theory of the case instruction in Colorado

2018Criminal Defendants Have the Right to a Theory of the Case Instruction A. General Principles ¶ 28 In Nunez, 841 P.2d at 264-65 , the Colorado Supreme Court held that defendants have the right to a theory of the case instruction.

2018Nunez, 841 P.2d at 265 . ¶ 30 When a defendant is entitled to a theory of the case instruction but the instruction tendered is defective in some manner, the trial court has an affirmative duty to work with defense counsel to craft an acceptable instruction.

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

1996People v. Marquez, 692 P.2d 1089 (Colo.1984).

1992See, e.g., People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984); People v. Dillon, 655 P.2d 841, 845 (Colo.1982); People v. Tenorio, 197 Colo. 137, 144 , 590 P.2d 952, 957 (1979); People v. Truesdale, 190 Colo. 286, 290 , 546 P.2d 494, 497 (1976); People v. Griego, 183 Colo. 419, 420 , 517 P.2d 460, 461 (1973); Wertz v. People, 160 Colo. 260, 261-62 , 418 P.2d 169, 170 (1966); Sterling v. People, 151 Colo. 127, 131 , 376 P.2d 676, 678 (1962), cert. denied, 373 U.S. 944 , 83 S.Ct. 1554 , 10 L.Ed.2d 699 (1963). [9] We have affirmed a refusal to give a theory of the case instruction that is embodie

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

2016Unlike a lesser included offense, "a lesser non-included offense instruction may be given only if the defendant requests it or consents to it." People v. Skinner, 825 P.2d 1045 , 1047 (Colo.App.1991).

2015People v. Skinner, 825 P.2d 1045, 1047 (Colo.App.1991).

2002People v. Nunez, 841 P.2d 261, 264-65 (Colo.1992); People v. Fuller, 781 P.2d 647, 651 (Colo.1989).

1993Under the rule of Fuller, supra, the weight to be given this evidence, even if improbable, should be determined by the jury, and the *562 trial court erred by not giving a theory of the case instruction on the defense once T.R. tendered such an instruction.

2026But a court doesn’t err by rejecting a theory of defense instruction if it is “argumentative or merely highlights specific pieces of evidence.” People v. Omwanda, 2014 COA 128, ¶ 41 . ¶ 16 “When a defendant objects to the trial court’s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if ‘there is not a reasonable probability that the error contributed to the defendant’s conviction.’” Trujillo, ¶ 12 (quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)); see also People v. Joosten, 2018 COA 115, ¶ 40 (“A court’s improper rejection of a theory

2018People v. Garcia, 28 P.3d 340, 344 (Colo. 2001).

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

2020“A proper theory of the case instruction should explain a defendant’s view of what the evidence shows, must be general and brief, and must instruct the jury on the legal effect of the explanation.” People v. Meads, 58 P.3d 1137, 1138 (Colo. App. 2002), aff’d, 78 P.3d 290 (Colo. 2003). ¶ 82 A trial court may refuse to give an instruction that is “argumentative, contains errors of law, merely reiterates portions of the evidence, or is encompassed within the other instructions.” Lee, 30 P.3d at 689 ; see Dore, 997 P.2d at 1221-22 (“The trial court may reject a theory of the case instruction which

2012See People v. Dore, 997 P.2d 1214, 1222 (Colo.App.1999) (in determining whether the jury has been adequately informed of a party's theory of defense, the court may consider whether closing argument fairly represented defendant's theory to the jury).

