23CA0574 Peo v Reeves-Burrola 06-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0574 Weld County District Court No. 22CR86 Honorable Timothy Kerns, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jessica Reeves-Burrola,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE SCHOCK Dunn and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 26, 2025
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jessica Reeves-Burrola, appeals her convictions for
first degree murder (extreme indifference), first degree assault,
reckless endangerment, and illegal discharge of a firearm. She
argues that the district court erred by (1) denying her motion to
suppress Facebook records obtained through an overbroad search
warrant; (2) admitting Facebook messages without proper
authentication; (3) failing to give the jury a “multiple assailant” or
“apparent necessity” instruction; and (4) instructing the jury on the
provocation exception to self-defense. We affirm the judgment.
I. Background
¶2 During an evening gathering at an apartment, Reeves-Burrola
knocked on the door, armed with a gun and accompanied by three
other people. According to the resident of the apartment, when she
and another man, Henry “Hank” Sandoval, opened the door and
saw the gun, they immediately slammed the door shut. As they did,
Reeves-Burrola shot through the door, hitting and killing Sandoval
and striking another occupant, Ruben Moreno, in the arm.
¶3 Reeves-Burrola gave a different account of the shooting.
According to her, Sandoval and others had attacked her and stolen
her car about a week earlier. The morning of the shooting, Reeves-
1 Burrola had learned that her car had been recovered, but she was
still missing her keys. So at the behest of a friend, she went to the
apartment to retrieve her keys in exchange for an ounce of
methamphetamine. Reeves-Burrola said that when the door
opened, Sandoval and Moreno rushed toward her. As they did so,
Sandoval pulled out a gun and shot at her, and she shot back.
¶4 Reeves-Burrola was charged with first degree murder for
shooting Sandoval and attempted first degree murder and first
degree assault for shooting Moreno, in addition to other counts.
Testifying at trial, Reeves-Burrola admitted that she shot Sandoval
and Moreno but claimed she had done so in self-defense.
¶5 The jury convicted Reeves-Burrola of first degree murder, first
degree assault, illegal discharge of a firearm, and reckless
endangerment (as a lesser included offense of attempted first degree
murder). She was sentenced to life in prison without parole.
II. Motion to Suppress
¶6 Reeves-Burrola first contends that the district court erred by
denying her motion to suppress Facebook records because the
search warrant for those records was overbroad. We agree that the
2 warrant was not sufficiently particular, but we nevertheless affirm
the denial of the motion to suppress under the good faith exception.
A. Additional Background
¶7 A couple days after the shooting, law enforcement received an
anonymous tip that Reeves-Burrola had sent Facebook messages
referring to the shooting and her stolen vehicle. The tipster sent the
detective a screenshot of the Facebook account and confirmed it
belonged to Reeves-Burrola. Based on that tip, the detective
applied for and received a search warrant for records associated
with the account. The supporting affidavit said the detective was
requesting a warrant for the account from December 20, 2021 (ten
days before the shooting and the day before Reeves-Burrola
reported her vehicle stolen), to January 3, 2022 (four days after the
shooting), “in order to recover evidence of this murder investigation
as well as Reeves-Burrola’s assault and stolen vehicle.”
¶8 But the warrant itself was not so limited. Instead, the warrant
identified twenty-three broad categories of information, including,
among other things, profile information, email addresses, GPS
locations, status update history, notes, shares, mini-feeds, wall
posts, friend lists, group listings, events, video listings, applications,
3 messages, a user photoprint and user comments, private messages,
and IP logs. The only categories that were limited by date were
logins and the associated IP addresses, which were limited to a date
range of December 20, 2021, through January 7, 2022.
¶9 Reeves-Burrola moved to suppress all evidence obtained from
the search of her Facebook account on the grounds that the
warrant was not supported by probable cause and was not
sufficiently particular. She argued that the good faith exception did
not apply because the language of the warrant was similar to the
language of warrants the supreme court has deemed overbroad.
