23CA0332 Peo v Tatom 09-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0332 Mesa County District Court No. 21CR1831 Honorable Matthew D. Barrett, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael Tyler Tatom,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE BROWN Dunn and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 4, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael Tyler Tatom, appeals the judgment of
conviction entered on a jury verdict finding him guilty of first degree
burglary, second degree assault, and third degree assault. Tatom
contends that (1) the district court erred by ruling midtrial that it
would not instruct the jury on self-defense based solely on the
prosecution’s evidence; (2) the prosecutor committed misconduct in
closing argument; and (3) the court should have merged the assault
convictions into the burglary conviction. We agree with Tatom’s
merger argument, so we vacate his assault convictions and remand
for the district court to correct the mittimus accordingly. We
otherwise affirm.
I. Background
¶2 In December 2021, an exterior camera captured Tatom
walking toward and knocking on Michael Sorrell’s front door.
Before anyone answered, Tatom walked away. Sorrell testified that
he heard a “loud bang on [his] door,” so he grabbed his gun and
went outside to look around. Sorrell said that he saw Tatom across
the street yelling something at him but did not pay Tatom any
attention. Sorrell also said that he did not raise his gun. The
1 exterior camera did not capture what happened after Sorrell
stepped outside.
¶3 As reflected in the interior camera footage, Sorrell calmly
walked back inside his home and shut and locked his door. He
walked across his living room and back toward the front door while
looking at his phone. Then he went into his kitchen. The exterior
camera footage shows Tatom walking back up to Sorrell’s door after
the interior camera footage shows Sorrell walking into his kitchen.
At that point, Sorrell said he heard the “front door coming in,” so he
ran to the front door and tried to shoot through the window, but his
pistol did not fire.
¶4 Twenty-six seconds after Sorrell re-entered his home, the
interior camera footage shows that Tatom broke down the door and
slammed Sorrell into a wall. Then Tatom chased Sorrell out of view
of the interior camera and into the kitchen where Sorrell said Tatom
choked him. During the struggle, Sorrell’s gun went off at least
three times, and Sorrell was shot in the hand.
¶5 Eventually, Tatom left Sorrell on the ground and said, “Fuck
you. You’re gonna die. You’re bleedin’ out anyways.” Sorrell went
outside to his neighbor’s house with the gun. Tatom followed
2 Sorrell, walking slowly and then pausing on Sorrell’s front porch.
When the neighbors gathered, Tatom approached and yelled at
Sorrell to give him the gun. Tatom hit one of Sorrell’s neighbors
and then walked away.
¶6 Several police officers responded to the scene. When Deputy
Lee Pratt arrived, he saw Tatom walking in the street. Deputy Pratt
asked Tatom to stop, but he was uncooperative. The deputy tased
Tatom, had medical staff treat him, and put him in the back of a
patrol vehicle in handcuffs. Tatom later tried to leave the patrol
vehicle, and the officers had to forcibly put him back.
¶7 As captured on body camera footage, Tatom told Deputy Pratt
that Sorrell came outside waving his gun and threatening to shoot
Tatom. Tatom said that as soon as he started coming toward
Sorrell, Sorrell ran inside and tried to lock himself in his house, but
at that point, Tatom had “already bum-rushed the door” and “jarred
it open.” Tatom did not deny breaking down Sorrell’s door and
assaulting him but said he was defending himself.
¶8 The prosecution charged Tatom with first degree burglary,
second degree assault, third degree assault, criminal mischief, and
3 obstructing a peace officer. A jury convicted Tatom as charged.1
The court sentenced Tatom to eight years in the custody of the
Department of Corrections for each of the burglary and second
degree assault convictions, to be served concurrently with each
other and with the other sentences.
II. Self-Defense Instruction
¶9 Tatom contends that the district court erred when it ruled
midtrial that a self-defense instruction was not warranted based on
the prosecution’s evidence alone. We are not persuaded.
A. Standard of Review and Applicable Law
¶ 10 For a defendant to be entitled to an instruction on an
affirmative defense, there must be “some credible evidence” to
support it. Pearson v. People, 2022 CO 4, ¶ 16 (quoting
§ 18-1-407(1), C.R.S. 2025). We review de novo whether there was
sufficient evidence to support a self-defense jury instruction.
1 The prosecution also charged Tatom with third degree assault for
hitting the neighbor. At the close of the prosecution’s case, the district court granted Tatom’s motion for judgment of acquittal on that charge based on the neighbor’s testimony that he was not harmed. Tatom does not appeal his convictions or sentences for criminal mischief or obstructing a peace officer.