2010As a special case of (or perhaps exception to) this rational basis formula, we have expressed a particular preference for jury determinations of the appropriate "grade of criminal homicide" by entitling defendants to lesser offense instructions in homicide prosecutions whenever there is "some evidence, however slight," People v. Shaw, 646 P.2d 375, 379 (Colo.1982), or "any evidence whatever," Crawford v. People, 12 Colo. 290, 292 , 20 P. 769 , 770 (1889), "regardless of how improbable, unreasonable, or slight it might be." Mata-Medina v. People, 71 P.3d 973, 979 (Colo.2008) (quoting Garcia, 82

2010As a special case of (or perhaps exception to) this rational basis formula, we have expressed a particular preference for jury determinations of the appropriate "grade of criminal homicide" by entitling defendants to lesser offense instructions in homicide prosecutions whenever there is "some evidence, however slight," People v. Shaw, 646 P.2d 375, 379 (Colo.1982), or "any evidence whatever," Crawford v. People, 12 Colo. 290, 292 , 20 P. 769 , 770 (1889), "regardless of how `improbable, unreasonable, or slight' it might be." Mata-Medina v. People, 71 P.3d 973, 979 (Colo.2003) (quoting Garcia,

1992See, e.g., People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984); People v. Dillon, 655 P.2d 841, 845 (Colo.1982); People v. Tenorio, 197 Colo. 137, 144 , 590 P.2d 952, 957 (1979); People v. Truesdale, 190 Colo. 286, 290 , 546 P.2d 494, 497 (1976); People v. Griego, 183 Colo. 419, 420 , 517 P.2d 460, 461 (1973); Wertz v. People, 160 Colo. 260, 261-62 , 418 P.2d 169, 170 (1966); Sterling v. People, 151 Colo. 127, 131 , 376 P.2d 676, 678 (1962), cert. denied, 373 U.S. 944 , 83 S.Ct. 1554 , 10 L.Ed.2d 699 (1963). [9] We have affirmed a refusal to give a theory of the case instruction that is embodie

1992See, e.g., People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984); People v. Dillon, 655 P.2d 841, 845 (Colo.1982); People v. Tenorio, 197 Colo. 137, 144 , 590 P.2d 952, 957 (1979); People v. Truesdale, 190 Colo. 286, 290 , 546 P.2d 494, 497 (1976); People v. Griego, 183 Colo. 419, 420 , 517 P.2d 460, 461 (1973); Wertz v. People, 160 Colo. 260, 261-62 , 418 P.2d 169, 170 (1966); Sterling v. People, 151 Colo. 127, 131 , 376 P.2d 676, 678 (1962), cert. denied, 373 U.S. 944 , 83 S.Ct. 1554 , 10 L.Ed.2d 699 (1963). [9] We have affirmed a refusal to give a theory of the case instruction that is embodie

2010In so deciding, we are mindful of the general principle that "a theory of the case instruction which permits the jury to find a defendant innocent of the principal charge and guilty of a lesser charge should be given when warranted by the evidence." Rivera, 186 Colo. at 28 , 525 P.2d at 434 ; see also Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) ("As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.").

2010In so deciding, we are mindful of the general principle that "a theory of the case instruction which permits the jury to find a defendant innocent of the principal charge and guilty of a lesser charge should be given when warranted by the evidence." Rivera, 186 Colo. at 28 , 525 P.2d at 434 ; see also Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988) ("As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.").

2026But a court doesn’t err by rejecting a theory of defense instruction if it is “argumentative or merely highlights specific pieces of evidence.” People v. Omwanda, 2014 COA 128, ¶ 41 . ¶ 16 “When a defendant objects to the trial court’s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if ‘there is not a reasonable probability that the error contributed to the defendant’s conviction.’” Trujillo, ¶ 12 (quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)); see also People v. Joosten, 2018 COA 115, ¶ 40 (“A court’s improper rejection of a theory

2018COLORADO COURT OF APPEALS 2018COA115 Court of Appeals No. 16CA0875 Adams County District Court No. 13CR3365 Honorable Thomas R.

2018People v. Smith, 77 P.3d 751, 756 (Colo. App. 10 2003).

2004People v. Smith, 77 P.3d 751 (Colo.App.2003).

