Peo v. Rustemeyer

24CA1731 Peo v Rustemeyer 10-29-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA1731 Arapahoe County District Court No. 23CR1099 Honorable Darren Vahle, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Steven Chopper Rustemeyer, Defendant-Appellant. JUDGMENT AFFIRMED Division V Opinion by JUDGE LUM Freyre and Grove, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 29, 2026 Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Madeline Dobkin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Steven Chopper Rustemeyer, appeals his convictions for attempted second degree assault and obstructing a peace officer. He argues that the district court erred by (1) misdescribing the offense of attempted second degree assault when answering a question from the jury and (2) giving the jury the 2023 model jury instruction on reasonable doubt. We affirm. I. Background ¶2 Law enforcement responded to a call involving a custody dispute that resulted in the arrest of a child’s mother. Rustemeyer, a friend of the mother’s, witnessed the arrest and expressed concern for her. After some back and forth, Rustemeyer said to the officers, “If you’re taking her to jail, you’re taking me [to jail].” He proceeded to lunge toward the officers as they moved the mother toward the patrol vehicle. Rustemeyer’s shoulder hit one of the officers in the chest and knocked the mother to the ground. As a result, Rustemeyer was charged with and convicted of attempted second degree assault on a peace officer and obstructing a peace officer. 1  II. Intent Element ¶3 Rustemeyer first argues that the district court erroneously removed an “intent” element from the description of attempted second degree assault when it responded to a question from the jury. Because of this, he contends that the court failed to instruct the jurors on an essential element of the offense. A. Additional Background ¶4 The district court provided the jury with the following instructions on the elements of attempted second degree assault. Instruction 10 The elements of the crime of Attempt to Commit Assault in the Second Degree are: 1. That Steven Rustemeyer, 2. in the State of Colorado, at or about the date and place charged, 3. with intent, 4. engaged in conduct constituting a substantial step toward the commission of Assault in the Second Degree A “substantial step” is any conduct, whether act, omission, or possession, which is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense. 2  Instruction 11 The elements of the crime of Assault in the Second Degree are: 1. That a defendant, 2. in the State of Colorado, at or about the date and place charged, 3. with intent, 4. to prevent a person whom he knew, or should have known, to be a peace officer, firefighter, emergency medical care provider, or emergency medical service provider from performing a lawful duty, 5. intentionally, 6. caused bodily injury to any person. ¶5 During deliberations, the jurors submitted several questions, including, as relevant here, “What is the definition of assault?” The court discussed the question with counsel for both sides outside the presence of the jury and proposed the following response: The definition of assault in the second degree is contained in Instruction Number 11. In order for the Defendant to be convicted of criminal attempt to commit second-degree assault, the People must prove beyond a reasonable doubt that (a) the Defendant; (b) in the State of Colorado; (c) with intent; (d) to prevent a person whom he knew or should have known to be a peace officer from performing a lawful duty; (e) with intent to cause bodily injury to the peace officer; (f) engaged in conduct constituting a substantial step towards the commission of assault in the second degree. 3 ¶6 The court asked for input from defense counsel, who responded, “I would agree with the Court . . . I like the way that the Court laid it out” and “I would . . . ask the Court to instruct that way.” The prosecution also agreed to the proposed response, and the court gave the response to the jury.1 B. Applicable Law and Standard of Review ¶7 A trial court must accurately instruct the jury on the controlling law, including instructing the jury on every element of a crime. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011); Griego v. People, 19 P.3d 1, 7 (Colo. 2001). The culpable mental state for an attempted crime is the same as the culpable mental state for the corresponding completed crime. See § 18-2-101, C.R.S. 2026. ¶8 We review de novo whether a jury instruction adequately informed the jury of the governing law. People v. Garcia, 2021 COA 80, ¶ 9, aff’d, 2023 CO 30. If the challenge to the jury instruction is unpreserved, we will reverse only if there is plain error. People v. 1 Based on this exchange, the People argue that this issue is waived. We need not decide whether defense counsel’s assent to the court’s proposed wording amounted to a waiver because we conclude that the supplemental instruction was not erroneous. 4  Van Meter, 2018 COA 13, ¶ 42. Plain error is error that is obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14. An error is obvious if it contravenes a clear statutory command, a well-settled legal principle, or Colorado case law. People v. Thompson, 2018 COA 83, ¶ 34, aff’d, 2020 CO 72. And an error is substantial only if it “so undermine[s] the fundamental fairness of the trial itself” that it “cast[s] serious doubt on the reliability of the judgment.” People v. Crabtree, 2024 CO 40M, ¶ 43 (citation omitted). C. Analysis ¶9 Rustemeyer contends that the court’s answer to the jury question “omitted the mandatory element of intent” from attempted second degree assault because it failed to instruct the jury that the defendant must act “with intent” in taking a “substantial step” toward committing second degree assault. We disagree. ¶ 10 The mental state required for second degree assault and attempted second degree assault is the same. Thus, for the jury to find Rustemeyer guilty of attempted second degree assault, it had to find that Rustemeyer engaged in conduct constituting a substantial step toward commission of the crime with (1) intent to prevent a 5  peace officer from performing a lawful duty and (2) intent to cause bodily injury. See §§ 18-2-101, 18-3-203, C.R.S. 2026. ¶ 11 The court’s response to the jury’s question says precisely that. The response contains only one “act” element: engaging in a substantial step toward the commission of second degree assault. And it says that that act must be undertaken “c. With intent[;] d. To prevent a person whom he knew, or should have known, to be a peace officer, from performing a lawful duty” and “e. With intent to cause bodily injury to the peace officer.” ¶ 12 To the extent Rustemeyer contends that the response was missing the “with intent” element from Instruction No. 10, we disagree. The intent element in Instruction No. 10 essentially means “with the two intents required to commit second degree assault.” There isn’t a “third” intent that a defendant must have when taking a substantial step toward committing assault. We therefore perceive no error. III. Reasonable Doubt Instruction ¶ 13 Next, Rustemeyer contends that the district court erred by giving the COLJI-Crim. E:03 (2023) jury instruction (2023 model instruction) on reasonable doubt because the instruction 6  (1) equates reasonable doubt with “a real possibility that the defendant is not guilty”; (2) uses the phrase “firmly convinced” to define proof beyond a reasonable doubt; (3) omits the “hesitate to act” language that was in a previous year’s model instruction; and (4) lacks language explaining that reasonable doubt connotes “near certitude” or “utmost certainty.” We address each argument in turn. A. Additional Background ¶ 14 During trial, defense counsel requested that the court provide the pre-2022 model reasonable doubt instruction to the jury. Over Rustemeyer’s objection, the district court gave the 2023 model instruction, which instructed the jury as follows: Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt. A reasonable doubt can be based on the evidence presented or the lack of evidence presented. The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more 7  than proof that something is highly probable, but it does not require proof with absolute certainty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt. See COLJI-Crim. E:03 (2023). B. Applicable Law ¶ 15 The trial court is required to instruct the jury that the defendant’s guilt must be proved beyond a reasonable doubt. Johnson v. People, 2019 CO 17, ¶ 10. So long as the instructions properly inform the jury of the law, the trial court has broad discretion to determine their form and style. McDonald v. People, 2021 CO 64, ¶ 54. Model jury instructions “are nonbinding but time-trusted guideposts for formulating constitutional jury instructions.” Teran Sanchez v. People, 2026 CO 60, ¶ 14. However, they are not a “safe harbor that insulates instructional error from reversal.” Garcia v. People, 2019 CO 64, ¶ 22. 