting. In response to
questions from the prosecution regarding these incidents, Juror 15
stated that he could be unbiased when assessing the case but that
his cousins’ deaths were “somewhat traumatizing” to him and that
3 The second individual was never called to the jury box and so was
neither struck nor empaneled.
13 “the thought of someone, let alone a family member, being injured
or possibly killed by police is very troubling to [him].”
¶ 25 The prosecution used a peremptory strike to remove Juror 15.
Defense counsel objected to the strike under Batson and the
following discussion occurred:
[Defense counsel]: Your Honor, I believe the People have used their peremptory on the only Hispanic juror in the panel.
THE COURT: I don’t think that’s true, but go ahead and give me your reason. Prima facie case from defense this is based on race.
[Defense counsel]: [Juror 15] answers on questionnaire indicated he could be fair. I don’t see any reason.
THE COURT: Well, recent case law made it very clear I can’t give the reason. So I will let you all give the reason.
[Prosecutor 1]: Your Honor, the People are excusing this juror because he talked about two of his cousins being killed by law enforcement. And I think that will taint his assessment of the case.
THE COURT: So first off, for purposes of [Batson], I don’t necessarily find that the first prong is met just by stating that this juror is a minority. That said, to the extent that the Appellate Court disagrees, I find that it was met. The People have stated a reason, a race neutral reason, which, again, I don’t think they
14 needed to under the circumstances. So I’m going to grant it.
[Prosecutor 2]: Just for the record, it was a bad experience, was traumatizing to him. I wanted to state that.
THE COURT: I agree.
¶ 26 Meanwhile, Juror 20, whom the parties describe on appeal as
having “a Spanish surname” and “a Hispanic surname,” did not
identify herself in her questionnaire as belonging to any
“racial/ethnic/minority group.” She wrote that she did not “feel like
[she] could decide[] anything for anyone,” that she was “very
bias[ed] with everything,” and that she did not “get along with some
race[s].” Juror 20 also wrote that she is “a person who doesn’t like
anything to do with crime or any type of cases” and “tend[s] to have
a lot of anxiety with situation[s] like this.” In response to
questioning from the prosecution, however, she stated that she did
not think her biases would affect her ability to serve impartially on
the jury. The prosecution also used a peremptory strike on Juror
20, to which defense counsel did not object.
¶ 27 Juror 23, whom neither party describes as having “a Spanish
surname” or “a Hispanic surname,” did not identify herself in her
15 questionnaire as belonging to any “racial/ethnic/minority group.”
She did, however, note in her questionnaire that she had a “[b]ad”
experience with law enforcement when she was 15 years of age (her
questionnaire indicated that she was 63 years of age at the time she
filled it out), which she described as an attorney leading her as a
witness in a manner that was “quite unkind.” When the
prosecution questioned Juror 23 about this event, she explained
that it occurred in traffic court when a friend faced a traffic
violation, but that she could “put that behind [her] as a — you
know, a young experience.” The prosecution did not attempt to
strike Juror 23, and she ultimately sat on the jury
¶ 28 The Equal Protection Clause of the Fourteenth Amendment
forbids a challenge to a potential juror based solely on race.
Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M,
¶ 10 n.4. When a party raises a Batson challenge, the trial court
engages in a three-step analysis to assess the claim of racial
discrimination. Wilson, ¶ 10.
¶ 29 First, the opponent of the peremptory strike must allege a
prima facie case showing that the striking party excused the
16 potential juror based on race. Id. As long as the totality of the
relevant circumstances raises an inference of racial motivation, the
objecting party has satisfied the step-one burden. Batson, 476 U.S.
at 96; accord Valdez v. People, 966 P.2d 587, 589 (Colo. 1998).
¶ 30 Second, the burden shifts to the striking party to provide a
race-neutral explanation for excusing the potential juror. Wilson,
¶ 10. The striking party need only provide any race-neutral
justification for the strike, regardless of implausibility or
persuasiveness. People v. Ojeda, 2022 CO 7, ¶ 24. The opponent is
then given the opportunity to rebut the striking party’s explanation.
Wilson, ¶ 10.
