23CA0014 Peo v Swainson 08-20-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0014 City and County of Denver District Court No. 20CR6033 Honorable Kandace C. Gerdes, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Stephen C. Swainson, Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division V
Opinion by JUDGE LIPINSKY Yun and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 20, 2026
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Stephen C. Swainson appeals the judgment of conviction entered on a jury verdict finding him guilty of second degree murder, attempted second degree murder, and first degree assault; the trial court’s adjudication that he is a habitual criminal; and the trial court’s imposition of two crime of violence sentence enhancers. We reverse and remand for a new trial.
I. Background
¶2 A jury could have reasonably found the following facts from the evidence introduced at trial.
¶3 After drinking at a downtown Denver bar one night, two brothers, Israel and Levi Casillas (the Casillas brothers), decided to imbibe further at another bar. (For sake of clarity, we use the brothers’ first names in this opinion; we mean no disrespect in doing so.) While headed to the second bar, they met Akintunde Akinde, who joined them.
¶4 On their way to the second bar, the Casilla brothers and Akinde (jointly, the trio) crossed North Speer Boulevard. At that time, Swainson was on a scooter, waiting at a stoplight to turn onto Stout Street, which he planned to take to 20th Street to visit friends
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and his parents in north Denver. Swainson and the trio did not interact at that time.
¶5 Swainson initially headed north on Stout Street, intending to cross Interstate Highway 25 on 20th Street. He soon realized that it would be safer and faster to take North Speer Boulevard “to get over the highway,” as there was less risk of crashing his scooter due to cracks on Stout Street. While attempting to turn around, Swanson struck a curb and fell off the scooter.
¶6 As the trio approached Swainson, Israel, who was twenty feet ahead of Levi and Akinde, asked Swainson for a cigarette. When Swainson pulled out his cigarettes, Israel noticed cash in Swainson’s pocket and said, “Let me hold some beer money.” Swainson understood this statement to mean “give me money.” When Swainson refused to hand over the cash, Israel struck him.
¶7 Levi and Akinde ran over as the fight broke out between Swainson and Israel. Swainson testified that he was “knocked down and kicked in [the] head.” He said that, although he was “fighting two or three people,” he did not know “exactly who struck [him]” or “how many times.”
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¶8 During the fight, Swainson pulled out a folding knife that he carried for his work as a janitor and “started swinging it wildly.” Swainson claimed he “pulled [his] knife out just to get away.” While Swainson said he knew that the knife struck one of the trio, he “didn’t know how severe[ly]” any of them was injured.
¶9 Swainson testified that the fight ended once he started swinging the knife. He then “ran back to [the] scooter and took off to get out of there.” Swainson said, “I just wanted to get away. I was afraid for my life.” He decided to go home, rather than head north, as he had lost his cell phone and his glasses during the fight and, without his glasses, he could not see well enough to “ride that scooter all the way to the north side.” He did not contact the police, call an ambulance for the trio, or seek medical attention for himself.
¶ 10 After the altercation, Levi called 911, and police were dispatched to the scene. Swainson had stabbed Israel four times: twice in the back of his head near the neck, once in the upper right chest, and once in the left arm. One of the head wounds partially severed Israel’s brain stem. Israel died a few days later of complications from the knife wounds. Swainson had stabbed Levi in the upper left back, causing a pneumothorax (collapsed lung).
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¶ 11 Seventeen days later, Swainson was arrested and charged with first degree murder, attempted first degree murder, first degree assault, eight habitual criminal counts, and two crime of violence enhancers.
¶ 12 The jury found Swainson guilty of second degree murder, attempted second degree murder, and first degree assault. (The trial court instructed the jury that, if it determined that Swainson was not guilty of first degree murder or attempted first degree murder, it could nonetheless convict him of a lesser included offense, including second degree murder or attempted second degree murder, respectively.) At sentencing, the court merged Swainson’s conviction for attempted second degree murder into his conviction for first degree assault. Because the jury found that Swainson used, possessed, and threatened to use a deadly weapon and caused serious bodily injuries, the trial court imposed the two crime of violence sentence enhancers. The court also adjudicated Swainson a habitual criminal on all eight counts.
¶ 13 Swainson raises numerous contentions in this appeal. He argues that the trial court erred by declining to instruct the jury on (1) the mitigating factor of heat of passion; (2) his justification for
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using deadly force in response to an actual or imminent first or second degree assault; (3) the use of force against multiple assailants; and (4) the use of ordinary nondeadly force as to the homicide offense. He also asserts that the trial court made two evidentiary errors: (5) admitting testimony that Swainson illegally possessed knives and (6) excluding evidence about Akinde’s conduct at a hospital shortly after the incident. In addition, he argues that the cumulative effect of these instructional and evidentiary errors requires reversal of his convictions.
