Full Opinion (html_with_citations)

     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 9, 2023
2023COA104

No. 20CA1568, People v. Jones — No. 20CA1568, People v.
Jones — Criminal Law — Affirmative Defenses — Mistake of
Fact — Self-Defense — Use of Physical Force in Defense of a
Person — Use of Deadly Physical Force Against an Intruder

     Applying the division’s analysis in People v. Toler,
981 P.2d 1096, 1099
 (Colo. App. 1998), aff’d,
9 P.3d 341
 (Colo. 2000), a

division of the court of appeals holds that the trial court here

properly refused to give a self-defense instruction under

subsections (2)(b) and (2)(c) of the self-defense statute. § 18-1-704,

C.R.S. 2023. The trial court properly recognized that giving such

an instruction would be based only on the actual belief of the

defendant. And the self-defense statute takes into account both the

reasonable belief and the actual belief of the defendant. Toler,
981 P.2d at 1099
.
COLORADO COURT OF APPEALS
2023COA104


Court of Appeals No. 20CA1568
Delta County District Court No. 18CR92
Honorable Steven L. Shultz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Heather Palmer Jones,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division II
                         Opinion by JUDGE FURMAN
                         Fox and Pawar, JJ., concur

                         Announced November 9, 2023


Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Applying the division’s analysis in People v. Toler,
981 P.2d 1096, 1099
 (Colo. App. 1998), aff’d,
9 P.3d 341
 (Colo. 2000), we

 hold that the trial court here properly refused to give a self-defense

 instruction under subsections (2)(b) and (2)(c) of the self-defense

 statute. § 18-1-704, C.R.S. 2023. The trial court properly

 recognized that giving such an instruction would be based only on

 the actual belief of the defendant. And the self-defense statute

 takes into account both the reasonable belief and the actual belief

 of the defendant. Toler,
981 P.2d at 1099
.

¶2    Defendant, Heather Palmer Jones, shot the victim — her

 friend — while staying at the victim’s home in early 2018. The

 victim died from complications caused by the gunshot wound eight

 months later.

¶3    Jones asserted the defense of self-defense based on her

 mistaken belief that the victim was an intruder. See § 18-1-

 704(2)(a); § 18-1-504(1)(a), (c), C.R.S. 2023.

¶4    The jury wasn’t persuaded by Jones’s defense and found her

 guilty of second degree murder. The trial court sentenced her to

 twenty-four years in prison.




                                    1
¶5    Jones appeals. She contends that (1) the trial court erred by

 declining to instruct the jury on the affirmative defense of force

 against intruders and the affirmative defense of self-defense under

 subsections (2)(b) and (2)(c) of the self-defense statute; (2) the trial

 court violated her rights under the Confrontation Clause of the

 United States Constitution by admitting testimonial statements of

 the victim that the defense’s expert witness considered; and (3) the

 prosecution committed misconduct during voir dire. We affirm the

 judgment of conviction.

                            I.   The Shooting

                A.    Events Leading up to the Shooting

¶6    Throughout 2017, Jones reconnected with a friend, Lynette

 Taylor, who told Jones that she had been living with a man who

 was abusive toward her and was part of an extremely dangerous

 motorcycle gang that trafficked drugs. Jones first met this man

 when Taylor brought him to Jones’s home in May 2017, and Taylor

 told Jones she was afraid of the man.

¶7    Taylor, together with the man, visited Jones’s home again in

 September 2017. Jones testified that she “wasn’t afraid of this guy”

 and “was honestly a little curious to meet him” despite the things


                                     2
 Taylor told her. During this visit, the man left his trailer at Jones’s

 home and removed it about a week later.

¶8    In December, Taylor came to Jones asking for a place to stay.

 Taylor stayed at Jones’s home on and off throughout December and

 early January. At one point, Taylor returned to Jones’s home with

 “bruises from a man she was working for and in some ways seeing”

 who had sexually assaulted her.

¶9    On January 11, 2018, a day before the shooting, Jones took

 Taylor to a meeting with Taylor’s probation officer, which ended

 with Taylor being taken into custody. Throughout that day, Jones

 received five voicemails from a phone number that Taylor had used

 to call her. The voicemails were left by a man who addressed Jones

 by name (though Jones had never met the man). This man said he

 was looking for Taylor. In response to these voicemails, Jones was

 “afraid at that point” and “stopped by [the victim’s] house.” There

 was no evidence that the victim knew Taylor, or any of the men

 Taylor associated with. That night, Jones stayed at a different

 friend’s house.