¶ 31 Third, the trial court must decide the ultimate question:
whether the objecting party has established purposeful
discrimination. Ojeda, ¶ 27. In doing so, the court must assess the
striking party’s actual subjective intent and the plausibility of its
nondiscriminatory explanation. Id.; Wilson, ¶ 10.
¶ 32 The standard of review for a Batson challenge depends on
which step of the analysis is challenged on appeal. People v. Friend,
2014 COA 123M, ¶ 8, aff’d in part and rev’d in part, 2018 CO 90.
We review steps one and two de novo. People v. Rodriguez, 2015 CO
17 55, ¶ 13. The court’s ruling at step three, however, is a factual
finding to which “an appellate court should defer, reviewing only for
clear error.” Id.; see also People v. Beauvais, 2017 CO 34, ¶ 32. We
accord the trial court’s ruling “great deference and will only reverse
under ‘exceptional circumstances.’” Beauvais, ¶ 25 (quoting Snyder
v. Louisiana, 552 U.S. 472, 477 (2008)).
C. Analysis
¶ 33 Applying the principles outlined above to these facts, we
conclude that the district court did not clearly err by finding that
Herrington failed to prove that the peremptory challenge to Juror 15
was based on race.
¶ 34 The People argue that Herrington “failed to make a prima facie
showing of discriminatory purpose” at Batson step one. However,
where a trial court proceeds, as it did here, to analyze a Batson
challenge under steps two and three, the preliminary issue of
whether the defendant made a prima facie showing is moot. See
Valdez, 966 P.2d at 592; People v. Cerrone, 854 P.2d 178, 186 n.13
(Colo. 1993).
¶ 35 Herrington, meanwhile, does not challenge the court’s
conclusion that the prosecution carried its burden at step two of
18 the Batson framework by providing a facially race-neutral reason for
striking Juror 15.4
¶ 36 Turning to step three of the Batson analysis, Herrington
contends that the prosecution’s race-neutral explanation for
exercising the peremptory strike of Juror 15 was pretextual because
(1) there was a “pattern of strikes exercised against Hispanic and
Spanish-surnamed jurors,” and (2) the prosecution did not strike
Juror 23, who was “a similar but non-Hispanic juror.”
¶ 37 With respect to Herrington’s first contention, he attempts on
appeal to portray a pattern of racially motivated strikes by
discussing multiple jurors, half of whom are irrelevant to the
Batson analysis. Herrington’s opening brief focuses on two jurors
who “explicitly identified as ‘Hispanic,’” and two jurors who “had
Spanish surnames,” emphasizing that “[n]one of them served on the
4 Herrington appears to suggest that the district court did not
provide defense counsel adequate opportunity to rebut the prosecution’s proffered race-neutral explanation, but he does not develop this argument. In any event, defense counsel preemptively argued to the court that Juror 15’s questionnaire answers “indicated he could be fair” and that defense counsel did not see any reason for the strike before the prosecution provided a race- neutral reason. After that point, defense counsel made no effort to rebut the prosecution’s explanation.
19 jury.” That may well be true, but Herrington ignores the fact that
only two of those jurors are at all relevant to the Batson analysis:
(1) Juror 15, who identified as “Hispanic” in his questionnaire and
was removed with a peremptory strike; and (2) Juror 20, whom
Herrington describes as having “a Spanish surname” but who did
not identify herself in her questionnaire as belonging to any
“racial/ethnic/minority group,” and who was removed with a
peremptory strike to which defense counsel did not object. Juror 7,
whom Herrington describes as “a woman with a Spanish surname,”
was struck for cause. But because Batson applies only to a
prosecutor’s peremptory strike of a potential juror, see Wilson, ¶ 10,
and not a prosecutor’s challenge for cause, Juror 7 is irrelevant to
this analysis. And Juror 36, who identified as “Hispanic/latina” in
her questionnaire, was too far down the list of potential jurors to be
seated or struck.