4 People v. Newell, 2017 COA 27, ¶ 19. And in doing so, “we consider
the evidence in the light most favorable to the defendant.” Id.
¶ 11 “The small quantum of evidence that must appear in the
record in order to warrant an instruction on an affirmative defense
may come from any source, even from the prosecution.” Id. at ¶ 21;
see also § 18-1-407(1) (“‘Affirmative defense’ means that unless the
state’s evidence raises the issue involving the alleged defense, the
defendant, to raise the issue, shall present some credible evidence
on that issue.”). But “whether there is credible evidence to support
each element of an affirmative defense is a question for the court
rather than the jury.” People v. Speer, 255 P.3d 1115, 1119 (Colo.
2011); see also People v. Hill, 934 P.2d 821, 826 (Colo. 1997) (“If a
trial court determines as an issue of law[] that no evidence exists in
the record to support an affirmative defense, there is no issue of
fact for the jury to resolve.”).
¶ 12 Under Colorado law,
a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force
5 which he reasonably believes to be necessary for that purpose.
§ 18-1-704(1), C.R.S. 2025. The “touchstone of self-defense” is a
“[r]easonable belief that one is defending against the use of unlawful
force,” and “there must be evidence from which the jury could
determine that the defendant held such a reasonable belief.” People
v. Suazo, 867 P.2d 161, 169 (Colo. App. 1993). Under these
circumstances, a reasonable person “means an objectively
reasonable individual.” People v. Luna, 2020 COA 123M, ¶ 26.
¶ 13 A person is not justified in using force in self-defense if they
are the initial aggressor — the one who initiated the physical
conflict — unless they first retreat and the non-aggressor continues
or threatens the use of unlawful physical force. § 18-1-704(3)(b);
see Castillo v. People, 2018 CO 62, ¶ 41; People v. Toler, 9 P.3d 341,
351-52 (Colo. 2000). On the other hand, a non-aggressor has “no
duty to retreat” before using force in self-defense. Toler, 9 P.3d at
351-52. But if the initial aggressor withdraws from the encounter
and effectively communicates that withdrawal, then “the original
non-aggressor becomes the aggressor when the original
non-aggressor ‘continues or threatens the use of unlawful physical
6 force.’” Castillo, ¶ 43 (quoting § 18-1-704(3)(b)). When the original
non-aggressor becomes the aggressor, they are “no longer entitled
to act in self-defense.” People v. Goedecke, 730 P.2d 900, 901 (Colo.
App. 1986); see also People v. Sepeda, 581 P.2d 723, 730-31 (Colo.
1978) (Although a defendant “need not retreat to the wall before
defending himself, [and] may stand his ground and even, in some
circumstances, pursue his assailant until the assailant has been
disarmed or otherwise deterred from his violent purpose,” the
defendant may not rely on that rule “when he is no longer under
attack, but has himself become the assailant.” (citing Almond v.
People, 135 P. 783, 784 (Colo. 1913))).
B. Additional Background
¶ 14 When the prosecution rested, defense counsel asked the
district court to instruct the jury on self-defense based on the
prosecution’s evidence. Counsel argued that Tatom “made
statements to the police officers that he went after Mr. Sorrell”
because “Sorrell pointed a gun at him [and] threatened him” and
that Tatom “broke down the door in an attempt to disarm Mr.
Sorrell.” The prosecutor responded that Tatom’s version of events
was “so improbable,” emphasizing that it was unclear when the
7 alleged threat occurred based on Tatom’s statements in the
bodycam footage and that there was “a break in time.”
¶ 15 The court noted that the last witness the prosecution
presented was an investigator who said that Tatom told him that
Sorrell “didn’t have time to lock that door because I was on his ass.”
The court reasoned that the investigator’s testimony “indicated that
[Tatom] was literally chasing [Sorrell] as he’s going into the house.
Chasing him because he had threatened him with a gun.” But the
prosecutor responded that “[t]he threat component [Tatom’s] talking
about [is] minutes, and I mean minutes before that.”
¶ 16 The court reviewed the interior and exterior camera footage
again and determined that the footage showed Sorrell “calmly”
walking into his home, turning around, and deadbolting the door.
Then, after “[twenty-six] full seconds, almost half a minute between
whatever happened outside and Mr. Sorrell going back inside his
home, closing the door and dead bolting it,” Tatom broke down the
door. The court ruled,
Under these circumstances, there can be no reasonable belief on the part of anyone, including [Tatom], that he needed to act in self-defense from any imminent use of unlawful force upon him by Mr. Sorrell, period.
8 That is far too long of a break in time for there to be a justification for [the] affirmative defense to be used, particularly under the circumstances here where [Tatom] is breaking into someone’s home.
