tendered instruction in Colorado

2016Instructions emphasizing specific evidence generally are improper because they "tend to confuse the jury and result in incorrect directives regarding evidentiary weight." Krueger v. Ary , 205 P.3d 1150, 1157 (Colo. 2009).

2016Instructions emphasizing specific evidence generally are improper because they "tend to confuse the jury and result in incorrect directives regarding evidentiary weight.” Krueger v. Ary, 205 P.3d 1150, 1157 (Colo.2009).

2002People v. Ridenour, 878 P.2d 23, 25 (Colo.App.1994).

1997See People v. Ridenour, 878 P.2d 23 (Colo.App.1994)(not error for court to refuse a tendered instruction, even if correct in legal effect, if other instructions apprise jury of appropriate law).

2026Idrogo, 818 P.2d at 754 ; see also Garcia, 28 P.3d at 349 n.8 (even if the defendant’s tendered self-defense instruction failed to accurately state the law, the tendered instruction “put the trial 19 court on notice” that an instruction was necessary and, therefore, the court had a duty to give the jury an accurate instruction).7 ¶ 38 The point is not that the trial court had to give Ez-Zahir’s tendered instruction or that it had to base a supplemental instruction on section 18-1-703(1)(e) (though we see no problem with the latter approach).

2025Further, “it is unnecessary to give an instruction that is encompassed in other instructions given by the court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74 -75, 78 (Colo. 1990) (concluding that the defendant was not entitled to an “apparent necessity” jury instruction because the trial court’s self- defense instruction tracked the statute and adequately apprised the jury that it must consider “the totality of circumstances . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive a

2016The court abuses its discretion only "when its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law." People v. Orozco , 210 P.3d 472, 475 (Colo. App. 2009). ¶66 Defense counsel asserted that the tendered instruction was based on the United States Supreme Court’s decision in Crane v. Kentucky , 476 U.S. 683 (1986).

2016The court abuses its discretion only “when its decision is manifestly arbitrary, unreasonable, or unfair, or based on an erroneous understanding or application of the law.” People v. Orozco, 210 P.3d 472, 475 (Colo.App.2009). ¶ 66 Defense counsel asserted that the tendered instruction was based on the United States Supreme Court’s decision in Crane v. Kentucky, 476 U.S. 683 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986).

2016Consequently, Crane did not require the trial court to give the tendered instruction or indeed to give any instruction that informed the jury what factors to consider in evaluating Manyik’s statements to the police. ¶71 Moreover, a trial court "has no duty to, and should not, select the salient points in the evidence, favorable or unfavorable, and specifically call them to the attention of the jurors." Wertz v. People , 160 Colo. 260, 262 , 418 P.2d 169, 170 (1966) (citation omitted).

2016Consequently, Crane did not require the trial court to give the tendered instruction or indeed to give any instruction that informed the jury what factors to consider in evaluating Manyik’s statements to the police. ¶71 Moreover, a trial court "has no duty to, and should not, select the salient points in the evidence, favorable or unfavorable, and specifically call them to the attention of the jurors." Wertz v. People , 160 Colo. 260, 262 , 418 P.2d 169, 170 (1966) (citation omitted).

2015See Clough , 179 P.3d at 40 ; see also Leaf v. Beihoffer , 2014 COA 117, ¶12 (“If a plaintiff fails to establish any one of [the negligence] elements, any errors related to other elements are necessarily harmless because plaintiff cannot prevail in any event.”). ¶56 We therefore discern no basis for reversal of the district court’s denial of Dickinson’s request to instruct the jury on negligence per se. ¶57 Because we conclude that the court did not err in declining to give the tendered instruction, we also reject Dickinson’s contention that a new trial should have been granted on the issue.

2015See Clough , 179 P.3d at 40 ; see also Leaf v. Beihoffer , 2014 COA 117, ¶12 (“If a plaintiff fails to establish any one of [the negligence] elements, any errors related to other elements are necessarily harmless because plaintiff cannot prevail in any event.”). ¶56 We therefore discern no basis for reversal of the district court’s denial of Dickinson’s request to instruct the jury on negligence per se. ¶57 Because we conclude that the court did not err in declining to give the tendered instruction, we also reject Dickinson’s contention that a new trial should have been granted on the issue.

2015See Clough , 179 P.3d at 40 ; see also Leaf v. Beihoffer , 2014 COA 117, ¶12 (“If a plaintiff fails to establish any one of [the negligence] elements, any errors related to other elements are necessarily harmless because plaintiff cannot prevail in any event.”). ¶56 We therefore discern no basis for reversal of the district court’s denial of Dickinson’s request to instruct the jury on negligence per se. ¶57 Because we conclude that the court did not err in declining to give the tendered instruction, we also reject Dickinson’s contention that a new trial should have been granted on the issue.