                                    3
                      B.    The Day of the Shooting

¶ 10   The next day, Jones returned to her home in the early

  afternoon accompanied by the victim. Upon arriving home, Jones

  and the victim observed “damage to [Jones’s] property” and “mud

  splattered on [Taylor’s] car” resulting from “donuts in the mud” and

  “tire tracks [having] driven over one of the skids on [her]

  snowmobile.” They also observed “boot prints that led up to

  [Jones’s] house,” where they noticed “damage to the area of the

  dead bolt where a key is inserted” that “look[ed] like something was

  forced into that area and caused damage on both sides of the

  keyhole.” Jones was “terrified,” so she left to stay at the victim’s

  house.

¶ 11   Jones stored several of her guns in the victim’s gun cabinet.

  While at the victim’s house, she retrieved her 9 mm gun,

  ammunition, and two clips and loaded the firearm in the living

  room “to make [her] feel safer.”

¶ 12   Later, another friend of Jones and the victim came by the

  victim’s home, and Jones placed the gun under a futon in the back

  bedroom. The victim and the friend left together to go to a local

  brewery, and Jones remained at the victim’s home alone. While


                                     4
  Jones was alone, another mutual friend visited the home looking for

  the victim and spent some time with Jones. The gun remained

  under the futon.

¶ 13   The mutual friend left and returned five to ten minutes later.

  During the time the mutual friend was gone, Jones “decided that

  [she] would lie down on the couch and rest.” “[She] turned off all

  the lights in the house, [she] locked the doors, and [she] retrieved

  the .9 mm from the back bedroom.” And she put the gun on the

  coffee table in the living room. When the mutual friend returned,

  he “rattled the doorknob” on the front door, knocked, and called out

  to Jones to let him in. Jones let him in. He retrieved a forgotten

  item and left again. Jones turned off the lights, relocked the front

  door, turned off her phone, and laid down on the couch.

¶ 14   Later that evening, Jones awoke to “[t]he rattling of the front

  doorknob and knocking.” After a short moment, Jones heard

  “rattling of the doorknob” and “knocking at the back door.” Then,

  Jones heard “loud banging and pounding” on the front door and “a

  loud sharp sound like a bang or a clap.” Jones got underneath the

  coffee table. She began to hear “muffled noises coming from [the

  victim’s] bedroom” and “footsteps.” On hearing these noises, Jones


                                    5
  positioned herself to shoot at “whatever came through the door.”

  Finally, the door to the living room opened, the victim walked into

  the room holding a flashlight, and Jones immediately shot the

  victim.

                          II.   Jury Instructions

¶ 15   We first consider whether the trial court erred by declining to

  instruct the jury on (1) the affirmative defense of force against

  intruders and (2) self-defense under subsections (2)(b) and (2)(c) of

  the self-defense statute. We conclude it did not.

                         A.     Standard of Review

¶ 16   We review a trial court’s decision to give, or not to give, a

  particular jury instruction for an abuse of discretion. People v.

  Payne,
2019 COA 167, ¶ 16
.

¶ 17   But to present an affirmative defense for the jury to consider,

  a defendant must offer “some credible evidence” to support it.

  Pearson v. People,
2022 CO 4, ¶ 16
. “Some credible evidence” has

  been understood 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.”

  Galvan v. People,
2020 CO 82, ¶ 24
 (citations omitted).


                                      6
¶ 18   “Whether a defendant has met this burden is a question of

  law, and we review the sufficiency of a defendant’s evidence de

  novo.” Pearson, ¶ 16. We review the record as a whole to determine

  if there is “any evidence tending to establish the [affirmative]

  defense.” People v. Garcia,
113 P.3d 775, 784
 (Colo. 2005) (quoting

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

                        B.   Force Against Intruders

¶ 19   Jones contends that the trial court erred by declining to give

  an instruction on the affirmative defense of force against intruders

  because there was some evidence to support this affirmative

  defense. We disagree.

