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 November 23, 2022
2022COA135
No. 20CA1121, People v. Cline — Crimes — Second Degree Assault of a Police Officer; Criminal Procedure — Subpoena — In Camera Review; Criminal Law — Jury Instructions — Use of Deadly Physical Force Against an Intruder — Unlawful Entry
In this direct criminal appeal, a division of the court of appeals
clarifies that a defendant who has been charged with assaulting a
police officer must make the showing required by People v.
Spykstra, 234 P.3d 662, 666 (Colo. 2010), when requesting an in
camera review of the police officer’s subpoenaed personnel files.
Because the defendant failed to make the requisite showing, the
division concludes that the district court need not have conducted
an in camera review before quashing a subpoena for the file.
The division also declines to follow another division’s
interpretation of the term “unlawful entry” in the context of the force-against-intruders statute, § 18-1-704.5(2), C.R.S. 2022. See
People v. Zukowski, 260 P.3d 339, 344 (Colo. App. 2010). Instead,
the division defers to the Colorado Supreme Court’s definition as set
forth in People v. McNeese, 892 P.2d 304, 311-12 (Colo. 1995).
Because no credible evidence supported an unlawful entry under
the McNeese definition, the division rejects the defendant’s
contention that a force-against-intruders instruction should have
been given to the jury.
The division also rejects the defendant’s remaining contentions
that the district court erroneously instructed the jury in other ways
and erred by limiting the defendant’s expert witness’ testimony.
Accordingly, the division affirms the defendant’s convictions. COLORADO COURT OF APPEALS 2022COA135
Court of Appeals No. 20CA1121 La Plata County District Court No. 19CR91 Honorable William L. Herringer, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Benjamin Cline VI,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE BROWN J. Jones and Kuhn, JJ., concur
Announced November 23, 2022
Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Law Office of Haddon, Morgan & Foreman, P.C., Adam Mueller, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, William Benjamin Cline VI, appeals the judgment
of conviction entered on jury verdicts finding him guilty of first
degree criminal trespass, second degree assault of a peace officer,
third degree assault, harassment, and criminal mischief. Cline
contends that the district court erred by (1) refusing to conduct an
in camera review of a police officer’s personnel file; (2) erroneously
instructing the jury on his defenses; and (3) precluding him from
presenting certain expert testimony.
¶2 Resolving Cline’s first contention requires us to clarify that a
defendant who has been charged with assaulting a police officer
must make the showing required by People v. Spykstra, 234 P.3d
662, 666 (Colo. 2010), to be entitled to an in camera review of the
officer’s subpoenaed personnel file. Because Cline failed to make
the required showing, we affirm the district court’s order quashing
his subpoena without conducting an in camera review.
¶3 In resolving Cline’s second contention, we decline to follow
People v. Zukowski, 260 P.3d 339, 344 (Colo. App. 2010), a decision
from a division of this court interpreting the term “unlawful entry”
for purposes of the force-against-intruders statute, § 18-1-704.5(2),
1 C.R.S. 2022.1 Instead, we defer to the Colorado Supreme Court’s
definition as set forth in People v. McNeese, 892 P.2d 304, 311-12
(Colo. 1995). Because no credible evidence showed an unlawful
entry under the McNeese definition, we conclude that the district
court did not err by refusing Cline’s force-against-intruders
instruction.
¶4 And because we reject the balance of Cline’s contentions, we
affirm his judgment of conviction.
I. Background
¶5 The evidence presented at trial, including body camera
footage, would have allowed the jury to find the following facts. On
February 13, 2019, Cline crashed a golf cart into a snowbank near
his neighbor W.P.’s house. Cline entered W.P.’s house through an
unlocked garage door and woke W.P. up by flashing a light into his
bedroom. W.P. got out of bed and saw Cline inside his kitchen and
then again outside his garage. W.P. first called the neighborhood’s
security gate guard and then called 911. The gate guard informed
1The force-against-intruders statute is nicknamed the “Make My Day Law” and is referred to as such by the parties. Following People v. Rau, 2022 CO 3, ¶¶ 1-2, we refer to it as the “force- against-intruders” statute.
2 the responding officers, Deputy Draughon and Deputy Christensen,
that the golf cart belonged to the Cline family.
¶6 Once the deputies arrived at Cline’s home, they knocked on
the front door, identified themselves as sheriff’s deputies, and told
Cline to open the door and step out to talk with them. Cline instead
invited the deputies inside and offered them a drink.
¶7 Once inside, Deputy Draughon faced Cline and began reading
him his Miranda rights while Deputy Christensen moved to Cline’s
left. Cline took issue with Deputy Christensen’s position and
gestured toward Deputy Christensen while telling him to move
back. The deputies handcuffed Cline and sat him on the floor.
After Cline was handcuffed, he would not stand and struggled with
the deputies. At one point, all three men tumbled to the floor.
¶8 Once Cline seemed to calm down, Deputy Christensen went
outside to move the patrol vehicle closer to Cline’s front door while
Deputy Draughon held Cline prone on the floor. When Deputy
Draughon took his hand off Cline and reached for his radio, Cline
flipped over onto his back and kicked Deputy Draughon. The two
physically struggled. Deputy Draughon punched Cline, wrapped
his legs around Cline, and put Cline in a chokehold. Cline pulled
3 Deputy Draughon’s genitals during this struggle. Deputy
Christensen returned during the episode and tased Cline, subduing
him. Eventually, after other officers arrived, the deputies stood
Cline up and escorted him to the patrol vehicle.