¶ 10 The district court acknowledged that, read in isolation, the
warrant was overbroad. But it concluded that the warrant had to
be read in the context of the affidavit, which “limit[ed] the duration
and the nature of the information that was being sought.” Based
on those affidavits, the court ruled that the warrant was sufficiently
particular, and it denied the motion to suppress. After hearing
testimony from the lead detective, the court further found that, even
if the warrant was invalid, the good faith exception would apply.
4 B. Applicable Law and Standard of Review
¶ 11 The Fourth Amendment requires search warrants to
“particularly describ[e] the place to be searched, and the persons or
things to be seized.” U.S. Const. amend. IV; see also Colo. Const.
art. II, § 7. This requirement protects against “general, exploratory
rummaging in a person’s belongings” by ensuring that the search is
“confined in scope to particularly described evidence relating to a
specific crime for which there is demonstrated probable cause.”
People v. Seymour, 2023 CO 53, ¶ 44 (citations omitted). A warrant
without particularity is invalid. People v. Coke, 2020 CO 28, ¶ 38.
¶ 12 In some cases, a supporting affidavit may provide the requisite
particularity that is not contained in the warrant itself. People v.
Staton, 924 P.2d 127, 132 (Colo. 1996). For it to do so, three
conditions must be satisfied: (1) the warrant must incorporate the
affidavit by reference; (2) both documents must be presented to the
issuing magistrate or judge; and (3) either the affidavit must
accompany the warrant during the search or the search must be
conducted under the supervision and control of the affiant. Id.
¶ 13 Generally, evidence seized under an overbroad warrant must
be suppressed. See Seymour, ¶ 62; Coke, ¶ 38. But under the good
5 faith exception to the exclusionary rule, evidence should not be
suppressed if officers “act[ed] in objectively reasonable reliance on a
warrant issued by a detached and neutral magistrate.” Seymour,
¶ 63 (citation omitted); see also § 16-3-308(1), C.R.S. 2024. An
officer’s reliance on a warrant is unreasonable when, as relevant
here, the warrant is “so facially deficient . . . in failing to
particularize the place to be searched or the things to be seized . . .
that the executing officers cannot reasonably presume it to be
valid.” United States v. Leon, 468 U.S. 897, 923 (1984).
¶ 14 The district court’s denial of a motion to suppress presents a
mixed question of fact and law. Seymour, ¶ 19. We defer to the
district court’s factual findings if they are supported by competent
evidence, but we review the legal effect of those findings de novo.
Id. In particular, we review de novo whether a search warrant and
supporting affidavit satisfied the particularity requirement and
whether the good faith exception applies. Pettigrew v. People, 2022
CO 2, ¶ 49; People v. Hagos, 250 P.3d 596, 619 (Colo. App. 2009).
C. Analysis
¶ 15 There can be little question that the Facebook warrant itself
lacked the requisite particularity — and indeed, the People do not
6 argue otherwise. Like the overbroad warrant in Coke, the warrant
“contains no particularity as to the alleged victim or,” with one
exception, “to the time period during which the [crimes] allegedly
occurred.” Coke, ¶ 38. The only category with any date limitation
is “Logins for dates between 12/20/2021 and 01/07/2022.” But
the warrant also separately lists “IP Logs” with no date limitation.
And none of the other categories — which effectively comprise the
entirety of the Facebook account — are limited by date either.
¶ 16 Nor does the warrant identify the crime under investigation.
Cf. United States v. Zelaya-Veliz, 94 F.4th 321, 337 (4th Cir. 2024)
(holding that broad warrant to search Facebook records was
sufficiently particular because the seizure was limited to evidence of
enumerated offenses); United States v. Suggs, 998 F.3d 1125, 1134
(10th Cir. 2021) (“[A] warrant may satisfy the particularity
requirement if its text constrains the search to evidence of a specific
crime . . . .”). Although the warrant quoted Crim. P. 41(b)’s
requirement that the requested data was “designed or intended for
use” or was or had “been used as a means of committing a criminal
offense” and “would be material evidence in a subsequent criminal
prosecution,” it never said what that crime was. C.R.C.P. 41(b)(2)-
7 (3), (5) (emphasis added); see Mink v. Knox, 613 F.3d 995, 1010-11
(10th Cir. 2010) (holding that citation to Crim. P. 41(b), without
more, did not provide requisite particularity); Suggs, 998 F.3d at
1134-35 (holding that this language “provides no context from
which to constrain the search to evidence of a specific crime”).