¶ 14 Further, Swainson contends that we must (1) vacate the court’s habitual criminal adjudication because Colorado’s former habitual criminal statute is unconstitutional; (2) vacate four of the habitual criminal counts because they were premised on ineligible predicate offenses; and (3) remand the case for resentencing because the court did not conduct a proper abbreviated proportionality review.
¶ 15 We agree with Swainson’s argument regarding the heat of passion instruction. Accordingly, we reverse his convictions and remand for a new trial. We also address Swainson’s arguments regarding the use of force instructions, as he is likely to argue
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self-defense again on retrial, but we do not need to reach his other contentions.
II. Analysis
A. The Heat of Passion Instruction
¶ 16 Swainson contends that the court erred by refusing to give a jury instruction on heat of passion, a mitigating factor for second degree murder and first degree assault. We agree and therefore reverse Swainson’s convictions.
1. Standard of Review
¶ 17 “A trial court has a duty to correctly instruct the jury on the governing law.” People v. Coahran, 2019 COA 6, ¶ 13, 436 P.3d 617, 620. “We review jury instructions de novo to determine whether they accurately informed the jury of the governing law . . . .” People v. Sabell, 2018 COA 85, ¶ 11, 452 P.3d 91, 95. “We consider all the instructions given by the trial court together to determine whether they properly informed the jury.” Coahran, ¶ 13, 436 P.3d at 620-21.
¶ 18 “We review a court’s decision whether to give a particular jury instruction for an abuse of discretion.” Id. at ¶ 14, 436 P.3d at 621. “A trial court abuses its discretion when it misapplies the law or
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when its decision is manifestly arbitrary, unreasonable, or unfair.” People v. Schmidt, 2026 COA 52, ¶ 34, ___ P.3d ___, ___. We review de novo whether the court misapplied the law. Coahran, ¶ 14, 436 P.3d at 621.
¶ 19 “Instructions that improperly lower the prosecution’s burden of proof cannot be deemed harmless and require reversal.” People v. Tardif, 2017 COA 136, ¶ 17, 433 P.3d 60, 65. But an instructional error is not reversible so long as “the jury instructions, when reviewed as a whole, adequately inform[ed] the jury of the law.” People v. Alvarado, 284 P.3d 99, 101 (Colo. App. 2011). “Jury instructions that conform to relevant statutes are generally sufficient and proper.” Id.
¶ 20 “When considering whether a defendant is entitled to requested instructions, we consider the evidence in the light most favorable to the defendant.” Cassels v. People, 92 P.3d 951, 955 (Colo. 2004).
2. The Law Governing Heat of Passion
¶ 21 We also review de novo whether sufficient evidence supported a request for a heat of passion instruction. Castillo v. People, 2018 CO 62, ¶ 32, 421 P.3d 1141, 1146. “A [heat of passion] instruction
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is warranted whenever a defendant shows some supporting evidence — regardless of how incredible, unreasonable, improbable, or slight it may be . . . .” Cassels, 92 P.3d at 956.
¶ 22 “A homicide committed in the heat of passion, or upon provocation, is . . . treated as a less culpable form of second[ ]degree murder.” Id. at 955; see § 18-3-103(3)(b), C.R.S. 2025.
¶ 23 To obtain a heat of passion instruction,
the defendant must produce evidence . . .
showing that[] (1) the act causing the death was performed upon a sudden heat of passion;
(2) caused by a serious and highly provoking act of the intended victim; (3) which was sufficient to excite an irresistible passion in a reasonable person; and (4) between the provocation and the killing, an insufficient interval of time passed for the voice of reason and humanity to be heard.
Cassels, 92 P.3d at 956; § 18-3-202(2)(a), C.R.S. 2025; § 18-3-103(3)(b). (Courts refer to “heat of passion” and “provocation” interchangeably when referring to the mitigator instruction. Cassels, 92 P.3d at 955 n.5. For consistency, we refer to “heat of passion” in this opinion.)
¶ 24 Under section 18-3-103(3)(b), second degree murder is a class 2 felony but becomes a class 3 felony if committed under a
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heat of passion. And under section 18-3-202(2)(a), first degree assault is a class 3 felony but becomes a class 5 felony if committed under a heat of passion. Heat of passion is a mitigating factor that, “if applicable, the prosecution is required to disprove beyond a reasonable doubt.” Tardif, ¶ 6, 433 P.3d at 63. Accordingly, declining to give a heat of passion instruction when one is warranted impermissibly lowers the prosecution’s burden of proof. See id. at ¶¶ 7, 17, 433 P.3d at 63, 65. Such an error “implicates a defendant’s constitutional rights and is reviewed for constitutional harmless error.” Coahran, ¶ 16, 436 P.3d at 621. Constitutional harmless errors “require reversal unless the reviewing court is ‘able to declare a belief that [the error] was harmless beyond a reasonable doubt.’” Id. (quoting Hagos v. People, 2012 CO 63, ¶ 11, 288 P.3d 116, 119).
