affirmative defense in Colorado

2026See People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (“[I]f presented evidence raises the issue of an affirmative defense, the affirmative defense effectively becomes an additional element, and the trial court must instruct the jury that 20 the prosecution bears the burden of proving beyond a reasonable doubt that the affirmative defense is inapplicable.”). ¶ 41 And with respect to Martin’s first degree murder (extreme indifference) and attempted first degree murder (extreme indifference) convictions, the jury was instructed that if Martin acted in self-defense, he did “not act with extreme

2026Cf. id. (when self-defense is an affirmative defense, a failure to properly instruct the jury on the elements of self-defense lowers the burden of proof). ¶ 75 This is especially true because Martin’s attorney argued to the jury that he had acted in self-defense, a contention rejected by the jury. ¶ 76 Applying the nonconstitutional harmless error standard of reversal, I conclude that even if there was instructional error in not giving a multiple assailants instruction, the error was harmless.

2026Rather, “[a]n affirmative defense essentially admits the defendant’s commission of the elements of the charged act but seeks to justify, excuse, or mitigate the commission of the act.” Id. at ¶ 13 (quoting Roberts v. People, 2017 CO 76, ¶ 20 ); see People v. Garcia, 113 P.3d 775 , 784 n.12 (Colo. 2005) (“While a claimed affirmative defense is treated like an element of the offense, ‘[p]roof of an affirmative defense is separate and distinct from proof of the elements of [that] offense.’” (quoting Gorman v. People, 19 P.3d 662, 668 (Colo. 2000))).

2026See People v. Garcia, 113 P.3d 775, 784 (Colo. 2005) (Colorado law dictates that once a defendant has met the burden of proof to present an affirmative defense for jury consideration, “the prosecution has the burden of disproving the claimed affirmative defense beyond a reasonable doubt.”).

2025In other words, by asserting an affirmative defense, the defendant attempts to "justif[y] the conduct on grounds deemed by law to be sufficient to render the participant exempt from criminal responsibility for the consequences of the conduct." People v. Huckleberry , 768 P.2d 1235, 1239 (Colo. 1989). ¶14 Affirmative defenses are premised on "conditions" analogous to a crime's elements.

2025Previous Colorado Affirmative Defense Cases Do Not Resolve the Issue Before Us ¶35 The People nevertheless rely on cases like Huckleberry and Pearson for the proposition that "[i]n asserting an affirmative defense, a defendant admits to the 19 conduct that gives rise to the charged offense." Pearson , ¶ 18, 502 P.3d at 1007 (citing Huckleberry , 768 P.2d at 1238).

2026Id. ¶ 17 An intervening cause defense is treated like an affirmative defense “for the purpose of determining the quantum of evidence necessary to submit the issue to the jury.” Saavedra-Rodriguez, 971 P.2d at 228 .

2025Moreover, for gross negligence to constitute a defense in a homicide case, “the maltreatment must also be the cause but for which death would not have occurred.” Id. at 226 . ¶ 21 An intervening cause defense is treated like an affirmative defense for the purpose of determining the quantum of evidence necessary to submit the issue to the jury.

2021DeGreat, ¶ 22, 428 P.3d at 545 (quoting Lybarger v. People, 807 P.2d 570, 579 (Colo. 1991)). ¶ 14 However, as a matter of law, a trial court need not give an affirmative defense instruction if the record contains no evidence to support it because, in the absence of supporting evidence, there is no issue of fact for the jury to resolve.

2019In Lybarger , where the jury was instructed both that it should find the defendant guilty if the affirmative defense in question was not "available" to him and that the defense would not be "available" to him if the People proved specified conditions virtually identical with the elements of the crime with which he was charged, we found that taken together these instructions not only erroneously relegated to the jury the function of determining the availability or non-availability of the affirmative defense but also effectively eliminated the prosecution's burden of proof with respect to that d

2021Ct. , 668 P.2d 3, 10 ( Colo. 1983 ) ( noting that when the privilege holder pleads a mental condition as an affirmative defense, "the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition" ) . 2 The issue before us , as framed by the prosecution in their petition, is: If a defendant attempts to defend a murder charge by pointing to his bipolar disorder and PTSD symptoms — which led to "distorted [thinking] with psychotic qualities" at the time of the shooting — does the defendant have to plead insanity?

