People v. Cooper

• Court: Colorado Court of Appeals
• Decided: June 4, 2026
• Docket: 24CA1002
• Status: Unpublished

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 June 4, 2026 2026 COA 44

No. 24CA1002, People v. Cooper — Criminal Law — Commencement of Criminal Action — Judge May Require Prosecution — Special Prosecutor; Government — Department of Law — Powers and Duties of the Attorney General

A division of the court of appeals holds that the special

prosecutor statute, section 16-5-209, C.R.S. 2025, is not the

exclusive means for prosecuting an individual when the elected

district attorney has declined to prosecute. The Attorney General

may also prosecute an individual pursuant to an executive order

issued by the Governor under section 24-31-101(1), C.R.S. 2025,

consistent with the Colorado Constitution.

The division also holds that, under section 18-3-105, C.R.S.

2025, which defines the offense of criminally negligent homicide,

and under section 18-1-501(3), C.R.S. 2025, which defines criminal

negligence, the standard of care applicable to the defendant’s conduct is that of a reasonable person in the actor’s situation under

all the circumstances known to the actor. That standard must — in

a case like this — be one that would apply to an emergency medical

professional treating a person in the patient’s condition. COLORADO COURT OF APPEALS 2026 COA 44

Court of Appeals No. 24CA1002 Adams County District Court No. 21CR2800 Honorable Mark Warner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jeremy Cooper,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division I Opinion by JUDGE J. JONES Meirink and Berger*, JJ., concur

Announced June 4, 2026

Philip J. Weiser, Attorney General, Erin K. Grundy, First Assistant Attorney General, Gabriel P. Olivares, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Alonzi Pellow Beggan LLC, Mike K. Pellow, Shana R. Beggan, Denver Colorado; Wheeler Trigg O’Donnell LLP, Frederick R. Yarger, Denver, Colorado, for Defendant-Appellant

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Nathan B. Thoreson, Denver, Colorado, for Amici Curiae American College of Emergency Physicians, Emergency Nurses Association, and the Colorado Chapter of the American College of Emergency Physicians

The Kelman Buescher Firm, Niaomi Perera, Denver, Colorado, for Amicus Curiae International Association of Fire Fighters Philip J. Weiser, Attorney General, Kurtis T. Morrison, Deputy Attorney General, Joseph G. Michaels, Assistant Solicitor General, Lane Towery, Assistant Attorney General, Denver, Colorado, for Amicus Curiae Jared S. Polis, Governor of the State of Colorado

*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 This case arises out of the tragic death of Elijah McClain

following an interaction with Aurora police officers and fire rescue

paramedics. Defendant, Jeremy Cooper, is the paramedic who

injected Mr. McClain with ketamine, which, the People contend,

contributed to his death. Cooper appeals the district court’s

judgment of conviction entered on a jury’s verdict finding him guilty

of criminally negligent homicide. We conclude that the district

court erred by failing to properly instruct the jury on the standard

of care applicable to the criminally negligent homicide charge and

that the error wasn’t harmless. Accordingly, we reverse the

judgment and remand the case for a new trial.

I. Background

¶2 One summer evening, Mr. McClain walked to a convenience

store and bought a few cans of iced tea. The store’s security

cameras showed him wearing a black ski mask and headphones,

paying for his tea, and dancing with his arms raised in the parking

lot.

¶3 Soon after Mr. McClain left the store, a 911 caller reported a

“sketchy” looking black male “walking fast” down the street wearing

a black ski mask and “moving his arms.”

1 ¶4 Aurora police officers saw Mr. McClain. Police body-worn

cameras recorded the interaction. When the officers asked Mr.

McClain to stop, he said he had a right to walk where he was going

and continued walking. Three officers then tried to physically

restrain Mr. McClain. One repeatedly told him to “stop tensing up,”

and one told him to “relax or I’m going to have to change this

situation.” Mr. McClain objected to being stopped, and the officers

began to struggle with him.

¶5 As the officers continued to struggle with Mr. McClain, one of

them said, “He just grabbed your gun,” to one of the other officers.

The officers pushed Mr. McClain to the ground. An officer tried to

put Mr. McClain in a carotid control hold, whereby a person applies

pressure on someone’s neck with his bicep and forearm. When that

effort failed, another officer put Mr. McClain in a carotid control

hold. The second hold cut off blood flow to Mr. McClain’s brain,

causing him to temporarily lose consciousness. When Mr. McClain

regained consciousness, he told the officers that he couldn’t

breathe. He later vomited. An officer asked a dispatcher to send

paramedics to treat Mr. McClain because he had temporarily lost

consciousness.

2 ¶6 Cooper; his supervisor, Lieutenant Peter Cichuniec; and two

nonmedical fire department personnel (an “engineer” and a

firefighter) arrived a few minutes later. They saw two officers

restraining Mr. McClain on the ground. The police officers told

Cooper and Cichuniec that Mr. McClain had “passed out,” was

“definitely on something,” and was “acting crazy.” One of the

officers said that the officers had tried to “put a carotid on the guy”

and had done so, which “put [Mr. McClain] out.” Officers also said

Mr. McClain had shown “incredible” and “crazy” strength from

“whatever he’s on” and “almost did a pushup with all three of us on

his back.”

¶7 Based on the information the officers had told them and their

visual assessment of Mr. McClain, Cooper and Cichuniec concluded

that Mr. McClain showed symptoms of a condition called “excited

3 delirium.”1 They agreed they would inject Mr. McClain with

ketamine.2 Cooper told the officers that the paramedics would

inject Mr. McClain with ketamine once the ambulance arrived with

the drug. (An ambulance with two emergency medical technicians

(EMTs) had also been dispatched to the scene.)

