People v. Jones

2018 COA 112, 434 P.3d 760

• Court: Colorado Court of Appeals
• Decided: August 9, 2018
• Docket: 15CA1365
• 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 August 9, 2018

2018COA112

No. 15CA1365 Peo v Jones — Criminal Law — Jury Instructions — Use of Physical Force, Including Deadly Physical Force (Intruder Into A Dwelling); Affirmative Defenses — Self-Defense — Use of Physical Force in Defense of a Person

The defendant, charged with assaulting two occupants of a

home, alleged that he had inadvertently trespassed into the home

and asserted a self-defense defense. The prosecution requested an

instruction pursuant to Colorado’s make-my-day statute, which

gives homeowners who satisfy the statutory elements the exclusive

right to use force in a homeowner-trespasser encounter, thereby

negating a trespasser’s right to claim self-defense.

The division holds that the trial court erred in failing to

instruct the jury that the make-my-day statute requires a

“knowingly” unlawful entry into the home. Because the jury could

have found the defendant’s entry to be mistaken or accidental, it could have further determined that the homeowners did not have

the exclusive right to use force during the encounter. Under those

circumstances, the jury could then have considered the defendant’s

self-defense defense. But the omission of the “knowingly” element

effectively negated the defendant’s defense. And because the

evidence supported such a defense, the instructional error was not

harmless.

The dissent concludes that the district court properly

instructed the jury on the make-my-day statute and, in any event,

any error was harmless because the defendant did not have a viable

self-defense defense.

The division reverses the judgment and remands for a new

trial. COLORADO COURT OF APPEALS 2018COA112

Court of Appeals No. 15CA1365 City and County of Denver District Court No. 14CR1481 Honorable Elizabeth A. Starrs, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gregory Ray Jones,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VI Opinion by JUDGE HARRIS Terry, J., concurs Casebolt*, J., dissents

Announced August 9, 2018

Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Michael J. Sheehan, Centennial, 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. 2017 ¶1 Gregory Ray Jones was convicted of assault after he entered

an apartment occupied by four young men and a physical

altercation ensued.

¶2 At trial, he argued that he had mistakenly entered the

apartment and had used force against the homeowners only in self-

defense. Finding there was some evidence to support Jones’s

theory of defense, the court gave a self-defense instruction,

explaining that a person is entitled to use force to defend himself

against any unlawful use of force.

¶3 But the court also instructed the jury that, under Colorado’s

“make-my-day” statute, a homeowner has the right to use any

degree of physical force against a person who makes an “unlawful

entry” into the home. In other words, where the make-my-day

statute applies, the homeowner’s use of force is necessarily lawful

and therefore a trespasser has no right to use self-defense.

¶4 On appeal, Jones argues that the make-my-day instruction

was overly broad. He says the trial court erred in failing to instruct

the jury that only a “knowingly” unlawful entry, rather than a

mistaken entry, triggers the statute. He contends that the court’s

error allowed the jury to determine that even a mistaken entry gave

1 the homeowners the exclusive right to use force during the

altercation which, in turn, prevented the jury from properly

considering his claim of self-defense.

¶5 We agree and, because we conclude that the error was not

harmless, we reverse Jones’s conviction and remand for a new trial.

I. Background

¶6 Late one night, in March 2014, Jones opened the unlocked

door of an apartment located in a large, gated apartment complex.

He turned on the hall light and walked into one of the bedrooms.

¶7 The apartment was occupied by two brothers, Daniel and

Ruben Peacemaker, and the brothers’ two cousins (the

homeowners). Jones and the homeowners had never met each

other, and the homeowners all characterized Jones’s entry into the

apartment as a “completely random” occurrence.

¶8 It turned out that Jones’s cousin lived in an apartment at the

complex. Sometime in the previous year, the cousin had moved to a

different apartment in the same complex. According to the

testimony of various witnesses, the apartment complex was laid out

in a confusing way: the five buildings all looked alike, and neither

the buildings nor the apartments were numbered sequentially. One

2 of the police officers who responded to the scene got lost looking for

the homeowners’ apartment. He testified that the complex was

“really confusing” because the “numbers are labeled really odd,”

and that a person would “really have to spend a lot of time in that

complex so that [he] would remember which building is which.”

¶9 Jones had visited his cousin at the complex on multiple

occasions, sometimes late at night. But on that night in March

2014, Jones had been drinking. His wife estimated that the couple

started drinking at 6:00 that evening and that Jones drank about

five glasses of brandy before she went to bed. When Jones woke

her up at around 2:00 a.m. to tell her a joke, she thought he was

drunk.

¶ 10 About an hour later, after parking his car at roughly the

midpoint between his cousin’s former and current apartments,

Jones walked into the homeowners’ apartment.

¶ 11 One of the occupants, a cousin, was sleeping on the couch.

He heard Jones come in and turn on the light, but he assumed —

because the person who had entered acted as though he “belonged

there” and was not “somebody who was busting into the place” —

3 that it was one of the Peacemaker brothers coming home late from

work.

¶ 12 Jones walked past the cousin on the couch and through the

open bedroom door where Daniel Peacemaker was sleeping.

According to Daniel’s testimony, he woke up to find Jones on top of

him, punching him repeatedly in the head. Daniel yelled, then

rolled out of bed, and both men fell to the floor, where Jones

continued to punch Daniel.

¶ 13 The cousin on the couch heard Daniel yell and ran into the

bedroom. He saw that Daniel, who was bleeding, had Jones

“pinn[ed] against the wall,” and that the two men were punching

each other. He ran over and punched Jones “as hard as [he] could”

in the face.

¶ 14 The other cousin arrived in the bedroom at almost the same

time. He started punching Jones, as many times as he could, to try

to knock him down. The fighting between Jones and the three men

was “really fast, really aggressive”; there were “fists flying from

everyone.”

¶ 15 But within ten or fifteen seconds, the fight started to move out

of the bedroom. Jones was “shuffling” with his back to the wall,

4 moving toward the hallway, while he swung at the three men. One

cousin described it as Jones “trying to fight his way out” of the

apartment. But the homeowners “weren’t letting him get out.”

¶ 16 Eventually, though, Jones moved into the hallway. Daniel

grabbed Jones’s hoodie to try to prevent him from leaving, and

Jones tripped near the front door. As he tripped, Jones dropped a

knife on the floor. He then “slipped out the door.”

¶ 17 Daniel’s brother, Ruben, who had woken to the commotion

just before Jones ran out of the apartment, chased Jones out the

front door, with one of the cousins in tow. Ruben and the cousin

caught up with Jones, tackled him to the ground, and detained him

until police arrived a few minutes later.