2021Ct., 668 P.2d 3, 10 (Colo. 1983) (noting that when the privilege holder pleads a mental condition as an affirmative defense, “the only reasonable conclusion is that he thereby impliedly waives any claim of confidentiality respecting that same condition”). 5 which was in Park Hill; a friend of Moore’s was kidnapped and killed; and Moore lost two other friends to gun violence. ¶12 Dr. Wells also recounts that Moore was hospitalized about twenty years ago with delusional psychosis.

2025Affirmative Defenses in Civil Cases ¶ 15 An affirmative defense in a civil case is a defense that justifies or negates liability for conduct that would otherwise result in liability.2 See State v. Nieto, 993 P.2d 493, 507 (Colo. 2000).

2016See Reider v. Dawson , 856 P.2d 31, 35 (Colo. App. 1992) ("the statute of limitations is an affirmative defense"), aff’d in part and remanded in part , 872 P.2d 212 (Colo. 1994); see also C.R.C.P. 8(c); Dinosaur Park Invs., L.L.C. v. Tello , 192 P.3d 513, 516 (Colo. App. 2008) ("An affirmative defense is ‘a legal argument that a defendant . . . may assert to require the dismissal of a claim or to prevail at trial.’" (quoting State v. Nieto , 993 P.2d 493, 507 (Colo. 2000)).

2021To reconcile the POWPO statute with the constitutional right to bear arms, the supreme court held in Ford that a defendant charged with POWPO “who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property thereby raises an affirmative defense.” Id. at 462 , 568 P.2d at 28 . ¶ 19 Based on Ford, a model criminal jury instruction for an affirmative defense to POWPO was subsequently adopted that read, “[i]t is an affirmative defense to the crime of [POWPO] that the defendant possessed the weapon for the purpose of defending his [ho

2021To reconcile the POWPO statute with the constitutional right to bear arms, the supreme court held in Ford that a defendant charged with POWPO “who presents competent evidence showing that his purpose in possessing weapons was the defense of his home, person, and property thereby raises an affirmative defense.” Id. at 462 , 568 P.2d at 28 . ¶ 19 Based on Ford, a model criminal jury instruction for an affirmative defense to POWPO was subsequently adopted that read, “[i]t is an affirmative defense to the crime of [POWPO] that the defendant possessed the weapon for the purpose of defending his [ho

2026People v. Garcia, 28 P.3d 340, 347 (Colo. 2001). “[W]hether there is credible evidence to support each element of an affirmative defense is a question for the court rather than the jury.” People v. Speer, 255 P.3d 1115, 1119 (Colo. 2011).

2025But “whether there is credible evidence to support each element of an affirmative defense is a question for the court rather than the jury.” People v. Speer, 255 P.3d 1115, 1119 (Colo. 2011); see also People v. Hill, 934 P.2d 821, 826 (Colo. 1997) (“If a trial court determines as an issue of law[] that no evidence exists in the record to support an affirmative defense, there is no issue of fact for the jury to resolve.”). ¶ 12 Under Colorado law, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be

2021Specifically, in DeWitt, a division of this court held that a defendant was entitled to an affirmative defense instruction to POWPO based on a “general fear for his personal safety,” coupled with fear related to “specific trends of violence and incidents in the areas where he regularly walked and in the stores that he regularly visited.” 275 P.3d at 734 . ¶3 We hold that the reasoning of DeWitt cannot be squared with Carbajal.

2021VI, § 5(3), and § 24-51-1105, C.R.S. 2020. ¶1 In People v. Carbajal, 2014 CO 60 , 328 P.3d 104 , our supreme court held that defendants charged with possession of a weapon by a previous offender (POWPO) pursuant to section 18-12-108, C.R.S. 2020, are entitled to the affirmative defense of choice of evils only if they possessed the weapon to defend themselves, their homes, or their property from what they reasonably believed to be a threat of imminent harm. ¶2 The Carbajal court did not address the effect of its decision on People v. DeWitt, 275 P.3d 728 (Colo. App. 2011), which read the choice

2025Co., ¶¶ 11, 14; see also Bristol Bay 12 Prods., LLC v. Lampack, 2013 CO 60, ¶ 44 (noting that a “litigant may plead [herself] out of court by alleging (and thus admitting)” facts establishing an affirmative defense (quoting U.S. Gypsum Co. v. Ind. Gas Co., 350 F.3d 623, 626 (7th Cir. 2003))). 3.