¶8 Once the ambulance arrived, Cooper and Cichuniec

determined that 500 mg of ketamine was the correct dosage to give

to Mr. McClain based on his weight (which Cooper estimated at

about 220 pounds (100 kg) and Cichuniec estimated at 187 pounds

1 “Excited (or agitated) delirium is characterized by agitation,

aggression, acute distress and sudden death, often in the pre- hospital care setting. It is typically associated with the use of drugs that alter dopamine processing, hyperthermia, and, most notably, sometimes with death of the affected person in the custody of law enforcement.” Asia Takeuchi, Terence L. Ahern & Sean O. Henderson, Excited Delirium, 12 W. J. of Emergency Med. 77, 77 (Feb. 2011), https://perma.cc/95WN-ZRUX. Since the events in this case, several organizations, including the American Medical Association, the American Psychiatric Association, and the American Academy of Emergency Medicine, have rejected excited delirium as a legitimate medical diagnosis. As discussed below, however, the applicable standard of care is determined as of the time of the actor’s conduct. 2 Ketamine is “a rapid-acting general anesthetic.” Mani Yavi et al.,

Ketamine Treatment for Depression: A Review, 2 Discover Mental Health, art. 9 (Apr. 15, 2022), https://perma.cc/3V4B-88CL.

4 (85 kg)) and his degree of agitation.3 (In fact, Mr. McClain weighed

only 143 pounds.) Either Cooper or Cichuniec told an EMT to

prepare it. Once the EMT did so, Cooper injected it into Mr.

McClain.

¶9 Sometime after Mr. McClain was placed in the ambulance,

Cichuniec noticed that he had stopped breathing. He told an EMT

to check Mr. McClain’s pulse. When the EMT couldn’t find one, the

EMTs began CPR. Mr. McClain was subsequently admitted to a

hospital. Doctors declared him brain dead a few days later.

¶ 10 A doctor with the Adams County Coroner’s Office investigated

the cause of death and classified it as “undetermined” as to both

cause and manner. As explained in more detail below, the District

Attorney for the Seventeenth Judicial District subsequently declined

to prosecute Cooper and Cichuniec (or any of the police officers).

But Governor Jared Polis later issued an executive order directing

the Attorney General to investigate and, if necessary, prosecute on

the State’s behalf, invoking his authority under section 24-31-

3 Cooper and Cichuniec testified that the dosage for ketamine is 5

mg per kg of body weight, but that the dosage may be adjusted upward if the patient is particularly “agitated.” The propriety of such an adjustment was disputed at trial.

5 101(1)(a), (b), C.R.S. 2025. Colo. Exec. Order No. D 2020 115 (June

25, 2020).

¶ 11 At the Attorney General’s request, a forensic pathologist

reviewed Mr. McClain’s autopsy records and tissue samples, other

experts’ reports, videos of the encounter, and witness statements.

He concluded that Mr. McClain had died from “[c]omplications

following acute ketamine administration during violent subdual and

restraint by law enforcement and emergency response personnel.”

¶ 12 A state grand jury subsequently indicted Cooper and

Cichuniec on one count each of reckless manslaughter and

criminally negligent homicide and three counts each of second

degree assault.4 They were tried together. The prosecution’s theory

was that Cooper and Cichuniec had acted contrary to their medical

training and proper protocols. And the prosecution charged that

4 The second degree assault charges were for causing serious bodily

injury by means of a deadly weapon (ketamine), intentionally causing psychological or mental impairment or injury by administering a drug without the victim’s consent and without a medical purpose, and causing serious bodily injury with the intent to cause bodily injury. See § 18-3-203(1)(d), (e), (g), C.R.S. 2025. The deadly weapon charges weren’t submitted to the jury.

6 each could be found guilty of all the charges as either a principal or

a complicitor.

¶ 13 A jury found Cooper guilty of criminally negligent homicide but

acquitted him of all other charges. The same jury found Cichuniec

guilty of criminally negligent homicide and one count of second

degree assault (unlawful administration of drugs) but acquitted him

of reckless manslaughter and the remaining count of second degree

assault (causing serious bodily injury with intent to cause bodily

injury). Cooper and Cichuniec separately appealed their

convictions. This appeal is Cooper’s.

II. Discussion

¶ 14 Cooper contends that the district court erred by (1) denying

his motion to dismiss the indictment because the Attorney General

didn’t have any authority to prosecute the case; (2) failing to

properly instruct the jury on the standard of care for criminal

negligence; (3) refusing to instruct the jury that use of reasonable

and appropriate physical force to treat Mr. McClain was an

affirmative defense that the prosecution was required to disprove

beyond a reasonable doubt under section 18-1-703(1)(e)(II), C.R.S.

7 2025, of the special relationships statute; and (4) allowing jurors

access to extraneous prejudicial information.

¶ 15 We first address Cooper’s challenge to the Attorney General’s

authority to prosecute the case because if he is correct, the

indictment must be dismissed. We hold that the Attorney General

has such authority. But we also hold that the district court erred

by inaccurately instructing the jury on the standard of care for

criminal negligence under the circumstances in this case and,

relatedly, by failing to adequately explain the standard of care to the

jurors after they asked for a definition or description of the

standard. And because we also hold that these errors weren’t

8 harmless, we reverse the judgment and remand the case for a new

trial.5

A. The Attorney General’s Authority to Prosecute

¶ 16 Cooper contends that the district attorney’s “affirmative

decision” not to prosecute him means that the Attorney General

can’t prosecute him because the only way the district attorney’s

decision could be overridden was under Colorado’s special

prosecutor statute. We aren’t persuaded.

5 Because we reverse the judgment and remand the case for a new

trial, we only address two of Cooper’s other contentions. We address his contention that the Attorney General didn’t have legal authority to prosecute the case because if he is right, the indictment must be dismissed. We address his contention that the court erred by refusing to instruct the jury that the special relationship is an affirmative defense because it is likely to arise in the event of a retrial. Herrera v. Lerma, 2018 COA 141, ¶¶ 11-12; People v. Snelling, 2022 COA 116M, ¶ 64 (Gomez, J., specially concurring) (“When divisions of this court decide an issue that requires a reversal and remand, we typically reach additional issues only to the extent that they are likely to arise again on remand.”); People v. Stewart, 2017 COA 99, ¶ 64 (J. Jones, J., concurring in part and dissenting in part) (“[O]ur common practice is to address contentions that pertain to issues likely to arise on remand.”). We won’t address his contention about jury exposure to extraneous prejudicial information because it isn’t likely to arise in the event of a new trial.

