People v. Berumen

2025 COA 93

• Court: Colorado Court of Appeals
• Decided: December 11, 2025
• Docket: 23CA1435
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY December 11, 2025

2025COA93

No. 23CA1435, People v. Berumen — Criminal Law — Model Jury Instructions — Presumption of Innocence, Burden of Proof, and Reasonable Doubt

In this criminal appeal, the defendant appeals his conviction

for three counts of sexual exploitation of a child and one count of

invasion of privacy. The defendant contends that the trial court

committed structural error when it refused his request to give the

jury the well-worn and long-used reasonable doubt instruction, see

COLJI-Crim. E:03 (2021), instead giving the 2022 Colorado model

criminal jury instruction on reasonable doubt, see COLJI-Crim.

E:03 (2022). He contends that the language in the 2022 reasonable

doubt instruction lowered the prosecution’s burden of proof.

In a divided opinion, the majority of a division of the court of

appeals rejects the defendant’s jury instruction challenge,

concluding that the 2022 version of the model criminal jury instruction on reasonable doubt was an accurate statement of the

law and didn’t lower the prosecution’s burden of proof. The partial

dissent, however, would reach a contrary conclusion, particularly

with respect to the inclusion of the phrase “real possibility” in the

2022 reasonable doubt instruction, and would hold that the

inclusion of this language in the newer instruction lowers the

prosecution’s burden of proof, necessitating reversal.

Because the division also unanimously rejects the defendant’s

contention that the trial court’s refusal to give the jury a choice of

evils instruction necessitates reversal, the division affirms. COLORADO COURT OF APPEALS 2025COA93

Court of Appeals No. 23CA1435 City and County of Broomfield District Court No. 21CR67 Honorable Sean Finn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ever Ulises Berumen,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE WELLING Sullivan, J., concurs Berger*, J., concurs in part and dissents in part

Announced December 11, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Robert P. Borquez, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Ever Ulises Berumen, appeals his conviction for

three counts of sexual exploitation of a child and one count of

invasion of privacy. He contends that the trial court committed

structural error by refusing his counsel’s request to give the jury

the well-worn and long-used reasonable doubt instruction, see

COLJI-Crim. E:03 (2021), and instead giving the 2022 Colorado

model criminal jury instruction on reasonable doubt, see COLJI-

Crim. E:03 (2022). He contends that the language in the 2022

reasonable doubt instruction lowered the prosecution’s burden of

proof. Berumen also contends that the trial court’s refusal to give

the jury a choice of evils instruction necessitates reversal. Because

we aren’t persuaded by either contention, we affirm.

I. Background

¶2 In February 2021, Berumen, then twenty-two years old, met

K.D., then seventeen years old, through Snapchat. After chatting

on the app for a few days, the two met in person on February 22,

2021. Berumen, K.D., and one of Berumen’s friends drank together

at Berumen’s apartment. K.D. estimates that she drank at least ten

shots over a couple of hours.

1 ¶3 The three watched YouTube videos in the living room and then

in the bedroom. Eventually, Berumen gave K.D. clothes to sleep in

and the friend went back into the living room. Berumen and K.D.

lay in bed for a while, then the two started kissing and having sex.

¶4 K.D. blacked out while they were having sex. While K.D.

drifted in and out of consciousness, Berumen invited his friend into

the bedroom to have sex with K.D. Using his phone, Berumen video

recorded both him and his friend having sex with K.D.

¶5 The conduct continued until two or three in the morning on

February 23, 2021, and Berumen summoned a ride home for K.D.

After K.D. left his home, Berumen downloaded the video of K.D. and

his friend having sex from Snapchat to his phone’s camera roll and

texted it to a group chat. Berumen then deleted the video from his

phone.

¶6 Once K.D. arrived home, she was so intoxicated that she

couldn’t walk, so her mother contacted the police. During her

police interview with Detective David Hiatt and Detective Aaron

Coleman, K.D. reported that she had been sexually assaulted and

that Berumen had recorded the incident on his phone.

2 ¶7 Starting shortly before midnight on February 23, Detective

Hiatt interviewed Berumen about the allegations. During the

interview, Detective Hiatt said that K.D. was seventeen and told

Berumen that she had accused him of sexual assault. Berumen

denied knowing K.D.’s age and having had sex with her. Berumen

turned over his phone to police near the end of the interview, and

he was released in the early hours of February 24.

¶8 Later on February 24, Berumen purchased a new Android

phone and downloaded Snapchat onto it. Two days later, on

February 26, 2021, he redownloaded the videos of him and his

friend having sex with K.D. from Snapchat to his Android.

Berumen stored the Android in his car’s glove compartment and

didn’t use it thereafter, instead purchasing and using a new iPhone.

¶9 In March 2021, Berumen was arrested on two charges of

sexual assault and two charges of sexual exploitation of a child.

While in jail, Berumen had his parents retrieve from his car the

Android with the videos of him and his friend having sex with K.D.

In April 2021, Berumen’s parents turned over the Android to his

attorney. About six months after that — in or around October

2021 — Berumen’s attorney turned the Android over to the police,

3 and Berumen gave the police consent to search it. During the

search of the Android, police found two videos of K.D. — one of her

having sex with Berumen and another of her having sex with

Berumen’s friend.

