elemental instruction in Colorado

2026We agree with the People. ¶ 24 For Bartelli to prevail on his consecutive sentence claim, he was required to prove that the three identity theft counts resulted “from the same act, so that the evidence of the act is identical.” Juhl, 172 P.3d at 902 (“[T]he test for identical evidence is an evidentiary test rather than an elemental test.”).

2010Section - 18-1-408(8), - C.R.S.2010, states in relevant part: "When two or more offenses ... are supported by identical evidence ... [and] more than one guilty verdict is returned ... the sentences imposed shall run concurrently." "[T] he test for identical evidence is an evidentiary test rather than an elemental test." Juhl v. People, 172 P.3d 896, 902 (Colo.2007).

2025In other words, the elemental instruction for the first degree burglary count did not refer to the possession or use of a deadly weapon. ¶ 59 These circumstances distinguish People v. Lucas, 232 P.3d 155, 167 (Colo. App. 2009), abrogated on other grounds by, People v. Miller, 2024 COA 66 , upon which the People rely, from this case.

2025See, e.g., People v. Lucas, 232 P.3d 155, 163 (Colo. App. 2009), abrogated on other grounds by People v. Miller, 2024 COA 66 .

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See Day, 255 P.3d at 1068 (refusing to consider multiple instructional objections on appeal when, among other things, a different objection was raised at trial); Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200-01 (Colo. App. 2009) (declining to address instructional challenge because the alleged error was unpreserved). ¶ 14 Owner now argues that the court erred by using an “and” in the final elemental instruction when it should have used an “or.” Specifically, Owner takes issue with paragraph two of the final instruction, which states that “[JNS] failed to provide its consulting services, i

2024See Day, 255 P.3d at 1068 (refusing to consider multiple instructional objections on appeal when, among other things, a different objection was raised at trial); Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200-01 (Colo. App. 2009) (declining to address instructional challenge because the alleged error was unpreserved). ¶ 14 Owner now argues that the court erred by using an “and” in the final elemental instruction when it should have used an “or.” Specifically, Owner takes issue with paragraph two of the final instruction, which states that “[JNS] failed to provide its consulting services, i

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See CJI-Civ. 30:10; see also Wolven v. Velez, 2024 COA 8, ¶ 43 (concluding that trial court acted within its discretion by tendering an instruction that matched a pattern instruction); People v. Jackson, 2018 COA 79, ¶ 64 (explaining instructions that accurately track pattern instructions generally are sufficient), aff’d on other grounds, 2020 CO 75 .

2024See CJI-Civ. 30:10; see also Wolven v. Velez, 2024 COA 8, ¶ 43 (concluding that trial court acted within its discretion by tendering an instruction that matched a pattern instruction); People v. Jackson, 2018 COA 79, ¶ 64 (explaining instructions that accurately track pattern instructions generally are sufficient), aff’d on other grounds, 2020 CO 75 .

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002) (explaining that a theory of the case instruction “should explain a [party’s] view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation”), aff’d, 78 P.3d 290 (Colo. 2003); see also Schuessler v. Wolter, 2012 COA 86, ¶ 23 (distinguishing a theory of the case instruction that “sets forth a party’s contentions” from a proposed instruction that “would have set forth the applicable law”); Brown v. People, 239 P.3d 764, 771 (Colo. 2010) 12 (Coats, J., concurring in the judgme

2024See CJI-Civ. 30:10; see also Wolven v. Velez, 2024 COA 8, ¶ 43 (concluding that trial court acted within its discretion by tendering an instruction that matched a pattern instruction); People v. Jackson, 2018 COA 79, ¶ 64 (explaining instructions that accurately track pattern instructions generally are sufficient), aff’d on other grounds, 2020 CO 75 .

2024See CJI-Civ. 30:10; see also Wolven v. Velez, 2024 COA 8, ¶ 43 (concluding that trial court acted within its discretion by tendering an instruction that matched a pattern instruction); People v. Jackson, 2018 COA 79, ¶ 64 (explaining instructions that accurately track pattern instructions generally are sufficient), aff’d on other grounds, 2020 CO 75 .