                               1.   The Law

¶ 20   Section 18-1-704.5, C.R.S. 2023, addresses the justified use of

  force against intruders in the home. People v. Rau,
2022 CO 3, ¶¶ 2-3
. The statute recognizes “that the citizens of Colorado have a

  right to expect absolute safety within their own homes,” § 18-1-

  704.5(1), and provides that citizens may use deadly physical force

  when certain specific conditions are met. Rau, ¶ 3. These specific

  conditions are that




                                     7
             (1) the defendant was an occupant of a
             dwelling; (2) another person made a knowingly
             unlawful entry into that dwelling; (3) the
             defendant had a reasonable belief that, in
             addition to the uninvited entry, the other
             person had committed, was committing, or
             intended to commit a crime against a person
             or property in the dwelling; and (4) the
             defendant reasonably believed that the other
             person might use any physical force (no matter
             how slight) against any occupant of the
             dwelling.

  Id. at ¶ 21; see also § 18-1-704.5(2).

¶ 21   A defendant may assert the force-against-intruders statute as

  an affirmative defense at trial. See People v. Guenther,
740 P.2d 971, 981
 (Colo. 1987). A defendant must present some credible

  evidence supporting the statute’s applicability for the trial court to

  instruct the jury on this affirmative defense. People v. Janes,
962 P.2d 315, 317-18
 (Colo. App. 1998), aff’d,
982 P.2d 300
 (Colo.

  1999).

¶ 22   But the plain language of the force-against-intruders statute

  “requires proof of an actual unlawful entry and not merely a

  reasonable belief that the entry was unlawful.” People v. McNeese,
892 P.2d 304, 310
 (Colo. 1995) (citing Guenther,
740 P.2d at 979
).




                                     8
                              2.   Analysis

¶ 23   We conclude that the trial court did not err by declining to give

  the jury an instruction on the affirmative defense of force against

  intruders under section 18-1-704.5. We reach this conclusion

  because Jones did not make the threshold showing of the objective

  element of the statute — that the victim knowingly entered into the

  dwelling unlawfully. See § 18-1-704.5; see also McNeese,
892 P.2d at 309
. Indeed, Jones conceded that there was no unlawful entry

  because she shot the victim in his own home.

¶ 24   Still, Jones contends that she has satisfied this element

  because (1) she was operating “under a mistaken belief [the victim]

  was an intruder”; and (2) section 18-1-504(1)(c), the mistake-of-fact

  statute, supports that the element may be satisfied by such a

  subjective belief. Jones also contends that she presented credible

  evidence supporting the defense by testifying about “the damage

  she observed on her property” and the damage to her deadbolt. She

  further contends that her testimony regarding the voicemails left by

  an unknown man looking for Taylor, and the violence these men

  perpetrated against Taylor qualify as credible evidence.




                                    9
¶ 25   Jones’s subjective belief that the victim was an intruder

  making an unlawful entry into the dwelling does not cure her

  inability to meet the objective element of the force-against-intruders

  statute. See McNeese,
892 P.2d at 309
.

¶ 26   The cases on which Jones relies do not help her. In each case,

  the defendant had presented credible evidence of an unlawful entry.

  The appellate courts were therefore tasked with determining only

  whether the jury instructions supporting these defenses were

  proper. See Janes,
982 P.2d at 301
 (evaluating whether instruction

  impermissibly conveyed the prosecution’s burden of proof); People v.

  Manyik,
2016 COA 42, ¶ 74
 (evaluating whether the jury was

  properly instructed on the defendant’s affirmative defenses in

  relation to each other); People v. Ujaama,
2012 COA 36, ¶ 53

  (evaluating whether the jury instruction erroneously misconstrued

  the prosecution’s burden of proof and limited the defendant’s right

  to respond with force).

                            C.   Self-Defense

¶ 27   Jones next contends that the trial court erred by declining to

  fully instruct the jury regarding self-defense because there was




                                    10
  some evidence to support instructions on both subsection (2)(b) and

  subsection (2)(c) of the self-defense statute. We disagree.