¶ 10 In March 2023, the prosecution moved to dismiss the sexual

assault charges and add one additional charge of sexual

exploitation of a child. Thus, entering trial, Berumen was charged

with three counts of felony sexual exploitation of a child. The

charges broke down as follows:

1. sexual exploitation of a child (causing sexual conduct for

a performance of a child) in violation of section 18-6-

403(3)(d), (5)(a), C.R.S. 2025, a class 3 felony, for conduct

on or about February 23, 2021 (performance charge);

2. sexual exploitation of a child (possession with intent to

distribute) in violation of section 18-6-403(3)(c), (5)(a), a

class 3 felony, for conduct on or about February 23, 2021

(intent to distribute charge); and

3. sexual exploitation of a child (possession or control of a

video for any purpose) in violation of section 18-6-

4 403(3)(b.5), (5)(b)(II), a class 4 felony,1 for conduct on

days between and including February 23, 2021, and

March 7, 2021 (possession of a video charge).

¶ 11 Knowledge that K.D. was under eighteen years old was an

element of all three sexual exploitation of a child charges. At trial,

Berumen pursued a mistake of age defense, arguing that he didn’t

know K.D. was only seventeen years old. Berumen’s counsel also

requested an instruction on a choice of evils defense with respect to

the possession of a video charge, arguing that Berumen

redownloaded and retained possession of the video only to avoid the

greater harm of being falsely accused of and charged with sexual

assault. The court refused to give the jury such an instruction.

¶ 12 Following trial, the jury found Berumen guilty on all three

sexual exploitation of a child charges, plus a lesser nonincluded

offense of misdemeanor invasion of privacy. The trial court

sentenced Berumen to five years of probation with additional

conditions of supervision for adult sex offenders.

1 The possession or control charge under section 18-6-403(3)(b.5),

C.R.S. 2025, was enhanced from a class 5 felony to a class 4 felony because the sexually exploitative material was a video. See § 18-6- 403(5)(b)(II).

5 II. Analysis

¶ 13 Berumen raises two issues on appeal. First, he contends that

the trial court erred by using the 2022 model reasonable doubt jury

instruction from the Colorado Supreme Court Model Criminal Jury

Instructions Committee (instructions committee). Second, he

contends that the trial court erred by refusing to give the jury a

choice of evils instruction. We address and reject both contentions

in turn.

A. Beyond a Reasonable Doubt Standard

¶ 14 Berumen contends that the trial court improperly instructed

the jury on the definition of “reasonable doubt.” Specifically,

Berumen argues that the court’s use of the 2022 model jury

instruction for the presumption of innocence, burden of proof, and

definition of reasonable doubt was improper because the language

in the instruction has been rejected by other jurisdictions, the 2021

model instruction had a long history of acceptance, and the

6 committee decision to change the instruction was controversial. We

disagree that the trial court reversibly erred.2

1. Additional Facts

¶ 15 Trial in this case took place in April 2023. A few months prior,

on December 9, 2022, the instructions committee promulgated a

new 2022 model instruction defining reasonable doubt. See COLJI-

Crim. E:03 (2022); Colo. Jud. Branch, Model Crim. Jury

Instructions Comm., Meeting Minutes of: Friday, December 9, 2022,

https://perma.cc/6WXQ-29Y8.

¶ 16 Notwithstanding the newly promulgated 2022 model

instruction, Berumen asked the trial court to give the COLJI-Crim.

E:03 (2021) instruction on reasonable doubt, which defines

reasonable doubt as follows:

Reasonable doubt means a doubt based upon reason and common sense which arises from a

2 The Colorado Supreme Court has granted certiorari in Teran-

Sanchez v. People, (Colo. No. 25SC148, Sept. 2, 2025) (unpublished order), to address whether the definition of reasonable doubt in the 2023 model instruction violates a defendant’s rights to due process and a fair trial. We recognize that an opinion in Teran-Sanchez is likely to resolve most, if not all, of the challenges to the reasonable doubt instruction advanced by Berumen. But because Teran- Sanchez has yet to be fully briefed, much less announced, we are issuing our opinion without the Colorado Supreme Court’s guidance.

7 fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

¶ 17 The court denied Berumen’s request and gave the then

newly-promulgated 2022 model instruction to the jury, which

reads, in pertinent part, as follows:

The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.

8 After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022).3

2. Standard of Review and Applicable Law

¶ 18 “An appellate court will review jury instructions de novo to

determine whether the instructions accurately informed the jury of

the governing law.” Riley v. People, 266 P.3d 1089, 1092 (Colo.

2011). We review a trial court’s decision to give, or not give, a

particular jury instruction for an abuse of discretion. People v.

Melara, 2025 COA 48, ¶ 16. “A trial court abuses its discretion

when its ruling is manifestly arbitrary, unreasonable, or unfair, or

when it misconstrues or misapplies the law.” People v. Vigil, 2024

COA 72, ¶ 19.

3 After the trial in this case, the instructions committee again

updated the reasonable doubt instruction, this time reinserting the reference to the “lack of evidence” by adding a new sentence that reads, “A reasonable doubt can be based on the evidence presented or the lack of evidence presented.” COLJI-Crim. E:03 (2023); see also People v. Schlehuber, 2025 COA 50, ¶ 18 & n.2 (explaining that this change was made “without explanation”); People v. Melara, 2025 COA 48, ¶ 15 (noting that “[t]he committee provided no rationale for the additional sentence”).

9 ¶ 19 “Due process guarantees to the criminal defendant that the

prosecution must prove every factual element necessary to

constitute the crime charged beyond a reasonable doubt before the

defendant may be convicted and subjected to punishment.” Vega v.