2024See Day, 255 P.3d at 1068 (refusing to consider multiple instructional objections on appeal when, among other things, a different objection was raised at trial); Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200-01 (Colo. App. 2009) (declining to address instructional challenge because the alleged error was unpreserved). ¶ 14 Owner now argues that the court erred by using an “and” in the final elemental instruction when it should have used an “or.” Specifically, Owner takes issue with paragraph two of the final instruction, which states that “[JNS] failed to provide its consulting services, i

2024See Day, 255 P.3d at 1068 (refusing to consider multiple instructional objections on appeal when, among other things, a different objection was raised at trial); Harris Grp., Inc. v. Robinson, 209 P.3d 1188, 1200-01 (Colo. App. 2009) (declining to address instructional challenge because the alleged error was unpreserved). ¶ 14 Owner now argues that the court erred by using an “and” in the final elemental instruction when it should have used an “or.” Specifically, Owner takes issue with paragraph two of the final instruction, which states that “[JNS] failed to provide its consulting services, i

2019Petschow, 119 P.3d at 500-02 ; People v. Beatty, 80 P.3d 847, 851 (Colo. App. 2003); People v. Johnson, 74 P.3d 349, 353-54 (Colo. App. 2002); People v. Caldwell, 43 P.3d 663, 671-72 (Colo. App. 2001); People v. Mendez, 897 P.2d 868, 870 (Colo. App. 1995); People v. Key, 851 P.2d 228, 232 (Colo. App. 1992), rev’d on other grounds, 865 P.2d 822 (Colo. 1994). ¶ 12 In Petschow, a division of our court considered whether the court erred by failing to instruct the jury that attempted first degree assault required that the defendant had the specific intent to commit assault.

2008People v. Caldwell, 43 P.3d 663, 671 (Colo.App.2001) ("The preferable practice is to include the mens rea element of an offense in the instruction defining the offense.").

2014See Whitaker v. People, 48 P.3d 555, 560 (Colo.2002) (interpreting the importation provision of section 18-18-407). 114 Here, although the trial court denied defendant's request for an elemental instruction for the special offender count, it instructed the jury to find the presence or absence of the special offender deadly weapon fact only if it found defendant guilty of the underlying offense of possession with intent to distribute: If you find defendant not guilty of possession with intent to distribute marthuana, you should disregard this instruction and fill out the verdict form reflecting

2003Here, the elemental instruction required, in pertinent part, that defendant "3. knowingly engaged in a riot, 4. and employed a deadly weapon during the course of rioting." In Whitaker v. People, 48 P.3d 555, 558-59 (Colo.2002), the supreme court held that the culpable mental state of knowingly did not apply to the quantity of drugs the defendant distributed, manufactured, dispensed, sold, or possessed under the controlled substance statute, § 18-18-405, C.R.S.2002.

1996People v. Wilson, 791 P.2d 1247 (Colo.App.1990).

1992See People v. Wilson, 791 P.2d 1247 (Colo.App.1990) (an elemental instruction in the language of the statute is usually sufficient to advise the jury of the nature of the offense).

2025Id. at 661 . ¶ 107 The upshot of Auman is that a supplemental instruction setting forth the four limits of liability is unnecessary, as the elemental instruction sufficiently advises the jury of those limitations.

2025The court’s elemental instruction for felony murder informed the jury that to convict, it had to find that Dearing caused the officer’s death in the 49 course of or in furtherance of the burglary or “in the course or furtherance of the immediate flight therefrom.” Dearing does not challenge the accuracy of the elemental instruction. ¶ 106 In Auman, the trial court’s felony murder instruction informed the jury that the defendant could be found guilty if she caused the victim’s death “in the course of or in the furtherance of Burglary, or in the immediate flight therefrom.” 109 P.3d at 659 .

2019Petschow, 119 P.3d at 500-02 ; People v. Beatty, 80 P.3d 847, 851 (Colo. App. 2003); People v. Johnson, 74 P.3d 349, 353-54 (Colo. App. 2002); People v. Caldwell, 43 P.3d 663, 671-72 (Colo. App. 2001); People v. Mendez, 897 P.2d 868, 870 (Colo. App. 1995); People v. Key, 851 P.2d 228, 232 (Colo. App. 1992), rev’d on other grounds, 865 P.2d 822 (Colo. 1994). ¶ 12 In Petschow, a division of our court considered whether the court erred by failing to instruct the jury that attempted first degree assault required that the defendant had the specific intent to commit assault.