¶ 17 By failing to do so, the warrant authorized officers to search
the entire Facebook account — all messages, videos, photos,
contact lists, posts, location data, and more — for evidence wholly
unrelated to the crimes under investigation. See Coke, ¶ 38.
¶ 18 Conflating the warrant and the supporting affidavit, the People
rely entirely on the affidavit to provide the requisite particularity.
Unlike the warrant, the affidavit did specify the crimes under
investigation and a date range tethered to those crimes (though it
also included the same list of unrestricted categories). The problem
is that the People do not argue that the Staton factors for
incorporation of a curative affidavit are satisfied. And they are not.
¶ 19 Most importantly, an affidavit can be used to satisfy the
Fourth Amendment’s particularity requirement only if the warrant
incorporates the affidavit by reference. Staton, 924 P.2d at 132. It
is not enough that the warrant mentions the affidavit; it must
8 incorporate it through “appropriate words of incorporation.” Groh v.
Ramirez, 540 U.S. 551, 558 (2004); see also Suggs, 998 F.3d at
1135. Such express incorporation is critical because “[t]he Fourth
Amendment by its terms requires particularity in the warrant, not
in the supporting documents.” Groh, 540 U.S. at 557.
¶ 20 The warrant in this case mentions the affidavit only twice,
once to say that an affidavit had been filed — “Detective Fidel
Sanchez, having this date filed an Affidavit for a Search Warrant” —
and once to again identify the affiant — “[t]he names of persons
whose affidavits have been taken in support hereof are: Detective
Fidel Sanchez.” In neither instance did the warrant incorporate the
affidavit or suggest that the affidavit further defined the scope of the
search. See id. at 555-58 (holding that warrant did not incorporate
affidavit where it “recite[d] that the Magistrate was satisfied the
affidavit established probable cause”); United States v. Tracey, 597
F.3d 140, 149 (3d Cir. 2010) (holding that warrant did not
incorporate affidavit where “a reader of the warrant would know
that an affidavit is attached, but would have no indication that the
attached affidavit limits the officers in their search”); cf. Staton, 924
P.2d at 132 (holding that warrant incorporated affidavit by twice
9 saying that the subject of the search was “as described in the
[affidavit]”). Because the warrant did not incorporate the affidavit,
we may not look to the affidavit to cure the deficient warrant.1
¶ 21 We nevertheless conclude for three reasons that the good faith
exception applies. First, no Colorado case law has specifically
addressed the degree of particularity required for a Facebook search
warrant, and other courts have wrestled with this question. See
Zelaya-Veliz, 94 F.4th at 340-41 (applying good faith exception
based on “unsettled nature of whether a temporal limitation is
required on a warrant authorizing the search and seizure of
Facebook account data”). Absent such precedent, a reasonable
officer would not necessarily have known that the warrant was
unlawful despite the magistrate’s authorization. See id.; Seymour,
¶ 70 (applying good faith exception based on “absence of precedent
explicitly establishing” a constitutionally protected privacy interest).
¶ 22 Second, the detective who signed the affidavit also conducted
the Facebook search. In that affidavit, he stated that he was
1 We also note that, although the other two factors in People v.
Staton, 924 P.2d 127 (Colo. 1996), appear to be satisfied based on the record, the People make no argument as to those factors either.
10 requesting a warrant for the Facebook account from “December
20th, 2021 – January 3rd, 202[2] in order to recover evidence of
this murder investigation as well as Reeves-Burrola’s assault and
stolen vehicle.” The detective could have reasonably believed the
scope of the warrant was limited to what he had requested. See
United States v. Russian, 848 F.3d 1239, 1246 (10th Cir. 2017)
(“Although a warrant . . . affidavit cannot save a warrant from facial
invalidity, it can support a finding of good faith, particularly
where . . . the officer who prepared the . . . affidavit also executed
the search.”). And consistent with that understanding, there is no
indication in the record that the search exceeded that scope.