¶ 18 It was not until after Jones had left the apartment that Daniel

realized he had been stabbed. He sustained injuries to his ears,

neck, shoulders, and arm. One cousin also sustained less serious

injuries.

¶ 19 Jones was charged with burglary, attempted first degree

murder, and two counts of second degree assault. The jury

convicted him of one count of second degree assault and one count

5 of third degree assault, but acquitted him of the attempted murder

and burglary charges.

II. Jury Instructions

¶ 20 At trial, Jones argued that he had entered the apartment by

mistake. Then, when the homeowners used force against him, he

justifiably defended himself, using the knife he carried for

protection.1

¶ 21 The court gave two instructions relevant to the issue on

appeal: a self-defense instruction, requested by Jones, and an

instruction pursuant to section 18-1-704.5, C.R.S. 2017, known as

the “make-my-day” statute, requested by the prosecution.

¶ 22 The self-defense instruction allowed the jury to acquit Jones of

the assault charges if it found that Jones had used physical force to

defend himself from the use of unlawful physical force by the

homeowners. The make-my-day instruction, however, directed the

jury that, if the statutory elements were met, the homeowners’ use

1 Jones’s tendered theory of defense instruction read: “The defendant, Gregory Ray Jones, asserts that he did not knowingly make an unlawful entry into the apartment occupied by [the homeowners]. Mr. Jones asserts that after [going] inside the incorrect apartment, he attempted to retreat and leave the apartment.” 6 of force against Jones was lawful. Thus, because self-defense

applies only where the defendant confronts unlawful force, a finding

that the make-my-day statute applied would necessarily negate

Jones’s defense.

¶ 23 On appeal, Jones contends that the trial court erred in

instructing the jury that the make-my-day statute is triggered upon

any unlawful entry into a dwelling, rather than upon a “knowingly”

unlawful entry. The error, Jones says, meant that the jury could

have concluded that the make-my-day statute applied even though

Jones’s unlawful entry into the homeowners’ apartment was

mistaken or accidental, not “knowing.” As a result, he argues, the

erroneous make-my-day instruction negated his otherwise valid

claim of self-defense.

A. Standard of Review

¶ 24 A trial court has a duty to instruct the jury correctly on the

applicable law. People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).

We review jury instructions de novo to determine whether the

instructions as a whole accurately informed the jury of the

governing law. People v. Lucas, 232 P.3d 155, 162 (Colo. App.

2009).

7 ¶ 25 We review a preserved objection to a jury instruction for

harmless error. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). A

jury instruction error is not harmless when the error permits the

jury “to hold [the] defendant to a higher standard in establishing

self-defense than is required by law.” People v. Ferguson, 43 P.3d

705, 708 (Colo. App. 2001).

B. Affirmative Defense of Self-Defense

¶ 26 Under section 18-1-704(1), C.R.S. 2017, a person has the right

to use force to defend himself from the use or imminent use of

unlawful physical force by another person, and he may use a degree

of force that he reasonably believes is necessary for that purpose.

¶ 27 That right is not absolute, however. As relevant here, an

“initial aggressor” may use physical force to defend himself only if,

after he withdraws from the encounter and effectively

communicates to the other person his intent to do so, the other

person nevertheless continues the use of unlawful physical force.

§ 18-1-704(3)(b).

¶ 28 As a general matter, though, a person’s ability to defend

himself — even an initial aggressor’s — does not turn on whether he

is where he has a right to be. People v. Toler, 9 P.3d 341, 352 (Colo.

8 2000). “[T]respassers do not forfeit their rights to self-defense

merely by the act of trespassing.” Id. Thus, a trespasser may use

physical force to defend himself where, for example, the occupant of

the property confronts him with unlawful physical force. Id. And

even an initial aggressor may assert self-defense, irrespective of his

status as a trespasser, so long as he “withdraws and communicates

as required by the statute.” Id.

¶ 29 These rules animate the principle that the touchstone of

self-defense is a belief that one is defending against the unlawful

use of force. People v. Silva, 987 P.2d 909, 915 (Colo. App. 1999).

The corollary to that principle is that a person is not justified in

using force to defend against another person’s lawful use of force.

C. The Make-My-Day Statute

¶ 30 Under the make-my-day statute, any degree of physical force

by a homeowner against certain trespassers is lawful. Thus, when

the make-my-day statute applies, it operates as a bar to a

trespasser’s claim of self-defense. See People v. Chirico, 2012 COA

16, ¶ 15.

¶ 31 Section 18-1-704.5(2) provides, in relevant part, as follows:

9 Notwithstanding the provisions of section 18- 1-704 [the self-defense statute], any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

¶ 32 The make-my-day statute therefore has three elements: (1) an

unlawful entry; (2) the occupant’s reasonable belief that the person

entering unlawfully has committed, is committing, or intends to

commit a crime other than the entry; and (3) the occupant’s

reasonable belief that the person entering unlawfully might use

physical force against an occupant. See People v. Zukowski, 260

P.3d 339, 343 (Colo. App. 2010). Only the first element is at issue

here.

¶ 33 The “vexing question” of the proper definition of “unlawful

entry” was resolved in People v. McNeese, 892 P.2d 304, 310 (Colo.

1995): “[A]n unlawful entry means a knowing, criminal entry into a

dwelling.” Though the statute does not contain the word

10 “knowingly,” the supreme court construed the statute to require a

“culpable mental state” because, without such a requirement, the

occupant of a dwelling could lawfully use physical force, even

deadly physical force, against “any unanticipated or unexpected

‘intruder.’” Id. at 311. And surely, the court reasoned, the

legislature did not intend the statute to justify the use of physical

force against “persons who enter a dwelling accidentally or in good

faith.” Id. Thus, the statutory language justifies an occupant’s use

of physical force against another person only when the other person

has made “an entry in knowing violation of the criminal law” — that

is, when the other person is “knowingly engaging in criminal

conduct.” Id. at 310-11.

¶ 34 Jury Instruction Number 29 instructed the jury that any

occupant of a dwelling is justified in using any degree of physical

force, including deadly physical force, against another person when

that other person “has made an unlawful entry into the dwelling,”

and the other elements of the make-my-day statute are established.

Over defense counsel’s objection, the court declined to add the word

“knowingly” to modify the “unlawful entry” element.

11 D. McNeese’s Definition of “Unlawful Entry” is Not Limited to Immunity Cases

¶ 35 The People contend that the supreme court’s interpretation of

the term “unlawful entry” in the make-my-day statute is limited to

cases in which the homeowner, not the trespasser, asserts the

affirmative defense of self-defense.2 We are not persuaded.