2015See Clough , 179 P.3d at 40 ; see also Leaf v. Beihoffer , 2014 COA 117, ¶12 (“If a plaintiff fails to establish any one of [the negligence] elements, any errors related to other elements are necessarily harmless because plaintiff cannot prevail in any event.”). ¶56 We therefore discern no basis for reversal of the district court’s denial of Dickinson’s request to instruct the jury on negligence per se. ¶57 Because we conclude that the court did not err in declining to give the tendered instruction, we also reject Dickinson’s contention that a new trial should have been granted on the issue.

2001Nunez, 841 P.2d at 265 ; see Hansen, 957 P.2d at 1384 (holding that the trial court had satisfied its responsibility to correctly instruct the jury on the applicable law by offering counsel an opportunity to redraft a tendered instruction that misstated the law).

2000People v. Nunez, supra. Here, after reviewing the tendered instruction, we conclude that the court properly rejected defendant's theory of defense instruction on the grounds that it was largely argumentative, did little more than summarize defendant's version of the incident, and was encompassed within the other instructions.

2025Further, “it is unnecessary to give an instruction that is encompassed in other instructions given by the court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74 -75, 78 (Colo. 1990) (concluding that the defendant was not entitled to an “apparent necessity” jury instruction because the trial court’s self- defense instruction tracked the statute and adequately apprised the jury that it must consider “the totality of circumstances . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive a

2011Unlike in Jones, the tendered instruction in Beckett made no attempt to explain the defendant's right of self-defense in terms of what the defendant reasonably believed to be the imminent use of unlawful physical force by his particular victim or his victim's "asso-clates." Jones, 675 P.2d at 13 .

1989Although a defendant is entitled to an instruction on her theory of the case, People v. Moya, 182 Colo. 290 , 512 P.2d 1155 (1973), here, the defendant’s tendered instruction amounted to nothing more than a restatement of the self-defense instruction actually given.

1989Although a defendant is entitled to an instruction on her theory of the case, People v. Moya, 182 Colo. 290 , 512 P.2d 1155 (1973), here, the defendant’s tendered instruction amounted to nothing more than a restatement of the self-defense instruction actually given.

2026See People v. Lee, 30 P.3d 686, 689 (Colo. App. 2000) (“[T]he trial court need not give the defendant’s tendered instruction if it is argumentative, contains errors of law, merely reiterates portions of the evidence, or is encompassed within the other instructions.”).

2014See Lee, 30 P.3d at 690 ; cf. People v. Weiss, 717 P.2d 511, 512 (Colo.App.1985) (finding reversible error where the court gave no explanation for and failed to work with counsel after rejecting the defendant's instruction).

2024Horton, 217 P.3d at 1269 (“The fact that a party’s tendered instruction is rejected by the trial court does not necessarily mean that the party tendering the rejected instruction objects to the 9 instruction ultimately given by the court.”); Beeftu v. Creekside Ventures LLC, 37 P.3d 526, 529 (Colo. App. 2001) (declining to review contested jury instructions because the plaintiff’s “general objection” was insufficient to preserve the issue for appellate review).

2024Horton, 217 P.3d at 1269 (“The fact that a party’s tendered instruction is rejected by the trial court does not necessarily mean that the party tendering the rejected instruction objects to the 9 instruction ultimately given by the court.”); Beeftu v. Creekside Ventures LLC, 37 P.3d 526, 529 (Colo. App. 2001) (declining to review contested jury instructions because the plaintiff’s “general objection” was insufficient to preserve the issue for appellate review).

2024Horton, 217 P.3d at 1269 (“The fact that a party’s tendered instruction is rejected by the trial court does not necessarily mean that the party tendering the rejected instruction objects to the 9 instruction ultimately given by the court.”); Beeftu v. Creekside Ventures LLC, 37 P.3d 526, 529 (Colo. App. 2001) (declining to review contested jury instructions because the plaintiff’s “general objection” was insufficient to preserve the issue for appellate review).

2024Horton, 217 P.3d at 1269 (“The fact that a party’s tendered instruction is rejected by the trial court does not necessarily mean that the party tendering the rejected instruction objects to the 9 instruction ultimately given by the court.”); Beeftu v. Creekside Ventures LLC, 37 P.3d 526, 529 (Colo. App. 2001) (declining to review contested jury instructions because the plaintiff’s “general objection” was insufficient to preserve the issue for appellate review).