                              1.   The Law

¶ 28   Colorado’s self-defense statute provides in part as follows:

             (2) Deadly physical force may be used only if a
             person reasonably believes a lesser degree of
             force is inadequate and:

             (a) The actor has reasonable ground to believe,
             and does believe, that he or another person is
             in imminent danger of being killed or of
             receiving great bodily injury; or

             (b) The other person is using or reasonably
             appears about to use physical force against an
             occupant of a dwelling or business
             establishment while committing or attempting
             to commit burglary as defined in sections 18-
             4-202 to 18-4-204; or

             (c) The other person is committing or
             reasonably appears about to commit
             kidnapping as defined in section 18-3-301 or
             18-3-302, robbery as defined in section 18-4-
             301 or 18-4-302, sexual assault as set forth in
             section 18-3-402, . . . or assault as defined in
             sections 18-3-202 and 18-3-203.

  § 18-1-704(2)(a)-(c).




                                    11
       2.      Analysis Concerning Subsection (2)(b) of the Self-Defense
                                    Statute

¶ 29        We conclude that the trial court did not err by declining to

  instruct the jury on subsection (2)(b) of the self-defense statute.

¶ 30        Unsurprisingly, Jones and the People disagree about the

  standard we are to use to evaluate this issue. Jones urges us to

  apply a subjective test. She contends that the applicability of

  subsection (2)(b) was supported by credible evidence through her

  testimony regarding her fear “that the person entering the house

  was a member of the drug trafficking motorcycle gang [Taylor] was

  associating with, and that they were breaking into the house.”

¶ 31        The People counter that we should apply an objective test.

  They contend that there must be evidence that Jones acted as a

  reasonable person would in a similar situation. We agree with the

  People. The trial court correctly recognized that giving the

  requested instruction would be unjustified because it would not be

  based on a reasonable belief, at best, it would be based only on

  Jones’s actual belief.

¶ 32        In Toler, a division of our court addressed an issue that “may

  arise on remand.”
981 P.2d at 1098-99
. The division discussed



                                        12
  whether a trial court erred by refusing to instruct the jury that the

  “reasonable person” referenced in the self-defense instruction “must

  be measured by a subjective, not an objective, standard.”
Id.
 The

  division recognized that self-defense “under § 18-1-704 takes into

  account both the reasonable belief and the actual belief of the

  defendant” and determined that a “court may properly refuse to give

  an instruction which calls only for a subjective test.” Id. at 1099.

¶ 33   We agree with the division’s analysis in Toler and conclude

  that the trial court here properly refused to give a self-defense

  instruction under subsection (2)(b) of the self-defense statute

  because it would have called only for a subjective test. See id.

¶ 34   There was no evidence that the victim was “using or

  reasonably appear[ed] about to use physical force against” Jones.

  § 18-1-704(2)(b). Jones herself testified that, upon hearing noises,

  she positioned herself to shoot at “whatever came through the

  door.” She thus had committed herself to shooting the perceived

  intruder before she could identify him or his purpose. And there

  was no evidence that the victim took any actions that would make it

  appear that he was about to use physical force against Jones.




                                    13
¶ 35        There also was no evidence that the victim, the alleged

  intruder, entered his home that night “while committing or

  attempting to commit burglary.” Id. It was undisputed that the

  victim was reentering his own home and therefore there could be no

  burglary. See § 18-4-201(3), C.R.S. 2023 (“A person ‘enters

  unlawfully’ or ‘remains unlawfully’ in or upon premises when the

  person is not licensed, invited, or otherwise privileged to do so.”).

       3.      Analysis Concerning Subsection (2)(c) of the Self-Defense
                                    Statute

¶ 36        Agreeing with the division’s analysis in Toler again, we

  conclude that the trial court properly refused to give a self-defense

  instruction under subsection (2)(c) of the self-defense statute.

¶ 37        Jones contends that an instruction under section 18-1-

  704(2)(c) was supported by credible evidence from her testimony

  that “[s]he felt she was in danger of being kidnapped, sexually

  assaulted, or assaulted” due to the damage to her property and

  “receiving phone calls from a man who addressed [her] by name in

  voicemails, whom [she] had never met.”

¶ 38        We disagree with Jones because there was no evidence that

  the victim was committing or “reasonably appear[ed] about to



                                        14
  commit” kidnapping, sexual assault, or assault. § 18-1-704(2)(c);

  see also Toler,
981 P.2d at 1099
. Again, the evidence was that

  Jones shot the victim immediately after he entered his living room

  and before she identified him. When she heard someone entering

  the home, she decided to shoot “whatever came through the door.”