¶ 36 To be sure, the make-my-day statute can apply outside the

immunity context. See People v. Hayward, 55 P.3d 803, 805 (Colo.

App. 2002). The question is whether the supreme court intended

“unlawful entry” to have a different meaning depending on whether

the homeowner or the trespasser is on trial.

2 The People raised this argument for the first time at oral argument. Though we ordinarily decline to consider arguments raised for the first time at oral argument, see People v. Becker, 2014 COA 36, ¶ 23, we exercised our discretion to consider the argument and ordered the parties to file supplemental briefing on the issue of whether the definition of “unlawful entry” articulated in People v. McNeese, 892 P.2d 304, 310 (Colo. 1995), applies to this case. In addition to addressing the supplemental issue, Jones argued for the first time that we should review his challenge to the make-my-day instruction under a constitutional harmless error standard. Because we conclude that Jones prevails under a harmless error standard, we decline to address his new argument. The People also raised new, nonresponsive arguments in their supplemental briefing. We likewise decline to consider those arguments. 12 ¶ 37 We begin with the uncontroversial proposition that we are

“bound to follow supreme court precedent.” In re Estate of

Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250

P.3d 762, 768 n.3 (Colo. App. 2010)). Our obligation takes on even

greater import when it comes to statutory interpretation, because

our departure from supreme court precedent amounts to an

amendment of the statute that the legislature has not approved.

See Kimble v. Marvel Entm’t, 576 U.S. ___, ___, 135 S. Ct. 2401,

2410 (2015).

¶ 38 Nonetheless, the People urge us to abandon the definition of

“unlawful entry” articulated in McNeese. They contend the McNeese

court adopted the “knowing” element of the “unlawful entry”

requirement to temper the statute’s grant of immunity to

homeowners who use what would otherwise amount to excessive

force against trespassers. See 892 P.2d at 310-11. We agree that

this concern informed the supreme court’s statutory interpretation,

at least in part, but the People do not explain why this concern

would not be present in cases where an unwitting trespasser is

prosecuted and seeks to invoke self-defense.

13 ¶ 39 As the McNeese court observed, the make-my-day statute “is

similar to self-defense,” but is much broader because it justifies

deadly physical force, not just physical force, against an intruder,

even when the intruder threatens the slightest use of force against

the homeowner. Id. at 309. Thus, the court construed the statute

to shield the homeowner only when the intruder made a “knowing,

criminal entry” into the home. Id. at 310. Otherwise, a homeowner

could take advantage of the statute’s grant of immunity to use

otherwise excessive force against a person who had a good faith

belief that he was making a lawful entry. At bottom, the purpose of

the “knowing” element is to protect the accidental trespasser. See

id. at 310-11. (The supreme court apparently did not consider the

second and third statutory requirements sufficient to achieve that

goal.)

¶ 40 Given that purpose, we do not see why the knowing element

would suddenly become irrelevant simply because the trespasser,

not the homeowner, is ultimately prosecuted. An accidental

trespasser who is confronted by a homeowner’s excessive force

would be unable to lawfully use force to defend himself, giving the

homeowner a “license” to use unnecessary force against any

14 intruder — the same scenario the supreme court intended to

discourage in McNeese. Id. at 309; see also id. at 311 (“The

immunity was not intended to justify use of physical force against

persons who enter a dwelling accidentally or in good faith.”).

¶ 41 The dissent raises a different reason to disregard McNeese’s

definition of “unlawful entry.” According to the dissent, the

“knowing” element is tied not to the consequences of granting

immunity, but instead to the burden of proof. In an immunity case,

when the defendant homeowner raises the make-my-day defense at

trial, it operates as an affirmative defense, meaning the prosecution

bears the burden to disprove the defense beyond a reasonable

doubt, including that the victim’s entry was knowingly unlawful.

People v. Janes, 982 P.2d 300, 303 (Colo. 1999). But in a case

where the trespasser is prosecuted, the dissent says, the

prosecution’s task is to prove the elements of the charged offenses;

it should not bear the additional burden of proving that the

homeowner used lawful force against the trespasser under the

make-my-day statute.

¶ 42 The issue on appeal, though, is simply whether the instruction

should have included the “knowingly” element of the statute’s

15 unlawful entry requirement. The dissent’s argument goes to a

different issue: Who should bear the burden of proof when the

make-my-day statute is not raised by the homeowner as an

affirmative defense?

¶ 43 Assuming the burden of proof were our concern, though, we

note that the prosecution requested the make-my-day instruction in

this case. It asked the jury to find that, at the moment Jones

“unlawfully” entered the apartment, the homeowners were “justified

in using any degree of physical force, including deadly physical

force,” against him. The instruction’s effect — and, presumably, its

purpose — was to give the homeowners the exclusive right to self-

defense and thereby negate any such claim by Jones.

¶ 44 But regardless of whose burden it was to prove the application

(or nonapplication) of the make-my-day statute, the jury had to be

correctly instructed as to its elements. The dissent does not explain

why the prosecution should be entitled to the benefit of a broader

definition of “unlawful entry” simply because Jones was on trial, not

the homeowners. Indeed, even if Jones should have borne the

burden of proof (and we do not decide that issue, as it was not

raised in the trial court or on appeal), he could not have disproved

16 the homeowner’s exclusive right to use physical force unless the

instruction included the disputed “knowingly” element.

¶ 45 Accordingly, we see no reason to depart from McNeese’s

definition of “unlawful entry.”

E. The Make-My-Day Instruction Improperly Abridged Jones’s Self-Defense Defense

¶ 46 Jones presented two theories of self-defense, both of which

started from the premise that Jones had unlawfully, but

mistakenly, entered the homeowners’ apartment. Under the first

theory, after the mistaken entry, Daniel was the initial aggressor,

and Jones’s use of physical force was justified as a reasonable

response to the homeowners’ unlawful use of force. Under the

alternative theory, even if, after the mistaken entry, Jones was the

initial aggressor, he tried to retreat by leaving the apartment, but

the homeowners nevertheless used unlawful physical force to try to

detain him, and therefore Jones’s use of physical force after his

attempt to retreat was justified as self-defense.

¶ 47 But if the make-my-day statute applied — that is, if Jones

made an “unlawful entry” into the apartment (and the other

statutory criteria were met) — then he would not be justified in

17 using physical force against the homeowners. That is true because,

under those circumstances, the homeowners’ use of physical force

against Jones was necessarily lawful, and, as we have noted, self-

defense is only a defense to another’s use of unlawful physical

force.