9 1. Additional Background

¶ 17 In the autumn of 2019, a few months after Mr. McClain’s

death, Dave Young, the District Attorney for the Seventeenth

Judicial District, sent a letter to Aurora’s Chief of Police explaining

that the coroner’s report and the results of his office’s investigation

didn’t support prosecuting anyone in connection with Mr. McClain’s

death.6

¶ 18 But in the summer of 2020, Governor Polis issued Executive

Order D 2020 115, ordering the Attorney General “to investigate

and, if the facts support prosecution, criminally prosecute any

individuals whose actions caused the death of Elijah McClain.”7

The Attorney General empaneled a grand jury. The grand jury

returned a thirty-two-count indictment against Cooper, Cichuniec,

and three police officers.

6 The letter isn’t in the record on appeal, but Cooper and the People

acknowledged the letter in motions below and in their opening and answer briefs on appeal. The parties don’t appear to dispute the existence and content of the letter. 7 The Governor subsequently issued two related executive orders —

D 2020 246 (Nov. 10, 2020) and D 2020 267 (Dec. 2, 2020) — amending the first order to further define the “breadth and scope of the Attorney General’s authority to investigate and prosecute offenses arising from” this matter.

10 ¶ 19 Before trial, Cooper’s counsel filed a motion to dismiss the

charges for a lack of jurisdiction. (Cichuniec’s counsel filed a

similar motion.) Counsel argued, as now relevant, that the

Governor and Attorney General had unlawfully circumvented

Colorado’s special prosecutor statute, section 16-5-209, C.R.S.

2025, which provides as follows:

The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may require the prosecuting attorney to appear before the judge and explain the refusal. If after that proceeding, based on the competent evidence in the affidavit, the explanation of the prosecuting attorney, and any argument of the parties, the judge finds that the refusal of the prosecuting attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an information and prosecute the case or may appoint a special prosecutor to do so.

¶ 20 At a hearing on the motion, the Solicitor General argued that

section 16-5-209 didn’t apply because “[t]he Attorney General is

here prosecuting this case under the authority of [section] 24-31-

101.” Subsection (1)(b) of that section provides that the Attorney

General “[s]hall appear for the state and prosecute and defend all

11 actions and proceedings, civil and criminal, in which the state is a

party or is interested when required to do so by the governor.”

§ 24-31-101(1)(b).8

¶ 21 The district court denied defense counsel’s motion, concluding

that section 16-5-209 and section 24-31-101(1)(b) “provide two

ways of going about things when the district attorney decline[s] to

prosecute” and “one doesn’t necessarily trump the other.”

2. Applicable Principles of Statutory and Constitutional Interpretation and Standard of Review

¶ 22 Cooper’s arguments implicate the meanings and relationships

of certain statutes and one provision of the Colorado Constitution.

When we interpret a statute, we ultimately must determine and

effectuate the General Assembly’s intent. People v. Manzo, 144 P.3d

551, 554 (Colo. 2006). “We first consider the statute’s language,

‘assigning its words and phrases their plain and ordinary

meanings.’” Johnson v. People, 2023 CO 7, ¶ 15 (quoting McBride v.

People, 2022 CO 30, ¶ 23). We do so, however, by reading the

8 As noted, the Governor also invoked section 24-31-101(1)(a),

C.R.S. 2025, which says, in relevant part, that the Attorney General “[s]hall act as the chief legal representative of the state.” The Attorney General doesn’t argue that subsection (1)(a) of section 24- 31-101 independently gives him authority to prosecute this case.

12 language in context and in light of the entire statutory scheme.

McCoy v. People, 2019 CO 44, ¶¶ 37-38. And “[w]e must adopt a

construction that avoids or resolves potential conflicts, giving effect

to all legislative acts, if possible.” People v. Stellabotte, 2018 CO 66,

¶ 32 (quoting Huber v. Colo. Mining Ass’n, 264 P.3d 884, 892 (Colo.

2011)).

¶ 23 “In giving effect to a constitutional provision, we employ the

same set of construction rules applicable to statutes . . . .”

Danielson v. Dennis, 139 P.3d 688, 691 (Colo. 2006). “[O]ur goal is

to prevent the evasion of the constitution’s legitimate operation and

to effectuate the intent of the framers of our constitution and of the

people of this state.” People v. Smith, 2023 CO 40, ¶ 20.

¶ 24 We review de novo questions of statutory and constitutional

interpretation. Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7;

People v. Salgado, 2019 COA 5, ¶ 10.

3. Analysis

¶ 25 Article VI, section 13 of the Colorado Constitution provides

that the district attorney of a judicial district “shall . . . perform

such duties as provided by law.” (Emphasis added.) Acting

pursuant to that provision, the General Assembly has vested each

13 district attorney with the authority to “appear in behalf of the state

. . . [i]n all indictments, actions, and proceedings which may be

pending in the district court in any county within his district

wherein the state or the people thereof . . . may be a party.” § 20-1-

102(1)(a), C.R.S. 2025; see People v. Gibson, 125 P. 531, 535 (Colo.

1912).

¶ 26 Recognizing the sweep of article VI, section 13 and section 20-

1-102, the Colorado Supreme Court has held that “[t]he Colorado

Constitution and the statutory commands of the general assembly

grant the bulk of prosecutorial powers and duties to the district

attorneys of the several judicial districts,” People ex rel. Tooley v.

Dist. Ct., 549 P.2d 774, 777 (Colo. 1976) (emphasis added),

including the power “to determine who shall be prosecuted and

what crimes shall be charged,” People v. Dist. Ct., 632 P.2d 1022,

1024 (Colo. 1981).

¶ 27 But this authority is neither unlimited nor exclusive. See

People ex rel. Losavio v. Gentry, 606 P.2d 57, 62 (Colo. 1980)

(“Except as otherwise provided for by statute, the district attorney is

the sole authority charged with performing these duties and he may

not be supplanted in his duties by any other authority.” (emphasis

14 added)). As relevant to this case, the General Assembly has enacted

two provisions granting prosecutorial authority to persons other

than the elected district attorney.

¶ 28 The first is section 24-31-101(1)(b), which says that “[t]he

attorney general . . . [s]hall appear for the state and prosecute and

defend all actions and proceedings, civil and criminal, in which the

state is a party or is interested when required to do so by the

governor.” (The General Assembly enacted this statute pursuant to

article IV, section 1 of the Colorado Constitution, which says that

the Attorney General “shall perform such duties as are prescribed

by this constitution or by law.”)