¶ 23 Third, other divisions of this court have concluded that a
search warrant did incorporate a supporting affidavit by cross-
referencing it without using express words of incorporation. See,
e.g., People v. Rodriguez-Ortiz, 2025 COA 30, ¶¶ 29, 33 & n.2; see
also Chavez v. Chavez, 2020 COA 70, ¶ 13 (“[D]ivisions are not
bound by the decisions of other divisions . . . .”). A reasonable
officer could have reached the same conclusion.
¶ 24 Reeves-Burrola contends that the good faith exception should
not apply because the warrant (1) was based on an anonymous tip
11 and (2) authorized a “largely unrestrained search of anything and
everything related to [her] Facebook account.” Reeves-Burrola’s
first argument goes to whether the affidavit was supported by
probable cause — an issue she does not raise on appeal — not
whether the warrant was sufficiently particular. See People v.
Leftwich, 869 P.2d 1260, 1266-67 (Colo. 1994) (holding that
anonymous letter did not establish probable cause).2 As to her
second argument, we agree, and that is why the warrant is invalid.
But it does not refute our conclusion that the detective could have
reasonably believed the warrant was limited by his affidavit.
¶ 25 Under these circumstances, we conclude that it was
objectively reasonable for the detective to rely on the warrant —
issued by a neutral and detached magistrate — even though we
have determined that warrant to be invalid. See Seymour, ¶ 63;
§ 16-3-308(1)-(2)(a) (providing that evidence shall not be suppressed
if it was seized as a result of “a reasonable judgmental error
2 The affidavit also stated that, in addition to the anonymous tip,
which referred to the shooting and Reeves-Burrola’s stolen vehicle, the tipster sent the detective a screenshot of the account.
12 concerning the existence of facts or law”). We therefore affirm the
district court’s denial of Reeves-Burrola’s motion to suppress.
III. Authenticity of Facebook Records
¶ 26 Reeves-Burrola next argues that the district court erred by
admitting Facebook messages into evidence without proper
authentication. We disagree.
¶ 27 Reeves-Burrola moved before trial to preclude the prosecution
from relying on a certificate of authenticity from Facebook to self-
authenticate the Facebook records. She argued that the certificate
of authenticity could not establish the authenticity of those records
under CRE 902(11) because the Facebook custodian did not have
personal knowledge of the content of the records. Because the
prosecution did not yet know what records it intended to introduce,
the district court deferred ruling on the motion until trial.
¶ 28 At trial, the prosecution sought to admit the certificate of
authenticity and a two-page Facebook message exchange between
Reeves-Burrola and a third party, in which Reeves-Burrola referred
to the shooting. The certificate of authenticity was signed by a
Facebook custodian of records and attested, among other things,
13 that the records were “an exact copy of the records that were made
and kept by the automated systems of Facebook in the course of
regularly conducted activity as a regular practice of Facebook.”
¶ 29 Reeves-Burrola objected to the certificate of authenticity and
the underlying records, arguing that the records could be
authenticated only through testimony from the Facebook custodian.
Relying on People v. Glover, 2015 COA 16, the prosecution asserted
that the records could be authenticated through (1) testimony from
the lead detective that he had received the records from Facebook
through a warrant and (2) evidence tying the account to Reeves-
Burrola. The court ruled that, if the evidence was consistent with
the prosecution’s offer of proof, the records would be admitted.
¶ 30 The detective testified that he found a Facebook page in
Reeves-Burrola’s name with her profile picture that said she was
from Greeley (where Reeves-Burrola lived). He requested records for
that account through a court order and received those records from
Facebook. When he received them, he recognized one of the email
addresses associated with the account as an email address that
Reeves-Burrola had admitted was hers in a jail call to her father.