People, 893 P.2d 107, 111 (Colo. 1995); see also U.S. Const.

amend. XIV, § 1; Colo. Const. art. 2, § 25. While trial courts are

required to properly instruct the jury on the reasonable doubt

standard, they have flexibility in defining it. Johnson v. People,

2019 CO 17, ¶ 10. But “[i]nstructions that lower the prosecution’s

burden of proof below the reasonable doubt standard constitute

structural error and require automatic reversal.” Tibbels v. People,

2022 CO 1, ¶ 22. To determine if a trial court’s instruction lowered

the reasonable doubt burden, we look at the record as a whole and

“ask whether there is a reasonable likelihood the jury applied the

instructions in an unconstitutional manner.” People v. Garcia,

2021 COA 80, ¶ 26, aff’d, 2023 CO 30.

¶ 20 Model jury instructions are intended to be guidelines for trial

courts to consider. People v. Morales, 2014 COA 129, ¶ 42. They

are not, however, considered binding law, People v. Randolph, 2023

COA 7M, ¶ 22, aff’d, 2025 CO 44, nor are they “a safe harbor that

10 insulates instructional error from reversal,” Garcia v. People, 2019

CO 64, ¶ 22. We must review the use of a model jury instruction

just as we would any other jury instruction. See id. at ¶ 23.

3. Application

¶ 21 Berumen argues that the trial court erred by instructing the

jury using the 2022 model instruction. He takes specific issue with

the “firmly convinced” and “real possibility” language, as well as the

omission of an instruction for the jury to consider the lack of

evidence. We conclude that the trial court’s use of the 2022 model

instruction isn’t grounds for reversal.

a. Accurate Statement of Law

¶ 22 As an initial matter, we conclude that the 2022 model

instruction is an accurate statement of the law. While some of the

language included in the 2022 model instruction has faced criticism

in some jurisdictions, it has been accepted by divisions of this

court, with support from federal courts. See, e.g., People v.

Schlehuber, 2025 COA 50, ¶ 30 (collecting federal cases); Melara,

¶¶ 30-32. The division in Schlehuber explained,

The phrase “firmly convinced” correctly connotes a standard of “near certitude,” Jackson v. Virginia, 443 U.S. 307, 315

11 (1979) — one that is higher than “highly probable” but stops short of absolute certainty. See People v. Camarigg, 2017 COA 115M, ¶ 49 (noting distinction between “proof beyond a reasonable doubt and proof beyond all doubt”). And the phrase “real possibility” correctly directs the jury not to acquit the defendant simply because it can conceive of some fanciful possibility that the defendant is not guilty. [United States v.] Williams, 20 F.3d [125,] 131 [(5th Cir. 1994)]; see also Victor [v. Nebraska], 511 U.S. [1,] 17 [(1994)] (approving of instruction that a reasonable doubt is “not a mere possible doubt” because everything “is open to some possible or imaginary doubt”).

Schlehuber, ¶ 31. We agree with this reasoning. Accordingly, we

conclude that the 2022 model instruction is an accurate statement

of the law.

¶ 23 We aren’t persuaded otherwise by Berumen’s argument that

the inclusion of the phrases “firmly convinced” and “real possibility”

warrants reversal because courts in other jurisdictions have

criticized or rejected similar language. Berumen points to decisions

from the Hawaii Court of Appeals — State v. Perez, 976 P.2d 427

(Haw. Ct. App. 1998), aff’d in part and rev’d in part on other

grounds, 976 P.2d 379 (Haw. 1999) — and the Supreme Court of

Nebraska — State v. Putz, 662 N.W.2d 606 (Neb. 2003) — for the

proposition that the terms “firmly convinced” and “real possibility”

12 are problematic when used to define proof beyond a reasonable

doubt. We disagree.

¶ 24 We begin our consideration of this argument by looking to the

jurisdictions where the language has been criticized. The courts in

Perez and Putz both took issue with the “firmly convinced” language

because that language is strikingly similar to the definition of the

lower “clear and convincing” standard in their respective

jurisdictions, as both jurisdictions’ definitions for “clear and

convincing” include the phrase “produces a firm belief.” Perez, 976

P.2d at 442-43; Putz, 662 N.W.2d at 613. Because the “clear and

convincing” standard is lower than the “beyond a reasonable doubt”

standard, the court in Perez reasoned, the use of that phrase in

defining reasonable doubt lowered the prosecution’s burden of

proof. Perez, 976 P.2d at 443.

¶ 25 In Colorado, however, clear and convincing evidence is defined

as “evidence that is highly probable and free from serious or

substantial doubt.” Destination Maternity v. Burren, 2020 CO 41,

¶ 10 (citation omitted). Not only is the definition free of any

language similar to “firmly convinced,” but the 2022 model

instruction makes the distinction between the two standards clear.

13 The 2022 model instruction explicitly states that proof beyond a

reasonable doubt “requires more than proof that something is

highly probable.” COLJI-Crim. E:03 (2022) (emphasis added). “And

it requires the prosecution to dispel any ‘real possibility’ the

defendant is not guilty, not just a serious or substantial one.”

Schlehuber, ¶ 32 (citing COLJI-Crim. E:03 (2022)). Thus, even

assuming that a jury in a criminal case somehow becomes aware of

how this civil standard of proof is defined under Colorado law, the

“firmly convinced” language can’t be confused with the lower clear

and convincing evidence standard.