¶ 48 The trial court, however, declined to instruct the jury that

Jones’s entry was not an “unlawful entry” for purposes of the make-

my-day statute unless it was made “knowingly” — meaning, with a

“mental state [that] reflect[s] an entry in knowing violation of the

criminal code.” McNeese, 892 P.2d at 312. A mistaken or

accidental entry is not a knowingly unlawful entry. Id. at 312.

¶ 49 Although it is generally true that “an instruction couched in

terms of the language of the statute is proper,” a trial court must

tailor those instructions to the particular circumstances of the case.

Idrogo v. People, 818 P.2d 752, 754 (Colo. 1991). Therefore, an

instruction clarifying the meaning of “unlawful entry” is necessary

where the evidence supports a theory that the defendant

accidentally entered the dwelling or otherwise entered without the

requisite mental state. Cf. Hayward, 55 P.3d at 805 (perceiving no

error in the trial court’s decision to give the make-my-day

18 instruction in the exact terms of the statute, where the evidence

was undisputed that the defendant’s attempted entry into his

estranged wife’s home was knowingly unlawful).

¶ 50 Here, in the absence of any further instructions to the jury

about the meaning of “unlawful entry,” the jury could have

erroneously concluded that even an accidental entry into the

apartment triggered application of the make-my-day statute. A

mistaken entry, after all, could still be unlawful under the criminal

code, see § 18-4-504, C.R.S. 2017 (criminal trespass in the third

degree); see also McNeese, 892 P.2d at 316 (Scott, J., dissenting)

(“[U]nder the majority’s definition [of unlawful entry], third degree

criminal trespass would not fulfill the ‘unlawful entry’ requirement

because it lacks the culpable mental state of knowingly.”), even if it

does not count as “knowingly” unlawful for purposes of the make-

my-day statute.

¶ 51 We therefore conclude that the court erred in failing to

instruct the jury that the make-my-day statute’s “unlawful entry”

element requires that the unlawful entry be made “knowingly.”

¶ 52 We further conclude that the instructional error was not

harmless. The evidence supported Jones’s theory that he entered

19 the apartment accidentally, under the mistaken belief that he was

entering his cousin’s apartment: Jones’s cousin lived in the

complex, the cousin had recently moved, the complex was difficult

to navigate, and Jones was apparently drunk. Indeed, after

receiving an instruction on “mistaken belief of fact,”3 the jury

acquitted Jones of first degree burglary.

¶ 53 Accordingly, the record supported a determination by the jury

that Jones’s entry was accidental and that the make-my-day statute

did not apply.

¶ 54 Under those circumstances, the jury would then have

evaluated Jones’s claim of self-defense under ordinary self-defense

principles. If the jury determined that Daniel was the initial

aggressor, Jones was entitled to use physical force to defend himself

from the moment Daniel used unlawful physical force against him.

But even if the jury determined that Jones was the initial aggressor,

3 The “mistaken belief of fact” instruction applied only to the burglary charge and provided, in relevant part, that “[t]he defendant’s conduct was legally authorized if: (1) the defendant engaged in prohibited conduct under a mistaken belief and (2) due to this mistaken belief he did not form the particular mental state required in order to commit the offense.” The requisite mental state for burglary is “knowingly.” 20 it could nonetheless have credited Jones’s theory of self-defense if it

also determined that Jones had attempted to withdraw from the

encounter and had effectively communicated his intent to the

homeowners, but that the homeowners nevertheless continued the

use of unlawful physical force against him.

¶ 55 The erroneous make-my-day instruction, though, meant that

the jury might not have evaluated the claim of self-defense even

though it found that Jones’s entry was not “knowingly” unlawful.

See Ferguson, 43 P.3d at 708 (An error in the self-defense

instruction is not harmless where “we simply cannot determine the

manner in which the jury applied the self-defense instruction, if at

all.”).

¶ 56 The People contend that any error was harmless because

Jones’s acquittal on the burglary charge rendered the make-my-day

instruction “moot.” According to the People, in acquitting Jones of

burglary, the jury necessarily determined that Jones had not made

a knowingly unlawful entry. Therefore, the jury would have known

that the make-my-day instruction did not apply and would have

considered Jones’s self-defense defense.

21 ¶ 57 Not true, because only the burglary instruction required a

“knowingly” unlawful entry; the make-my-day instruction required

only an “unlawful” entry. Thus, the jury could have determined

that Jones did not “knowingly” enter the homeowners’ apartment

unlawfully, for purposes of the burglary statute, because his entry

was accidental or mistaken. But it could still have concluded, for

purposes of the make-my-day statute, which did not include a

“knowingly” element, that Jones committed an unlawful (though

accidental or mistaken) entry — i.e., a third degree trespass. See §

18-4-504.

¶ 58 The likelihood that this precise problem occurred was only

increased by the mistaken-belief-of-fact instruction. The jury was

told that, for purposes of the burglary charge only, if Jones engaged

in prohibited conduct — presumably, entering the apartment —

under a mistaken belief, and the mistaken belief precluded him

from forming the requisite mens rea (knowingly), his conduct was

“legally authorized.” The jury, following this instruction, could have

concluded that Jones’s entry into the apartment was made under a

mistaken belief that he was entering his cousin’s apartment and it

could have acquitted Jones of burglary on that basis. But because

22 the instruction applied only to the burglary charge, the jury could

reasonably have understood that it could not consider the

“mistaken” or “accidental” nature of the entry for any other

purpose, including applicability of the make-my-day statute.

¶ 59 Nor are we persuaded by the People’s alternative argument,

that the error was harmless because the evidence overwhelmingly

disproved Jones’s claim of self-defense.

¶ 60 True, Daniel testified that he awoke to Jones jumping on top

of him and “throwing blows to [his] head . . . more [times than he]

could count.” That testimony was sufficient to establish that Jones

was the initial aggressor and not entitled to claim self-defense

unless he met other criteria. But other evidence contradicted

Daniel’s testimony. Despite the nearly twenty punches to his head

and face, on cross-examination he admitted that he did not sustain

any injuries to his face, and he agreed that photographs taken just

after the fight and a week later showed no facial injuries. There was

also the lack of any motive. The homeowners testified that they had

never met Jones and that his entry into their apartment was

“completely random.” A rational juror was not compelled to accept

Daniel’s testimony that Jones was the initial aggressor. And if

23 Jones was not the initial aggressor, and the make-my-day statute

did not apply, he was entitled to use physical force against Daniel

from the inception of the incident.