14 ¶ 31 The detective then testified about the message exchange
between Reeves-Burrola and the third party, which occurred within
hours of the shooting. In the exchange, Reeves-Burrola says she
“[f]ucked up by shooting a little bitch that fucking stole my keys,”
and “[H]ank stole my car after stomping on me . . . so I shot him.”
¶ 32 The district court admitted the certificate of authenticity and
the message exchange over Reeves-Burrola’s objection.
B. Standard of Review and Applicable Law
¶ 33 We review evidentiary rulings, including as to authentication,
for an abuse of discretion. Glover, ¶ 10. A court abuses its
discretion if it “misconstrues or misapplies the law or otherwise
reaches a manifestly arbitrary, unreasonable, or unfair result.” Id.
¶ 34 Authentication requires “evidence sufficient to support a
finding that the evidence in question is what its proponent claims.”
Id. at ¶ 12; see also CRE 901(a). The burden to authenticate “is not
high — only a prima facie showing is required.” Glover, ¶ 13
(citation omitted). A district court’s role is not to decide definitively
whether the evidence is authentic but “whether the proponent has
offered a satisfactory foundation from which the jury could
reasonably [so] find.” Id. (citation omitted). If this standard is met,
15 the evidence should be admitted and “the fact finder determines its
weight.” People in Interest of A.C.E-D., 2018 COA 157, ¶ 43.
¶ 35 The authentication of Facebook messages requires two
showings: (1) that the records are those of Facebook and (2) that the
communications were made by the purported sender. Glover, ¶ 23.
The first showing can be made through the testimony of a witness
with knowledge or consideration of the distinctive characteristics of
the records. Id. at ¶ 24. Such evidence may include “testimony
regarding how the records were obtained, the substance of the
records themselves, and affidavits or testimony from employees of
the social networking site.” Id. at ¶ 26. The second showing
requires “additional corroborating evidence of authorship . . .
beyond confirmation that the [Facebook] account is registered to the
party purporting to create those messages.” Id. at ¶ 30. This
standard is satisfied by testimony establishing any combination of
the following factors:
(1) the account was registered to the purported sender;
(2) corroborative evidence showed that the account was used
by the purported sender;
16 (3) the substance of the communication was recognizable as
being from the purported sender;
(4) the sender “responded to an exchange in such a way as
to indicate circumstantially that he or she was in fact the
author of the communication”; and
(5) any other confirming evidence under the circumstances.
People v. Heisler, 2017 COA 58, ¶ 12 (citation omitted).
¶ 36 The district court did not abuse its discretion by concluding
that the prosecution cleared the low hurdle of authentication.
¶ 37 First, Reeves-Burrola does not dispute that the evidence was
sufficient to show that the records came from Facebook. See
Glover, ¶ 23. As in Glover, the detective testified that he received
the records from Facebook in response to the warrant. See id. at
¶ 27. He also testified that he reviewed the records when he
received them and that the message exchange was part of those
records. And the records were accompanied by the certificate of
authenticity, which stated that the records were an exact copy of
records made and kept by Facebook’s automated systems. See id.
Reeves-Burrola does not challenge the admission of that certificate
17 of authenticity on appeal. This evidence was sufficient to support a
finding that “the printouts contained content from Facebook.” Id.
¶ 38 Second, the evidence was also sufficient to support a finding
that the Facebook account belonged to Reeves-Burrola and that she
sent the messages. See id. at ¶ 33. The account was registered in
Reeves-Burrola’s name and included her profile photo and
hometown. Reeves-Burrola’s email address was also associated
with the account.3 Moreover, the substance of the messages
provided further indication that Reeves-Burrola sent them. See
Heisler, ¶ 12. The messages, sent hours after the shooting, referred
to the shooting, the victim, and the theft of Reeves-Burrola’s car
and keys. And the person Reeves-Burrola messaged called her
“Jessica” in response. See Glover, ¶ 32 (noting that others referred
to the defendant by his nickname in the Facebook messages).
¶ 39 Under these circumstances, we conclude that the district
court did not abuse its discretion under CRE 901(b) by admitting
3 Reeves-Burrola later testified that the messages came from her
Facebook account and that she was next to her roommate while they were written, but she denied writing the messages.