¶ 26 In raising concern about the “real possibility” language shifting

the burden of proof, the Perez and Putz courts relied on the

following quote from United States v. Porter, 821 F.2d 968, 973 (4th

Cir. 1987):

The district court did not explain the difference that it perceived between a “possibility” and a “real possibility.” It failed to tell the jury that the accused did not have the burden of showing a “real possibility” of innocence. Implying the evidence must show a real possibility of innocence to justify acquittal trenches on the principle that a defendant is presumed to be innocent. If the court believed that the jury could understand its concept of a “real possibility” and allocate the burden of

14 proof on this issue, there was no reason for it to question the jury’s ability to understand the prosecution’s obligation to prove the charges beyond a reasonable doubt.

¶ 27 Despite this concern, the Putz court concluded that the

subject jury instructions, read as a whole, didn’t shift the burden to

the defendant. Putz, 662 N.W.2d at 615. The Putz court pointed

out that the jury was instructed several times that the burden rests

with the prosecution and was told that this burden never shifts. Id.

¶ 28 Similarly, the jury instructions in Berumen’s trial repeatedly

instructed the jury that the prosecution has the burden of proof.

Instruction No. 4 said, “The burden of proof in this case is upon the

prosecution.” Instruction No. 15 made five references to the

prosecution bearing the burden of proof. Instruction No. 17

similarly made three references to the burden of proof being on the

prosecution. During voir dire, the trial court told the jury venire

that the burden belonged to the prosecution several times.

¶ 29 Although the trial court didn’t specifically tell the jurors that

the burden never shifts, it did tell them during voir dire that the

defendant doesn’t have the burden. Regardless, the “real

15 possibility” language doesn’t suggest any burden shifting, as

explained by the division in Schlehuber:

Nothing in that phrase suggests that the defendant must be “the source of the ‘real possibility.’” To the contrary, the district court repeatedly instructed the jury that the prosecution bears the burden of proving each element of the crime beyond a reasonable doubt. The “real possibility” language simply explained the threshold the prosecution must overcome to do so.

Schlehuber, ¶ 34 (citation omitted). Accordingly, we conclude that

the “real possibility” language doesn’t shift the burden of proof.

¶ 30 In summary, the reasons other jurisdictions reject the “firmly

convinced” and “real possibility” language aren’t present in

Colorado. Additionally, Colorado courts have found this language

to be a correct statement of the law that doesn’t shift the burden of

proof. With that, we conclude that the “firmly convinced” and “real

possibility” language doesn’t lower the prosecution’s burden of

proof.

b. Lack of Evidence

¶ 31 Berumen takes issue with the 2022 model instruction’s

omission of language directing the jury to consider the lack of

evidence, arguing that it should have been included in the

16 reasonable doubt instruction. To support his argument, Berumen

highlights that this court, like the United States Supreme Court,

has a long history of using model jury instructions that incorporate

the “lack of evidence” language. While this may be true, we aren’t

persuaded that the omission of this language requires reversal.

¶ 32 The Melara and Schlehuber divisions of this court addressed

the omission of “lack of evidence” language from the 2022 model

instruction. In both cases, the divisions considered whether the

omission in the 2022 model instruction required reversal. We agree

with both divisions that when instructing a jury on the beyond a

reasonable doubt standard, it’s best practice to instruct the jury to

consider the lack of evidence in the case. Melara, ¶ 24; Schlehuber,

¶ 20. Best practices aside, we also agree with both divisions that

the omission of the “lack of evidence” language doesn’t lower the

prosecution’s burden of proof. Schlehuber, ¶ 25; Melara, ¶ 32; see

Melara, ¶ 125 (Welling, J., specially concurring).

¶ 33 In reaching its conclusion, the Schlehuber division reasoned

that “the concept of reasonable doubt inherently invites jurors to

consider what evidence is missing.” Schlehuber, ¶ 21. Both

divisions noted that the omission of the “lack of evidence” language

17 “is not tantamount to a prohibition on doing so.” Melara, ¶ 32; see

Schlehuber, ¶ 21 (citing Melara, ¶ 32). The Schlehuber division

observed that the 2022 model instruction, read as a whole, bolsters

that conclusion by informing the jury that (1) the prosecution bears

the burden of proof; (2) the defendant is presumed innocent unless

the prosecution has met its burden; and (3) the jury must consider

“all the evidence” in making its final determination. Schlehuber,

¶ 22. We agree with the division in Schlehuber and, therefore,

conclude that the omission of the “lack of evidence” language

doesn’t lower the prosecution’s burden of proof. Accordingly,

reversal isn’t warranted.

B. Choice of Evils Defense

¶ 34 Berumen contends that the trial court improperly refused his

counsel’s request to instruct the jury on a choice of evils affirmative

defense. Specifically, he argues that he was entitled to assert the

affirmative defense for the possession of a video charge. We

conclude that (1) the trial court properly determined that Berumen

was foreclosed from asserting the choice of evils defense; and

(2) even if we were to assume the trial court erred, based on the

entirety of the jury’s verdict, the court’s refusal to give a choice of

18 evils jury instruction couldn’t have contributed to Berumen’s

conviction for any of the offenses. So, regardless of whether it was

error, it was harmless beyond a reasonable doubt.