¶9 Deputy Draughon transported Cline to jail. During the drive,
Cline shouted at the deputy and called him racist names. Cline
also kicked the door of the police vehicle, causing damage.
¶ 10 Cline was charged with second degree burglary, first degree
criminal trespass, second degree assault of a peace officer, third
degree assault, harassment, and criminal mischief.2 The district
court bifurcated Cline’s charges for trial.
¶ 11 The court first held a jury trial on the charges of burglary and
criminal trespass (the burglary trial). Cline’s theory of defense was
that he lacked the requisite mens rea to carry out a burglary or
trespass. A jury convicted Cline of first degree trespass and
acquitted him of second degree burglary.
2 Cline was also charged with resisting arrest, prohibited use of a weapon, and driving under the influence, but the People dismissed those charges.
4 ¶ 12 The court later held a jury trial on the charges of second
degree assault of a peace officer, third degree assault, harassment,
and criminal mischief (the assault trial). Cline’s theory of defense
was that his actions were justified under the force-against-intruders
statute and as self-defense. A jury convicted Cline of all four
charged crimes.
II. In Camera Review of Personnel File
¶ 13 Cline contends that the district court erred by not conducting
an in camera review of Deputy Draughon’s personnel file before
granting the La Plata County Sheriff’s motion to quash a subpoena
requesting the file. We perceive no error.
A. Standard of Review and Generally Applicable Law
¶ 14 We review a district court’s decision to quash a subpoena for
an abuse of discretion. People v. Battigalli-Ansell, 2021 COA 52M,
¶ 69 (citing Spykstra, 234 P.3d at 666). A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair, or if it misconstrues or misapplies the law. People v. Liggett,
2021 COA 51, ¶ 16.
¶ 15 Crim. P. 17(c) generally authorizes the prosecution or the
defense to subpoena documentary evidence to be produced at a
5 hearing or trial. But “[t]he rule does not create an equivalent to the
broad right of civil litigants to discovery of all information that is
relevant or may lead to the discovery of relevant information.”
Spykstra, 234 P.3d at 669. Thus, the court, on motion, “may quash
or modify [a] subpoena if compliance would be unreasonable or
oppressive.” Crim. P. 17(c).
B. Additional Background
¶ 16 Before trial, Cline served a subpoena duces tecum on the La
Plata County Sheriff seeking, among other things, the personnel file
of Deputy Draughon. The Sheriff filed a motion to quash the
request for the personnel file because it was “unreasonable” and
sought confidential documents and information.
¶ 17 During a hearing on the motion to quash, Cline’s counsel
acknowledged this was “a Spykstra issue” and that Cline would not
be entitled to the entire personnel file. Instead, defense counsel
argued that Cline was entitled to “things like credibility, aggression,
use of [t]aser, [and] use of force” documented in the personnel file.
Defense counsel asked the Sheriff to submit the records to the
district court for in camera review after which the parties could
“fine tune” their arguments about what should be produced. The
6 attorney for the Sheriff argued that Cline had failed to make the
necessary showing to trigger an in camera review.
¶ 18 The court received the records and took the matter under
advisement. In a brief written order, the court quashed the
subpoena as to the personnel file of Deputy Draughon because
Cline “failed to show a specific factual basis demonstrating [a]
reasonable likelihood that documents exist within the file that
would be relevant to this action.” The court declined to conduct an
in camera review of the file and ordered the return of the records to
the Sheriff.
¶ 19 Cline filed a motion for reconsideration, essentially arguing
that a defendant charged with assaulting a police officer is entitled
to automatic disclosure of information regarding “excessive force
and dishonesty” under People v. Walker, 666 P.2d 113, 122 (Colo.
1983). The district court denied the motion, reasoning that Cline
was not entitled to the subpoenaed documents without meeting the
five-part test set forth in Spykstra, 234 P.3d at 669. The court
found that Cline “made no showing that evidentiary and material
documents relevant to this case exist within the file.”
7 C. The District Court Did Not Abuse Its Discretion by Quashing the Subpoena Without Reviewing the Personnel File In Camera
¶ 20 Cline argues that, because he was charged with assaulting a
police officer, the district court was required to conduct an in
camera review of the officer’s personnel file and then release to him
any complaints of excessive force and other information in the file
relating to the officer’s credibility. See Walker, 666 P.2d at 121-22;
see also Martinelli v. Dist. Ct., 199 Colo. 163, 173, 612 P.2d 1083,
1091 (1980). He argues that the test articulated in Spykstra, on
which the court relied in granting the motion to quash, does not
apply under these circumstances; but even if it did, he made the
requisite showing. We disagree.