¶ 61 But even if Jones was the initial aggressor, he was entitled to

claim self-defense if he attempted to withdraw from the encounter

and effectively communicated his intent to do so but the

homeowners nonetheless continued any unlawful use of physical

force. See § 18-1-704(3)(b). Each of the four occupants testified

that very quickly after the altercation started — within ten or fifteen

seconds, according to one of the cousins — Jones attempted to

extricate himself from the melee and leave the apartment. But each

of the four occupants also testified that they continued to use

physical force against Jones in an effort to detain him. Some

evidence, or at least reasonable inferences drawn from it, also

supported Jones’s argument that he did not use the knife until after

he had attempted to withdraw from the altercation and get out of

the apartment.

¶ 62 The dissent says Jones’s efforts to extricate himself from the

altercation were merely an “attempt to flee a crime scene.” The jury

could have adopted that view, but we cannot say that it is the only

24 reasonable view of the evidence. See State v. Jones, 165 So. 3d 74,

87 (La. Ct. App. 2013) (the jury is the “ultimate fact-finder” in

determining whether the defendant acted in self-defense, including

whether the defendant was the initial aggressor who had withdrawn

from the conflict); see also People v. Hernandez, 3 Cal. Rptr. 3d 586,

588 (Cal. Ct. App. 2003) (an initial aggressor may communicate

withdrawal either by words or conduct; verbal notification is not

required).

¶ 63 In sum, we cannot say that the evidence was so overwhelming

that the instructional error was harmless. See Garcia, 28 P.3d at

344 (error in jury instruction is not harmless where the language of

the instruction creates a reasonable probability that the jury could

have been misled in reaching a verdict).

¶ 64 Finally, to the extent the People argue that defense counsel’s

closing argument cured the effect of an erroneous jury instruction,

we reject that argument. True, in his closing argument, defense

counsel told the jury that Jones’s mistaken or accidental entry into

the apartment did not constitute a “knowing unlawful entry,” and

therefore Jones could use physical force to defend himself from the

homeowners’ use of physical force against him. But defense

25 counsel’s closing argument, even if a correct statement of the law,

did not remove the taint of the court’s error. “[A]rguments by

counsel cannot substitute for instructions by the court.” Taylor v.

Kentucky, 436 U.S. 478, 488-89 (1978). It is the duty of the trial

court — not counsel — to “correctly instruct the jury on all matters

of law for which there is sufficient evidence to support giving

instructions.” People v. Jacobson, 2017 COA 92, ¶ 10 (quoting

People v. Carbajal, 2014 COA 60, ¶ 10). Consistent with its

obligation, the trial court repeatedly admonished the jury to “go

with the instructions,” reminding the jury that “if the lawyers say

the law is something and it’s something different in the

instructions, then you go with the instructions.”

¶ 65 The language of the make-my-day instruction improperly

abridged Jones’s claim of self-defense and created a reasonable

probability that the jury could have been misled in reaching a

verdict. Accordingly, we reverse Jones’s convictions and remand for

a new trial.

III. Remaining Contentions

¶ 66 Jones also contends that the trial court erred in denying his

motion for a mistrial after he sought to add a dismissed juror to his

26 witness list and in denying his request for the juror’s contact

information. In light of our disposition, we do not address these

additional claims.

IV. Conclusion

¶ 67 The judgment of conviction is reversed, and the case is

remanded to the trial court for a new trial.

JUDGE TERRY concurs.

JUDGE CASEBOLT dissents.

27 JUDGE CASEBOLT, dissenting.

¶ 68 For a number of reasons, I perceive no error by the trial court

that prejudiced defendant’s substantial rights. Therefore, I

respectfully dissent.

¶ 69 At approximately 3:30 a.m., defendant opened the unlocked

door of an apartment, turned on the hall light, and walked into the

bedroom of Daniel Peacemaker, who woke up to find defendant on

top of him. Defendant struck Daniel at least seven times in the

head, face, and shoulder areas. Testimony at trial established that

Daniel yelled, “Who are you?” and “What are you doing here?” The

two then rolled out of the bed and fell to the floor, where defendant

continued to punch Daniel approximately ten more times. Daniel

testified that he did not return defendant’s strikes until after the

two men rolled onto the floor and defendant continued to pummel

him there. Daniel then responded with his own blows.

¶ 70 Another resident of the apartment heard Daniel’s yells and ran

into the bedroom. He saw that Daniel was bleeding but had

defendant pinned against the wall, and that the two men were

punching each other. The resident joined in the altercation and

28 punched defendant multiple times. A third resident ran into the

bedroom and joined the fray.

¶ 71 After ten or fifteen seconds, the fight started to move out of the

bedroom. All the occupants testified that defendant appeared to be

attempting to get out of the apartment while the fight continued.

After additional blows and pushing occurred, defendant dropped a

knife (on which Daniel’s blood was found) onto the floor and slipped

out the front door. Two of the apartment residents chased

defendant and detained him until police arrived.

¶ 72 Meanwhile, Daniel realized he had been stabbed. He

sustained injuries to his ears, neck, shoulders, and arm. Daniel’s

cousin, another resident, also sustained less serious injuries.

¶ 73 The prosecution charged defendant with first degree burglary

as to Daniel and the cousin; attempted first degree murder of

Daniel; and two counts of second degree assault, one as to Daniel

and one as to the cousin.

¶ 74 Defendant did not testify at trial. His theory of the case

instruction asserted that he did not knowingly make an unlawful

entry into the apartment and that, after he realized he was in the

incorrect apartment, he attempted to retreat and leave.

29 ¶ 75 The jury convicted defendant of one count of second degree

assault as to Daniel and one count of the lesser included offense of

third degree assault (knowing) as to the cousin, but acquitted him

of the attempted murder and burglary charges.

I. Jury Instructions

¶ 76 During the jury instruction conference, defense counsel

argued that there was sufficient evidence to warrant instructing the

jury on self-defense. Over the prosecutor’s objection, the trial court

agreed that there was at least a scintilla of evidence on the issue

and instructed the jury, pursuant to the self-defense statute,

section 18-1-704, C.R.S. 2017, in pertinent part, as follows:

The defendant was legally authorized to use physical force upon another person without first retreating if: (1) he used that physical force in order to defend himself or a third person from what he reasonably believed to be the use or imminent use of unlawful physical force by that other person, and: (2) he used a degree of force which he reasonably believed to be necessary for that purpose, and (3) he did not, with intent to cause bodily injury or death to another person, provoke the use of unlawful physical force by that other person, and (4) he was not the initial aggressor, or, if he was the initial aggressor, he had withdrawn

30 from the encounter and effectively communicated to the other person his intent to do so, and the other person nevertheless continued or threatened the use of unlawful physical force. The prosecution has the burden to prove, beyond a reasonable doubt, that the defendant’s conduct was not legally authorized by this defense. In order to meet this burden of proof, the prosecution must disprove, beyond a reasonable doubt, at least one of the above numbered conditions.