¶ 38 The pattern of racially motivated strikes that Herrington
alleges thus amounts to the peremptory strikes against Juror 15
and Juror 20. These two peremptory strikes alone fail to
demonstrate the pattern Herrington alleges. Evidence of that
pattern is even weaker given that Juror 20 did not identify as
20 belonging to any “racial/ethnic/minority group” and defense
counsel did not object to her peremptory strike at trial. Moreover,
after defense counsel challenged Juror 15’s removal, the
prosecution explained its concerns that Juror 15’s cousins’ deaths
at the hands of law enforcement were “a bad experience” that “was
traumatizing to him” and would “taint his assessment of the case.”
These reasons were race-neutral on their face. When deferring
substantially, as we must, to the court’s findings of fact, we agree
that there was sufficient record evidence to conclude that defense
counsel failed to establish purposeful discrimination in light of the
prosecution’s proffered race-neutral explanation.
¶ 39 We are likewise unpersuaded by Herrington’s related
contention that the prosecution’s decision not to use a peremptory
strike against Juror 23, who he describes as “a similar but non-
Hispanic juror,” revealed purposeful discrimination against
Juror 15. Herrington argues that because Juror 15 and Juror 23
both “described bad experiences with law enforcement” that
“happened a substantial time ago,” and both indicated that they
could put those experiences aside and be fair jurors, the
prosecution’s decision to strike Juror 15 but permit Juror 23 to sit
21 on the panel revealed racial discrimination. Herrington’s
comparison of these jurors on appeal, however, ignores important
differences among the experiences that they described. Juror 15
discussed the killing of two of his cousins during the previous ten
years at the hands of police, which he described as “somewhat
traumatizing.” He stated that “the thought of someone, let alone a
family member, being injured or possibly killed by police is very
troubling to [him].” Juror 23, meanwhile, discussed an unpleasant
experience she had answering “unkind” questions from an attorney
when she appeared as a witness in traffic court forty-eight years
beforehand. The experiences of these two jurors are meaningfully
different not only in type but also in temporal proximity.
¶ 40 Our supreme court has instructed that “an appellate court
conducting a clear error review should defer to a trial court’s
ultimate Batson ruling so long as the record reflects that the trial
court weighed all of the pertinent circumstances and supports the
court’s conclusion as to whether the objecting party proved
purposeful discrimination by a preponderance of the evidence.”
Beauvais, ¶ 63. Here, the prosecution provided a race-neutral
reason for exercising the peremptory strike against Juror 15, and
22 the court found, based on its firsthand observation of the entire voir
dire (including the information provided by other members of the
venire), that the strike was not the result of purposeful
discrimination. Because the court’s findings are supported by the
record and are based on its consideration of all the pertinent
circumstances, we discern no error.
V. Jury Instructions
¶ 41 Lastly, Herrington contends that the jury instruction reciting
the elements of obstructing a peace officer under section 18-8-
104(1)(a), amounted to plain error because it did not include
language from another subsection of the same statute. We are not
persuaded.
A. Relevant Law and Standard of Review
¶ 42 Trial courts have a duty to correctly instruct juries on all
matters of law. Castillo v. People, 2018 CO 62, ¶ 34. We review
jury instructions de novo to determine whether they accurately
informed the jury of the law. People v. Trujillo, 2018 COA 12, ¶ 11.
¶ 43 Where, as here, the defendant did not object to the challenged
instruction, we review for plain error. See Hagos v. People, 2012
CO 63, ¶ 14. Plain error exists where an error is (1) obvious and
23 (2) substantial. Id. An error is obvious when it “contravene[s] a
clear statutory command, a well-settled legal principle, or
established Colorado case law.” People v. Crabtree, 2024 CO 40M,
¶ 42. An error is substantial when it “so undermine[s] the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.” Hoggard v. People,
2020 CO 54, ¶ 13 (quoting People v. Weinreich, 119 P.3d 1073,
1078 (Colo. 2005)). “[W]ith respect to jury instructions, reversal
under a plain error standard requires a defendant to ‘demonstrate
not only that the instruction affected a substantial right, but also
that the record reveals a reasonable possibility that the error
contributed to his conviction.’” People v. Garcia, 28 P.3d 340, 344
(Colo. 2001) (citation omitted).