2025It further contends, in the alternative, that the district court erred by granting the dismissal motion because it misapplied the doctrine of claim preclusion with respect to 335 Lake’s cross-claims, incorrectly concluded that the doctrine did not bar the trustee’s claims, and misinterpreted the statute of limitations governing the trustee’s claims. 12 ¶ 32 Under 335 Lake’s reasoning, because the trustee’s claims failed, only the Daggs parties had a valid claim to the escrowed funds. ¶ 33 We begin by examining whether 335 Lake’s cross-claims were subject to dismissal under an affirmative defen

2026We disagree. ¶ 41 “An affirmative defense essentially admits the defendant’s commission of the elements of the charged act but seeks to justify, excuse, or mitigate the commission of the act.” Roberts v. People, 2017 CO 76, ¶ 20 , 399 P.3d 702, 705 ; see People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (noting that affirmative defenses admit “the defendant’s commission of the elements of the charged act, but seek to justify, excuse, or mitigate the commission of the act”). ¶ 42 The elements of first and second degree murder, coupled with the facts surrounding Nichols’s death, demonstrate wh

2026See People v. Mosely, 2021 CO 41 , ¶ 21 (by finding the defendant guilty of the charged offense, the jury necessarily found that the prosecution had proved the elements of the offense beyond a reasonable doubt); see also Roberts v. People, 2017 CO 76, ¶ 22 (when the evidence raises the issue of an affirmative defense, the affirmative defense becomes an additional element of the charged offense, which the prosecution must disprove beyond a reasonable doubt).

2018See, e.g. , Case v. People , 774 P.2d 866 , 870 (Colo. 1989) ; People v. Fink , 194 Colo. 516 , 574 P.2d 81 , 83 (1978). ¶ 41 Because acting reasonably in self-defense nevertheless clearly provides a defense to crimes of negligence or recklessness, just not an affirmative defense as to which the prosecution bears a burden over and above proving beyond a reasonable doubt the elements of the offense itself, the legislature, as we noted in Pickering , enacted a provision specifically allowing a defendant to present evidence of self-defense, when relevant , and requiring an instruction on the law

2018See, e.g. , Case v. People , 774 P.2d 866 , 870 (Colo. 1989) ; People v. Fink , 194 Colo. 516 , 574 P.2d 81 , 83 (1978). ¶ 41 Because acting reasonably in self-defense nevertheless clearly provides a defense to crimes of negligence or recklessness, just not an affirmative defense as to which the prosecution bears a burden over and above proving beyond a reasonable doubt the elements of the offense itself, the legislature, as we noted in Pickering , enacted a provision specifically allowing a defendant to present evidence of self-defense, when relevant , and requiring an instruction on the law

2018See Dinosaur Park Invs., L.L.C. v. Tello, 192 P.3d 513, 517 (Colo. App. 2008) (noting that a party must assert an affirmative defense in a responsive pleading or the defense is waived).

2016See Reider v. Dawson , 856 P.2d 31, 35 (Colo. App. 1992) ("the statute of limitations is an affirmative defense"), aff’d in part and remanded in part , 872 P.2d 212 (Colo. 1994); see also C.R.C.P. 8(c); Dinosaur Park Invs., L.L.C. v. Tello , 192 P.3d 513, 516 (Colo. App. 2008) ("An affirmative defense is ‘a legal argument that a defendant . . . may assert to require the dismissal of a claim or to prevail at trial.’" (quoting State v. Nieto , 993 P.2d 493, 507 (Colo. 2000)).

2021Relying on People v. Whatley, 10 P.3d 668 (Colo. 5 App. 2000 ), the trial court concluded that, because Snider denied committing second degree assault, he was not entitled to receive an affirmative defense instruction as to that charge.

2021But supporting evidence “may come from any source, even from the prosecution.” Newell, ¶ 21 (citing Whatley, 10 P.3d at 670 ). ¶ 16 However, a defendant is not entitled to an affirmative defense instruction if he denies committing the charged crime.

2009See also Alien, Inc. v. Futtermanm, 924 P.2d 1063, 1068 (Colo.App.1995) ("an improper assertion of an affirmative defense must be objected to or such defect is waived"); cf Cox v. Pearl Investment Co., 168 Colo. 67, 70-71 , 450 P.2d 60, 61-62 (1969) (parties waived right to object to the defendant's failure to assert the affirmative defense of release in its answer, as required by C.R.C.P. 8(c), by failing to object when the defendant raised it in a motion for summary judgment).

