2018 COA 112
Colo. Ct. App.2018Background
- In March 2014 Gregory Jones entered an unlocked apartment in a confusingly numbered complex late at night after drinking; occupants said his entry was random and he asserted he mistakenly entered the wrong unit.
- A physical fight erupted when Jones was found on top of an occupant; multiple occupants joined, Jones dropped a knife while leaving, and one occupant sustained stab wounds.
- Jones was charged with burglary, attempted murder, and assaults; the jury acquitted him of burglary and attempted murder but convicted him of assault (second and third degree).
- At trial Jones argued mistaken entry and asserted self-defense (including withdrawal/attempted retreat).
- The prosecution requested, and the court gave, a jury instruction under Colorado’s “make-my-day” statute (section 18-1-704.5), stating occupants are justified in using any degree of force against a person who has made an “unlawful entry” — but the instruction did not add the word “knowingly.”
- The Court of Appeals held the omission of the "knowingly" element was reversible error because McNeese requires a knowing criminal entry for the make-my-day statute, and the record supported a non- knowing (mistaken) entry that would preserve Jones’s self-defense claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the make-my-day instruction must require a "knowing" unlawful entry | Prosecutor: instruction tracking the statute’s text ("unlawful entry") was proper; McNeese’s "knowing" limitation applies only in immunity contexts and should not deprive prosecution of proving trespass offenses | Jones: McNeese requires the jury be instructed that "unlawful entry" means a "knowing" criminal entry; without that, a mistaken entry could improperly trigger make-my-day and negate self-defense | Court: McNeese governs; the make-my-day "unlawful entry" element requires a knowing criminal entry, and the instruction should have included "knowingly." |
| Whether McNeese’s "knowing" construction applies when the trespasser (not homeowner) is on trial | Prosecutor: McNeese was limited to homeowner-immunity cases; imposing "knowing" here would shift burden to prosecution improperly | Jones: the purpose of the "knowing" element (to protect accidental intruders from deadly force) applies equally when a trespasser is prosecuted and asserts self-defense | Court: McNeese’s reasoning applies; the knowing requirement protects accidental entrants in all contexts, so it must be included. |
| Whether the instructional error was harmless | Prosecutor: acquittal on burglary (which required knowingly) made the make-my-day instruction moot; evidence overwhelmingly disproved self-defense so any error was harmless | Jones: acquittal on burglary does not show the jury understood make-my-day to require "knowing"; evidence supported mistaken-entry and withdrawal theories, so the erroneous instruction could have prevented proper consideration of self-defense | Court: Error was not harmless because the record supported a mistaken-entry theory and withdrawal/self-defense; the jury might have applied the make-my-day instruction (as given) to bar self-defense. |
Key Cases Cited
- People v. McNeese, 892 P.2d 304 (Colo. 1995) ("unlawful entry" in make-my-day statute construed to require a knowing, criminal entry to avoid authorizing force against accidental entrants)
- People v. Toler, 9 P.3d 341 (Colo. 2000) (trespassers do not forfeit self-defense rights merely by trespassing; an initial aggressor may regain self-defense if he withdraws and communicates withdrawal)
- People v. Hayward, 55 P.3d 803 (Colo. App. 2002) (make-my-day instruction proper where facts supported knowing unlawful entry; courts may give statute-text instructions when undisputed)
- People v. Garcia, 28 P.3d 340 (Colo. 2001) (preserved jury-instruction errors reviewed for harmless error)