3. Additional Facts
¶ 25 Swainson testified that, during his altercation with the trio, he acted “in the heat of the moment,” swung the knife because he “fear[ed] for [his] life,” and “just wanted to get away.” He explained that he had no “time to think” and described the fight as “quick,” lasting only “a few minutes.”
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¶ 26 During the jury instruction conference, defense counsel asked for a heat of passion instruction, arguing there was “a scintilla of evidence because [Swainson] said on the stand that he was swinging his knife wildly and that it all happened so fast.” (Because heat of passion is not a mitigating circumstance for first degree murder, defense counsel sought a heat of passion instruction for the lesser included offense of second degree murder and not for first degree murder. See § 18-3-102(3)(b), C.R.S. 2025.) The prosecutor countered that the defense had not demonstrated an “irresistible passion” and that Swainson’s testimony showed actions taken in self-defense rather than acts committed in the heat of passion. The court rejected the tendered instruction, explaining that it was “not an appropriate instruction” based on its legal research.
4. The Court Erred by Declining to Give a Heat of Passion Instruction
¶ 27 We conclude that Swainson presented sufficient evidence to establish the four elements required to support a heat of passion instruction. Accordingly, we reverse his convictions.
¶ 28 First, Swainson provided evidence that he acted “upon a sudden heat of passion.” Cassels, 92 P.3d at 956. “An act
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committed in the sudden heat of passion is the equivalent to an act in which the actor has lost his self[-]control and is being directed by passion rather than reason.” People v. Thomas, 789 P.2d 470, 471 (Colo. App. 1989), aff’d, 820 P.2d 656 (Colo. 1991). Swainson testified that he was “scared” and “in fear of [his] life” when the trio “punched and kicked” him. He said that he responded to the punches and kicks by pulling out the knife and swinging it “wildly” in “the heat of the moment” to “save [his] life.” He testified that he had no time to think and did not know whom he had struck with the knife or where he had stabbed any of the trio.
¶ 29 In Tardif, the division held that a heat of passion instruction was warranted based on the defendant’s testimony, saying, “I walked up with him[,] and I didn’t really process anything, I didn’t really know what was going on, I just more or less acted than anything.” Tardif, ¶ 24, 433 P.3d at 66. Similarly, Swainson testified that he swung the knife in the heat of the moment, during a rapidly unfolding altercation. Thus, Swainson presented some evidence that he acted in a “sudden heat of passion.” Id. at ¶ 25, 433 P.3d at 66.
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¶ 30 Addressing the second and third elements of heat of passion together, Swainson acted in response to a serious and highly provoking act that was sufficient to excite an irresistible passion in a reasonable person — being beaten and kicked. “Provocation is said to be ‘adequate’ if it would cause a reasonable person to lose his self-control.” People v. Dooley, 944 P.2d 590, 595 (Colo. App. 1997) (quoting Model Penal Code & Commentaries § 210.3 cmt. 4(a), at 56 (A.L.I. 1980)). In Cassels, the division concluded that the defendant was provoked when he was pushed, shoved, and threatened while naked. See 92 P.3d at 957. The division considered the defendant’s vulnerability when it concluded there was sufficient evidence to warrant a heat of passion instruction. Id.
¶ 31 Likewise, Swainson testified that the trio “knocked [him] down,” “kicked [him] in the head,” and knocked off and broke his glasses, limiting his vision. Defense counsel also presented video evidence demonstrating the continuous nature of the fight.
¶ 32 Given the evidence that Swainson faced multiple assailants, was on the ground when the trio kicked him, lacked clear vision, and was involved in a continuous altercation, Swainson was placed in a vulnerable position. See id. Viewing this evidence in the light
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most favorable to Swainson, we conclude that his vulnerability would excite an irresistible passion in a reasonable person. See id.
¶ 33 Fourth, there was insufficient time between the provocation and Swainson’s assault for the “voice of reason and humanity to be heard.” § 18-3-103(3)(b). There is no precise formulation of what “constitutes a sufficient interval to allow a person to function rationally,” but courts have considered “human nature as it is generally understood, the particular emotional state of the offender, and . . . the surrounding circumstances of the case” when determining whether there was sufficient “cooling time.” Coston v. People, 633 P.2d 470, 473 (Colo. 1981). Some courts have determined that a fifteen-minute interval between the provocation and an assault was insufficient for the defendant to hear the voice of reason. See People v. Suazo, 867 P.2d 161, 168 (Colo. App. 1993). A trial court may find that “the interval was sufficient to negate provocation as a matter of law only if the evidence is undisputed that the interval [was] relatively long and reasonable minds could not disagree that an adequate ‘cooling off’ period occurred . . . .” Id. (quoting People v. Cornelison, 616 P.2d 172, 175 (Colo. 1980)).