18 the Facebook messages. To the extent Reeves-Burrola denied
sending them, that was a question for the jury. See A.C.E-D., ¶ 43.
IV. Jury Instructions
¶ 40 Reeves-Burrola also contends that the district court plainly
erred by (1) failing to give the jury a multiple assailant or apparent
necessity instruction and (2) giving a provocation instruction that
was unsupported by the evidence. We perceive no plain error.
¶ 41 The district court gave the jury four instructions on self-
defense: two on deadly physical force for the shooting of Sandoval
(one as an affirmative defense and one as an element-negating
traverse) and two on general “defense of person” for the shooting of
Moreno (again as an affirmative defense and as an element-negating
traverse). All four instructions tracked the Colorado model jury
instructions on self-defense, and each incorporated the provocation
exception, providing that self-defense does not apply if the actor,
“with intent to cause bodily injury or death to another person,”
provokes “the use of unlawful physical force by that other person.”
19 ¶ 42 Reeves-Burrola did not request an instruction regarding
multiple assailants or apparent necessity. Nor did she object to the
inclusion of the provocation exception in the instructions.
B. Standard of Review
¶ 43 The district court must correctly instruct the jury on all
applicable matters of law. Riley v. People, 266 P.3d 1089, 1092
(Colo. 2011); People v. Roberts-Bicking, 2021 COA 12, ¶ 17. We
review jury instructions de novo to determine whether the
instructions as a whole accurately informed the jury of the
governing law. Riley, 266 P.3d at 1092-93. If the district court
properly instructed the jury on the applicable law, we review its
decision to give or not give a particular instruction for an abuse of
discretion and will not disturb that decision unless it is manifestly
arbitrary, unreasonable, or unfair. Roberts-Bicking, ¶ 17.
¶ 44 Because Reeves-Burrola did not raise either of her challenges
to the instructions in the district court, we may reverse only for
plain error. Hoggard v. People, 2020 CO 54, ¶ 13. Plain error is
obvious and 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.” Id. (citation omitted).
20 C. Multiple Assailants and Apparent Necessity
¶ 45 In a self-defense case involving multiple assailants, the jury
must consider the “totality of the circumstances, including the
number of persons reasonably appearing to be threatening the
defendant,” in evaluating the reasonableness of the defendant’s
belief in the need for self-defense and the degree of force used.
Riley, 266 P.3d at 1094. But the district court does not need to give
a specific multiple assailants instruction in every such case.4 Id.
Rather, all that is required is that “the given instructions properly
direct the jury to consider the totality of the circumstances” in
assessing the reasonableness of the defendant’s actions. Id.
¶ 46 For two reasons, the district court did not plainly err by failing
to give a multiple assailants instruction when Reeves-Burrola did
not request one. First, the evidence and defendant’s argument did
not obviously implicate a multiple assailants theory of defense.
4 Reeves-Burrola relies on People v. Manzanares, 942 P.2d 1235,
1240 (Colo. App. 1996), abrogated by Riley v. People, 266 P.3d 1089 (Colo. 2011), and other cases that predate Riley for the proposition that a multiple assailants instruction must be given in any case involving multiple participants. But to the extent pre-Riley case law suggests that such an instruction is always required, Riley held otherwise. See People v. Roberts-Bicking, 2021 COA 12, ¶¶ 20-21.
21 Although Reeves-Burrola testified that two men rushed toward her
when they opened the door, she said she fired her gun because
Sandoval shot at her. In both opening and closing, Reeves-
Burrola’s counsel similarly argued that she shot because she
believed that Sandoval was going to kill her. She did not assert that
Moreno did anything other than follow Sandoval. Nor did she
assert that anyone else in the apartment had done anything at all.