¶ 21 True, Walker held that “[a] defendant who is charged with
assaulting a police officer is entitled to disclosure of the fact that
complaints charging excessive use of force have been filed against
the officer involved.” 666 P.2d at 121-22. But Walker did not
address what showing a defendant must make to be entitled to an
in camera review of the officer’s personnel file, nor did it mandate
that a court must conduct an in camera review any time a
defendant asks for an officer’s personnel file. Id. Rather, the trial
8 court in Walker had already conducted an in camera review of the
officer’s personnel file but had declined to disclose certain
complaints charging excessive force and untruthfulness because
they had not been “sustained” and declined to disclose other such
complaints because they would not be admissible at trial. Id. at
121. Rejecting the distinctions drawn by the trial court, the
supreme court explained that “[i]nformation in such complaints,
whether sustained or unsustained, could be relevant to the issues
in [the] case.” Id. The supreme court thus instructed the trial court
on remand to conduct an in camera review and to disclose
information “in accordance with the standards announced in
Martinelli.” Id. at 122.
¶ 22 Almost thirty years later, in Spykstra, the supreme court
articulated a multi-factor test to aid trial courts in determining
whether to quash a third-party subpoena because it is
unreasonable or oppressive:
[W]hen a criminal pretrial third-party subpoena is challenged, a defendant must demonstrate:
(1) A reasonable likelihood that the subpoenaed materials exist, by setting forth a specific factual basis;
9 (2) That the materials are evidentiary and relevant;
(3) That the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence;
(4) That the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and
(5) That the application is made in good faith and is not intended as a general fishing expedition.
234 P.3d at 669; see also Crim. P. 17(c).
¶ 23 The supreme court explained that, in addition to this five-part
test, subpoenas issued for materials that may be protected by a
privilege or a right to confidentiality require the court to balance the
parties’ competing interests. Spykstra, 234 P.3d at 670. And, “[i]n
such circumstances, the defendant must make a greater showing of
need and, in fact, might not gain access to otherwise material
information depending on the nature of the interest against
disclosure.” Id.
¶ 24 Though the supreme court recognized that, once a defendant
makes the required initial showing, an in camera review may be
helpful in balancing the parties’ competing interests, it also
10 explicitly held that in camera review of subpoenaed documents was
not automatically required: “We do not, however, adopt a mandate
of in camera review, although such review may in some instances
be necessary in the interest of due process.” Id.
¶ 25 Referring us back to Walker, Cline attempts to equate
Spykstra’s acknowledgment of the usefulness of in camera reviews
with a mandate for in camera reviews when police officer personnel
files are at issue. We do not read Spykstra the same way. Although
police officer personnel files were not at issue in Spykstra, the court
did not exempt such files from the five-factor test and it did not
mandate in camera reviews for such files simply because a
defendant charged with assaulting a police officer requested them.
And we know the Spykstra court was aware of Walker. Indeed, it
cited Walker in reference to the requirement that a defendant make
a “greater showing of need” when the requested materials may be
protected by a right to confidentiality. Spykstra, 234 P.3d at 670
(citing Walker, 666 P.2d at 122). Had the supreme court wished to
absolve defendants charged with assaulting a police officer from
making the showing required under the test it articulated to obtain
the officer’s personnel file, it would have said so.
11 ¶ 26 Thus, a trial court is not required to conduct an in camera
review of documents subpoenaed by a defendant in a criminal case
before determining whether the documents should be produced to
the defense. Battigalli-Ansell, ¶ 79. And if a defendant fails to
make the initial showing required by Spykstra, the court does not
abuse its discretion by declining to conduct an in camera review
before quashing the subpoena. See id. at ¶ 80.
¶ 27 Here, the district court quashed the subpoena Cline issued for
Deputy Draughon’s personnel file because Cline failed to make the
first showing required by Spykstra: “A reasonable likelihood that
the subpoenaed materials exist, by setting forth a specific factual
basis.” 234 P.3d at 669. Cline did not articulate any factual basis
for believing that Deputy Draughon’s personnel file includes
complaints of excessive force or dishonesty. His claim that such
documents exist was mere speculation. “It is the moving party’s
responsibility — not the court’s — to independently conduct [his]
own investigation and present witnesses or documents that
demonstrate the likelihood that the evidence [he] intends to bring to
court through Crim. P. 17(c) in fact exists.” Id. at 672.
12 ¶ 28 On this record, we conclude the court did not abuse its
discretion by not conducting an in camera review of Deputy
Draughon’s personnel file before granting the Sheriff’s motion to
quash.
III. Jury Instructions
¶ 29 Cline contends that the district court erred by (1) refusing to
instruct the jury on the force-against-intruders defense;
(2) instructing the jury on the initial aggressor exception to self-
defense; and (3) refusing to instruct the jury on the reasonable
mistake of fact defense. We reject each of these contentions.
A. Standard of Review
¶ 30 The trial court has a duty to correctly instruct the jury on the
applicable law when there is sufficient evidence to support giving an
instruction. Castillo v. People, 2018 CO 62, ¶ 34. We review de
novo whether the instructions accurately informed the jury of the
law. Pearson v. People, 2022 CO 4, ¶ 15.
¶ 31 A defendant is entitled to a jury instruction on a defense if
“some credible evidence” supports it. Galvan v. People, 2020 CO
82, ¶ 24 (quoting the affirmative defense statute, § 18-1-407(1),
C.R.S. 2022) (“[O]ur appellate courts have understood ‘some
13 credible evidence’ to be interchangeable with ‘some evidence,’ ‘any
credible [even if highly improbable] evidence,’ ‘a scintilla of
evidence,’ a ‘small quantum of evidence,’ and ‘any evidence.’”). We
review de novo whether there was sufficient evidence to support
giving an instruction on a claimed defense. People v. Garcia, 113
P.3d 775, 784 (Colo. 2005).