¶ 35 As we have previously discussed, Berumen’s defense against

all three felony sexual exploitation of a child charges was a mistake

of age affirmative defense. But because that defense only applied to

his conduct before he was told K.D.’s age by Detective Hiatt during

the interview that began shortly before midnight on February 23,

2021, it was only a complete defense to the performance charge and

the intent to distribute charge. This is so because, according to the

charging documents and the evidence presented at trial, both of

those offenses, if committed, were completed before Berumen was

told by Detective Hiatt that K.D. was only seventeen.

¶ 36 The possession of a video charge is different. Some of the

conduct occurred before Berumen was told K.D.’s age — from the

filming to the deletion of the videos on February 23, 2021. But

some of the conduct related to that charge occurred after his

interview with Detective Hiatt — from the act of redownloading the

videos on the Android on February 26, 2021, until he was arrested

19 in March 2021. Thus, to be acquitted of that charge, the jury would

have to accept his mistake of age defense for the conduct on and

before February 23, 2021, and a different defense regarding his

conduct after that date. That’s where the choice of evils defense

comes in.

¶ 37 Section 18-1-702(1), C.R.S. 2025, defines when the affirmative

defense of choice of evils is available to a defendant:

[C]onduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

¶ 38 In his motion for a choice of evils instruction, Berumen argued

that after his interview with Detective Hiatt, he believed that the

private injury of being charged with and arrested for sexual assault

was imminent. He further argued that he redownloaded the videos,

despite knowing K.D. was seventeen, as evidence that the sex was

20 consensual and to avoid being falsely arrested for and charged with

sexual assault.

¶ 39 At a pretrial hearing, the trial court deferred deciding on the

instruction until after all evidence had been presented at trial. The

trial court limited the potential availability of the affirmative defense

instruction to Berumen’s conduct after his interview with Detective

Hiatt, as that’s when any fear of being arrested and charged with

sexual assault first arose.

¶ 40 Berumen chose to testify. During his testimony, he admitted

to filming the videos but said he had deleted them after texting

them to friends, and before learning that K.D. was only seventeen

years old. He further testified that he redownloaded the videos to

the Android two days after his interview with Detective Hiatt and

that he did so to protect himself from false sexual assault charges.

¶ 41 After hearing all the evidence, the trial court refused to give

the jury a choice of evils instruction. The trial court explained that

the evidence didn’t show a sudden and unforeseen emergence of a

situation requiring Berumen to possess the videos to prevent an

imminently impending injury. The trial court found that Berumen’s

21 two-day delay in redownloading the videos didn’t support the

argument that he feared an imminent arrest.

2. Standard of Review

¶ 42 A defendant is entitled to an affirmative defense instruction if

they offer “some credible evidence” to support the claimed defense.

§ 18-1-407(1), C.R.S. 2025; Pearson v. People, 2022 CO 4, ¶ 16. If a

defendant meets the evidentiary threshold for being entitled to an

affirmative defense instruction, but the court refuses to give the

instruction, “then the prosecution’s burden of proof has been

impermissibly lowered, implicating a defendant’s constitutional

rights.” People v. Gallegos, 2023 COA 47, ¶ 17 (quoting Pearson,

¶ 16), aff’d, 2025 CO 41M. “Such an error, if preserved, is subject

to constitutional harmless error review.” Pearson, ¶ 16. We decline

to reverse upon a finding of constitutional error only if we are

convinced that the error was harmless beyond a reasonable doubt,

such that there is no reasonable possibility that the error might

have contributed to the conviction. Hagos v. People, 2012 CO 63,

¶ 11.

22 3. Applicable Law

¶ 43 Before a defendant may present a choice of evils defense to the

jury, the trial court must determine, as a matter of law, “whether

the claimed facts and circumstances would, if established,

constitute a justification.” § 18-1-702(2).

¶ 44 To establish that the prohibited conduct was necessary to

prevent an imminent injury, a defendant must make an offer of

proof establishing that

(1) all other potentially viable and reasonable alternative actions were pursued, or shown to be futile, (2) the action taken had a direct causal connection with the harm sought to be prevented, and . . . the action taken would bring about the abatement of the harm, and, (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur.

Andrews v. People, 800 P.2d 607, 610 (Colo. 1990) (footnotes

omitted).

¶ 45 “[I]f a reasonable legal alternative was available to defendants

as a means to avoid the threatened injury, they properly may be

foreclosed from asserting a choice of evils defense.” People v.

Brandyberry, 812 P.2d 674, 679 (Colo. App. 1990).

23 4. Application

¶ 46 For the reasons discussed below, we conclude that the trial

court properly determined that Berumen was foreclosed from

asserting the choice of evils defense; but even if the trial court erred

by refusing to give the choice of evils jury instruction, any error was

harmless beyond a reasonable doubt.

a. Viable Alternative

¶ 47 There are multiple problems with Berumen’s attempt to invoke

a choice of evils defense under the facts of this case, including the

reasons the trial court gave for its refusal to give the instruction.

The most glaring is that neither Berumen’s offer of proof nor his

trial testimony, if taken as true, established that “all other

potentially viable and reasonable alternative[s]” to criminally

redownloading the videos to a personal device, as he was charged

with doing, “were pursued, or shown to be futile.” See Andrews,

800 P.2d at 610. This is so because, as discussed below, he could

have given law enforcement officers access to his device and had

them download the previously deleted video, which would have been

just as effective in preventing the alleged private injury without

breaking the law.