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¶ 34 We conclude that there was evidence from which a jury could reasonably conclude that there was not enough time between the provocation and the assault for Swainson to hear the “voice of reason” because he stabbed the Casillas brothers only moments after being attacked. § 18-3-103(3)(b); see Cassels, 92 P.3d at 957 (holding there was insufficient time for the defendant to cool off when only seconds separated the provoking act and the shooting). Swainson testified that the altercation lasted just a “couple of minutes” and that he had no time to think between swings of the knife.
¶ 35 In response, the People argue that Swainson was not entitled to the heat of passion instruction because he “placed himself in the alleged provoking situation” by turning around and riding the scooter back toward the trio. We disagree.
¶ 36 As the People note, Swainson would be entitled to a heat of passion instruction only if “the heat of passion [was] unexpected, unforeseen, and immediate.” People v. Valdez, 183 P.3d 720, 723 (Colo. App. 2008). Swainson testified that he turned around because he believed that riding a scooter on North Speer Boulevard would be safer than riding on Stout Street. Just a few minutes
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before the altercation, Swainson stopped at a stoplight near the trio without interacting with them. Thus, the record does not support the People’s argument that Swainson placed himself in a provoking situation by retracing his steps and encountering the trio again.
¶ 37 In sum, viewing the evidence in the light most favorable to Swainson, his testimony provided “some supporting evidence” to establish each element required by sections 18-3-103(3)(b) and 18-3-202(2)(a). The court therefore abused its discretion by declining to give a heat of passion instruction. See Cassels, 92 P.3d at 955-56.
5. Declining to Give a Heat of Passion Instruction Was Not Harmless
¶ 38 We next turn to whether the court’s error requires reversal under the constitutional harmless error standard. Because we cannot say that the court’s refusal to give the heat of passion instruction was “harmless beyond a reasonable doubt,” we reverse. Coahran, ¶ 16, 436 P.3d at 621 (quoting Hagos, ¶ 11, 288 P.3d at 119).
¶ 39 The court’s decision not to give the requested instruction impermissibly lowered the prosecution’s burden of proof because, if
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the jury had been instructed on heat of passion, the prosecution would have been required to disprove beyond a reasonable doubt that Swainson acted upon a heat of passion. See id. The prosecution was relieved of this burden at Swainson’s trial.
¶ 40 We also reject the People’s argument that, even if the trial court erred by rejecting the instruction, the error was harmless because “[s]trategically, arguing self-defense was stronger than arguing heat of passion.” According to the People, “if the jury believed [Swainson] acted in self-defense, he would have been acquitted[,] while heat of passion could have undermined self-defense and would only have mitigated the level of the defense.” But it is the role of defense counsel, not the prosecution, to evaluate the strength of the defense’s possible arguments and decide which to present. Cf. People v. Smith, 2024 CO 3, ¶ 26, 541 P.3d 1191, 1196 (acknowledging that it is defense counsel, not the client, who has the authority to make strategic and tactical litigation decisions). There is no legal support for the proposition that merely because one defense theory may be stronger than another, it is harmless error to preclude the jury from considering both. Cf. People v. Clemens, 2017 CO 89, ¶ 17, 401 P.3d 525, 529 (explaining that it is
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“normal” for jurors to want to “hear both sides” before deciding a defendant’s guilt); Wilson v. State, 473 S.W.3d 889, 902 (Tex. App. 2015) (“A defendant has the legal right to argue any theory supported by the evidence . . . .”).
¶ 41 We therefore conclude that the trial court’s failure to give a heat of passion instruction was not harmless beyond a reasonable doubt. See Tardif, ¶¶ 17, 20, 433 P.3d at 65. Accordingly, we reverse Swainson’s convictions for second degree murder and first degree assault and remand for a new trial.
B. The Section 18-1-704(2)(c) Deadly Force Instruction
¶ 42 Because Swainson is likely to present a self-defense argument again on retrial, we address his contentions regarding two use of force instructions — a preserved argument regarding deadly force under section 18-1-704(2)(c), C.R.S. 2025, and an unpreserved argument regarding the use of nondeadly force. We agree that the court erred by not giving those instructions. We then address Swainson’s argument that he was entitled to a jury instruction informing the jurors that he was permitted to use deadly force if any member of the trio committed, or reasonably appeared about to commit, a first or second degree assault. See id.
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1. Standard of Review
¶ 43 “We . . . review de novo whether there’s sufficient evidence in the record to support a self-defense jury instruction.” Coahran, ¶ 15, 436 P.3d at 621. Self-defense is an affirmative defense. See Galvan v. People, 2020 CO 82, ¶ 17, 476 P.3d 746, 752. “When considering an affirmative defense instruction, we consider the evidence in the light most favorable to the defendant.” Coahran, ¶ 15, 436 P.3d at 621 (quoting People v. Newell, 2017 COA 27, ¶ 19, 395 P.3d 1203, 1207).
