People v. Smith, 416 P.3d 886

Background

Defendant Adam Smith pointed a handgun toward a partially opened hotel-room door during a confrontation; his girlfriend and a police officer both testified they saw the gun and were afraid. Smith admitted pointing the gun but claimed self-defense.
The information charged Smith with “Menacing—domestic violence related,” naming the girlfriend as the victim.
At the instruction conference, defense counsel asked the court to add “or another individual” to the self‑defense instruction; the court included that change. Defense counsel otherwise said the proposed instructions were "acceptable." No specific objection was made to the menacing instruction, which defined the offense as placing “another person” in fear without naming the girlfriend.
The verdict form asked whether the menacing was an act of domestic violence; the jury convicted Smith of menacing but found the menacing was not an act of domestic violence.
On appeal the court of appeals reversed, finding a prejudicial simple variance (risk of non‑unanimous verdict) based on the instruction’s failure to identify the charged victim and prosecutor comments referencing the officer. The Colorado Supreme Court granted certiorari.

Issues

Issue	People’s Argument	Smith’s Argument	Held
Whether Smith waived or invited appellate review of a simple‑variance challenge by generally acquiescing to jury instructions and requesting a modification to the self‑defense instruction	Smith’s general acceptance and his proposed insertion of "or another individual" show he acquiesced and thus invited or waived the error	General acceptance does not show deliberate injection or intentional relinquishment of the right to object to a different instruction; at most forfeiture	Court: No waiver or invited error; review permitted (for plain error) because record shows no deliberate injection or intentional relinquishment
Whether an instruction omitting the identified victim (saying only "another person") produced a simple variance that was plain error because it risked a non‑unanimous verdict	The absence of an identified victim plus prosecutor’s rebuttal reference to the officer created a reasonable possibility the jury convicted based on different victims (girlfriend vs. officer), warranting reversal	Given the charging document, voir dire, opening statements, evidence (Smith admitted pointing at girlfriend), jury instructions titled "Menacing—domestic violence related," and an affirmative domestic‑violence interrogatory, there was not an obvious risk of non‑unanimity	Court: No plain error; the record does not obviously show a reasonable possibility that the jury convicted on a different victim or that the instruction produced non‑unanimity

Key Cases Cited

Horton v. Suthers, 43 P.3d 611 (Colo. 2002) (discusses when a party’s express change of position can constitute invited error)
People v. Rodriguez, 914 P.2d 230 (Colo. 1996) (defines simple variance and its legal effect)
People v. Stewart, 55 P.3d 107 (Colo. 2002) (plain error reversal requires reasonable possibility the improper instruction contributed to conviction)
People v. Miller, 113 P.3d 743 (Colo. 2005) (plain error standard—obvious and substantial error undermining trial fairness)
Scott v. People, 390 P.3d 832 (Colo. 2017) (plain error is generally so obvious a trial judge should have avoided it absent objection)
People v. Pickering, 276 P.3d 553 (Colo. 2011) (affirmative defenses admit commission of charged acts and seek justification)
Auman v. People, 109 P.3d 647 (Colo. 2005) (invited‑error analysis distinguishes which party tendered the challenged instruction)
People v. Simmons, 973 P.2d 627 (Colo. App. 1998) (instructions and prosecutor argument that suggested conviction on either of two victims created non‑unanimity risk)
People v. Barker, 501 P.2d 1041 (Colo. 1972) (discusses harmony of plain‑error review with contemporaneous‑objection rules)
People v. Curtis, 681 P.2d 504 (Colo. 1984) (courts should indulge every reasonable presumption against waiver)