¶ 32 We review a trial court’s decision whether to give a particular
jury instruction for an abuse of discretion. People v. Payne, 2019
COA 167, ¶ 16.
B. The District Court Did Not Err by Declining to Instruct the Jury on the Force-Against-Intruders Defense
¶ 33 Cline contends that the district court erred by refusing to
instruct the jury in the assault trial on the force-against-intruders
defense. We conclude that no credible evidence supported the
instruction, so the court did not err by refusing it.
¶ 34 The force-against-intruders statute provides as follows:
Notwithstanding the provisions of section 18-1-704[, C.R.S. 2022, 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
14 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.
§ 18-1-704.5(2). The dispute in this case centers on whether the
officers made an “unlawful entry” into Cline’s residence.
¶ 35 Cline does not dispute that he invited the deputies inside, but
he argues his invitation was coerced or involuntary based on the
totality of the circumstances (i.e., Cline’s intoxication, the deputies’
tone and use of their “color of authority,” and the time). Cline
essentially asks us to conclude that an entry premised upon a
coerced invitation is an unlawful entry. To bolster his argument,
Cline relies heavily on the district court’s suppression order.
¶ 36 But the suppression order addressed whether there had been
a Fourth Amendment violation based on an “unlawful seizure” of
Cline rather than an “unlawful entry” by the deputies into Cline’s
home for purposes of the force-against-intruders statute. In that
order, the court first found that the deputies’ commands to Cline to
open his door under the color of their authority constituted an
15 unlawful seizure. Then the court found “by clear and convincing
evidence that [Cline] voluntarily opened the door and consented to
the deputies entering his home.” In the end, though, the court
found that Cline’s consent was not sufficiently attenuated from the
unlawful seizure for the evidence obtained after entry (Cline’s
statements and the deputies’ observations) to be admissible.
Because “[t]he deputies obtained consent to enter the home through
the exploitation of their initial unlawful seizure,” the evidence
obtained was inadmissible as “the unlawful fruit of” that
constitutional violation.
¶ 37 Still, the court continued to analyze the scope of suppression
in light of Cline’s intervening assault on Deputy Draughon and
decided to sever the burglary charges from the assault charges so
that evidence obtained after the entry into Cline’s home could be
suppressed in the burglary trial but admitted in the assault trial.
True, in this latter context, the court referred to the constitutional
violation as an “illegal entry” and an “unlawful entry,” but the
court’s rationale makes clear that the illegality with which it was
concerned was the seizure of Cline.
16 ¶ 38 Importantly, whether there was a Fourth Amendment violation
and whether there was an “unlawful entry” for purposes of the
force-against-intruders defense are two separate inquiries. And
Cline’s argument ultimately fails because, when we consider the
correct definition of “unlawful entry” for purposes of the force-
against-intruders defense, the instruction he requested was not
supported by the evidence.
¶ 39 McNeese defines “unlawful entry” in the context of the force-
against-intruders statute as “a knowing, criminal entry into a
dwelling.” 892 P.2d at 310. An “unlawful entry” requires a
“culpable mental state.” Id. at 311. More specifically, “[t]he
intruder’s mental state must reflect an entry in knowing violation of
the criminal code.” Id. at 312. So, under McNeese, there had to be
some evidence that the deputies engaged in conduct they knew
violated the criminal code by entering Cline’s home at his invitation
before the district court would have been required to give a force-
against-intruders instruction. Id. at 310 (alternatively describing
this element as requiring “an entry in knowing violation of the
criminal law”).
17 ¶ 40 At trial, both deputies testified they had no intention of
entering Cline’s home before he invited them in. Deputy Draughon
testified that he did not have an arrest or search warrant. He also
said that no exigent circumstances existed, and he would not have
gone into Cline’s home without Cline’s permission. And the jury
saw the bodycam footage, which reflected Cline casually asking the
deputies, “Why don’t you guys come in?”
¶ 41 Based on this evidence, the district court denied Cline’s force-
against-intruders instruction, finding no evidence to support “any
knowing unlawful entry.” The court found that Cline invited the
deputies inside and the deputies did not enter Cline’s home until
Cline asked them to come in. The court also explained (as we have)
that its previous suppression order addressed a different question
— whether Cline was unlawfully seized under the Fourth
Amendment, not whether there was an unlawful entry under the
force-against-intruders statute.
¶ 42 We are bound by the supreme court’s definition of “unlawful
entry.” See id. at 311-12; see also People v. Cox, 2021 COA 68, ¶ 8
(“Both this court and the trial court are bound by supreme court
decisions.”). Cline does not explain what provision of the criminal
18 code the deputies violated by entering his home or point to evidence
in the record from which a reasonable jury could conclude that the
deputies knowingly committed a criminal offense under the
circumstances.