24 ¶ 48 In his motion requesting the affirmative defense, Berumen

actually discussed this viable and legal alternative that he didn’t

pursue, without concluding it was futile. Berumen explained as

follows:

It would have been illegal for anyone else, including an attorney, to possess the second phone containing the video at issue. Pursuant to [section] 16-9-[6]01(2)[, C.R.S. 2025,] all sexually exploitative material shall remain in the care, custody, and control of either the prosecution, a law enforcement agency, or the court.

(Emphasis added.)

¶ 49 Thus, as Berumen alluded to in his own motion, he could have

alerted law enforcement officers to the existence of the video (which

he had already deleted by the time of his interview starting late on

February 23) and had them retrieve and retain it — instead of

redownloading it himself. See § 16-9-601(2) (providing that “in a

criminal proceeding, all sexually exploitative material shall remain

in the care, custody, and control of either the prosecution, a law

enforcement agency, or the court”). But he didn’t. Nor does he

explain why this option would have been “futile,” as Andrews

requires.

25 ¶ 50 To be sure, this course of conduct may not have been a

desirable option for Berumen, as it would have exposed that he lied

to Detective Hiatt when he told him that he hadn’t had sex with

K.D. But the undesirability of this alternative, legal course of

conduct doesn’t render it futile or nonviable. Indeed, the

undesirability of pursuing this legal option was due almost entirely

to Berumen’s choice to give a false statement to Detective Hiatt.

And because Berumen’s offer of proof and testimony at trial made it

clear that he had a viable legal alternative available to him, we

conclude that the trial court properly determined that he was

foreclosed from asserting the choice of evils defense.

¶ 51 In any event, even if the trial court erred by refusing the choice

of evils instruction, which it didn’t, the error would have been

harmless beyond a reasonable doubt, which is where we turn next.

b. Harmless Error

¶ 52 As previously discussed, the mistake of age defense applied to

all three felony charges — including the possession of a video

charge. Because Detective Hiatt told Berumen K.D.’s age during his

interview, the mistake of age defense was only available to him for

his conduct before his interview with Detective Hiatt.

26 ¶ 53 And Berumen requested the choice of evils defense only for the

possession of a video charge. Berumen further limited the

availability of this defense by specifically requesting it for his act of

redownloading the videos — after his interview with Detective

Hiatt — on or about February 26, 2021.

¶ 54 To secure an acquittal on the possession of a video charge, the

jury would have needed to be persuaded by both the mistake of age

and choice of evils defenses. This is so because, as explained

before, Berumen’s possession of the video occurred at two discreet

times — once before Detective Hiatt told Berumen K.D.’s age, and

again after.

¶ 55 But we know that the jury rejected Berumen’s mistake of age

defense. This is so because mistake of age was a complete defense

to both the performance charge and the intent to distribute charge,

and the jury convicted Berumen on both charges. And for Berumen

to be acquitted of the possession of a video charge, he would have

needed to prevail with respect to both the choice of evils defense

and the mistake of age defense. Because we know the jury rejected

his mistake of age defense, any error in refusing to give the choice

27 of evils defense instruction was necessarily harmless beyond a

reasonable doubt.

¶ 56 Put differently, had the jury been given a choice of evils

instruction and had it been persuaded by that instruction, the

defense would have only excused the possession of the video after

Berumen’s interview with Detective Hiatt, as that is when the fear of

false arrest arose. But to be acquitted of the possession of a video

charge, the jury would have also had to be persuaded by the

mistake of age defense; we know it wasn’t based on its guilty

verdicts on the performance and intent to distribute charges. Thus,

we can say, beyond any reasonable doubt, that any erroneous

failure to give the choice of evils instruction doesn’t undermine our

confidence in the jury’s verdict. Cf. People v. Linares-Guzman, 195

P.3d 1130, 1134-35 (Colo. App. 2008) (looking to jury’s verdict on a

separate charge to conclude that any instructional error was not

plain error because there was no reasonable possibility that such

error contributed to the defendant’s conviction).

¶ 57 Based on the totality of the jury’s verdict for all the sexual

exploitation of a child charges, we know that the jury rejected,

beyond a reasonable doubt, that Berumen was operating under a

28 mistake of age at the time he made the videos and up until

Detective Hiatt told him K.D.’s age. Even assuming Berumen could

have been entitled to the choice of evils instruction for the time after

Detective Hiatt told him K.D.’s age, failure to give that instruction

couldn’t have contributed to his conviction on the possession of a

video charge — the only charge to which Berumen contends choice

of evils applied.

¶ 58 Accordingly, even if there was error in refusing the requested

instruction, any error was harmless beyond a reasonable doubt, so

there is no basis for reversal.

III. Disposition

¶ 59 For the reasons set forth above, we affirm the judgment of

conviction.

JUDGE SULLIVAN concurs.

JUDGE BERGER concurs in part and dissents in part.

29 JUDGE BERGER, concurring in part and dissenting in part.

¶ 60 I agree with almost all of the majority’s opinion. Specifically, I

agree with the majority’s rejection of the choice of evils defense

tendered by defendant, Ever Ulises Berumen. I also agree, with one

exception, that Berumen’s constitutional challenges to the beyond a

reasonable doubt instruction fail. But I do not agree that the “real

possibility” language in the 2022 model jury instruction that the

trial court gave to the jury in Berumen’s trial was constitutionally

acceptable. It does not accurately define reasonable doubt and

lowers the prosecution’s burden of proof. Use of a reasonable doubt

instruction that incorrectly defines reasonable doubt and lowers the

prosecution’s burden of proof is structural error. Therefore,

Berumen’s convictions should be reversed and the case remanded

for a new trial before a properly instructed jury.