¶ 44 “If a trial court refuses to give an affirmative defense self-defense instruction in circumstances where one was appropriate, the prosecution’s burden of proof is impermissibly lowered.” Id. at ¶ 16, 436 P.3d at 621. “This error implicates a defendant’s constitutional rights and is reviewed for constitutional harmless error.” Id. Constitutional harmless errors “require reversal unless the reviewing court is ‘able to declare a belief that [the error] was harmless beyond a reasonable doubt.’” Id. (quoting Hagos, ¶ 11, 288 P.3d at 119).
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2. Additional Facts
¶ 45 At trial, Swainson requested a deadly force instruction that included language tracking both subsections (2)(a) and (2)(c) of section 18-1-704. Subsections (2)(a) and (2)(c) read, in relevant part, that
[d]eadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
(a) [t]he actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
....
(c) [t]he other person is committing or reasonably appears about to commit . . .
assault as defined in sections 18-3-202 and 18-3-203[, C.R.S. 2025].
§ 18-1-704(2)(a), (c).
¶ 46 Sections 18-3-202 and 18-3-203 define the elements of first degree and second degree assault, respectively.
¶ 47 Section 18-3-202 provides, in relevant part, that a person commits first degree assault if,
(a) [w]ith intent to cause serious bodily injury to another person, he causes serious bodily
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injury to any person by means of a deadly weapon; or
(b) [w]ith intent to disfigure another person seriously and permanently, or to destroy, amputate, or disable permanently a member or organ of his body, he causes such an injury to any person; or
(c) [u]nder circumstances manifesting extreme indifference to the value of human life, he knowingly engages in conduct which creates a grave risk of death to another person, and thereby causes serious bodily injury to any person; or
....
(g) [w]ith the intent to cause serious bodily injury, he or she applies sufficient pressure to impede or restrict the breathing or circulation of the blood of another person by applying such pressure to the neck or by blocking the nose or mouth of the other person and thereby causes serious bodily injury.
§ 18-3-202 (a)-(c), (g) (emphases added).
¶ 48 By contrast, under the relevant subsections of section 18-3-203(1), a person commits second degree assault if,
(b) [w]ith intent to cause bodily injury to another person, he or she causes such injury to any person by means of a deadly weapon; or
....
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(d) [h]e recklessly causes serious bodily injury to another person by means of a deadly weapon; or
....
(g) [w]ith intent to cause bodily injury to another person, he or she causes serious bodily injury to that person or another . . . .
§ 18-3-203(1)(b), (d), (g) (emphases added).
¶ 49 The trial court declined to give an instruction under section 18-1-704(2)(c), but it did provide a self-defense instruction under section 18-1-704(2)(a) for Swainson’s first and second degree murder counts (Instruction No. 15). Instruction No. 15 said, in relevant part, that
[t]he defendant was legally authorized to use deadly physical force upon another person without first retreating if:
(1) he used that deadly physical force in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person(s), and
(2) he reasonably believed a lesser degree of force was inadequate, and
(3) he had a reasonable ground to believe, and did believe, that he was in imminent danger of being killed or of receiving great bodily injury, and
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(4) he was not the initial aggressor, or, if he was the initial aggressor, he had withdrawn from the encounter and effectively communicated to the other person his intent to do so, and the other person nevertheless continued.
3. The Trial Court Erred by Declining To Give a Self-Defense Instruction Under 18-1-704(2)(c)
¶ 50 Swainson argues that the trial court erred by declining to give a self-defense instruction under section 18-1-704(2)(c) because he “could reasonably have believed the assailants were about to commit at least second[ ]degree assault.” We agree that the trial court erred.
¶ 51 Under section 18-1-704(2)(a), a person may use deadly physical force only if the person reasonably believes that a lesser degree of force would be inadequate and “has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury.” Section 18-1-704(2)(c) allows a person to use deadly force in self-defense if “[t]he other person is committing or reasonably appears about to commit . . . assault as defined in sections 18-3-202 and 18-3-203.”
