COLORADO COURT OF APPEALS                                          2017COA92


Court of Appeals No. 10CA1476
City and County of Denver District Court No. 09CR510
Honorable Robert L. McGahey, Jr., Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sandra L. Jacobson,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division IV
                          Opinion by JUDGE WEBB
                       Navarro and Kapelke*, JJ., concur

                           Announced July 13, 2017


Cynthia H. Coffman, Attorney General, Rebecca A. Jones, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2016.
¶1    The general background appears in People v. Jacobson, 2014

 COA 149 (Jacobson I), which reversed defendant’s conviction for

 failure to poll the jury about exposure to extraneous, prejudicial

 information. In People v. Jacobson, 2017 CO 28 (Jacobson II), the

 supreme court reversed Jacobson I and remanded the case to us,

 albeit without direction.

¶2    Before our mandate was issued, defendant, Sandra L.

 Jacobson, asked us to decide two issues that had not been resolved

 in Jacobson I. She correctly pointed out that either of these issues

 could lead to reversal of the judgment of conviction entered on jury

 verdicts finding her guilty of vehicular homicide, driving under the

 influence (DUI), and other related charges, arising from a collision

 between her truck and a taxi cab on Pena Boulevard.

¶3    We granted her request but now affirm the judgment of

 conviction.




                                   1
 I. The Trial Court Did Not Err in Failing Sua Sponte to Instruct the
 Jury on the Statutory DUI Affirmative Defense of Having Consumed
 Alcohol Between the Time Defendant Stopped Driving and the Blood
               Alcohol Content (BAC) Testing Occurred

                      A. Additional Background

¶4    Defendant testified at trial. She described herself as having

 been “stone cold sober” when the accident occurred at about 10:30

 a.m. But she said that on arrival at the Denver International

 Airport’s cargo terminal some fifteen minutes later, she drank a

 Vitamin Water bottle that contained one-half 99 proof schnapps.

¶5    Two police officers contacted defendant at 10:58 a.m. Neither

 noticed any indicia of alcohol intoxication. Although defendant

 remained in police custody and interacted with other officers, not

 until about 3:00 p.m. did an officer notice bloodshot, watery eyes,

 and slurred speech. This officer administered a roadside sobriety

 test, which defendant failed. Then he took her to a hospital for a

 blood draw.

¶6    Samples were taken at 3:55 p.m., 5:00 p.m., and 6:01 p.m.

 The test results showed that her BAC was .164, .143, and .121,

 respectively. Based on these results, the prosecution presented




                                   2
 expert testimony that defendant’s BAC had been .274 at the time of

 the accident.

¶7    Defense counsel did not request the trial court to instruct the

 jury on the DUI affirmative defense of having consumed alcohol

 between the time that she stopped driving and when the testing

 occurred.

                    B. Standard of Review and Law

¶8    Where a defendant did not request an affirmative defense

 instruction, review is limited to plain error. See, e.g., People v.

 Griffin, 224 P.3d 292, 298 (Colo. App. 2009). Plain error permits an

 appellate court “to correct particularly egregious errors.” Wilson v.

 People, 743 P.2d 415, 420 (Colo. 1987). The error must be “‘so

 clear-cut, so obvious,’ a trial judge should be able to avoid it

 without benefit of objection.” People v. Ujaama, 2012 COA 36, ¶ 42

 (quoting People v. Taylor, 159 P.3d 730, 738 (Colo. App. 2006)).

¶9    Even then, an appellate court will reverse only if a defendant

 shows “that the court committed an obvious and substantial error

 that undermined the fundamental fairness of the trial so as to cast

 serious doubt on the reliability of the judgment of conviction.”

 Griffin, 224 P.3d at 298. To be sure, reversals under plain error


                                     3
  “must be rare to maintain adequate motivation among trial

  participants to seek a fair and accurate trial the first time.” Hagos

  v. People, 2012 CO 63, ¶ 23.

¶ 10   “We review de novo the question of whether a jury instruction

  accurately informed the jury of the governing law.” People v.

  Carbajal, 2014 CO 60, ¶ 10. “It is the duty of the trial court to

  ‘correctly instruct the jury on all matters of law for which there is

  sufficient evidence to support giving instructions.’” Id. (quoting

  Cassels v. People, 92 P.3d 951, 955 (Colo. 2004)).

¶ 11   Section 42-4-1301(1)(a), C.R.S. 2016, defines DUI. According

  to section 42-4-1301(2)(a),

             if a defendant presents some credible evidence,
             that the defendant consumed alcohol between
             the time that the defendant stopped driving
             and the time that testing occurred, such issue
             shall be an affirmative defense, and the
             prosecution must establish beyond a
             reasonable doubt that the minimum 0.08
             blood or breath alcohol content required in
             this paragraph (a) was reached as a result of
             alcohol consumed by the defendant before the
             defendant stopped driving.

  (Emphasis added.) The parties have not cited a case, nor have we

  found one, interpreting this language.




                                     4
¶ 12     Despite this dearth of precedent, the following uncontroverted

  authorities are informative.

        “[P]roof of vehicular homicide under section 18-3-106(1)(b)(I)

         required proof that defendant operated a vehicle while under

         the influence of alcohol or drugs, or a combination thereof.”

         People v. Grassi, 192 P.3d 496, 500 (Colo. App. 2008).