8 ¶ 16 In assessing whether a reasonable doubt instruction is constitutional, we “may consider whether it mirrors longstanding expressions of the relevant principle [of reasonable doubt] under Colorado and federal case law.” Teran Sanchez, ¶ 15. We may also “consider jurors’ ‘commonsense understanding of the instructions,’ because jurors ‘do not . . . pars[e] instructions for subtle shades of meaning in the same way that lawyers might.’” Id. (quoting Boyde v. California, 494 U.S. 370, 380-81 (1990)). C. Analysis 1. Real Possibility and Firmly Convinced ¶ 17 Rustemeyer first argues that the “real possibility” and “firmly convinced” language impermissibly lowered the prosecution’s burden of proof, shifted the burden to the defense, and violated his right to due process. ¶ 18 After briefing was completed in this case, the Colorado Supreme Court announced Teran Sanchez, in which it rejected these arguments and held that the “real possibility” and “firmly convinced” language sufficiently describes reasonable doubt and neither lowers the burden of proof nor shifts the burden to the defendant. Teran Sanchez, ¶¶ 3, 37. The court concluded that 9  these phrases work in tandem to instruct jurors that they must “(1) demand significant evidence on the part of the prosecution before finding the defendant guilty, and (2) not seek some ‘fanciful,’ ‘imaginary,’ or ‘mere[ly] possible’ doubt in order to return a not- guilty verdict.” Id. at ¶ 28 (citation omitted). We are bound by this decision and therefore also reject Rustemeyer’s contentions. See People v. Novotny, 2014 CO 18, ¶ 26. 2. Hesitate to Act ¶ 19 Rustemeyer next argues that the district court erred by declining to instruct the jury that reasonable doubt is a doubt that would cause reasonable people to “hesitate to act in matters of importance to themselves.” We disagree. ¶ 20 Although courts have upheld instructions that defined reasonable doubt with the “hesitate to act” language, we reject Rustemeyer’s argument that the instruction here misdescribed the reasonable doubt standard by omitting it. As a division of this court noted in People v. Schlehuber, “just because a proposed instruction is a correct statement of the law does not mean the instruction must be given or that it is the only correct way to articulate the applicable law.” 2025 COA 50, ¶ 28; see also United 10  States v. O’Brien, 972 F.2d 12, 16 (1st Cir. 1992) (rejecting the argument that a court must use the “hesitate to act” language when defining reasonable doubt); United States v. Velasquez, 980 F.2d 1275, 1278 (9th Cir. 1992) (noting that a failure to use the “hesitate to act” language doesn’t necessarily constitute reversible error). ¶ 21 We also reject Rustemeyer’s argument that the lack of the “hesitate to act” language left the jury without anything concrete or relatable to understand reasonable doubt. Nothing precluded the jury from “applying a commonsense meaning” to the instructional language. Teran Sanchez, ¶ 31. And as the Schlehuber division noted, the language has come under criticism precisely because it analogizes the reasonable doubt standard to ordinary experiences of individual jurors. Schlehuber, ¶ 27. 3. Utmost Certainty” or “Near Certitude” ¶ 22 Lastly, Rustemeyer takes issue with the following instructional language: “The burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.” He argues that, by rejecting “absolute certainty” without further elaboration, the court failed to adequately define the high 11  burden of “utmost certainty” or “near certitude,” which lowered the burden of proof. ¶ 23 We disagree. The instruction didn’t reject “absolute certainty” without elaboration; the first part of the disputed language clearly explains that the burden is “more than . . . highly probable.” Rustemeyer doesn’t articulate a meaningful difference between “more than highly probable but less than absolute certainty” and “utmost certainty” or “near certitude,” nor can we perceive one. ¶ 24 More importantly, as noted above, the instruction also contains the “firmly convinced” and “reasonable possibility” language, which sufficiently describes the reasonable doubt standard. Teran Sanchez, ¶ 28; see also Schlehuber, ¶ 31 (“The phrase ‘firmly convinced’ correctly connotes a standard of ‘near certitude’ . . . .” (citation omitted)); People v. Robb, 215 P.3d 1253, 1263 (Colo. App. 2009) (“[A] reasonable doubt instruction need not be phrased in terms of proof of ‘utmost certainty’ . . . .”). IV. Disposition ¶ 25 The judgment is affirmed. JUDGE FREYRE and JUDGE GROVE concur. 12