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¶ 52 “Section 18-1-407(1)[, C.R.S. 2025,] addresses the quantum of proof required to raise an affirmative defense.” Galvan, ¶ 24, 476 P.3d at 754. “It provides that, ‘unless the state’s evidence raises the issue involving’ an affirmative defense, ‘the defendant, to raise the issue, shall present some credible evidence on that issue.” Id. (quoting § 18-1-407(1)). The courts have interpreted “some credible evidence” in “slightly different ways over time.” Id. (first quoting § 18-1-407(1); and then quoting Castillo, ¶ 35 n.3, 421 P.3d at 1147 n.3). But “our appellate courts have understood ‘some credible evidence’ to be interchangeable with ‘some evidence,’ ‘any credible [even if highly improbable] evidence,’ ‘a scintilla of evidence,’ a ‘small quantum of evidence,’ and ‘any evidence.’” Id. (citations omitted) (considering several Colorado cases’ articulations of this standard). And “[t]he evidence necessary to justify an affirmative defense instruction may come solely from the defendant’s testimony, however improbable.” Coahran, ¶ 18, 436 P.3d at 621 (quoting People v. DeWitt, 275 P.3d 728, 733 (Colo. App. 2011)). “It is for the jury and not for the court to determine the truth of the defendant’s theory.” Id. (quoting People v. Fuller, 781 P.2d 647, 651 (Colo. 1989)); see also People v. Speer, 255 P.3d 1115, 1119 (Colo.
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2011) (“[A] trial court is obliged to instruct the jury on a requested affirmative defense if there is any credible evidence, including even highly improbable testimony of the defendant himself, supporting it.” (emphases added)).
¶ 53 The People contend that “there was no scintilla of evidence” that the trio satisfied the elements of first or second degree assault, and therefore, an instruction under section 18-1-704(2)(c) was unnecessary. Specifically, the People argue there was no evidence that the trio either intended to cause serious bodily injury to Swainson by means of a deadly weapon or that Swainson was injured. See §§ 18-3-202(1)(a) to -203(1)(b). We disagree.
¶ 54 “Any object can be a deadly weapon if it is used in a manner capable of producing death or serious bodily injury.” People v. Saleh, 45 P.3d 1272, 1275 (Colo. 2002). “Body parts can be deadly weapons depending upon the manner in which they are used.” Id. “Whether an object is a deadly weapon does not depend upon the ultimate result of an object’s use. The statute does not require that the object actually cause serious bodily injury; rather, it must be ‘capable of producing’ such injury.” Id. (emphasis added) (quoting § 18-1-901(3)(e), C.R.S. 2025). Thus, a fist or foot can be a deadly
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weapon. See id. at 1275-76; People v. Hayes, 923 P.2d 221, 227 (Colo. App. 1995).
¶ 55 Furthermore, section 18-3-203(1)(b) says that a person commits second degree assault if the person intends to cause bodily injury to another person and causes such injury by means of a deadly weapon. A low bar, “‘[b]odily injury’” means physical pain, illness, or any impairment of physical or mental condition.” § 18-1-901(1)(c).
¶ 56 Under section 18-3-203(1)(b), there is sufficient evidence to show that Swainson could have reasonably believed that the trio was committing or about to commit second degree assault. Swainson testified that, after he refused to give Israel his cash, Israel hit him and the trio “beat [him] up,” that they “kicked [him] in [his] head,” and that he was “in fear for [his] life.” Swainson’s testimony provides some evidence that the trio used deadly weapons — their fists and feet — against him and by punching him and “kick[ing] [him] in the side of the head . . . [m]ultiple times.” The evidence shows that the trio’s feet were capable of causing Swainson serious bodily injury, as well as the trio’s intent to cause Swainson bodily injury. See § 18-3-203(1)(b). Although there is no
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separate evidence regarding Swainson’s injury, we can infer from Swainson’s testimony that he sustained “bodily injury” and that the fight with the trio caused him “physical pain.” § 18-3-203(1)(b); § 18-1-901(1)(c). Accordingly, Swainson could have reasonably believed that the trio was committing at least a second degree assault before he pulled out his knife — and it will be his burden on remand to demonstrate that any lesser degree of force was inadequate. There was, however, at least “a scintilla of evidence” sufficient to entitle him to an affirmative defense instruction under section 18-1-704(2)(c). See Galvan, ¶ 24, 476 P.3d at 754 (quoting People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo. 1998)); Speer, 255 P.3d at 1119. Thus, the court erred by declining to give such an instruction.
4. The Trial Court’s Error in Not Giving an Instruction Under Section 18-1-704(2)(c)
Was Not Constitutionally Harmless
¶ 57 We now turn to whether the court’s error requires reversal under the constitutional harmless error standard. Because we cannot say that declining to give such an instruction was “harmless beyond a reasonable doubt,” we conclude that the error was
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reversible. Coahran, ¶ 16, 436 P.3d at 621 (quoting Hagos, ¶ 11, 288 P.3d at 119).
¶ 58 Under section 18-1-704(2), deadly force may be used if the conditions of either section 18-1-704(2)(a) or 18-1-704(2)(c) are met. The People argue that any error was harmless because “the jury could not have acquitted [Swainson] under section [18-1-704](2)(c) . . . without reaching the same conclusion under section [18-1-704](2)(a).” We disagree because of the material differences between those statutes.