¶ 29 The second is section 16-5-209, which says that when a

person files an affidavit with the court “alleging the commission of a

crime and the unjustified refusal of the prosecuting attorney to

prosecute,” following an evidentiary hearing at which the prosecutor

may be required to explain the refusal, the court may order the

prosecuting attorney to prosecute the offense or may appoint a

special prosecutor to do so if the court determines that the

15 prosecutor’s refusal is “arbitrary or capricious and without

reasonable excuse.”9

¶ 30 Cooper acknowledges that the Colorado Supreme Court has

held that section 24-31-101(1)(b) doesn’t conflict with district

attorneys’ constitutional and statutory authority to prosecute

criminal cases. See, e.g., People ex rel. Witcher v. Dist. Ct., 549 P.2d

778, 779-80 (Colo. 1976); Gibson, 125 P. at 533, 536. But he

argues that when, as in this case, the district attorney has

expressly declined to prosecute, the only alternative means of

bringing a prosecution is via section 16-5-209. We reject this

argument.

¶ 31 Section 24-31-101(1)(b) and section 16-5-209 provide two

alternative means of prosecuting a criminal case independent of the

district attorney’s authority under section 20-1-102 — one subject

to the Governor’s discretion and the other subject to the court’s

9 The special prosecutor may be a district attorney, assistant

district attorney, or deputy district attorney “who serve[s] in [a] judicial district[] other than where the appointment is made,” or, on the Chief Justice’s written approval, any “disinterested private attorney” licensed to practice law in Colorado. § 16-5-209, C.R.S. 2025.

16 discretion (upon affidavit by an aggrieved party).10 There is no

language in either statute saying expressly or implying that section

24-31-101(1)(b) can’t be invoked by the Governor when a district

attorney expressly declines to prosecute. In essence, Cooper asks

us to read into one or both statutes limiting language restricting the

Governor’s authority in situations such as this. That we cannot do.

People v. Atencio, 219 P.3d 1080, 1082 (Colo. App. 2009); People v.

Sorrendino, 37 P.3d 501, 504 (Colo. App. 2001) (“[A] court should

not read into a statute an exception, limitation, or qualifier that its

plain language does not suggest, warrant, or mandate.”).11

¶ 32 Our conclusion doesn’t, as Cooper asserts, ignore “the

constitutionally mandated roles of Colorado’s district attorneys.” As

10 Section 16-5-209 doesn’t say who may ask the court to appoint a

special prosecutor. We don’t express any opinion on who may do so. 11 Citing section 24-31-101(1)(e) and (i), Cooper asserts that “[w]hen

the General Assembly wishes to supplant the district attorneys’ authority in particular areas, it does so expressly.” But that is precisely what the General Assembly did by enacting section 24-31- 101(1)(b). People ex rel. Witcher v. Dist. Ct., 549 P.2d 778, 779-80 (Colo. 1976) (when the statutory conditions of section 24-31-101(1) are met, “the attorney general has the right to assume the prosecutorial responsibilities and duties”; holding that the district attorney had to yield to the Attorney General in prosecuting a state grand jury indictment following the Governor’s executive order).

17 noted above, under article VI, section 13, district attorneys’ duties

are those “as provided by law” — that is, as provided by the General

Assembly. So, too, are the Attorney General’s, at least in part.

Colo. Const. art. IV, § 1 (also providing that the Attorney General

has duties “as are prescribed by this constitution or by law”). The

General Assembly has enacted complementary and partially

overlapping statutes addressing the prosecution of criminal cases

pursuant to these constitutional provisions. The upshot is that

while elected district attorneys have “the bulk of prosecutorial

powers and duties,” People ex rel. Tooley, 549 P.2d at 777, in

certain situations specified by statute, they don’t necessarily have

the final word.

¶ 33 We therefore conclude that the district court didn’t err by

denying Cooper’s motion to dismiss the indictment.

B. Standard of Care Jury Instruction

¶ 34 Cooper contends that the district court erred by refusing his

counsel’s tendered instruction specifying the standard of care

applicable to the charge of criminally negligent homicide and by

refusing to adequately and accurately define that standard after the

jurors affirmatively indicated that they didn’t understand what

18 standard to apply. We agree with Cooper. We also conclude that

the errors weren’t harmless.

1. Additional Background

¶ 35 In opening statement, the prosecutor asserted that Cooper

“failed to give his medical patient Mr. McClain adequate medical

treatment” and that Cooper violated “every single step of the

training and protocols that [he was] supposed to follow.” During

the prosecution’s case-in-chief, several doctors and other medically

trained witnesses testified about what Cooper — as a medical

professional — should and should not have done when providing

medical treatment to Mr. McClain. In closing argument, the

prosecutor argued that Cooper had failed to follow his training and

applicable protocols in making “medical decision[s]” and tied these

failures to the elements of the charged crimes. In rebuttal closing

argument, the prosecutor led with the following: “These defendants

treated Elijah McClain like he was a problem, not like he was their

patient.” The prosecutor followed up by recounting the ways in

which Cooper had deviated from his medical training and applicable

protocols, repeatedly referring to the testimony of various medical

professionals.

19 ¶ 36 In short, the prosecution’s case was premised not on what an

ordinary person off the street should or should not have done, but

on what a person with Cooper’s training and experience as a

paramedic should or should not have done.

¶ 37 Before closing arguments, based on the prosecution’s theory of

culpability, Cooper’s counsel tendered a jury instruction that read,

“A person acts ‘with criminal negligence’ when, through a gross

deviation from the standard of care that a reasonable paramedic in

Aurora, Colorado would exercise in the same circumstance, he fails

to perceive a substantial and unjustifiable risk that a result will

occur or that a circumstance exists.” (Emphasis added.) Counsel

argued that the circumstances in this case presented a unique

blend of a criminal law and medical malpractice law and that “[t]he

conduct of medical providers is measured against the reasonable

medical provider in the same field of practice or similar.”

¶ 38 The prosecutor objected to the defense’s tendered instruction.