¶ 17 Tatom testified in his defense. At the conclusion of the
evidence, Tatom renewed his request for a self-defense instruction,
the prosecutor did not object, and the court agreed to instruct the
jury on self-defense.
C. The District Court Did Not Err by Ruling that Tatom Was Not Entitled to a Self-Defense Instruction Based on the Prosecution’s Evidence
¶ 18 Tatom contends that the district court erred by concluding
that there was insufficient evidence at the close of the prosecution’s
case to support a self-defense instruction. As an initial matter, the
parties dispute whether Tatom was entitled to an advisory midtrial
ruling and whether we should review his contention at all since he
elected not to stand on his motion but to present additional
evidence. But because we conclude that the court did not err, we
need not resolve these disputes.
¶ 19 Tatom was charged with burglary and two counts of assault
for breaking down Sorrell’s door, choking him, and causing Sorrell
to be shot in the hand. Tatom’s version of events — told through
9 Deputy Pratt’s bodycam footage introduced during the prosecution’s
case — was that Sorrell waved his gun and threatened Tatom
outside, so Tatom chased Sorrell into his own home to disarm him.
Crediting Tatom’s story, Sorrell was the initial aggressor, and Tatom
was the original non-aggressor. Under these circumstances, Tatom
may have been legally justified in initially advancing at and
disarming Sorrell to defend himself. See Sepeda, 581 P.2d at
730-31.
¶ 20 But even according to Tatom, after Sorrell made the initial
threat, he ran back inside his own home and at least tried to lock
the door. Once Sorrell fled as Tatom described, any reasonable
belief Tatom had that Sorrell would use unlawful physical force
against him dissipated. See § 18-1-704(1); see also § 18-1-705,
C.R.S. 2025 (authorizing use of reasonable and appropriate
physical force to prevent unlawful trespass upon a premises). And
once Sorrell withdrew from the encounter and effectively
communicated that withdrawal by running back inside his home,
Tatom became the aggressor by continuing to pursue Sorrell,
breaking down his door, and physically attacking him. See
10 § 18-1-704(3)(b); Castillo, ¶ 43. When Tatom became the aggressor,
he lost the right to claim self-defense. Goedecke, 730 P.2d at 901.
¶ 21 Under these circumstances, Tatom was not entitled to a
self-defense instruction. See Sepeda, 581 P.2d at 731 (concluding
that a self-defense instruction was “totally irrelevant” when it was
undisputed that a “fight ended no later than when [the] defendant
fired into the crowd,” yet the defendant “continued to fire at his
unarmed and apparently helpless foe”); State v. Knotts, 421 S.E.2d
917, 924 (W. Va. 1992) (the defendant became “the physical
aggressor and lost any privilege of self-defense” when the initial
aggressor victim retreated to his truck and then into the woods, and
the defendant followed the victim and killed him); People v.
Huddleston, 530 N.E.2d 1015, 1025-26 (Ill. App. Ct. 1988) (the
defendant was not entitled to claim self-defense when the victim
was the initial aggressor, the defendant shot the victim in the leg,
the victim tried to leave, and the defendant followed the victim to
the door, hit him on the head with a gun, and shot him again); cf.
Suazo, 867 P.2d at 169 (affirming the district court’s denial of a
defense of others instruction because no evidence supported “a
claim that [the defendant] reasonably believed that further violence
11 towards his mother was, under any definition, imminent” when the
victim, who had hit the defendant’s mother, was seeking medical
treatment after the “fracas that had taken place a few minutes
earlier”).
¶ 22 Moreover, Tatom’s claim that he was right behind Sorrell as
Sorrell entered his home, such that he was able to rush through the
door before Sorrell could close and lock it, was flatly contradicted by
the interior camera footage. That footage showed that Sorrell had
walked into his home, completely shut the door, locked it, and then
walked further inside the house before Tatom broke down the door.
Because the video evidence indisputably contradicted Tatom’s
timeline, the district court could conclude that such evidence was
not “credible evidence” supporting a self-defense instruction.
§ 18-1-407(1); see Speer, 255 P.3d at 1119; Hill, 934 P.2d at 826;
cf. People v. Liebler, 2022 COA 21, ¶¶ 21-25 (when considering the
sufficiency of the evidence for a conviction, the appellate court does
not have to accept as sufficient inaccurate testimony that is
indisputably contradicted by video evidence).