¶ 77 Pursuant to the prosecutor’s request and over defense

counsel’s objection, the court also instructed the jury on the

Colorado “make-my-day” statute, section 18-1-704.5(2), C.R.S.

2017. The instruction, which quoted that statute almost verbatim,

stated as follows:

Any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.

31 ¶ 78 Defense counsel objected that the instruction was extraneous

and confusing, “especially when it comes to [defendant’s] right to

defend himself when he is attempting to retreat to the wall” and

that “even if [defendant] was the initial aggressor he is still allowed

to use force to defend himself when he is effectively communicating

to these people his intent to retreat to the wall.” Counsel also

stated that, “I don’t feel that it’s necessary or relevant to advise the

jury on what the rights of these four occupants of the apartment

are, because they are not on trial.” Defense counsel further argued

that, if the court was going to give the instruction, it should insert

the word “knowing” before the word “unlawful,” such that an

intruder entering the dwelling had to have made a knowing

unlawful entry before the occupants could use physical force.

Counsel asserted:

[T]he point I’m trying to make is that a person may have known that they were walking through a door, but they may not have believed that it was unlawful. So I think it’s important to make that distinction in there because without it, all it was is knowingly walked through a door, when really, the crux of the argument when it comes to burglary is whether [defendant] knew he was breaking the law when he walked through the door.

32 ¶ 79 Over the prosecutor’s objection, the court also determined that

it would instruct the jury on mistake of fact as an affirmative

defense. The court found that there was at least a scintilla of

evidence that defendant was intoxicated on the night of the

occurrence, that his cousin lived in the apartment complex and

defendant had visited him there previously, and that the complex

was extremely confusing in its configuration and numbering.

Accordingly, it instructed the jury, in pertinent part, that

[t]he evidence in this case has raised the affirmative defense of “mistaken belief of fact” as a defense to First Degree Burglary. The defendant’s conduct was legally authorized if: (1) the defendant engaged in prohibited conduct under a mistaken belief and (2) due to this mistaken belief he did not form the particular mental state required in order to commit the offense.

¶ 80 Without objection, the court also instructed the jury on second

degree assault on Daniel and third degree assault (knowing) on the

cousin. Those instructions provided, again as pertinent here, as

follows:

The elements of the crime of Second Degree Assault [Daniel] are: (1) that the defendant ...

33 (3) with intent to cause bodily injury to another person (4) caused such injury to any person, namely: [Daniel] (5) by means of a deadly weapon, namely: knife [and] (6) that the defendant’s conduct was not legally authorized by the affirmative defense [of self- defense].

The elements of the crime of Assault in the Third Degree- (Knowing) [the cousin] are: (1) that the defendant ... (3) knowingly . . . (4) caused bodily injury to another person, namely: [the cousin], and (5) that the defendant’s conduct was not legally authorized by the affirmative defense [of self- defense].

II. Self-Defense and Make-My-Day Instruction ¶ 81 Unlike the majority, I do not perceive that the trial court erred

in giving the make-my-day instruction without inserting the

modifier “knowing” as requested by defendant.

¶ 82 The trial court has a duty to instruct the jury on all matters of

law. People v. Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009).

“The district court has substantial discretion in formulating the jury

34 instructions, so long as they are correct statements of the law and

fairly and adequately cover the issues presented.” Id.

¶ 83 We review de novo whether a particular jury instruction

correctly states the law. Day v. Johnson, 255 P.3d 1064, 1067

(Colo. 2011). We review a trial court’s decision to give a particular

jury instruction for an abuse of discretion. Id. We also review the

question whether the trial court erred when it denied a defendant’s

request for a particular instruction for an abuse of discretion. See

People v. Marks, 2015 COA 173, ¶ 53. A trial court abuses its

discretion if its decision is manifestly arbitrary, unreasonable, or

unfair. Id. A court may also abuse its discretion if its decision is

based on an erroneous understanding or application of the law.

People v. Ortiz, 2016 COA 58, ¶ 14.

¶ 84 A trial court should not instruct a jury on abstract principles

of law unrelated to the issues in controversy. People v. Silva, 987

P.2d 909, 913 (Colo. App. 1999). “Although it is appropriate for the

jury to resolve questions of fact, the court has the duty to determine

first which issues have been raised by the evidence

presented.” Id. at 915.

35 B. Applicability of People v. McNeese

¶ 85 The majority relies on People v. McNeese, 892 P.2d 304, 310

(Colo. 1995), for the proposition that the phrase “unlawful entry” in

section 18-1-704.5(2) must be construed to mean a “knowing”

criminal entry into a dwelling, and the jury must be so instructed.

While that construction of the statute makes sense when an

occupant of a dwelling seeks immunity from prosecution for (or as

an affirmative defense justifying) the employment of physical or

deadly force against an intruder, the same cannot be said when the

defendant is the intruder, as here, and seeks to justify his use of

physical force against the occupant of a dwelling. An examination

of the factual circumstances and rationale of McNeese reveals why.

¶ 86 In McNeese, the defendant was the occupant of a dwelling who

was bound over for trial on attempted first degree murder and first

degree assault charges arising out of the stabbing of Vivian Daniels,

his roommate, and two counts of second degree murder as to

victims John Daniels, the roommate’s estranged husband, and

David Wessels. The defendant pleaded not guilty and filed a motion

to dismiss, asserting that he was immune from prosecution under

the make-my-day statute. Id. The trial court granted his motion as

36 to the second degree murder charge for the stabbing death of John

Daniels, but denied the motion as to the remaining charges. Id.

The prosecution appealed the grant of immunity and a division of

this court affirmed. See People v. McNeese, 865 P.2d 881 (Colo.

App. 1993).

¶ 87 The supreme court reversed, concluding that the General

Assembly did not intend that the occupant of a dwelling be granted

immunity from prosecution for a suspected unlawful entry by an

intruder. McNeese, 892 P.2d at 308. “[Because] the occupant of a

dwelling is granted immunity from criminal prosecution for

homicide . . . safeguards must be imposed. Because the statute

readily grants immunity for the taking of a life, the ‘knowingly’

mens rea is required to carry out the principles of self-defense.” Id.

at 309. Thus, the court ultimately concluded that the defendant

occupant of a dwelling who seeks immunity from prosecution for

his or her use of physical or deadly force against an intruder “must

prove” that there was a knowing criminal entry. Id. at 310-13.