¶ 39   And as the trial court noted, there also was a lack of

  propensity or past history that would suggest the victim was coming

  into his home to commit sexual assault, kidnapping, or assault.

¶ 40   In light of the complete lack of credible evidence, we conclude

  that the trial court did not err by declining to instruct the jury

  under subsections (2)(b) and (2)(c) of the self-defense statute.

                          III.   Expert Testimony

¶ 41   Jones next contends that the trial court violated her rights

  under the Confrontation Clause by admitting the victim’s

  testimonial statements made to the police that he had entered his

  home through the front door. This testimony came from a police

  report that the expert witness reviewed. Jones argues that this

  error was harmful because “whether the victim had entered through

  the front door or through the bedroom doorway became a focal




                                     15
  point of the trial.” We conclude that any such error does not

  require reversal.

                                A.    Law

¶ 42   The Confrontation Clause bars the “admission of testimonial

  statements of a witness who did not appear at trial unless he was

  unavailable to testify, and the defendant had had a prior

  opportunity for cross-examination.” Crawford v. Washington,
541 U.S. 36, 53-54
 (2004).

                        B.   Standard of Review

¶ 43   We review a trial court’s evidentiary ruling for an abuse of

  discretion and therefore look to whether the ruling was manifestly

  arbitrary, unreasonable, or unfair, or reflects an erroneous

  understanding or application of the law. People v. Brown,
2022 COA 19
, ¶ 57. But we review de novo whether a statement violated

  a defendant’s rights under the Confrontation Clause. People v.

  Ambrose,
2021 COA 62, ¶ 65
.

¶ 44   We review preserved Confrontation Clause violations under the

  constitutional harmless error standard. Hagos v. People,
2012 CO 63, ¶ 10
. These errors require reversal unless they were harmless




                                     16
  beyond a reasonable doubt.
Id.
 In evaluating constitutional

  harmlessness, we look to the following:

            (1) the importance of the declarant’s statement
            to the prosecution’s case; (2) whether the
            statement was cumulative; (3) the presence or
            absence of corroborating or contradictory
            evidence on the material points of the witness’s
            testimony; (4) the extent of the cross-
            examination otherwise permitted; [and] (5) the
            overall strength of the prosecution’s case.

  People v. Phillips,
2012 COA 176, ¶ 93
 (quoting Arteaga-Lansaw v.

  People,
159 P.3d 107, 110
 (Colo. 2007)).

                              C.   Analysis

¶ 45   During the trial, defense counsel asked Jones’s expert witness

  about what he had reviewed in preparing his opinion. The expert

  witness testified that he had reviewed several pieces of evidence for

  his report, which included the victim’s statement that he entered

  through the front door. Defense counsel then asked the expert

  witness if he had considered the evidence regarding the victim’s

  entrance to his home and whether the police’s subsequent

  investigation was “to [the expert witness’s] satisfaction?” He

  answered, “[n]o.” This testimony implicated the victim’s statement

  to police officers that he had entered the house through the front



                                    17
  door, not the bedroom window. But the jury also heard the expert

  witness opine that, despite the victim’s statements, he felt that

  there was a possibility the victim could have entered some way

  other than through the front door.

¶ 46   We conclude that any error in admitting the victim’s

  testimonial statements that he had entered through the front door

  was harmless beyond a reasonable doubt. We reach this

  conclusion for two reasons.

¶ 47   First, the victim’s statements were limited to a factual dispute

  that was not dispositive to the jury’s determination of Jones’s guilt.
Id.
 The victim’s entry into his house was lawful. As we have

  concluded, this fact meant Jones was not entitled to invoke the

  force-against-intruders statute. And because Jones had committed

  herself to shooting the perceived intruder before identifying him or

  his purpose, there was no reasonable basis to believe the intruder

  “appear[ed] about to use physical force” under section 18-1-

  704(2)(b) or was about to commit one of the listed crimes under

  section 18-1-704(2)(c).