2009See also Alien, Inc. v. Futtermanm, 924 P.2d 1063, 1068 (Colo.App.1995) ("an improper assertion of an affirmative defense must be objected to or such defect is waived"); cf Cox v. Pearl Investment Co., 168 Colo. 67, 70-71 , 450 P.2d 60, 61-62 (1969) (parties waived right to object to the defendant's failure to assert the affirmative defense of release in its answer, as required by C.R.C.P. 8(c), by failing to object when the defendant raised it in a motion for summary judgment).

2025The People also point to People v. Hendrickson , 45 P.3d 786, 792 ( Colo.App. 2001 ) , which held that defendants must admit to the underlying crime to raise the affirmative defense of entrapment, to argue that affirmative defenses generally presuppose that the defendant committed the relevant crime. ¶22 To assess these arguments, we now look to the felony murder statute and evaluate each of the affirmative defense's conditions in turn. [7] 1.

2025The People also point to People v. Hendrickson , 45 P.3d 786, 792 (Colo.App. 2001), which held that defendants must admit to the underlying crime to raise the affirmative defense of entrapment, to argue that affirmative defenses generally presuppose that the defendant committed the relevant crime. ¶22 To assess these arguments, we now look to the felony murder statute and evaluate each of the affirmative defense's conditions in turn. [7] 1.

2025This exception applies when (1) the other person uses unlawful physical force against the defendant; (2) the defendant provoked the use of such physical force; and (3) the defendant intended the provocation to “goad the other person into attacking [them] in order to provide a pretext to injure or kill that person.” Galvan v. People, 2020 CO 82, ¶ 19 . ¶ 52 When the district court instructs the jury on self-defense as an affirmative defense, it should instruct the jury on the provocation exception if there is “some evidence” to support it.

2025Galvan 2 Having so concluded, we needn’t address the People’s argument that nondeadly physical force self-defense can never be asserted as an affirmative defense to second degree murder. 6 v. People, 2020 CO 82, ¶ 25 . “[S]ome evidence” means evidence sufficient to support a reasonable inference that the defendant was the initial aggressor; that is, the person who “initiated the physical conflict by using or threatening imminent use of unlawful physical force.” People v. Roberts-Bicking, 2021 COA 12, ¶¶ 31, 33 . ¶ 20 We review de novo whether sufficient evidence exists to support an initial ag

2016Id. at 981 . 2 ¶ 15 If the pretrial motion to dismiss is denied, the -defendant may raise the statutory conditions set forth in section 18-1-704.5 as an affirmative defense at trial.

2004See People v. Guenther, 740 P.2d 971 (Colo.1987)(the make-my-day statute affords defendants a pretrial determination of the statutory immunity claim, § 18-1-704.5(3), C.R.S.2003, and may also be raised at trial as an affirmative defense).

2025An affirmative defense “admit[s] the doing of the act charged but seek[s] to justify, excuse, or mitigate it.” People v. Miller, 113 P.3d 743, 750 (Colo. 2005) (citing People v. Huckleberry, 768 P.2d 1235, 1238 (Colo. 1989)).

2025See, e.g., People v. Jacobson, 2017 COA 92, ¶ 15 (discussing the low evidentiary threshold that a defendant has to meet to be entitled to an affirmative defense instruction); People v. Platt, 170 P.3d 802, 806 (Colo. App. 2007) (same), aff’d, 201 P.3d 545 (Colo. 2009). 19 trial or where the record contains overwhelming evidence of the defendant’s guilt.” Thompson v. People, 2020 CO 72, ¶ 54 (quoting Miller, 113 P.3d at 750 ).

2026This quantum of proof is satisfied if there is any evidence supporting the defense theory in the record, “even highly improbable testimony by the defendant.” Stewart, 55 P.3d at 120 ; see People v. York, 897 P.2d 848, 850 (Colo. App. 1994). ¶ 21 “When considering whether a defendant is entitled to requested instructions, we consider the evidence in the light most favorable to the defendant.” Cassels v. People, 92 P.3d 951, 955 (Colo. 2004). ¶ 22 Colorado’s defense of a third person statute provides: [A] person is justified in using physical force upon another person in order to defend . . . a

2026When reviewing an affirmative defense instruction, appellate courts must review the evidence in the light most favorable to the defendant. 35 People v. Newell, 2017 COA 27, ¶ 19 (citing Cassels v. People, 92 P.3d 951, 955 (Colo. 2004)). ¶ 87 A person may use “physical force upon another person in order to defend himself . . . from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.” § 18-1-704(1), C.R.S. 2025. ¶ 88 Deadly physical force “means f