2015See People v. Weinreich, 98 P.3d 920, 923 (Colo.App.2004) (constructive amendment occurred where "[the information charged one form of child abuse ... and the jury instruction stated another"), aff'd, 119 P.3d 1073 (Colo.2005); see also People v. Petschow, 119 P.3d 495, 503-04 (Colo.App.2004) (constructive amendment occurred where the information charged the defendant with one form of aggravated motor vehicle theft, but the elemental instruction added an alternative element that defined an uncharged crime). 158 The remaining question, though, is whether defendant is entitled to a new trial on

2017In Bornman , a division of this court concluded that an elemental instruction for theft erroneously failed to "explicitly require a finding that the defendant knew that his possession or control of the item was without the authorization of the owner." 953 P.2d at 953 -54 .

2017The supreme court in Auman held that the trial court's elemental jury instruction on theft, which as in Bornman omitted the required culpable mental state from the "without authorization" element, amounted to plain error. 109 P.3d at 663 -71 . ¶ 55 Significantly, in Auman and Bornman , the elements other than "without authorization" were offset so that it was clear that the knowledge requirement applied to those elements but not to "without authorization." Auman , 109 P.3d at 664 ; Bornman , 953 P.2d at 953 -54 . 8 *243 ¶ 56 Here, the causation element directly followed the element describing

1994See People v. R.V., 635 P.2d 892 (Colo.1981); People v. Wilson, 791 P.2d 1247 (Colo.App.1990).

1994See People v. R.V., 635 P.2d 892 (Colo.1981); People v. Wilson, 791 P.2d 1247 (Colo.App. 1990).

2025See People v. Rodriguez, 914 P.2d 230 , 272 n.44 (Colo. 1996) (an elemental instruction for first degree sexual assault 11 that didn’t specify what deadly weapon the defendant used “did not unconstitutionally expand upon the offense charged,” notwithstanding that the charging document had specified that the deadly weapon was a knife); see also id. at 258 (a definitional instruction for first degree sexual assault that included a list of actions that satisfy the sexual penetration element, only two of which were alleged in the charging document, “did not impermissibly amend the [charging docume

2025See People v. Rodriguez, 914 P.2d 230 , 272 n.44 (Colo. 1996) (an elemental instruction for first degree sexual assault 11 that didn’t specify what deadly weapon the defendant used “did not unconstitutionally expand upon the offense charged,” notwithstanding that the charging document had specified that the deadly weapon was a knife); see also id. at 258 (a definitional instruction for first degree sexual assault that included a list of actions that satisfy the sexual penetration element, only two of which were alleged in the charging document, “did not impermissibly amend the [charging docume

2025See Bryant, ¶ 85; Dunton v. People, 898 P.2d 571, 573 (Colo. 1995) (concluding that the district court was not required to give a requested instruction on an affirmative defense to sexual assault when the elemental instruction necessarily required disproof of the elements of the affirmative defense).7 ¶ 74 Because the instruction wasn’t legally required under the circumstances presented at trial, we approve the ruling. 7 The converse is also true.

2025See People v. Rodriguez, 914 P.2d 230 , 272 n.44 (Colo. 1996) (an elemental instruction for first degree sexual assault 11 that didn’t specify what deadly weapon the defendant used “did not unconstitutionally expand upon the offense charged,” notwithstanding that the charging document had specified that the deadly weapon was a knife); see also id. at 258 (a definitional instruction for first degree sexual assault that included a list of actions that satisfy the sexual penetration element, only two of which were alleged in the charging document, “did not impermissibly amend the [charging docume

2025See People v. Hoggard, 2017 COA 88, ¶ 44 (“[A]ttempt usually shares the same mental state required for the predicate offense.”), aff’d, 2020 CO 54 ; see also § 18-2-101(1). 14 conduct and result: A person may not “use a threat or an act constituting harassment,” directed to or committed upon a witness or victim, as retaliation or retribution against the witness or victim. ¶ 31 The problem is that these instructions, even when read together, did not inform the jury that the retaliation or retribution must be because of the witness’s or victim’s status as such.