¶ 48   Thus, Jones’s only applicable defense under section 18-1-

  704(2)(a) required some evidence that she reasonably believed that


                                    18
  the perceived intruder presented an “imminent danger.” Jones

  created the circumstances that required the victim to purportedly

  enter through the bedroom window because she had locked the

  front door. Whether the victim entered his home through the door

  or the window, neither provides a rational basis for her mistaken

  belief because Jones does not identify any evidence of imminent

  danger.

¶ 49   Second, the admitted statements had little relevance to the

  jury’s determination. Phillips, ¶ 93. The jury understood that there

  was at least some possibility that the victim had entered through

  the bedroom window. And as we have concluded, the victim’s

  purported entry into his own home has little significance because

  no matter the point of entry, the victim lawfully entered his own

  home and Jones failed to identify any imminent danger before

  shooting the victim.

¶ 50   Accordingly, we conclude that any error in admitting the

  victim’s testimonial statements was harmless beyond a reasonable

  doubt.




                                   19
                     IV.        Prosecutorial Misconduct

¶ 51   Jones last contends that the prosecutor committed

  misconduct during voir dire. We disagree.

                                     A.    Law

¶ 52   Every person has a right to a trial by a fair and impartial jury.

  Domingo-Gomez v. People,
125 P.3d 1043, 1048
 (Colo. 2005). It is

  well settled in Colorado law that “a prosecutor, while free to strike

  hard blows, is not at liberty to strike foul ones.”
Id.
 (quoting Wilson

  v. People,
743 P.2d 415, 418
 (Colo. 1987)). Prosecutors may employ

  legitimate means to bring about a just conviction, and they have a

  duty to avoid improper methods designed to obtain an unjust

  result.
Id.

                           B.     Standard of Review

¶ 53   We employ a two-step analysis to allegations of prosecutorial

  misconduct. Wend v. People,
235 P.3d 1089, 1096
 (Colo. 2010).

  First, we must determine whether the prosecutor’s alleged

  misconduct was, in fact, improper based on the totality of the

  circumstances.
Id.
 Second, if so, we must determine whether the

  alleged misconduct warrants reversal according to the proper

  standard of review.
Id. at 1097
.


                                          20
¶ 54   Because Jones’s counsel did not object to the prosecutor’s

  challenged conduct during voir dire, we review for plain error.

  Hagos, ¶ 14. An error is plain if it is “obvious and substantial,” and

  we will reverse only if the error so undermined the fundamental

  fairness of the trial as to cast serious doubt on the reliability of the

  judgment of conviction.
Id.

                                C.   Analysis

¶ 55   Jones alleges five separate instances of prosecutorial

  misconduct during voir dire. We address and reject each in turn.

¶ 56   First, Jones contends that the prosecutor indoctrinated the

  jury by suggesting that he had “personal knowledge of information

  in support of the case that would not be presented because he had

  to decide what to present the jury.”

             PROSECUTOR: How do I know what should I
             [sic] bring for you to consider in this case?
             Say it louder.

             THE JUROR: Something that’s believable.

             PROSECUTOR: Something that’s believable.
             And, again, that’s [the juror]. Right. Okay.
             Very good point. Reliable, credible, right? Let
             me ask you this question to help it out. Can I
             bring you in the next five to six days every
             single fact that there is associated with this



                                     21
case? [Juror], you want me to bring every
single little tiny thing I know about this case?

THE JUROR: Well, it has to be pertinent to
what you’re presenting.

PROSECUTOR: Has to be pertinent, has to be
relevant. Plus you only signed up for six days,
right? So there’s gotta be a — I have to know
what’s pertinent, and there has to be some
limits, right? Exactly. Does anybody have a
problem with that? You know, let’s put this
down to brass tacks. When you go to
deliberate, there may be some things that you
didn’t know, that you didn’t learn. Can you
still make a decision? Who has had a
situation like that in your work? You have to
make a decision; but, you know, did you know
absolutely every little thing about it? [Juror],
you’re shaking your head.

THE JUROR: Like would you like an example?

PROSECUTOR: I would.

THE JUROR: Well, I had to fire someone
yesterday at my work. And so in that case I
felt like I used the best information I could to
make the decision. It’s not one I was excited
about, but I objectively evaluated the facts that
I knew and had to decide how I would take
action.