¶ 88 Hence, the court’s imposition of the “knowing” requirement is

based on there being charges brought against an occupant of a

dwelling, who then has the burden to prove, by a preponderance of

37 the evidence, that the intruder entered in knowing violation of the

criminal law to obtain immunity. Id. at 308-09; see People v.

Zukowski, 260 P.3d 339, 344 (Colo. App. 2010) (under McNeese, an

intruder must knowingly engage in criminal conduct).

¶ 89 The factual circumstances of McNeese and the focus of the

court’s attention were on the burden of proof to be imposed on the

occupant, who was charged with killing an intruder, to prove the

intruder’s state of mind on entry.

¶ 90 Here, of course, defendant was not the occupant of a dwelling

facing a criminal charge because he employed force against an

intruder. Instead, he was a trespassing intruder, at least as that

term is defined under third degree criminal trespass, see § 18-4-

504, C.R.S. 2017 (defining the crime as unlawfully entering or

remaining in or on premises of another). This trespass offense does

not contain a “knowing” element or any other specific mens rea.

See also § 18-4-201(3), C.R.S. 2017 (“A person ‘enters unlawfully’ or

‘remains unlawfully’ in or upon premises when the person is not

licensed, invited, or otherwise privileged to do so.”).

¶ 91 Under such circumstances, I do not perceive that the McNeese

rationale for imposing the “knowing” requirement for unlawful entry

38 in the make-my-day statute is applicable here. See People v. Janes,

982 P.2d 300, 302 (Colo. 1999) (stating that the McNeese court’s

imposition of a condition requiring a homeowner defendant to prove

by a preponderance of the evidence that the victim “knowingly made

an unlawful entry” was interpreting the “unlawful entry” language

“in [the] context of a defendant’s motion for pretrial statutory

immunity”).

¶ 92 Furthermore, imposing a “knowing” requirement here would,

contrary to McNeese’s imposition of the burden of proof on the

occupant to show by a preponderance of the evidence that the

intruder entered in knowing violation of the criminal law, impose on

the prosecution the burden to prove beyond a reasonable doubt that

the intruder entered knowingly, which essentially would turn the

McNeese rationale on its head.

¶ 93 Thus, the trial court’s refusal to include the “knowing” element

was, in my view, correct.

C. Propriety of the Make-My-Day Instruction

¶ 94 If, as I believe, McNeese does not apply here, the question is

simply whether, as given, the make-my-day instruction was proper.

39 In my view it was, as an examination of People v. Hayward, 55 P.3d

803 (Colo. App. 2002), reveals.

¶ 95 In Hayward, the defendant was charged with second degree

assault on his estranged wife. The victim testified that she

answered the door of her residence and encountered the defendant,

who then forced his way into the residence and repeatedly stabbed

her with a knife. In contrast, the defendant testified that the victim

answered the door brandishing a knife, and she sustained

accidental injuries during a struggle for control of the knife. The

defendant admitted he was aware of the restraining order that

prohibited him from being at the victim’s residence. Id. at 804.

¶ 96 At trial, the defendant requested and received an instruction

on self-defense couched in the language of section 18-1-704. The

prosecution sought to limit the applicability of self-defense by

explaining the victim’s right to use force in her home under the

make-my-day statute. Id. at 805. Over the defendant’s objection,

the trial court instructed the jury concerning the victim’s right to

defend herself in her dwelling and gave an instruction essentially

identical to the make-my-day statute. Id. at 805.

40 ¶ 97 On appeal, the Hayward division perceived no error in the trial

court’s giving of the make-my-day instruction, noting that it tracked

the statute verbatim and provided an explanation of appropriate

legal principles at issue in the case. Id.; see People v. Gilbert, 12

P.3d 331, 340 (Colo. App. 2000) (the trial court may instruct the

jury concerning a principle of law that is related to an issue in

controversy); People v. Burke, 937 P.2d 886 (Colo. App. 1996) (jury

instructions framed in the language of statutes are generally

adequate and proper).

¶ 98 The Hayward division then noted that, whether the defendant

was legally entitled to employ force in self-defense and further to

obtain an instruction at trial concerning it were dependent on

whether he made an unlawful entry into the dwelling. Because

those facts were in dispute, the instruction there was properly

given. Hayward, 55 P.3d at 805-06.

¶ 99 Here, the instruction was proper because (1) there was a

factual dispute over whether defendant unlawfully entered the

apartment; (2) defendant sought and received a general self-defense

instruction; and (3) the make-my-day instruction explained that the

victims and other occupants were entitled to employ force against

41 defendant because he was an intruder into their apartment and it

explained a legal proposition that was raised in the case. See id. at

805.

¶ 100 The make-my-day instruction did not, contrary to defendant’s

further contention, unduly limit his right to assert and argue

self-defense.

¶ 101 The court’s instructions concerning second and third degree

assault, recited above, noted that the prosecution had to prove,

beyond a reasonable doubt, that defendant’s conduct was not

legally authorized by the affirmative defense of self-defense. In

addition, defense counsel specifically argued in closing that “the

only reasonable, the only plausible explanation for what happened

here is that [defendant] mistakenly walked into the wrong

apartment; and that what happened in the aftermath, it was

necessary for him to defend himself against what he believed to be

the threat of serious bodily injury.”

¶ 102 Counsel also argued that Daniel was the initial aggressor in

the altercation, but, even if he was not, the evidence only proved

defendant committed third degree assault as to Daniel and that no

resident of the apartment testified that he saw defendant with a

42 knife until other people joined the altercation and defendant, being

outnumbered, then employed it to defend himself. Finally, with

regard to the make-my-day instruction, defense counsel stated:

One thing you cannot lose sight of within the context of this instruction that talks about occupants of a dwelling being able to use force against a person that makes unlawful entries . . . [t]hat law does not prevent Mr. Jones from using reasonable force himself if he makes a mistaken entry into that apartment. If his entry into the apartment is a mistake, it is not a knowing unlawful entry into the apartment; and he maintains the right to defend himself in a situation like that.