She argued that the instruction should not deviate from the

language employed in the definition of “criminal negligence” in

section 18-1-501(3), C.R.S. 2025, or the Colorado pattern jury

instruction that tracks the definition. She also argued, citing

20 People v. Luna, 2020 COA 123M, that a “reasonable person” for

purposes of criminal negligence isn’t defined in terms of a person’s

particular characteristics. The pattern instruction tendered by the

prosecution read, “A person acts ‘with criminal negligence’ when,

through a gross deviation from the standard of care that a

reasonable person would exercise, he fails to perceive a substantial

and unjustifiable risk that a result will occur or that a circumstance

exists.” See COLJI-Crim. F:79 (2025) (emphasis added).

¶ 39 The court rejected the defense’s tendered instruction,

reasoning that even though, “from time to time, the General

Assembly looks to civil law for certain terminology,” the General

Assembly hadn’t done so in section 18-1-501(3). The district court

said it was “going to follow what the General Assembly has told me

I’m supposed to do.” The court instructed the jury on the definition

of criminal negligence using Colorado’s pattern instruction, without

modification.

¶ 40 After the jurors began deliberating, the court received the

following question from the jurors: “May we have a definition of the

standard of care? Or a description of it?” Cooper’s counsel

reiterated the defense’s position that “the professional standard of

21 care . . . in this case . . . would be reasonable paramedics in Aurora,

Colorado.” The prosecutor asked the court to just refer the jury

back to the instructions as given. The court said it would do as the

prosecutor requested and indicated what the response would say.

Cooper’s attorney then objected to the response’s inclusion of the

language “words should be given their common and ordinary

meanings.” The prosecutor argued for retaining that language.

¶ 41 The court, again agreeing with the prosecutor, replied to the

jury as follows: “Generally, undefined words and phrases may be

given their common and ordinary meanings. The Court may only

refer the jury back to the prior instructions as a whole. The Court

may not provide further definition of the terms.”

2. Standard of Review

¶ 42 “The United States and Colorado Constitutions guarantee the

defendant in a criminal case both the right to have a jury decide his

case and the right to have the prosecutor prove to that jury, beyond

a reasonable doubt, every element of the charged offense.” Griego v.

People, 19 P.3d 1, 7 (Colo. 2001). “To preserve these guarantees,

we require that the trial court properly instruct the jury on every

element of a crime.” Id.

22 ¶ 43 “We apply a two-tier standard of review to jury instructions.”

People v. Neckel, 2019 COA 69, ¶ 26. “First, we review de novo the

jury instructions as a whole to determine whether the instructions

accurately informed the jury of the governing law.” People v.

Stellabotte, 2016 COA 106, ¶ 18, aff’d, 2018 CO 66. “Second, if the

trial court correctly informed the jury of the governing law, we

review the court’s formulation of the instructions for an abuse of

discretion.” Id. “Therefore, we review a trial court’s decision to give

a particular jury instruction for an abuse of discretion.” McDonald

v. People, 2021 CO 64, ¶ 54 (quoting Day v. Johnson, 255 P.3d

1064, 1067 (Colo. 2011)). Likewise, we review a court’s response to

a jury’s question for an abuse of discretion. People v. Cox, 2023

COA 1, ¶ 16. A court abuses its discretion in this context only

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

based on a misunderstanding or misapplication of the law. People

v. Trujillo, 2025 COA 22, ¶ 24 (cert. granted Jan. 12, 2026).

¶ 44 The instruction and response at issue concern the elements of

the offense. Any error in failing to adequately instruct the jury on

the elements of the offense is therefore one of constitutional

dimension. Garcia v. People, 2022 CO 6, ¶¶ 15-18; Griego, 19 P.3d

23 at 7. “[W]e review trial errors of constitutional dimension that were

preserved by objection for constitutional harmless error.” Hagos v.

People, 2012 CO 63, ¶ 11; accord Griego, 19 P.3d at 7.12 “These

errors require reversal unless the reviewing court is ‘able to declare

a belief that [the error] was harmless beyond a reasonable doubt.’”

Hagos, ¶ 11 (quoting Chapman v. California, 386 U.S. 18, 24

(1967)). An error is harmless beyond a reasonable doubt only if

there is no reasonable possibility that it contributed to the

conviction. Id. (also holding that the State bears the burden of

showing that such an error was harmless beyond a reasonable

doubt).

¶ 45 Cooper was convicted of criminally negligent homicide under

section 18-3-105, C.R.S. 2025, which provides that “[a]ny person

12 The People contend that, because Cooper’s counsel didn’t

expressly raise a constitutional objection, we should review for ordinary harmless error. We disagree. Counsel clearly preserved the issue by tendering an instruction, objecting to the pattern instruction, and objecting to the court’s response to the jury’s question. The nature of the alleged error — failing to adequately instruct the jury on an element of the offense — is constitutional; counsel’s failure to use the word “constitutional” doesn’t change that.

24 who causes the death of another person by conduct amounting to

criminal negligence commits criminally negligent homicide.” And,

as noted, “[a] person acts with criminal negligence when, through a

gross deviation from the standard of care that a reasonable person

would exercise, he fails to perceive a substantial and unjustifiable

risk that a result will occur or that a circumstance exists.” § 18-1-

501(3) (emphasis added). No statutory provision defines “standard

of care” or “reasonable person” for purposes of this offense.

¶ 46 The offense of criminally negligent homicide is of relatively

recent vintage. (Indeed, the General Assembly didn’t create such an

offense under Colorado law until 1971. See Ch. 121, sec. 1, §§ 40-

1-603, 40-3-105, 1971 Colo. Sess. Laws 404, 419.) This recency

reflected a historical reluctance to impose criminal liability based on

“the ordinary negligence which is sufficient for tort liability.” 1

Wayne R. LaFave, Substantive Criminal Law § 5.4, at 491 (3d ed.

2018) (hereinafter, LaFave).

The thought was this: When it comes to compensating an injured person for damages suffered, the one who has negligently injured an innocent victim ought to pay for it; but when the problem is one of whether to impose criminal punishment on the one who caused

25 the injury, then something extra — beyond ordinary negligence — should be required.

Id. at 491-92. That “something extra” could be different things:

(1) a higher degree of negligence than ordinary negligence; (2) a

consciousness of the risk created by the actor’s conduct; or (3) both

a higher degree of negligence and a consciousness of the risk. Id. at

492.