¶ 44 Instructions that track the language of applicable statutes and
pattern instructions are generally sufficient. People v. Jackson,
2018 COA 79, ¶ 64, aff’d, 2020 CO 75; see also Weinreich, 119 P.3d
at 1076 (“A jury instruction should substantially track the language
of the statute describing the crime . . . .”). And “an erroneous jury
instruction does not normally constitute plain error where the issue
is not contested at trial or where the record contains overwhelming
24 evidence of the defendant’s guilt.” People v. Miller, 113 P.3d 743,
750 (Colo. 2005).
¶ 45 The obstruction statute under which Herrington was charged
states in relevant part that
[a] person commits obstructing a peace officer . . . when, by using or threatening to use violence, force, physical interference, or an obstacle, such person knowingly obstructs, impairs, or hinders the enforcement of the penal law or the preservation of the peace by a peace officer, acting under color of his or her official authority . . . .
§ 18-8-104(1)(a).
¶ 46 The language from the subsection that Herrington argues
should have been included in the jury instructions states that “[a]
person shall not be charged with the offense described in
subsection (1) of this section because the person remained silent or
because the person stated a verbal opposition to an order by a
government official.” § 18-8-104(1.5).
B. Analysis
¶ 47 The elemental instruction for the obstruction charge tracked
both the obstruction statute and the pattern jury instructions. See
§ 18-8-104(1)(a); COLJI-Crim. 8-1:05 (2024). Nonetheless,
25 Herrington contends that police testimony and argument by the
prosecution suggested to the jury that Herrington was charged with
obstruction because he refused to identify himself and because he
yelled. These bases, he argues, would be insufficient to convict him
under the obstruction statute, so the district court should have also
instructed the jury that an individual cannot be charged with
obstructing a peace officer for remaining silent or verbally opposing
an order by a government official. The absence of that additional
instruction, according to Herrington, “allowed [him] to be convicted
on an insufficient legal theory.”
¶ 48 An error is obvious when it “contravene[s] a clear statutory
command, a well-settled legal principle, or established Colorado
case law.” Crabtree, ¶ 42. As evidence of the obviousness of the
error he alleges, Herrington points only to the statutory language of
section 18-8-104(1.5) that prohibits charging an individual with
obstruction for remaining silent or verbally opposing an order by a
government official. However, the mere existence of a statute
clarifying that an individual may not be charged under the
obstruction statute for that specific conduct is insufficient to show
that the court’s instructions violated “a clear statutory command.”
26 Crabtree, ¶ 42. This is especially so when those instructions
specified that the prosecution had to prove each element of
obstruction beyond a reasonable doubt, including that Herrington
“us[ed] or threaten[ed] to use violence, force, physical interference,
or an obstacle.” In light of those instructions, informing the jury
that Herrington could not have been charged at the outset with
obstruction simply for remaining silent or verbally opposing an
order by a government official would have added nothing to the
jury’s understanding of what the prosecution was required to prove
in order to secure a conviction.
¶ 49 For the same reason, the court’s jury instructions could not
have created a substantial error that “so undermine[d] the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction,” Hoggard, ¶ 13, or that
“reveal[ed] a reasonable possibility that the error contributed to
[Herrington’s] conviction,” Garcia, 28 P.3d at 344.
¶ 50 Moreover, the record contains overwhelming evidence that
Herrington used force in his encounter with the police. For
example, the officers who arrested Herrington testified that, after
Herrington refused to identify himself and officers resorted to
27 attempting to learn his identity through the use of a fingerprint
reader, Herrington “balled up his fists” and “refused to un-ball his
fingers so that [officers] could not get a print from his fingers.”
Those same officers also testified that Herrington physically resisted
efforts to restrain and transport him, both in the gas station
parking lot and at the jail.
¶ 51 Accordingly, we conclude that the district court’s omission of
section 18-8-104(1.5)’s language from the jury instructions on the
elements of the charge for obstructing a peace officer was not plain
error.
VI. Disposition
¶ 52 The judgment is affirmed.
JUDGE WELLING and JUDGE JOHNSON concur.