THE COURT: Yes. What a great example,
because having to terminate someone from
employment is an important decision. I mean,
it’s one of those that really matters.

THE JUROR: Uh-huh.


                       22
            PROSECUTOR: But at some point you have to
            make a decision.

¶ 57   The prosecutor’s statements did not mistate or oversimplify

  the burden of proof. See People v. Vialpando,
2022 CO 28
, ¶ 41.

  Rather, the prosecutor’s line of questioning focused on the task the

  jurors would face: weighing the evidence presented to them. This

  was a proper line of inquiry. See People v. Adams,
708 P.2d 813, 815
 (Colo. App. 1985).

¶ 58   Second, Jones contends that the prosecutor told the jurors

  that they could convict based on less than proof beyond a

  reasonable doubt.

            PROSECUTOR: Does [defense counsel] and the
            defense ever have the burden of producing any
            evidence for you?

            [Juror answers no.]

            PROSECUTOR: You were right, they don’t have
            to produce anything, do they, any evidence?
            The defense doesn’t have to produce anything,
            right? That’s another really important concept
            in a criminal courtroom, isn’t it, that the
            defendant doesn’t have to do that? Who has to
            present you with the evidence? We do.

            [Defense counsel] has no burden at any time to
            produce any evidence. He doesn’t have to
            really do anything. He will because he’s going


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            to represent Ms. Jones and her interests, but
            he doesn’t have to bring you any evidence.

¶ 59   The prosecutor’s statements focused on ensuring that the jury

  understood the defense bore no burden of proof, and that the jury

  understood that the prosecution carried the burden to prove its

  case beyond a reasonable doubt. This was proper inquiry. See

  Vialpando, ¶ 41.

¶ 60   Third, Jones contends that the prosecutor sought to “discredit

  [her] mistake-of-fact defense” and asked the jurors not to let this

  defense influence them from holding Jones accountable.

            PROSECUTOR: So the issue here is does
            murder require that you kill — that you
            intended to kill the person that ended up
            dying? That’s the issue. It might, right; but it
            doesn’t always. Does everybody agree with
            that? [Juror S], any comments about
            that? . . .

            JUROR: You always hear about drunk driving
            accidents where somebody is killed. That can
            be murder.

            PROSECUTOR: Can you imagine if the rule
            was, well, if you cause somebody to die, but it
            wasn’t who you were trying to kill, that you got
            off? Can you imagine if that was the rule?
            Well, yeah. I caused somebody to die, but that
            wasn’t who I was trying to kill. Does that
            mean the person should not be held
            accountable for that?


                                    24
             JUROR: No.

             PROSECUTOR: Anybody struggling with that
             at all? Okay.

¶ 61   The prosecutor’s statements did not tell the jurors to discredit

  the mistake-of-fact defense. On the contrary, the prosecutor was

  asking whether the jurors could apply the law to the concept of an

  unintentional killing. This was a proper line of inquiry. See
id.

¶ 62   Fourth, Jones contends that the prosecutor’s discussion

  regarding guns, hunting, and military training was improper

  because the line of questioning “had nothing to do with the facts or

  evidence in this case.” But both parties submitted a stipulated

  questionnaire inviting the prospective jurors to address their

  experiences with firearms, firearm training, and the military.

  Therefore, we conclude that Jones invited the error she now

  complains about on appeal. See People v. Rediger,
2018 CO 32, ¶ 34
 (“We have thus concluded that a party invites an error in a

  jury instruction when that party drafted or tendered the erroneous

  instruction.”).

¶ 63   Fifth, Jones contends that the prosecutor’s discussion of the

  inapplicability of the force-against-intruders law was improper. We


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  disagree because the parties again stipulated to providing a jury

  questionnaire that explicitly asked jurors to describe their

  understanding of this law. And when the trial court discussed the

  applicability of the force-against-intruders law, it asked Jones’s

  attorney if he would be comfortable with the statute’s inapplicability

  being disclosed in voir dire, if the trial court reached such a

  conclusion. Jones’s attorney agreed to this. Therefore, we conclude

  that Jones invited the error. See
id.

                             V.   Conclusion

¶ 64   The judgment of conviction is affirmed.

       JUDGE FOX and JUDGE PAWAR concur.




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