¶ 47 Colorado’s General Assembly chose option one: a “gross

deviation” from the standard of care is required (rather than a mere

deviation), but consciousness of the risk created isn’t. See § 18-1-

501(3) (the failure to perceive the risk as a result of the gross

deviation from the standard of care is enough to support a

conviction). The implication of all this is that the standard of care

is the same as would apply in a civil action, but the actor’s conduct

must involve a greater degree of that negligence — that is, it must

create a greater risk of harm that the actor fails to perceive. See

LaFave, § 5.4(a)(1), (a)(2), (b), at 493-502.

¶ 48 The Colorado Supreme Court recognized this in People v. Hall,

999 P.2d 207 (Colo. 2000). In that case, the defendant — “a former

ski racer trained in skier safety,” id. at 211 — “flew off a knoll” and

26 collided with a skier below him, id. at 212. The downslope skier

died from his injuries. Id. at 210. The district court dismissed the

charge of reckless manslaughter for lack of probable cause. The

supreme court reversed as to reckless manslaughter and also

considered whether the evidence presented at the preliminary

hearing supported a charge of criminally negligent homicide. In

addressing that issue, the court began by saying, “[W]e must ask

whether Hall’s conduct constituted a ‘gross deviation’ from the

standard of care that a reasonable law-abiding person (in this case,

a reasonable, law-abiding, trained ski racer and resort employee)

would have observed in the circumstances.” Id. at 223 (emphasis

added). The court concluded that, “[b]ased on the evidence, a

reasonable person could conclude that Hall’s conduct was a gross

deviation from the standard of care that a reasonable, experienced

ski racer would have exercised.” Id. (emphasis added). In getting to

that conclusion, the court looked to civil law imposing a statutory

duty on skiers to avoid collisions with downslope skiers. It said

that this statutory duty established the “minimum standard of care

for uphill skiers” and that a violation of that standard “in an

extreme fashion . . . may be evidence of conduct that constitutes a

27 ‘gross deviation’ from the standard of care imposed by statute for

civil negligence.” Id.

¶ 49 The Colorado Supreme Court held similarly when considering

the elements of criminally negligent homicide in Mata-Medina v.

People, 71 P.3d 973 (Colo. 2003). Repeatedly citing Hall with

approval, the court held that in determining whether the defendant

failed to perceive a substantial and unjustifiable risk, the jury must

“consider the facts and circumstances of the individual case,”

consider the nature of risk “in relation to the nature and purpose of

the actor’s conduct,” and “[consider] what a reasonable person with

the actor’s knowledge and experience would have been aware of in

the particular situation.” Id. at 978 (emphasis added) (quoting Hall,

999 P.2d at 216).13

¶ 50 The supreme court’s decision in People v. Mann, 646 P.2d 352

(Colo. 1982), also makes clear that civil law may inform the

elements of a criminal offense. The defendant in that case

13 Although the court in Mata-Medina v. People, 71 P.3d 973, 978

(Colo. 2003), was, in applying these principles from People v. Hall, 999 P.2d 207 (Colo. 2000), speaking of the actor’s failure to perceive a substantial and unjustifiable risk, those principles seem to also logically apply to whether the actor grossly deviated from the standard of care.

28 challenged his convictions of child abuse and accessory to child

abuse on the basis that the court had instructed the jury on the

meaning of child abuse based on a civil statute. Negligence was the

basis for such liability. The supreme court held that the district

court didn’t err because the instruction was consistent with the

definition of criminal negligence in section 18-1-501. Id. at 361-62.

¶ 51 The takeaways from all this are that (1) the civil law may, in an

appropriate case, set the baseline standard of care for criminal

culpability; and (2) the reasonable person for purposes of the

criminal statute is a reasonable person to whom that standard

29 applies.14 This view is consistent with the generally accepted

notions that a reasonable person in this context is a reasonable

person in the actor’s situation and under all the circumstances

known to him, and that the actor’s failure to perceive the risk must

account for the nature and purpose of the actor’s conduct. See

Model Penal Code & Commentaries § 2.02 cmt. 4, at 240-41 (A.L.I.

1985); see also Model Penal Code § 2.02(2)(d), at 21-22 (A.L.I.

1985); State v. Warden, 813 P.2d 1146, 1151 (Utah 1991) (“Since

the [criminal] negligence occurred in the context of medical

14 People v. Luna, 2020 COA 123M, on which the People rely,

doesn’t suggest a contrary conclusion. In that case, the division held that, in instructing the jury on self-defense, the court wasn’t required to substitute “reasonable child” for “reasonable person.” Id. at ¶¶ 27-34. But there was no issue in that case as to the standard of care and therefore no issue as to the particular “reasonable person” in relation to that standard. True, the standard is an objective one. But, as discussed, it is one based on the relevant circumstances, including the nature and purpose of the actor’s conduct and the situation in which the actor finds himself. So while subjective characteristics such as the actor’s intelligence or temperament (or, in many cases, even age) may not inform the standard, objective, relevant circumstances do. See Model Penal Code & Commentaries § 2.02 cmt. 4, at 240-42 (A.L.I. 1985). We also observe that the People don’t attempt to explain why the source and nature of the standard of care should be different in a criminal case based on negligence than in a civil case based on negligence. Nor do the People explain precisely how those standards differ under the facts of this case.

30 treatment, it is necessary to view the circumstances from the

viewpoint of a member of the medical profession.” So the standard

of care for the charge of negligent homicide was that “which

physicians using ordinary care exercise in the delivery and care of

newborns.”); State v. Clyde, 2019 UT App 101, ¶ 26 (holding that

there was sufficient evidence establishing the standard of care for a

nurse charged with negligent homicide — the appropriate medical

protocol).

¶ 52 The relevant circumstances in this case were that a medical

professional provided medical treatment to a person needing

medical attention while under law enforcement’s physical restraint.

The standard of care was therefore that which would apply in a civil

case involving such a situation — one applicable to a reasonable

paramedic in Aurora, Colorado, in 2019 treating a person in Mr.