¶ 23 We are also not persuaded by Tatom’s argument that the court
“ignored evidence” that Sorrell pointed the gun at Tatom through
12 the window in the door “for several seconds” before Tatom entered
the home. The interior camera footage shows the door of Sorrell’s
home being shoved open before Sorrell drew the gun. Sorrell’s
actions at that point — after Tatom started to break down his door
— cannot belatedly justify Tatom’s conduct as self-defense. See
§§ 18-1-704(1), -705; Goedecke, 730 P.2d at 901.
¶ 24 Even viewing the evidence in the light most favorable to
Tatom, see Newell, ¶ 19, we cannot conclude that any credible
evidence from the prosecution’s case supported a self-defense
instruction, see Pearson, ¶ 16.2
III. Prosecutorial Misconduct
¶ 25 Tatom contends that the district court plainly erred by
allowing the prosecutor to commit misconduct during closing
argument. Although some of the prosecutor’s remarks may have
been improper, we conclude that they do not amount to reversible
misconduct.
2 We express no opinion on whether the district court correctly
instructed the jury on self-defense at the close of all the evidence. Tatom prevailed on his ultimate request for such an instruction, the prosecution did not oppose it, and the People did not cross-appeal the issue as a matter of law.
13 A. Standard of Review
¶ 26 We engage in a two-step analysis when reviewing claims for
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
Second, we decide whether such actions warrant reversal under the
proper standard. Id.
¶ 27 While prosecutors can use every legitimate means to bring
about a just conviction, they have a duty to avoid using improper
methods designed to obtain an unjust result. Domingo-Gomez v.
People, 125 P.3d 1043, 1048 (Colo. 2005). We evaluate claims of
improper argument in the context of the argument as a whole and
in light of the evidence before the jury. People v. McMinn, 2013 COA
94, ¶ 60.
¶ 28 Because Tatom did not object to the prosecutor’s remarks at
trial, we review for plain error. People v. Garner, 2015 COA 175,
¶ 34, aff’d, 2019 CO 19. For an error to be plain, it must be both
obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14. “To
constitute plain error, prosecutorial misconduct must be flagrant or
glaringly or tremendously improper, and it must so undermine the
14 fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.” McMinn, ¶ 58.
“Prosecutorial misconduct in closing argument rarely constitutes
plain error.” People v. Smalley, 2015 COA 140, ¶ 37.
B. The Prosecutor’s Remarks Did Not Amount to Reversible Misconduct
¶ 29 Tatom contends that the prosecutor improperly argued that he
could not claim self-defense because he did not retreat or call 911.
Even if the prosecutor’s remarks stretched the boundary of proper
argument, we conclude that the district court did not plainly err by
not sua sponte correcting those remarks.
¶ 30 In Colorado, “a non-aggressor may assert self-defense without
(1) considering whether a reasonable person would retreat to safety
rather than resorting to physical force, or (2) actually retreating
from an attack even if [they] could safely do so.” People v. Monroe,
2020 CO 67, ¶ 19. But an initial aggressor must retreat before
using force in self-defense. Id. Accordingly, a prosecutor may
argue about a defendant’s “decision to enter the fray” and whether
such a decision makes him the initial aggressor. Id. at ¶ 28. But a
prosecutor may not argue that a defendant’s failure to retreat
15 “undermines the reasonableness” of a claim of self-defense because
such an argument “would cripple the no-duty-to-retreat rule.” Id.
at ¶ 30.
¶ 31 During closing argument, while discussing the
“reasonableness” of Tatom’s belief that he needed to defend himself
from Sorrell, the prosecutor referenced Tatom’s testimony that “he
did not have enough time to call 911.” The prosecutor argued,
A question was posed well, why didn’t Mr. Tatom call 911? And Mr. Tatom’s response was . . . I didn’t have time. So, the first knock I submit to you, again less of a knock and more of a bang. And three minutes later, Mr. Tatom is coming through . . . Mr. Sorrell’s door. So, three minutes and you didn’t have time to call 911? Turning back to reasonableness, a person in his shoes, how would they reasonably react? I submit [to] you a reasonable person who has minutes would call 911. Especially thinking that this person has a gun, especially if he was so threatened and had minutes.
The prosecutor then argued that there were twenty seconds
between when Sorrell “stepped outside” and when Tatom “bum
rushed” the door, which was “[e]nough time to call 911.”
¶ 32 The prosecutor also discussed comments made during voir
dire regarding reasonableness and self-defense. The prosecutor
16 noted that one prospective juror had wondered why a person would
put themself “in harm’s way” and that another had said that “the
best choice is to get away.” The prosecutor said those “statements
are the statements and questions of a reasonable person.”