¶ 43 Still, Cline urges us to follow Zukowski, in which a division of
this court held that a force-against-intruders jury instruction that
stated, in relevant part, that “the other person’s unlawful entry into
the dwelling must have been made in knowing violation of the
criminal law,” was misleading because it suggested that “an
intruder must know that [their] conduct violates a criminal statute,
rather than that the intruder must not have a reasonable belief that
[their] entry is licensed, invited, or otherwise privileged.” 260 P.3d
at 344. The division based its conclusion on section 18-4-201(3),
C.R.S. 2022, which provides that a person “enters unlawfully” when
the person “is not licensed, invited, or otherwise privileged to do so.”
Thus, it attempted to narrow McNeese’s definition: “[I]t appears that
the phrase [‘in knowing violation of the criminal law’] was intended
to express a requirement that an intruder must knowingly engage
in criminal conduct, not that an intruder knows [they are] violating
19 a criminal statute.” Zukowski, 260 P.3d at 344 (quoting McNeese,
892 P.2d at 310).
¶ 44 For two reasons we are not persuaded by Zukowski. See
Chavez v. Chavez, 2020 COA 70, ¶ 13 (explaining that one division
of the court of appeals is not bound by another).
¶ 45 First, the McNeese definition of “unlawful entry” was not based
upon section 18-4-201(3). 892 P.2d at 311-12. That statute
defines “enters unlawfully” specifically for purposes of Title 18,
Article 4, Offenses Against Property, but the force-against-intruders
defense is set forth in Article 1, Provisions Applicable to Offenses
Generally. § 18-4-201 (preceding the definition by “[a]s used in this
article”). More importantly, we can presume that the majority in
McNeese considered and declined to adopt that definition because
Chief Justice Rovira specifically cited it when dissenting from the
majority’s definition. 892 P.2d at 315 (Rovira, C.J., concurring in
the result and dissenting in part).
¶ 46 Second, even applying the Zukowski definition, there was no
record evidence that the deputies “knowingly engage[d] in criminal
conduct” or even that they lacked a reasonable belief that their
entry was invited. See Zukowski, 260 P.3d at 344. As the district
20 court found by clear and convincing evidence after the suppression
hearing, Cline “voluntarily opened the door and consented to the
deputies entering his home.”
¶ 47 On this record, we conclude that there was no credible
evidence that the deputies made an unlawful entry, as the Colorado
Supreme Court has defined that term in this context. Thus, we
perceive no error by the district court in refusing to instruct the
jury on the force-against-intruders defense.
C. The District Court Did Not Err by Instructing the Jury on the Initial Aggressor Exception to Self-Defense
¶ 48 Cline contends that the district court erred by instructing the
jury in the assault trial on the initial aggressor exception to self-
defense because there was no evidence that he initiated the
physical conflict. Cline argues that he either acted in self-defense
or committed assault. Either way, Cline contends, an instruction
on initial aggressor was not warranted. We conclude that the
evidence would support a jury finding that Cline was the initial
aggressor of the physical conflict when he kicked Deputy Draughon.
¶ 49 Under section 18-1-704(1), “a person is justified in using
physical force upon another person in order to defend himself . . .
21 from what he reasonably believes to be the use or imminent use of
unlawful physical force by that other person.” But a person is not
justified in using physical force if he is the “initial aggressor.” § 18-
1-704(3)(b). “A court may give an initial aggressor instruction if the
evidence will support a reasonable inference that the defendant
initiated the physical conflict by using or threatening the imminent
use of unlawful physical force.” People v. Griffin, 224 P.3d 292, 300
(Colo. App. 2009); see also Castillo, ¶ 41.
¶ 50 Cline argues that he did not use or threaten to use imminent
force before acting in self-defense. He asserts that it was
undisputed that he kicked Deputy Draughon only after the deputies
took him to the ground, so there was no evidence that he initiated
the physical conflict. Cline likens his situation to Castillo, ¶¶ 46-
53, and People v. Manzanares, 942 P.2d 1235, 1238-41 (Colo. App.
1996). These cases are distinguishable.
¶ 51 In Castillo, the supreme court concluded that there was no
evidentiary basis for giving an initial aggressor instruction. Castillo,
¶¶ 49-53. Castillo tried to leave a parking lot when an unknown
assailant opened fire. Id. at ¶ 1. Castillo got out of his car,
retrieved a shotgun from his trunk, and returned fire. Id. Nearby
22 police officers rushed to the scene and began firing at Castillo. Id.
at ¶ 16. Castillo shot at the police after they fired at him. Id. at
¶ 47 n.7. The trial court justified the initial aggressor instruction
by pointing to Castillo’s racking of the gun before the police fired as
an act of initial aggression. Id. at ¶ 46. However, the supreme
court concluded that the events constituted “one continuous
episode” that began when an unknown person first shot at Castillo.
Id. at ¶ 47. The court reasoned that the entire episode lasted a
matter of seconds; it could not be separated into segments such
that Castillo became the initial aggressor as to the second segment
involving the police. Id. It concluded that Castillo had not used or
threatened the use of imminent force before he was fired upon, so
no evidence supported an initial aggressor instruction. Id. at ¶¶ 52-
53.