McClain’s condition. See Klimkiewicz v. Karnick, 372 P.2d 736,

739-40 (Colo. 1962) (when the conduct allegedly giving rise to

liability is that of a medical professional providing medical services,

it is error to instruct the jury to apply an “ordinarily prudent

person” standard; the defendant’s conduct should be judged

against a standard of ordinary skill and care in the defendant’s

31 medical field); United Blood Servs. v. Quintana, 827 P.2d 509, 519

(Colo. 1992) (The standard of care “[f]or those practicing a

profession involving specialized knowledge or skill” is “to exercise

reasonable care in a manner consistent with the knowledge and

ability possessed by members of the profession in good standing.”);

Jordan v. Bogner, 844 P.2d 664, 666 (Colo. 1993) (“A nonspecialist

physician must act consistently with the standards required of the

medical profession in the community where he or she practices.”).

¶ 53 Indeed, it wouldn’t make any sense to apply an ordinary

reasonable person standard in this context. Given the nature and

purpose of Cooper’s allegedly negligent conduct, how could the

jurors evaluate the reasonableness of his conduct if not by

reference to Mr. McClain’s medical needs and Cooper’s medical

training? The prosecution in this case seems to have recognized as

much in how it prosecuted the case: Its case was based entirely on

Mr. McClain’s medical condition and Cooper’s alleged failure to

treat him in accordance with his medical training and applicable

medical protocols.

32 ¶ 54 It follows, then, that the district court erred by refusing

defense counsel’s tendered instruction and by refusing to clarify the

standard of care in response to the jurors’ question.

¶ 55 We recognize that ordinarily an instruction tracking statutory

language is unlikely to mislead the jury on the state of the law,

Galvan v. People, 2020 CO 82, ¶ 37, and that the pattern

instructions, while “not ‘a safe harbor that insulates instructional

error from reversal,’” are nevertheless to be given respect, id. at ¶ 38

(quoting Garcia v. People, 2019 CO 64, ¶ 22). But just because

such instructions generally are sufficient, that doesn’t mean they

are always sufficient. “While generally the giving of instructions in

the language of the statute is proper, this is not the case when the

statute itself . . . may tend to create ambiguities and lead to

confusion in the minds of the jurors . . . .” McDonald, ¶ 56 (quoting

Leonard v. People, 369 P.2d 54, 62 (Colo. 1962)); see also People v.

J.V., 635 P.2d 892, 894 (Colo. 1981) (statutory language may

require further definition if it is “apt to be misunderstood by a

jury”); Bustamonte v. People, 401 P.2d 597, 600 (Colo. 1965) (“[A]

defendant is entitled to supplementary clarification when additional

instructions are necessary adequately to inform a jury in a case . . .

33 and . . . instructions should be geared to the case being tried.”);

Trujillo, ¶¶ 35-36 (holding that an instruction tracking the language

of the statute under which the defendant was charged didn’t

adequately describe the culpable mental state because a layperson

wouldn’t be able to determine that meaning without additional

instructions).

¶ 56 Under the facts of this case, the definitional instruction didn’t

adequately articulate the applicable standard of care but rather left

the jury in the dark.

¶ 57 Also, the jurors’ question told the court that they didn’t know

what standard to apply. By telling the jurors to apply the “common

and ordinary meanings” of the words in the instruction, the court

failed to shine any light on the issue and in fact misled the jurors as

to the applicable standard of care: The proper standard wasn’t that

of a generic reasonable person but of a person in Cooper’s

profession under the existing circumstances. See Leonardo v.

People, 728 P.2d 1252, 1255-56 (Colo. 1986) (when the jury

indicates that it doesn’t understand an element of the charged

offense, the court must clarify the matter concretely and

unambiguously and should not merely refer the jury back to the

34 instruction); People v. Claycomb, 2025 COA 36, ¶¶ 50-51, 54-55

(same; the court erred by telling the jurors to “use the common

meaning” of the term they indicated they didn’t understand).15

¶ 58 These errors weren’t harmless beyond a reasonable doubt.16

The case was hotly contested; there were conflicting expert

opinions; the jury rejected the other, more serious charges against

Cooper; and the jury affirmatively indicated that it didn’t know what

standard of care to apply.17 Nor, contrary to the People’s

implication, was the evidence of Cooper’s guilt overwhelming.

¶ 59 The People argue that the jury necessarily determined that

Cooper didn’t act as a reasonable paramedic when considering the

15 To be clear, even if the court didn’t err in how it originally

instructed the jury, it erred by failing to clarify the issue for the jurors once they affirmatively indicated that they didn’t know what standard to apply. 16 We would also conclude that the judgment must be reversed even

if we applied the ordinary harmless error standard of reversal. 17 The People don’t argue that any error was harmless because the

standard of an ordinary reasonable person is lower than the standard of a reasonable medical professional under the relevant circumstances. And such an argument would fail. The standards are not quantitatively different but qualitatively different. A jury could surmise, and likely would surmise, that an ordinary reasonable person lacking medical training would, because of that lack of training, choose to do nothing. Because Cooper did something — injected Mr. McClain with ketamine — the jury could believe that Cooper grossly deviated from this standard of care.

35 “special relationship” traverse (discussed below). That’s an

overstatement, for two reasons. First, the traverse concerned

whether Cooper used “reasonable and appropriate physical

force . . . that [Cooper] reasonably believe[d]” to be appropriate.

§ 18-1-703(1)(e)(II). It didn’t concern the standard of care under

section 18-1-501(3). Second, and perhaps more importantly, the

prosecution didn’t have the burden of disproving that traverse

beyond a reasonable doubt (as the instruction expressly indicated).

The prosecution did have the burden of proving, beyond a

reasonable doubt, that Cooper grossly deviated from the appropriate

standard of care — a reasonable paramedic in Aurora, Colorado, in

2019. The jury didn’t decide that the prosecution had met that

burden — as to which it was never instructed — by apparently

concluding that the traverse didn’t raise a reasonable doubt about

the State’s proof of Cooper’s mental state. See People v. Pickering,

276 P.3d 553, 557 (Colo. 2011) (giving the jury an instruction on a

traverse — where a statute creates a traverse rather than an

affirmative defense — isn’t “constitutionally erroneous” “[s]o long as

the trial court properly instructs the jury regarding the elements of

the charged crime”).