¶ 61 As the majority recognizes, the Due Process Clause of the

United States Constitution “guarantees to the criminal defendant

that the prosecution must prove every factual element necessary to

constitute the crime charged beyond a reasonable doubt before the

defendant may be convicted and subjected to punishment.” Vega v.

People, 893 P.2d 107, 111 (Colo. 1995). While trial courts are

30 required to properly instruct the jury on the reasonable doubt

standard, they have flexibility in defining it. Johnson v. People,

2019 CO 17, ¶ 10. But “[i]nstructions that lower the prosecution’s

burden of proof below the reasonable doubt standard constitute

structural error and require automatic reversal.” Tibbels v. People,

2022 CO 1, ¶ 22.

¶ 62 To determine if a trial court lowered the reasonable doubt

burden, we look at the record as a whole and “ask whether there is

a reasonable likelihood the jury applied the instructions in an

unconstitutional manner.” People v. Garcia, 2021 COA 80, ¶ 26,

aff’d, 2023 CO 30.

¶ 63 The 2022 model jury instruction on reasonable doubt, which

the trial court gave to the jury here, reads as follows1:

[1] Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.

[2] The burden of proof in this case is upon the prosecution. The prosecution must prove to

1 The 2022 model instruction does not number the paragraphs. I have added paragraph numbers to facilitate my analysis.

31 the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.

[3] Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.

[4] After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.

[5] After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022) (emphasis added).

¶ 64 The problem is the italicized language of Paragraph 3. After

properly defining reasonable doubt as “proof that leaves you firmly

convinced of the defendant’s guilt,” the instruction proceeds to

32 introduce a new, undefined concept — a “real possibility” that the

defendant is not guilty of the crime charged.

¶ 65 The distinction between being “guilty” or “not guilty” in the

criminal law context is a legal construct; it is not the way human

beings ordinarily think. Cf. Lorraine Hope et al., A Third Verdict

Option: Exploring the Impact of the Not Proven Verdict on Mock Juror

Decision Making, 32 Law & Hum. Behav. 241, 241 (2008) (jurors in

high profile cases, frustrated by the simple dichotomy between

“guilty” and “not guilty,” have “expressed a preference for an

alternative verdict which more accurately reflects their view that the

defendant is indeed culpable, but that the prosecution has not met

the legal standards necessary to convict”). Outside of the legal

context, most people who are trying to decide (for whatever reason)

if another person committed a crime consider the information

known to them and conclude that the person either did the crime at

issue, probably did it, probably didn’t do it, or surely didn’t do it.

¶ 66 The meaning of a “real possibility that the defendant is not

guilty” is unclear. Does the real possibility refer to the possibility

that the defendant is actually innocent or does the real possibility

import the legal concept of reasonable doubt? If the former, I think

33 the phrase clearly violates the constitutional commands regarding

allocation of the burden of proof and presumption of innocence.

The jury must, of course, acquit if it believes that there is a “real

possibility” that the defendant is actually innocent of the charged

crime because the prosecution has not met its burden to prove

every element beyond a reasonable doubt.2 But if the latter

definition applies, and “real possibility” embeds the beyond a

reasonable doubt standard, the rephrasing only invites more

confusion surrounding the legal standard.

2 In People v. Schlehuber, 2025 COA 50, the division concluded that

the “real possibility” phrase does not violate the defendant’s constitutional rights. I agree that, in the abstract, the “real possibility” phrase is permissible to attempt to define when the prosecution has not proved the defendant guilty beyond a reasonable doubt. The Schlehuber court also rejected the defendant’s claim that the “real possibility” phrase shifts the burden of proof. Id. at ¶ 34. In so doing, the division said, “Nothing in that phrase suggests that the defendant must be ‘the source of the “real possibility.”’” Id. (citation omitted). I agree that the phrase is not invalid because it suggests that the defendant must be the source of the real possibility. But that analysis does not address my point — that a reasonable juror could conclude that the only permissible way to acquit the defendant is to conclude that there is a “real possibility” that the defendant is not guilty. For the reasons I explain in the text, that is an incorrect statement of the law and violates constitutional guarantees.

34 ¶ 67 Apart from the uncertainty regarding the meaning of a “real

possibility” that the defendant is not guilty (uncertainty that has

constitutional ramifications, as discussed above), I fear a jury could

read the challenged sentence to mean that it may acquit only if it

thinks there is a real possibility that the defendant is not guilty

(whatever not guilty means). Such a reading offends the bedrock

principles that the prosecution always has the burden to prove guilt

beyond a reasonable doubt, Pettigrew v. People, 2022 CO 2, ¶ 34,

and that the presumption of innocence continues until a properly

instructed jury finds the defendant guilty beyond a reasonable

doubt, People v. Ray, 2025 CO 42M, ¶ 144.

¶ 68 It is an incorrect statement of the law to say that a jury may

acquit only if there is a real possibility that the defendant is not

guilty. Juries may acquit on many permissible bases, including

that (1) there is no evidence of guilt; (2) while there is some evidence

of guilt, the prosecution has not presented proof establishing guilt

beyond a reasonable doubt; or (3) the prosecution has not disproved

beyond a reasonable doubt any affirmative defense to which the

35 defendant was entitled.3 A “real possibility” that the defendant is

not guilty is only one of many permissible grounds to acquit.