¶ 52 Unlike in Castillo, where the entire series of events transpired
in “a matter of seconds, with no break in the action,” id. at ¶ 48, the
events in this case lasted several minutes with multiple breaks in
the action. The events were not necessarily “one unit of
experience,” so the jury need not have determined whether Cline
23 was the initial aggressor “as to the entire episode.” See id. at ¶¶ 48-
49. As the district court recognized,
[t]here is some lack of clarity regarding the exact sequence of events. The jury could find . . . that the initial . . . contact between Mr. Cline and law enforcement . . . did not constitute unreasonable or excessive force, and . . . they could certainly find that Mr. Cline . . . basically first struck the deputy, making him the initial aggressor.
¶ 53 In Manzanares, a division of this court concluded that there
was no evidentiary basis for giving an initial aggressor instruction.
942 P.2d at 1238, 1241. Manzanares was at a party when one of
his friends became involved in an altercation. Id. at 1238.
Manzanares drove away but then returned and fired a handgun. Id.
It was undisputed that Manzanares was not part of the initial
altercation, so the division reasoned that “the only issue remaining
upon defendant’s return to the party was whether, by firing his
pistol, he committed any of the crimes charged and, if so, whether
the conduct was justified because he had acted in self-defense.” Id.
at 1241. The division explained that a finding by the jury that
Manzanares was the initial aggressor when he fired his gun would
be no more than a rejection of his claim of self-defense. Id. Under
24 such circumstances, the trial court erred by giving the jury an
initial aggressor instruction. Id.
¶ 54 Unlike in Manzanares, where the defendant engaged in a
single act (firing a gun) that gave rise to the charged offenses, see
id. at 1238, Cline was alleged to have engaged in sequential
assaultive acts — the kick and the genital grab. If the kick had
been the only conduct chargeable as assault, Cline’s case would be
more like Manzanares. In that scenario, a jury would have to
decide only whether Cline was justified in kicking Deputy Draughon
because he acted in self-defense. The kick was either self-defense
or it was assault. In that scenario, an initial aggressor instruction
may not have been warranted.
¶ 55 But after Cline started kicking, Deputy Draughon punched
him and put him in a chokehold. Cline sought to justify grabbing
Deputy Draughon’s genitals as self-defense to the chokehold and
punching. In that scenario, which was supported by the evidence
at trial, the jury could find that Cline grabbed Deputy Draughon’s
genitals in self-defense but also that Cline was the initial aggressor
because he initiated the physical conflict by kicking Deputy
25 Draughon. Under these circumstances, Cline would not be entitled
to claim self-defense as to the genital grab.
¶ 56 On this record, we conclude that there was sufficient evidence
to support the district court instructing the jury on the initial
aggressor exception to self-defense.
D. The District Court Did Not Err by Declining to Instruct the Jury on the Mistake of Fact Defense
¶ 57 Cline contends that the district court erred by refusing to
instruct the jury in the burglary trial on mistake of fact as a defense
to criminal trespass. Cline argues that (1) mistake of fact was an
affirmative defense on which he was entitled to have the jury
instructed; (2) even if the defense was a traverse, the court should
have given the instruction; and (3) the elemental trespass
instruction failed to adequately articulate the People’s burden to
prove Cline knowingly entered someone else’s home. We are not
persuaded.
¶ 58 Cline was convicted of one count of first degree trespass. A
person commits first degree criminal trespass if such a person
“[k]nowingly and unlawfully enters or remains in a dwelling of
another.” § 18-4-502(1)(a), C.R.S. 2022. As relevant here, “[a]
26 person is not relieved of criminal liability for conduct because he
engaged in that conduct under a mistaken belief of fact, unless . . .
[i]t negatives the existence of a particular mental state essential to
the commission of the offense.” § 18-1-504(1)(a), C.R.S. 2022. This
mistake of fact defense is “an affirmative defense.” § 18-1-504(3).
¶ 59 Cline offered a jury instruction at trial that provided, in
relevant part, as follows:
The evidence presented in this case has raised the affirmative defense of “mistaken belief of fact[.]”
The defendant’s conduct was legally authorized if:
1. the defendant engaged in the 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.
¶ 60 The district court rejected Cline’s instruction but gave an
elemental instruction on trespass that provided, in relevant part, as
follows:
The elements of First Degree Criminal Trespass are:
1. That the defendant,
27 2. in the State of Colorado, at or about the date and place charged,
3. knowingly, and
4. unlawfully,
5. entered or remained in a dwelling of another.
¶ 61 Given how Cline frames his contentions, a threshold question
would seem to be whether Cline’s mistake of fact defense is an
affirmative defense or a traverse. See People v. Nelson, 2014 COA
165, ¶¶ 48-49 (explaining that an affirmative defense admits
commission of the charged act but seeks to justify, excuse, or
mitigate it, while a traverse negates an element of the offense). But
even if the defense was an affirmative defense, which is what the
plain language of section 18-1-504(3) provides, Cline was not
entitled to a separate jury instruction because the requested
instruction only served to negate an element of the offense. See
Nelson, ¶¶ 51-52 (“Where proof of the elements of the charged
offense necessarily requires disproof of the issue raised by the
affirmative defense, a separate instruction on that defense need not
be given.”).