¶ 47 Second, even assuming the evidence supported a multiple
assailants theory, the instructions as a whole properly directed the
jury to “consider all relevant evidence when assessing the
reasonableness of the defendant’s actions,” which necessarily
includes the number of perceived assailants. Riley, 266 P.3d at
1094. The affirmative defense instructions each told the jury to
“consider[] all the evidence” in determining whether the prosecution
had satisfied its burden of disproving the defenses. While the
traverse instructions did not themselves include that language, the
elemental instructions to which they referred did. Moreover, each
of the instructions “accurately defined self-defense in terms of the
reasonableness” of Reeves-Burrola’s belief in the imminent use of
physical force against her and the degree of force necessary. Id.
22 Such language was not obviously insufficient to encompass a
multiple assailants theory of defense, to the extent Reeves-Burrola
asserted one. See id. at 1095 (holding that no multiple assailants
instruction was required based on similar model instruction).
¶ 48 We recognize that Roberts-Bicking concluded that the model
instruction on self-defense “alone fails to adequately instruct the
jury to consider the totality of the circumstances in a multiple
assailant scenario.” Roberts-Bicking, ¶ 26. But in Roberts-Bicking,
the defendant requested a multiple assailants instruction. Reeves-
Burrola did not. We cannot say that the district court plainly erred
by failing to sua sponte give a separate multiple assailants
instruction that was not squarely presented by the evidence or
raised by the parties, particularly when the given instructions
accurately defined self-defense. See Riley, 266 P.3d at 1094-95.
¶ 49 Finally, the district court did not plainly err by failing to give a
jury instruction on apparent necessity. A self-defense instruction
that tracks the statutory language — as the ones here did —
“sufficiently encompasses the concept of apparent necessity,” thus
making a separate instruction unnecessary. Roberts-Bicking, ¶ 23;
see also Beckett v. People, 800 P.2d 74, 77-78 (Colo. 1990).
23 D. Provocation Instruction
¶ 50 We also reject Reeves-Burrola’s contention that the district
court plainly erred by instructing the jury on provocation.
¶ 51 A person may not use physical force in self-defense if, “[w]ith
intent to cause bodily injury or death to another person, [the
defendant] provokes the use of unlawful physical force by that other
person.” § 18-1-704(3)(a), C.R.S. 2024. This exception applies
when (1) the other person uses unlawful physical force against the
defendant; (2) the defendant provoked the use of such physical
force; and (3) the defendant intended the provocation to “goad the
other person into attacking [them] in order to provide a pretext to
injure or kill that person.” Galvan v. People, 2020 CO 82, ¶ 19.
¶ 52 When the district court instructs the jury on self-defense as an
affirmative defense, it should instruct the jury on the provocation
exception if there is “some evidence” to support it. Id. at ¶ 25. In
reviewing the decision to give such an instruction, we must view the
evidence in the light most favorable to the instruction. Id. at ¶ 33.
¶ 53 Viewed in that light, we conclude that there was some
evidence to support the provocation exception. The evidence
indicated that Reeves-Burrola went to the apartment armed and
24 with three other people because she believed the people who had
stolen her car were in that apartment. She knocked on the door
and held the gun in such a way that it was visible to Sandoval
immediately upon opening the door. And Reeves-Burrola testified
that Sandoval shot at her first. After the shooting, Reeves-Burrola
told a third party she shot Sandoval because he stole her car.
¶ 54 From this evidence, a jury could reasonably find that
(1) Sandoval used unlawful physical force against Reeves-Burrola;
(2) Reeves-Burrola provoked that physical force by showing up to
the apartment unannounced and brandishing a gun; and (3) by
doing so, she intended to incite a confrontation that would allow
her to shoot Sandoval in retaliation for stealing her car. There
could certainly be other reasonable interpretations of the evidence,
but the resolution of conflicting reasonable inferences is part of the
jury’s factfinding function. See Roberts-Bicking, ¶ 40.
¶ 55 At a minimum, under these facts, the provocation exception
was not so obviously inapplicable that the district court should
have been alerted to strike it from the instruction without the
benefit of an objection. See People v. Crabtree, 2024 CO 40M, ¶ 42.
25 V. Disposition
¶ 56 The judgment is affirmed.
JUDGE DUNN and JUDGE BROWN concur.