¶ 69 Requiring the jury to conclude that there is a “real possibility”

that the defendant is not guilty before returning a not guilty verdict

also lowers the prosecution’s burden of proof. It suggests that the

defendant is guilty unless there is a real possibility that he is not

guilty. However, a defendant has no obligation to prove that he is

not guilty or even that there is a real possibility that he is not guilty.

¶ 70 I recognize that we are required to read a jury instruction as a

whole and not focus on only specific words or sentences. And to

determine if an instruction impermissibly lowered the reasonable

doubt burden, we must look at the record as a whole and “ask

whether there is a reasonable likelihood the jury applied the

instructions in an unconstitutional manner.” Garcia, ¶ 26. I

acknowledge that reading the challenged sentence in context makes

the question closer, but I still think, when considering the

3 I do not include or address the power of a jury to acquit based on

the doctrine of jury nullification. See People v. Scott, 2021 COA 71, ¶ 1.

36 overriding importance of a proper definition of reasonable doubt,

the instruction is constitutionally infirm.

¶ 71 I suspect that in many cases (surely not all) in which a jury

acquits the defendant, the jury thinks that the defendant

committed the charged crime but that it had to acquit because the

prosecution had not proved commission of the crime beyond a

reasonable doubt. In such a case, the jury acquits not because it

believed there was a “real possibility” that the defendant was not

guilty, but rather because the presented proof did not meet the legal

standard.

¶ 72 Consider the facts of this case. Apart from the affirmative

defense of choice of evils, which both the trial court and the

majority rejected (correctly in my view), there was only one material

factual issue before the jury: Did Berumen know that the victim

was under the age of eighteen? Berumen’s knowledge that the

victim was under the age of eighteen was an element of all three of

the sexual exploitation of a child charges.

¶ 73 For the first and second counts of sexual exploitation of a

child, the evidence on this critical point was thin. No witness

testified that anyone told Berumen the victim was underage before

37 the alleged crimes were committed. While Berumen knew that the

victim was a high school student, that hardly is dispositive. Nor is

the victim’s appearance. So the jury likely struggled with that

required element.

¶ 74 In doing so, it is certainly reasonable to infer that the jurors

consulted the jury instruction that defined reasonable doubt and

read the sentence indicating they should acquit Berumen if they

thought that there was a real possibility that he was not guilty. If

the jury believed that Berumen had committed the crime but did

not think the prosecution had presented sufficient evidence on all

elements, the risk of conviction despite the lack of evidence is a risk

the Constitution protects against.

¶ 75 In my view, there simply is too much risk that the jurors

convicted Berumen, not because they found that the prosecution

had proved every element of the charged crimes beyond a

reasonable doubt, but because they did not believe that there was a

real possibility that he was not guilty.

¶ 76 Even if the majority is correct and, read in context, the 2022

model instruction did not limit the jury’s ability to find Berumen

not guilty only if the jury thought that there was a real possibility

38 that Berumen was not guilty, it is unwise to continue to use a

model instruction that is reasonably susceptible of that meaning.

¶ 77 I fear that the majority’s opinion, which essentially blesses the

2022 model instruction (as revised for other reasons by the 2023

model instruction), will lead trial judges to continue to use the 2022

model instruction.4 Its continued use risks invalidating countless

convictions rendered after the announcement of this opinion and

before the supreme court addresses these questions in Teran-

Sanchez v. People, (Colo. No. 25SC148, Sept. 2, 2025) (unpublished

order), in which the supreme court has granted certiorari.

¶ 78 At a minimum, the majority should recognize the potential

problems the 2022 model instruction creates and explain that trial

4 The majority says that the trial court did not “reversibly err[]”

when it used the 2022 model instruction. Supra ¶ 14. “Reversibly err” is a loaded term that could mean the court thinks there was error, but the error was harmless. Regardless of what the majority means, I think trial judges are likely to construe the majority opinion as a blessing of the 2022 model instruction. For the reasons discussed in the text, that would be very unfortunate.

39 courts retain discretion to depart from these problematic portions of

the pattern instruction.5

¶ 79 For these reasons, I respectfully dissent from that portion of

the majority’s opinion that upholds the challenged sentence from

constitutional attack. Because the jury was incorrectly instructed

on the bedrock principle of reasonable doubt, structural error

occurred and Berumen is entitled to a reversal of his convictions

and a new trial before a properly instructed jury.

5 To my knowledge, no Colorado court has held that the prior model

jury instruction, COLJI-Crim. E:03 (2021), violated a defendant’s rights, so it is almost inconceivable that if a trial court uses that instruction, instead of the 2022 version, structural error would result. To the contrary, courts in Colorado, and a multitude of other jurisdictions, have repeatedly held that the prior model instruction and its language properly protect a defendant’s constitutional rights. See, e.g., Victor v. Nebraska, 511 U.S. 1, 18- 23 (1994); People v. Robles, 302 P.3d 269, 280-81 (Colo. App. 2011) (collecting cases), aff’d on other grounds, 2013 CO 24; People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo. App. 2010); People v. Robb, 215 P.3d 1253, 1262-63 (Colo. App. 2009); see also Tibbels v. People, 2022 CO 1, ¶ 25 (urging courts to adhere to “long- established pattern instructions”).