28 ¶ 62 The present case is like People v. Walden, 224 P.3d 369, 379
(Colo. App. 2009), where the division concluded that Walden’s
requested affirmative defense instruction only served to repeat an
element of the offense. The division explained that “[t]he effect of
defendant’s instruction, if the jury were to accept defendant’s
contention that he was acting under the belief he had permission to
enter and stay at his wife’s apartment, would merely be to negate
the requisite ‘knowing’ element in the crime of trespass.” Id.
Because the instruction “was unnecessarily duplicative of the
elements the prosecution was already required to prove beyond a
reasonable doubt” — including that Walden had knowingly entered
the victim’s apartment without permission — the trial court did not
err by declining to instruct the jury on mistake of fact. Id.
¶ 63 Like in Walden, Cline’s mistake of fact instruction was
unnecessarily duplicative because the trespass instruction already
required that the prosecution prove beyond a reasonable doubt that
Cline “knowingly . . . entered or remained in a dwelling of another.”
Cline argues that Walden was wrongly decided, but we are
persuaded to follow it. See Chavez, ¶ 13. We conclude that the
29 district court did not abuse its discretion by declining Cline’s
mistake of fact instruction.
¶ 64 But Cline also contends that the elemental trespass jury
instruction was erroneous because it failed to inform the jury that
the People had to prove beyond a reasonable doubt that Cline knew
he was entering the home of another. He argues that the jury was
inadequately informed of this requirement because “dwelling of
another” was not indented or offset. Reviewing de novo, see
Pearson, ¶ 15, we disagree.
¶ 65 The elemental trespass instruction accurately set forth the
elements of first degree trespass. Indeed, it tracked the pattern
instruction. See COLJI-Crim. 4-5:03 (2021); People v. Gallegos, 260
P.3d 15, 26 (Colo. App. 2010) (explaining that instructions that
accurately track pattern instructions generally are sufficient).
“Knowingly” is listed as the third element and “unlawfully” is listed
as the fourth. Following the logical flow of the numbered lines,
“knowingly” and “unlawfully” necessarily apply to the fifth element,
“entered or remained in a dwelling of another,” even if the fifth
element was not offset and even if “entered” and “dwelling of
another” were not separated.
30 ¶ 66 The trespass instruction in this case is unlike the theft
instructions in Auman v. People, 109 P.3d 647, 664 (Colo. 2005),
and People v. Bornman, 953 P.2d 952, 954 (Colo. App. 1997), on
which Cline relies. In those cases, the “knowingly” mens rea
element preceded some elements that were offset and other
elements that were not. Auman, 109 P.3d at 664; Bornman, 953
P.2d at 954. Essentially, the courts in those cases concluded that
the instructions were erroneous because “knowingly” should have
applied both to the elements that were offset and to those that were
not, but the difference in formatting suggested that the mens rea
did not apply to the elements that were not offset. Here, no
elements were offset. We conclude that the trespass instruction
accurately conveyed the elements of the offense.
IV. Expert Testimony
¶ 67 Finally, Cline contends that the district court abused its
discretion and violated his constitutional right to present a defense
by precluding his expert witness from testifying that the deputies’
use of the taser on Cline and their physical transport of Cline to the
patrol car were not reasonable or appropriate. We disagree.
31 A. Standard of Review
¶ 68 We review a trial court’s decision whether to admit expert
testimony for an abuse of discretion. People v. Rector, 248 P.3d
1196, 1200 (Colo. 2011). A court abuses its discretion when its
ruling is manifestly arbitrary, unreasonable, or unfair, or if it
misconstrues or misapplies the law. Id.; People v. Gee, 2015 COA
151, ¶ 23.
¶ 69 CRE 702 allows for the admission of qualified expert opinion
testimony if it will assist the trier of fact to understand the evidence
or to determine a fact in issue. The focus of a CRE 702 inquiry is
on whether the proffered evidence is both reliable and relevant.
People v. Cooper, 2021 CO 69, ¶ 1; People v. Shreck, 22 P.3d 68, 77
(Colo. 2001).
¶ 70 An erroneous evidentiary ruling may rise to the level of a
constitutional error if it deprived the defendant of a meaningful
opportunity to present a complete defense. People v. Conyac, 2014
COA 8M, ¶ 93; see also Krutsinger v. People, 219 P.3d 1054, 1061
(Colo. 2009). But the right to present a defense “is violated only
where the defendant was denied virtually his only means of
effectively testing significant prosecution evidence.” Conyac, ¶ 93.
32 B. Additional Background
¶ 71 Prior to trial, Cline endorsed a former police chief as an expert
witness who proposed to testify to three categories of opinions:
[1] The handcuffing of Mr. Cline and forcefully placing him on the floor of the residence was not reasonable and appropriate. Mr. Cline was not acting in an “aggressive manner” and was not an “officer safety” concern. There was no need to forcefully handcuff him and place him on the floor, and there was no need apply a wrist lock as a pain compliance tool. Furthermore, the strikes to Mr. Cline’s face by Deputy Draughon to a handcuffed prisoner were not reasonable and appropriate. Strikes to the face and head can cause very serious injuries externally and can cause brain damage.
[2] Using a [taser] in the “drive stun” mode on Mr. Cline while he was handcuffed and on his back with his hands behind him was not reasonable and appropriate. In the “drive stun” mode the [taser] does not create neuro- muscular incapacitation (NMI) and only creates excruciating pain.