2021A trial court has substantial discretion in formulating jury instructions if “they are correct statements of the law and fairly and adequately cover the issues presented.” People v. Nerud, 2015 COA 3 The trial court rejected the tendered instruction based on the principle from Evans v. People that “a trial court’s use of an excerpt from an opinion in an instruction is generally an unwise practice.” 706 P.2d 795, 800 (Colo. 1985).

2021As the supreme court explained in Evans, judicial “opinions and [jury] instructions have very different purposes.” Id.

2016Co., 957 P.2d 1380, 1384-85 (Colo. 1998), implicitly agrees with a trial court’s rejection of the party’s own tendered instruction, see id. at 1386 , or expressly declines a trial court’s offer to replace a juror with an alternate juror, see People v. Raglin, 21 P.3d 419, 423 (Colo. App. 2000), overruled on other grounds by Fain v. People, 2014 CO 69 , 329 P.3d 270 . ¶ 11 Here, McGill did not expressly acquiesce in or implicitly agree with the trial court’s ruling that the check fraud evidence was admissible.

2016Co., 957 P.2d 1380, 1384-85 (Colo. 1998), implicitly agrees with a trial court’s rejection of the party’s own tendered instruction, see id. at 1386 , or expressly declines a trial court’s offer to replace a juror with an alternate juror, see People v. Raglin, 21 P.3d 419, 423 (Colo. App. 2000), overruled on other grounds by Fain v. People, 2014 CO 69 , 329 P.3d 270 . ¶ 11 Here, McGill did not expressly acquiesce in or implicitly agree with the trial court’s ruling that the check fraud evidence was admissible.

2015Day v. Johnson, 255 P.3d 1064, 1067 (Colo.2011). 168 Rejecting a tendered instruction that properly instructs the jury on the applicable law in the case and the evidence at issue, which are not adequately covered elsewhere, is error.

2012We agree with Wolter that the court erred in rejecting the instruction. 118 The proffered instruction accurately states the law, see Day, 255 P.3d at 1069 ("a poor outcome does not, standing alone, constitute negligence"); the evidence provided by the expert witnesses for both sides indicated that this was a bad outcome; and Wolter's expert specifically said that the outcome could occur without negligence, trigger ing the need for the instruction.

2011Id.; see also Underwood v. Dillon Cos., 936 P.2d 612, 615 (Colo.App.1997).

1998See Underwood v. Dillon Companies, Inc., 936 P.2d 612 (Colo.App.1997) (it is not reversible error to refuse a tendered instruction if its contents are encompassed in other instructions); see also Davis v. Fortino & Jackson Chevrolet Co., 32 Colo.App. 222 , 510 P.2d 1376 (1973).

2002See Schuster v. Zwicker, 659 P.2d 687 (Colo.1983).

2002See Schuster v. Zwicker, 659 P.2d 687 (Colo.1983).

2025Further, “it is unnecessary to give an instruction that is encompassed in other instructions given by the court.” People v. Garcia, 1 P.3d 214, 222 (Colo. App. 1999), aff’d, 28 P.3d 340 (Colo. 2001); see Beckett v. People, 800 P.2d 74 -75, 78 (Colo. 1990) (concluding that the defendant was not entitled to an “apparent necessity” jury instruction because the trial court’s self- defense instruction tracked the statute and adequately apprised the jury that it must consider “the totality of circumstances . . . in evaluating the reasonableness of the accused’s belief in the necessity of defensive a

2009The trial court refused this tendered instruction and instead instructed the jury that it is an affirmative defense to the crime of felony menacing that the defendant threatened force upon another person: "1. in order to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force by [the victim]; and 2. he threatened to use a degree of foree which he reasonably believed to be necessary for that purpose." Id. at 75 , Ti-i8 (emphasis omitted).

2012See Gordon, 925 P.2d at 777-78 (the duty to instruct the jury correctly on the applicable law "requires the trial court to instruct on a party's theory of the case if it is supported by competent evidence"). 126 We do not perceive that the tendered instruction here would have confused or misled the jury.

2009In Gordon v. Benson, 925 P.2d 775 (Colo. 1996), the Colorado Supreme Court rejected the plaintiff's argument that defense counsel made a binding judicial admission during his argument in support of the defendant's tendered instruction on comparative negligence that no direct evidence existed to support a *1279 comparative negligence instruction. - The plaintiff contended that the defendant "had to assert comparative negligence in the theory of the case instruction in order to preserve the affirmative defense of comparative negligence" and the defendant's "failure to object to the theory of the

1999Armentrout v. FMC Corp., 842 P.2d 175 (Colo.1992).

1994At the outset, we note that a judgment will not be reversed as a result of the trial court’s refusal to give a tendered instruction unless there was “substantial, prejudicial error.” Armentrout v. FMC Corp., 842 P.2d 175, 186 (Colo.1992).