¶ 59 Section 18-1-704(2)(a) allows defendants to use deadly physical force if they believe they are in imminent danger of “receiving great bodily injury.” (Emphasis added.) In contrast, section 18-1-704(2)(c) allows the use of deadly force if the assailant committed or was reasonably about to commit first or second degree assault, which require an “intent to cause serious bodily injury,” § 18-3-202(1)(a) (first degree assault) (emphasis added), and an “intent to cause bodily injury,” § 18-3-203(1)(b) (second degree assault) (emphasis added).
¶ 60 “[G]reat bodily injury,” § 18-1-704(2)(a), and “serious bodily injury,” § 18-3-202(1)(a), are indistinguishable. People v. Reed, 695
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P.2d 806, 808 (Colo. App. 1984). Accordingly, the jury could not have acquitted Swainson under section 18-1-704(2)(c) on the grounds that the trio was committing or reasonably appeared to commit first degree assault without also acquitting him under section 18-1-704(2)(a).
¶ 61 Thus, any error in declining to give an instruction regarding self-defense against first degree assault was harmless. This conclusion does not necessarily mean that the trial court’s error in not giving an instruction regarding self-defense against second degree assault was harmless, however.
¶ 62 Although some subsections of section 18-3-203(1) require serious bodily injury as an element of second degree assault, thus making an instruction under only section 18-1-704(2)(a) harmless, not all subsections do. Section 18-3-203(1)(b) requires the assailant to intend to, and cause, mere “bodily injury” with a deadly weapon. (Emphasis added.) “‘Bodily injury’ differs in degree from ‘serious bodily injury.’” Reed, 695 P.2d at 808 (quoting People v. Benjamin, 591 P.2d 89, 91 (Colo. 1979)). As discussed above, supra Part II.B.3, “[b]odily injury” is a low bar. § 18-1-901(1)(c). By contrast,
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“[s]erious bodily injury” means bodily injury that, either at the time of the actual injury or at a later time, involves a substantial risk of death; a substantial risk of serious permanent disfigurement; a substantial risk of protracted loss or impairment of the function of any part or organ of the body; or breaks, fractures, a penetrating knife or penetrating gunshot wound, or burns of the second or third degree.
§ 18-1-901(3)(p).
¶ 63 Under section 18-1-704(2)(c), Swainson needed to prove only that one or more members of the trio “intend[ed] to cause [bodily injury] to [him]” and “cause[d] such [physical pain . . . or any impairment of physical or mental condition] by means of a deadly weapon.” § 18-1-704(2)(c); § 18-3-203(1)(b) (emphasis added). As discussed above, supra Part II.B.3, the trio’s fists and feet sufficed as deadly weapons. And, similarly, we can infer from Swainson’s testimony that he sustained bodily injury from the trio’s attack.
¶ 64 At oral argument, the People asserted that a fist or foot can only be deemed a “deadly weapon” under section 18-3-202(1)(b) if the defendant reasonably believed, and in fact believed, that the fist or foot was being used, or would imminently be used, to cause death or to inflict serious bodily jury. But this interpretation cannot be squared with section 18-3-203(1)(b)’s reference to “intent
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to cause bodily injury.” Furthermore, the definition of “deadly weapon” in section 18-1-901(3)(e) does not require that the weapon actually “cause” death or serious bodily injury, but, as explained, supra Part II.B.3, it must be “capable of producing death or serious bodily injury.” § 18-1-901(3)(e)(II) (emphasis added). Section 18-1-704(2)(c), coupled with section 18-3-202(1)(b), justifies the use of deadly force in response to a second degree assault even when the defendant does not reasonably believe he is in imminent danger of being killed or receiving serious bodily injury from punches and kicks.
¶ 65 The trial court lowered the prosecution’s burden of disproving Swainson’s affirmative defense by declining to instruct the jury that Swainson was justified in using deadly force if he “reasonably believed” that any member of the trio intended to and was about to cause him bodily injury by means of a deadly weapon. See § 18-3-203(1)(b). And the jury could have concluded from the evidence that Swainson was justified in using deadly physical force against the trio because he reasonably believed that they were committing or about to commit second degree assault. Accordingly, the jury could have acquitted him under section 18-1-704(2)(c) even
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if it concluded that he was not entitled to use deadly physical force under section 18-1-704(2)(a).
¶ 66 We therefore conclude that the trial court’s error in not giving a self-defense instruction tailored to the elements of second degree assault was not harmless beyond a reasonable doubt. See Coahran, ¶ 16, 436 P.3d at 621.
C. Nondeadly Self-Defense Instruction
¶ 67 We next consider Swainson’s contention that the trial court erred by refusing to instruct the jury on “ordinary, nondeadly force” in connection with the second degree murder count. We disagree.
1. Standard of Review
¶ 68 Swainson did not preserve his argument regarding the “ordinary, nondeadly force” instruction. “We review all unpreserved nonstructural errors, including errors in jury instructions, for plain error.” People v. Ramcharan, 2024 COA 110, ¶ 52, 562 P.3d 425, 435.