2012Gordon v. Benson, 925 P.2d 775, 777-78 (Colo.1996) (trial court erred in refusing comparative negligence instruction reflecting defendant's theory of the case; fact that the defendant tendered an instruction different from his theory of the case instruction indicated that he did not waive his objection). 123 Moreover, as Schuessler notes, a theory of the case instruction should be general and brief.

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

2005Application A defendant is entitled to an instruction on a lesser offense “as a theory of the case instruction ... as long as there is ⅛ rational basis in the evidence to support a verdict acquitting him of the greater offense ... and convicting him of the lesser offense.’ ” People v. Garcia, 940 P.2d 357, 361 (Colo.1997); see also, § 18-1-408(6), C.R.S. (2004).

2005Application A defendant is entitled to an instruction on a lesser offense "as a theory of the case instruction ... as long as there is `a rational basis in the evidence to support a verdict acquitting him of the greater offense ... and convicting him of the lesser offense.'" People v. Garcia, 940 P.2d 357, 361 (Colo.1997); see also, § 18-1-408(6), C.R.S. (2004).

1992See, e.g., People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984); People v. Dillon, 655 P.2d 841, 845 (Colo.1982); People v. Tenorio, 197 Colo. 137, 144 , 590 P.2d 952, 957 (1979); People v. Truesdale, 190 Colo. 286, 290 , 546 P.2d 494, 497 (1976); People v. Griego, 183 Colo. 419, 420 , 517 P.2d 460, 461 (1973); Wertz v. People, 160 Colo. 260, 261-62 , 418 P.2d 169, 170 (1966); Sterling v. People, 151 Colo. 127, 131 , 376 P.2d 676, 678 (1962), cert. denied, 373 U.S. 944 , 83 S.Ct. 1554 , 10 L.Ed.2d 699 (1963). [9] We have affirmed a refusal to give a theory of the case instruction that is embodie

1992See, e.g., People v. Marquez, 692 P.2d 1089, 1098 (Colo.1984); People v. Dillon, 655 P.2d 841, 845 (Colo.1982); People v. Tenorio, 197 Colo. 137, 144 , 590 P.2d 952, 957 (1979); People v. Truesdale, 190 Colo. 286, 290 , 546 P.2d 494, 497 (1976); People v. Griego, 183 Colo. 419, 420 , 517 P.2d 460, 461 (1973); Wertz v. People, 160 Colo. 260, 261-62 , 418 P.2d 169, 170 (1966); Sterling v. People, 151 Colo. 127, 131 , 376 P.2d 676, 678 (1962), cert. denied, 373 U.S. 944 , 83 S.Ct. 1554 , 10 L.Ed.2d 699 (1963). [9] We have affirmed a refusal to give a theory of the case instruction that is embodie

2026But a court doesn’t err by rejecting a theory of defense instruction if it is “argumentative or merely highlights specific pieces of evidence.” People v. Omwanda, 2014 COA 128, ¶ 41 . ¶ 16 “When a defendant objects to the trial court’s ruling on a jury instruction, we review for nonconstitutional harmless error and will thus affirm if ‘there is not a reasonable probability that the error contributed to the defendant’s conviction.’” Trujillo, ¶ 12 (quoting People v. Garcia, 28 P.3d 340, 344 (Colo. 2001)); see also People v. Joosten, 2018 COA 115, ¶ 40 (“A court’s improper rejection of a theory

2025See People v. Douglas, 2012 COA 57, ¶ 48 . ¶ 29 Second, we conclude, consistent with Roberts-Bicking, that the theory of the case instruction, when read and considered with the self-defense instruction, adequately informed the jury to consider the reasonableness of Rizo’s actions in light of the totality of the circumstances involving both brothers. ¶ 30 In Roberts-Bicking, the trial court rejected the defense’s tendered apparent necessity and multiple assailants instructions.

2018See, e.g., People v. Roman, 2017 CO 70, ¶ 15 ; People v. Nunez, 841 P.2d 261, 264-65 (Colo. 1992).

2015See, e.g., Rubio, 222 P.3d at 362 .