[3] Deputies Draughon and Christensen attempted to get Mr. Cline to stand up from being in a prone position on his stomach while handcuffed with his hands behind him, and in so doing they lifted both of his arms upwards. This is not the proper technique for getting a prisoner up off the ground and is not reasonable or appropriate. This technique creates excruciating pain and can cause injuries to the upper arms and/or shoulders.
33 ¶ 72 In a pretrial ruling, the district court allowed the expert to
testify regarding only the first category. It ruled that the second
and third categories were irrelevant because the police conduct at
issue happened after Deputy Draughon allegedly used
unreasonable force against Cline and after Cline allegedly acted in
self-defense.
¶ 73 At trial, defense counsel cross-examined the prosecution’s
expert witness — who was qualified “in the field of self-defense,
arrest control, and use of force” — regarding levels of force an
officer can use, the tools available for officers exercising force at
different levels (e.g., physical presence, verbal commands, hands on
tactics, weapons, etc.), force escalation, arrest control, and officer
emotion regulation. Among other things, defense counsel asked the
prosecution expert to explain the difference in the use of tasers in
“drive stun” mode, which causes excruciating pain, and
“deployment mode,” which causes neuromuscular incapacitation.
¶ 74 Cline’s attorney then called the defense expert witness, who
was qualified as an expert in “police practices for arrest control and
use of force.” The defense expert’s testimony served as a critique of
many aspects of Deputy Draughon’s and Deputy Christensen’s
34 conduct during the encounter with Cline. As relevant to this issue,
the expert testified similarly to the prosecution expert about the two
ways to use a taser — to cause neuromuscular incapacitation or to
cause “an excruciatingly painful zap.” He also testified about the
concepts of “emotional capture” — when an officer has an
adrenaline overload and overreacts — and “contempt of cop” —
where an officer arrests a person because the officer is angry that
the person is not obeying the officer’s commands. The expert
opined that the reasonableness of an officer’s actions can be
determined by assessing the proportionality of the response to the
level of resistance.
C. The District Court Did Not Abuse Its Discretion by Limiting the Defense Expert’s Testimony
¶ 75 Cline contends that the expert testimony the district court
excluded was relevant to his theory of self-defense because it
showed that Deputy Draughon overreacted at every step, used
excessive force, and escalated the entire situation.3 Cline also
3 We decline to address Cline’s argument that the expert testimony was also relevant to the totality of the circumstances regarding the harassment and criminal mischief charges because Cline raises that argument for the first time in his reply brief. See People v.
35 contends that the testimony would not have been unfairly
prejudicial because the jury heard and saw evidence of the entire
encounter — from the deputies knocking on Cline’s door to the
deputies taking Cline to the patrol car.
¶ 76 But Cline does not dispute that the deputies’ tasing him and
standing him up by his arms occurred after Cline kicked Deputy
Draughon and grabbed the deputy’s genitals. Evaluating the
deputies’ conduct after Cline’s alleged assault would have done
nothing to assist the jury in deciding whether Cline’s conduct was
justified by what came before it. In other words, the evidence would
not have made it more or less probable that Cline had acted in self-
defense. See CRE 401. So we perceive no abuse of discretion in the
district court’s ruling that the challenged evidence was not
relevant.4
¶ 77 We also reject Cline’s contention that the district court’s
limitation on his expert’s testimony abridged his constitutional right
Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990) (noting issues raised for the first time in the reply brief will not be considered). 4 Because the court did not err by excluding the evidence as
irrelevant, see CRE 402, we need not decide whether it erred by ruling that the evidence was also inadmissible under CRE 403, as Cline alternatively contends.
36 to present a defense. “[T]he right to present a defense is not
absolute and may be conditioned upon adherence to the rules of
evidence.” People v. Rodriguez, 209 P.3d 1151, 1161 (Colo. App.
2008), aff’d, 238 P.3d 1283 (Colo. 2010). Although an erroneous
evidentiary ruling may deprive a defendant of the constitutional
right to present a complete defense, Conyac, ¶ 93, we have found no
error here.
¶ 78 Moreover, not “every restriction on a defendant’s attempts to
challenge the credibility of evidence against him, or even every
erroneous evidentiary ruling having that effect,” amounts to
constitutional error. Krutsinger, 219 P.3d at 1062. Rather, a
constitutional violation occurs only if the ruling “effectively barred
the defendant from meaningfully testing evidence central to
establishing his guilt.” Id. The district court’s ruling here had no
such effect.
¶ 79 Cline had ample opportunity to present evidence regarding the
reasonableness of Deputy Draughon’s actions and his alleged use of
excessive force, including through cross-examination of Deputy
Draughon, cross-examination of the prosecution’s expert, and direct
and redirect examination of the defense expert. Further, as Cline
37 admits, the jury saw bodycam evidence of the struggle and could
judge for itself whether Deputy Draughon escalated the situation
from the outset and overreacted throughout the encounter.
Because Cline was not barred from “meaningfully testing” the
evidence against him, Krutsinger, 219 P.3d at 1062, the court’s
ruling did not violate his constitutional right to present a defense.
V. Disposition
¶ 80 We affirm the judgment of conviction.
JUDGE J. JONES and JUDGE KUHN concur.