¶ 69 An error is obvious if it is “so clear-cut” that “a trial judge should be able to avoid it without benefit of objection.” People v. Crabtree, 2024 CO 40M, ¶ 42, 550 P.3d 656, 667 (quoting Romero v. People, 2017 CO 37, ¶ 6, 393 P.3d 973, 976). Consequently, an
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error is obvious if it “contravene[d] a clear statutory command, a well-settled legal principle, or established Colorado case law.” Id. An error is substantial if it “so undermined the fundamental fairness of the [proceeding] itself as to cast serious doubt on the reliability” of the outcome. Id. at ¶ 43, 550 P.3d at 667 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)).
¶ 70 But we apply the plain error doctrine only if we determine that the trial court erred. See Hagos, ¶ 14, 288 P.3d at 120 (explaining that the court reviews unpreserved errors for plain error).
2. The Trial Court Did Not Err by Declining to Give an Instruction on Nondeadly Force
¶ 71 As explained, supra Part II.B.3, deadly physical force is justified only if a lesser degree of force would be inadequate and the relevant requirements of section 18-1-704(2)(a) through (c) are satisfied. § 18-1-704(2). “Deadly physical force” means “force, the intended, natural, and probable consequence of which is to produce death, and which does, in fact, produce death.” § 18-1-901(3)(d).
¶ 72 By contrast, “nondeadly” physical force is justified when a person uses “physical force” against another person “in order to defend himself or a third person from what he reasonably believes
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to be the use or imminent use of unlawful physical force by that other person,” and, if nondeadly physical force is justified, the person “may use a degree of force which he reasonably believes to be necessary for that purpose.” § 18-1-704(1).
¶ 73 Swainson relies on People v. Vasquez, 148 P.3d 326, 330 (Colo. App. 2006), for the proposition that when “the evidence is disputed as to whether the defendant used deadly or nondeadly force, the jury should be instructed on both.” The Colorado Supreme Court, however, overruled Vasquez in People v. Opana, 2017 CO 56, ¶¶ 10, 16, 395 P.3d 757, 761-62, explaining that
objectively, as it is, the assessment whether or not physical force arguably used in self-defense constituted “deadly physical force”
ceases to be a matter for the jury only where the credible evidence permits no other finding than that the physical force used by the defendant would normally be expected to, and in fact did, produce death.
(Emphases added.) Thus, a defendant is not entitled to a nondeadly force self-defense instruction if “there was no evidence from which the jury could have found that the defendant’s use of physical force upon the victim was anything other than deadly physical force.” Id. at ¶ 17, 395 P.3d at 762.
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¶ 74 So, under Opana, we do not consider whether Swainson intended to kill Israel; we instead consider whether, objectively, Israel’s death was “the consequence that would normally or typically be intended” from wildly swinging a knife during the altercation. Id. at ¶ 16, 395 P.3d at 762.
¶ 75 Under Opana’s objective standard, therefore, it is irrelevant whether, as Swainson argues, some of the Casillas brothers’ stab wounds did not result in death, or that Swainson meant only to “scare, injure, or incapacitate.” Instead, the inquiry is whether, objectively, swinging a knife “wildly” would “normally or typically” result in death and did result in death. Id.
¶ 76 We conclude that swinging a knife at close range during an altercation constituted the use of deadly force. Death is a probable consequence of such conduct. And “normally or typically,” stabbing someone in the back of the head or neck would be expected to cause death, as it did here.
¶ 77 Accordingly, we conclude that the trial court did not abuse its discretion by refusing to give a nondeadly force self-defense instruction. Swainson’s use of the knife “could not reasonably be characterized as anything other than force, the intended, natural,
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and probable consequence of which was to produce death,” and there was “no dispute” that Levi died as a result of the stab wounds that Swainson inflicted on him. Id. at ¶ 17, 395 P.3d at 762.
D. Swainson’s Other Contentions
¶ 78 In light of our reversal of Swainson’s convictions and remand for a new trial, we do not need to address Swainson’s contentions regarding the multiple assailants instruction, the trial court’s alleged evidentiary errors, cumulative error, his habitual criminal conviction, and his sentence. “We cannot say if, how, or in what context” those issues will arise on retrial. See People v. Espinosa, 2020 COA 63, ¶ 28, 465 P.3d 114, 120; People v. Payne, 2014 COA 81, ¶ 31, 361 P.3d 1040, 1046 (“[B]ecause defendant’s sentence is vacated and the case is remanded for a new trial, we need not reach defendant’s contention that his sentence under the habitual criminal statute was unconstitutionally disproportionate.”).
III. Disposition
¶ 79 The judgment of conviction is reversed, and the case is remanded for a new trial.
JUDGE YUN and JUDGE SCHUTZ concur.