¶ 33 Tatom contends that the prosecutor’s remarks improperly
encouraged the jurors to reject his self-defense theory by
insinuating he should have retreated, contrary to Colorado law. To
be sure, the prosecutor did not expressly argue that Tatom was
obligated to retreat and failed to do so. Read in context, the
prosecutor’s remarks appear designed to encourage the jury to
question Tatom’s credibility based on his testimony that, despite
evidence to the contrary, he did not have enough time to call 911.
But by arguing that a reasonable person would have believed they
had enough time to call 911, the prosecutor implied that “retreat
was possible but not pursued.” Monroe, ¶ 30. And the prosecutor’s
recall of the voir dire comments also suggested that retreating was
the reasonable response. These remarks at least toed the line of
impropriety, if they did not cross it. Nevertheless, for three reasons
we conclude that the error was not “flagrant or glaringly or
tremendously improper” and did not “so undermine the
17 fundamental fairness of the trial as to cast serious doubt on the
¶ 34 First, during rebuttal closing, the prosecutor argued, “[I]t is
not reasonable to believe you’re inside your house behind a locked
door and someone bum rushes your door, and they’re going to
claim self-defense. Makes absolutely no sense. You should find
Mr. Tatom guilty because he had aggression. He was the initial
aggressor. He started this.” The prosecutor thus reframed her
argument in rebuttal and made it about Tatom’s status as the
initial aggressor — his decision to enter the fray — rather than
focusing on the reasonableness of his decision not to retreat. See
Monroe, ¶ 28; see also Domingo-Gomez, 125 P.3d at 1052 (“Rebuttal
closing is the last thing a juror hears from counsel before
deliberating, and it is therefore foremost in their thoughts.”).
¶ 35 Second, Monroe is distinguishable. In that case, the
prosecutor commented directly on the defendant’s failure to retreat
five times, and “each statement directed the jury to consider [the
defendant’s] failure to retreat as relevant to whether [the defendant]
reasonably believed that [they] needed to act in self-defense.”
Monroe, ¶ 36. Here, the prosecutor’s comments were fleeting, and
18 she never directly referenced “retreat.” See People v. Walters, 148
P.3d 331, 335 (Colo. App. 2006) (“whether the misconduct was
repeated” is a relevant factor to determine if reversal is warranted).
¶ 36 Third, the court correctly instructed the jury that Tatom was
“legally authorized to use physical force upon another person
without first retreating” if certain conditions were met. (Emphasis
added.) See COLJI-Crim. H:11 (2021). We presume that the jurors
followed this instruction. People v. McKeel, 246 P.3d 638, 641
(Colo. 2010).
¶ 37 For these reasons, and viewing the prosecutor’s statements in
context, McMinn, ¶ 60, we conclude that any prosecutorial
misconduct was not plain, Hagos, ¶ 14.
IV. Merger
¶ 38 Tatom contends that his second and third degree assault
convictions should merge into his burglary conviction. The People
do not dispute that merger is required. We agree.
¶ 39 “Whether convictions for different offenses merge is a question
of law that we review de novo.” People v. Sims, 2020 COA 78, ¶ 37
(citing Page v. People, 2017 CO 88, ¶ 6). “[I]f one offense is included
in another offense, a defendant may not be convicted of both
19 offenses.” Friend v. People, 2018 CO 90, ¶ 32; see § 18-1-408(1),
C.R.S. 2025. An offense is a lesser included one if it “is established
by proof of the same or less than all the facts required to establish
the commission of the offense charged.” § 18-1-408(5)(a).
¶ 40 Here, the second and third degree assault charges are lesser
included offenses of the first degree burglary charge because the
burglary was predicated on the assaults. People v. Delci, 109 P.3d
1035, 1037 (Colo. App. 2004) (“Because the predicate offense
charged here was assault, proof of the elements of burglary requires
proof of the elements of assault. Thus, assault is a lesser included
offense of first degree burglary, and the two counts merge.”); see
§§ 18-3-203(1)(i), 18-3-204(1)(a), 18-4-202(1), C.R.S. 2025.
Accordingly, we conclude that the assault convictions must merge
into the burglary conviction. See People v. Procasky, 2019 COA
181, ¶¶ 34, 36 (“The merger doctrine precludes conviction of both a
greater and lesser included offense”; in such a case, “the lesser
offense merges into the greater.”); People v. Torrez, 2024 COA 11,
¶¶ 52-57 (noting that the lesser included offenses should have
merged into one conviction and thus vacating the lesser included
convictions).
20 V. Disposition
¶ 41 We vacate the second and third degree assault convictions and
remand for the district court to merge those convictions into the
burglary conviction and to correct the mittimus accordingly. We
otherwise affirm the judgment of conviction.
JUDGE DUNN and JUDGE SCHOCK concur.