36 ¶ 60 We therefore reverse the judgment of conviction and remand

the case for a new trial.18

C. The “Special Relationship” Jury Instruction

¶ 61 Cooper contends that the district court erred by refusing to

instruct the jury that section 18-1-703(1)(e)(II) of Colorado’s “special

relationships” statute creates an affirmative defense that the

prosecution must disprove beyond a reasonable doubt. See

Pickering, 276 P.3d at 555. We hold that this provision creates a

traverse to the charge of criminally negligent homicide, not an

affirmative defense.

¶ 62 Cooper’s counsel tendered an affirmative defense jury

instruction that would have told the jurors that the prosecution was

required to prove beyond a reasonable doubt that Cooper had not

“used reasonable and appropriate physical force for the purpose of

administering a recognized form of treatment that he reasonably

believed to be adapted to promoting the physical or mental health of

18 Of course, the People may not retry Cooper on any charges of

which he was acquitted. See U.S. Const. amends. V, XIV; Colo. Const. art. II, § 18; People v. Leske, 957 P.2d 1030, 1035 n.5 (Colo. 1998).

37 the patient.” The tendered instruction closely tracked a portion of

Colorado’s “special relationships” statute, which, as relevant to this

case, provides that

[t]he use of physical force upon another person that would otherwise constitute an offense is justifiable and not criminal . . . [if a] duly licensed physician, advanced practice registered nurse, or a person acting under his or her direction . . . use[s] reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if . . . [t]he treatment is administered in an emergency when the physician or advanced practice registered nurse reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

§ 18-1-703(1)(e)(II).

¶ 63 The prosecutor objected to the proposed instruction, arguing

that, with respect to reckless manslaughter and criminally negligent

homicide, the statute doesn’t create an affirmative defense. The

prosecutor conceded that the jury could be instructed on the

concept as a traverse.

¶ 64 The court agreed with the prosecutor and, in addition to

reciting the elements of the defense, instructed the jury that “with

38 respect to . . . criminally negligent homicide, the prosecution does

not have an additional burden to disprove use of physical force

(special relationship). You are instructed, though, that a person

does not act recklessly or in a criminally negligent manner if his

conduct is legally justified as set forth above.”19

2. Applicable Law and Standard of Review

There are, generally speaking, two types of defenses to criminal charges: (1) “affirmative” defenses that admit the defendant’s commission of the elements of the charged act, but seek to justify, excuse, or mitigate the commission of the act; and (2) “traverses” that effectively refute the possibility that the defendant committed the charged act by negating an element of the act.

Pickering, 276 P.3d at 555. “Whether an asserted defense is an

affirmative defense or a traverse dictates the applicable burden of

proof as to the defense’s existence or nonexistence.” Roberts v.

People, 2017 CO 76, ¶ 22.

[W]hen the evidence presented properly raises the issue of an affirmative defense, the affirmative defense effectively becomes an additional element of the charged offense, and

19 The court did instruct the jury that the special relationship was

an affirmative defense to the second degree assault charges — which required proof that Cooper intentionally caused an injury, see § 18-3-203 — of which Cooper was ultimately acquitted.

39 the trial court must instruct the jury that the prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable.

Id. (citing Pickering, 276 P.3d at 555).

¶ 65 “We review de novo the question of whether a trial court

accurately instructed the jury on the law.” Martinez v. People, 2024

CO 48, ¶ 10 (quoting Tibbels v. People, 2022 CO 1, ¶ 22).

¶ 66 We agree with the district court that, for the crime of

criminally negligent homicide, subsection (1)(e)(II) of the special

relationships statute creates a traverse.

¶ 67 “Under the criminally negligent homicide statute (act involving

criminal negligence), the jury must determine that the [defendant]

failed to perceive an unjustified risk that a reasonable person would

have perceived in the situation.” People v. Fink, 574 P.2d 81, 83

(Colo. 1978) (emphasis added), superseded by statute on other

grounds, Ch. 83, sec. 1, § 18-1-704, 2003 Colo. Sess. Laws 795, as

recognized in, Pickering, 276 P.3d at 556; see also § 18-1-501(9)

(defining “[v]oluntary act”). In Fink, the supreme court concluded

that “[c]riminally negligent homicide is totally inconsistent with the

40 . . . theory of self-defense” because a defendant asserting self-

defense contends that he acted in a reasonable manner, but by

proving that the defendant acted with criminal negligence, the

prosecution would necessarily prove beyond a reasonable doubt

that he didn’t act reasonably. 574 P.2d at 83. Therefore, self-

defense isn’t an affirmative defense to criminally negligent homicide.

Id.; see Castillo v. People, 2018 CO 62, ¶ 38 n.5; Sanchez v. People,

820 P.2d 1103, 1109 (Colo. 1991); Case v. People, 774 P.2d 866,

869-70 (Colo. 1989).

¶ 68 This reasoning applies to the special relationship defense at

issue in this case. That special relationship defense requires that

the defendant used “reasonable and appropriate physical force for

the purpose of administering a recognized form of treatment that he

or she reasonably believe[d] to be adapted to promoting the physical

or mental health of the patient.” § 18-1-703(1)(e)(II) (emphasis

added). So by proving beyond a reasonable doubt the elements of

41 criminally negligent homicide, the prosecution necessarily disproves

that the defendant acted reasonably.20

¶ 69 Cooper was well within his rights to assert and present

evidence supporting the special relationship defense to disprove

that he acted negligently. See Fink, 574 P.2d at 83 (a defendant

may present evidence that he was acting in self-defense despite not

receiving a self-defense affirmative defense instruction). But the

district court wasn’t required to instruct the jury that the

prosecution had the additional burden of disproving the defense

beyond a reasonable doubt.

III. Disposition

¶ 70 The district court’s judgment of conviction is reversed. We

remand the case for a new trial.

JUDGE MEIRINK and JUDGE BERGER concur.

20 In this case, as previously discussed, the court didn’t properly

instruct the jurors on the standard of care, an element of the offense. So the People didn’t necessarily disprove the traverse in this case. But on remand, if the People retry Cooper on the criminally negligent homicide charge, so long as the court properly instructs the jurors on the elements, the court should not instruct the jurors that the special relationship is an affirmative defense.