v. Neckel, 2019 COA 69

Background

Eric Neckel (defendant) threatened a process server with a large metal pipe at his rural home and then used a hydraulic jack to lift the server’s car, preventing departure; Neckel was convicted of felony menacing and second-degree criminal tampering.
The property is set back ~1/4 mile from the road with a U-shaped driveway; two small "No Trespassing" signs existed but no gates or fences blocking driveways.
The process server parked, knocked, left a note, and while walking back to his car was confronted by Neckel; audio and 911 calls captured the encounter.
Neckel repeatedly told the server he was trespassing and threatened violence; the server retreated behind his car, which Neckel then jacked up. Both parties called 911.
At trial, Neckel argued the server was a trespasser as soon as he entered because of the signs, sought jury instructions on duty to retreat and definitions of "unlawful trespass," and claimed the court should have corrected alleged misstatements of trespass law by witnesses and the prosecutor.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the process server was a trespasser on arrival because of "No Trespassing" signs	The server’s entry to effect service was lawful under Colorado law and the implied license to approach a home; statements that the sign alone did not make the server a trespasser were accurate.	The signs immediately revoked any license to enter, so the server was a trespasser from the moment he drove onto the property.	The court held the sign alone did not revoke the implied license in these circumstances; the server’s entry was lawful and statutorily privileged to the extent consistent with process-execution law.
Whether the trial court erred by failing to sua sponte correct alleged misstatements about trespass law	Any challenged statements were legally accurate given the implied license and statutory privilege; no plain error.	The victim and prosecutor misstated law, potentially misleading the jury about unlawful trespass.	No reversible error: one objection was preserved and harmless; other statements invited or unobjected-to were not plain error.
Whether a "no retreat" instruction was required for defense of premises	No retreat is inherent in defense-of-premises and the pattern instruction; an extra instruction was unnecessary and properly refused.	Neckel argued jury needed explicit instruction that there is no duty to retreat before defending premises.	Court affirmed refusal: duty to retreat is incompatible with defending premises and the provided instruction covered the point.
Whether additional instructions defining "unlawful trespass" were required	The defense sought explicit definitions to counter alleged misstatements and clarify the element for the jury.	The People argued the victim’s entry was lawful and definitions were unnecessary.	Court declined the extra definitions because the challenged statements were accurate and the pattern instruction sufficiently informed the jury.

Key Cases Cited

Florida v. Jardines, 569 U.S. 1 (2013) (describes the common-law implied license to approach a home’s front door)
McKee v. Gratz, 260 U.S. 127 (1922) (discusses "habits of the country" and customary access to homes)
United States v. Carloss, 818 F.3d 988 (10th Cir. 2016) ("No Trespassing" signs alone do not necessarily revoke implied license to approach a front door)
State v. Christensen, 517 S.W.3d 60 (Tenn. 2017) (survey of split authority on effect of signage revoking implied license)
State v. Rigoulot, 846 P.2d 918 (Idaho Ct. App. 1992) (signs do not bar normal, legitimate approaches to the home)
Michel v. State, 961 P.2d 436 (Alaska Ct. App. 1998) (on rural properties signs often target recreational trespassers, not visitors approaching the home)
State v. Grice, 767 S.E.2d 312 (N.C. 2015) (signage alone insufficient to clearly revoke implicit license)
F. I. duPont, Glore Forgan & Co. v. Chen, 364 N.E.2d 1115 (N.Y. 1977) (if process server’s progress is arrested, the outer bounds of dwelling extend to that location)
Vanden Bogert v. May, 55 N.W.2d 115 (Mich. 1952) (common-law limit on process-server authority ending at the door)
People v. Lutz, 762 P.2d 715 (Colo. App. 1988) (defense-of-premises instruction warranted when entry was unlawful)