¶ 103 Thus, defendant argued that he was entitled to use

self-defense against the occupants and that he had to have acted

knowing he had violated the criminal law in making an entry into

¶ 104 Furthermore, the prosecutor did not argue, either in his initial

or in his rebuttal closing argument, that defendant did not need to

know that his conduct was criminal or that his unlawful entry into

the apartment did not have to be performed “knowingly.” The

prosecutor asserted that the occupants had a right to use force

against defendant under the make-my-day instruction, but did not

argue the instruction’s language omitting the word “knowing.”

43 ¶ 105 The majority perceives that the make-my-day instruction

without the “knowing” element somehow limited defendant’s right to

self-defense. It notes that, when the make-my-day statute applies,

“it operates as a bar to a trespasser’s claim of self-defense” because

the occupant’s use of physical force is lawful, not unlawful. Supra

¶ 30; see People v. Chirico, 2102 COA 16, ¶15; Silva, 987 P.2d at

915 (a reasonable belief that one is defending against the use of

unlawful force is the touchstone of self-defense).

¶ 106 But even acknowledging that this legal proposition is correct,

the jury was not instructed about it. It was not instructed that if it

found defendant had entered unlawfully, he then lost the right of

self-defense or that he was not justified in using force to defend

against the occupants’ physical force. Certainly, the make-my-day

instruction contained no such limitation. It omitted the language

“[n]otwithstanding the provisions of section 18-1-704” which would

have instructed the jury that self-defense was not available if the

provisions of the make-my-day statute were proved. As given, the

make-my-day instruction merely explained the occupants’ right to

employ physical force against a person who had unlawfully entered

their apartment. Furthermore, the prosecutor did not argue that

44 defendant lost his right of self-defense if the elements of the make-

my-day statute were proved.

¶ 107 Nor did the make-my-day instruction defeat or limit

defendant’s theory of the case. He contended, and argued to the

jury, that he accidentally entered the apartment and either: (1)

Daniel was the initial aggressor and his use of force was justified as

a reasonable response to that aggression; or (2), even if defendant

was the initial aggressor, he tried to retreat by leaving the

apartment, but the occupants used unlawful physical force to try to

detain him, and, thus, his use of force after his attempt to retreat

was justified as self-defense.

¶ 108 In addition, the jury was specifically instructed, concerning

second and third degree assault, that it had to find that defendant

either acted with intent to cause bodily injury (second degree

assault) or knowingly caused bodily injury (third degree assault),

and that even if he did, that it had to decide whether his assault

was legally authorized by the affirmative defense of self-defense.

¶ 109 Thus, considering the jury instructions as a whole, as we

must, see Day, 255 P.3d at 1067 (courts must examine whether the

45 instructions as a whole accurately informed the jury of the

governing law), I perceive no reversible error here.

¶ 110 The essence of the majority’s position is that defendant was

deprived of his full right to assert self-defense because the make-

my-day instruction did not contain the “knowingly” modifier

required in McNeese. But it cannot have been wrong to instruct the

jury without the “knowing” modifier when it is clear that a

possessor of property has the privilege to use physical force against

an intruder even when the intruder does not enter in knowing

violation of the criminal law. See § 18-1-705, C.R.S. 2017 (“A

person in possession or control of any . . . premises . . . is justified

in using reasonable and appropriate physical force upon another

person when and to the extent that it is reasonably necessary to

prevent or terminate what he reasonably believes to be the

commission or attempted commission of an unlawful trespass by

the other person.”) (emphasis added).

D. Harmless Error

¶ 111 Even if an instruction is given in error, reversal is not required

if the error can be deemed harmless. People v. Manzanares, 942

P.2d 1235, 1241 (Colo. App. 1996). Reversal is warranted only if

46 the error affected the defendant’s substantial rights; that is, there

must be “a reasonable probability that it contributed to the

defendant’s conviction.” Mata-Medina v. People, 71 P.3d 973, 980

(Colo. 2003). Stated differently, there must be a reasonable

probability that the jury may have been misled in reaching a

verdict. People v. Serra, 2015 COA 130, ¶56. In determining

whether that is so, we review the entire record of the trial, People v.

Gaffney, 769 P.2d 1081, 1088 (Colo. 1989), which includes the jury

instructions, the evidence presented, and arguments of counsel.

People v. Welsh, 58 P.3d 1065, 1072-73 (Colo. App. 2002), aff’d, 80

P.3d 296 (Colo. 2003).

¶ 112 In my view, any error was harmless for a number of reasons:

 The jury instructions (1) did not instruct that defendant

lost the right to or could not assert self-defense if the

make-my-day statute applied; (2) allowed defendant to

assert self-defense and be acquitted if the jury

determined that Daniel was the initial aggressor; and (3)

allowed defendant to assert self-defense and be acquitted

even if he was the initial aggressor if the jury found that

47 he attempted to retreat and effectively communicated

that attempt to the occupants.

 The mistake of fact instruction, while limited by its own

terms to first degree burglary (a limitation defendant does

not contest on appeal), did not preclude defendant from

arguing that he lacked either the intent to cause injury

(for second degree assault) or did not act knowingly in

inflicting bodily injury (for third degree assault); thus, the

jurors could not have understood that they were

precluded from considering the mistaken or accidental

entry theory. Defendant in fact made that argument to

the jury.

 The evidence overwhelmingly disproved defendant’s

theory of self-defense for the following reasons:

o Defendant did not testify, but Daniel testified that he

awoke to find defendant straddling him on the bed;

defendant struck him approximately seven times; the

pair then rolled to the floor and defendant struck him

about ten additional times, but Daniel did not strike

back until after receiving those blows on the floor; and 48 Daniel had not done anything to defendant before he

was struck. Thus, defendant was clearly the initial

aggressor. Further, even if defendant conclusively

proved he mistakenly entered the apartment, the

evidence that he committed assault on Daniel with a

knife is unrebutted.

o Defendant improperly used force as he attempted to

withdraw from the fight. See People v. Toler, 9 P.3d

341, 350 (Colo. 2000) (initial aggressors must retreat

before employing physical force in self-defense).

o Defendant did not effectively communicate any intent

to withdraw from the encounter; in fact, defendant

said nothing at all to the apartment occupants, and

his attempts to get away could not reasonably be

construed as an effective communication of intent to

withdraw as opposed to an attempt to flee a crime

scene.

o Defendant used more force than was reasonably

necessary by employing a knife, given that the

occupants did not use any kind of weapon in the fight,

49 even though weapons were readily available in the

apartment.

¶ 113 Accordingly, the jury was not misled by the make-my-day

instruction, nor was there a reasonable probability that the

instruction contributed to defendant’s convictions for second and

third degree assault. Therefore, I respectfully dissent.