        “[T]o present an affirmative defense for jury consideration, the

         defendant must present ‘some credible evidence’ on the issue

         involving the claimed defense.” People v. Garcia, 113 P.3d

         775, 783-84 (Colo. 2005) (citing § 18-1-407, C.R.S. 2016).

        Whether a defendant has met this burden is a question of law,

         subject to de novo review. Id.

        “Whatever questions may remain in federal law concerning

         precisely when an affirmative defense ‘controverts,’ or ‘does

         negate’ an element of an offense, long before the federal

         constitution was construed to impose limitations on the

         common law rule requiring criminal defendants to prove

         affirmative defenses, we in this jurisdiction interpreted the

         state due process clause to do so.” Montoya v. People, 2017

         CO 40, ¶ 24.

                                      5
¶ 13   On this much, the parties largely agree. As to the intersection

  between plain error and omission of a statutory affirmative defense,

  however, they differ. But we decline to resolve that difference

  because we conclude that the trial court did not err in failing sua

  sponte to instruct on the statutory affirmative defense.

                             C. Discussion

¶ 14   To begin, the Attorney General asserts that defendant invited

  any error. The sole bases for this assertion are defense counsel’s

  request for “an affirmative defense instruction based on intervening

  cause,” which was not given, and his later statement to the trial

  court that he did not request any further instructions. But the

  possibility of instructing on the statutory affirmative defense had

  never been discussed. Without more, we cannot apply invited error.

  See People v. Stewart, 55 P.3d 107, 119 (Colo. 2002) (holding, where

  defense counsel had tendered one instruction but not another, “a

  nontactical instructional omission generally should be reviewed for

  plain error”).

¶ 15   The Attorney General does not dispute that defendant

  presented sufficient evidence to warrant an instruction on the

  affirmative defense. And with good reason. The burden to produce


                                    6
  sufficient evidence is “exceedingly low,” making preclusion of an

  affirmative defense appropriate only when there is “simply no

  evidence . . . in th[e] record.” People v. Platt, 170 P.3d 802, 806

  (Colo. App. 2007), aff’d, 201 P.3d 545 (Colo. 2009). The “scintilla of

  evidence” standard is so low that “the evidence necessary to justify

  an affirmative defense instruction may come solely from the

  defendant’s testimony, even if the evidence is improbable.” People

  v. Johnson, 2013 COA 122, ¶ 35.

¶ 16   Instead, according to the Attorney General, “by proving the

  elements of vehicular homicide (DUI) beyond a reasonable doubt,

  the prosecution also disproved the affirmative defense beyond a

  reasonable doubt.” Specifically, the Attorney General points to

  Instruction No. 8 (the elemental instruction on DUI), which required

  the prosecution to prove, among other elements, that defendant,

             (3) operated or drove a motor vehicle,

             (4) while under the influence of any drug or
             intoxicant, and

             (5) such conduct is the proximate cause,

             (6) of the death of another.

  Thus, the Attorney General continues, by proving that defendant

  “was intoxicated at the time of the accident,” the prosecution

                                     7
  “necessarily disproved the affirmative defense that the defendant

  did not become intoxicated until a later time.”

¶ 17   No authority is cited to support this analysis. But since the

  briefing closed, our supreme court said in Montoya, ¶ 29,

            our entire rationale in [People v. Pickering, 276
            P.3d 553 (Colo. 2011)] is premised on the
            well-established proposition that a defense
            operating solely by traversing, or negating,
            elements of the crime itself is disproved, at one
            and the same time, by proving those elements.
            See, e.g., [People v. Huckleberry, 768 P.2d
            1235, 1238-39 (Colo. 1989)] (holding that a
            defense of alibi does not merit an affirmative
            defense instruction because proof that the
            defendant committed the crime itself
            necessarily disproves the defendant’s assertion
            that he was somewhere else).

  This statement informs our analysis in two ways.

¶ 18   First, it undercuts defendant’s reliance on Pickering in her

  reply brief.1 Second, the reference to Huckleberry shows why the




  1 Defendant’s citation to People v. Garcia, 113 P.3d 775 (Colo.
  2005), and Vega v. People, 893 P.2d 107 (Colo. 1995), are also
  unavailing. In Garcia, the trial court had ruled before trial that
  hypoglycemia could not support the defendant’s affirmative defense
  of involuntary intoxication, thereby precluding the supreme court
  from determining whether the trial record supported giving an
  affirmative defense instruction. In Vega, the supreme court held
  that the special offender statute is not a substantive offense to
  which an affirmative defense is available.

                                    8
  statutory characterization of “an affirmative defense” is not

  dispositive.

¶ 19   In Huckleberry, 768 P.2d at 1239, the court explained,

             the essence of an affirmative defense is the
             admission of the conduct giving rise to the
             charged offense. Having acknowledged
             presence at and participation in the event, the
             participant in effect justifies the conduct on
             grounds deemed by law to be sufficient to
             render the participant exempt from criminal
             responsibility for the consequences of the
             conduct. The People are required to negate an
             affirmative defense because such defense
             raises factors justifying the defendant’s
             conduct to a parity with the elements of the
             offense. . . . The defense of alibi does not
             require proof or disproof of factual issues
             beyond those necessary to establish the
             elements of the offense charged. . . . No
             special instructions are necessary to inform
             the jury of the People’s burden to prove that a
             defendant alleged to have committed an
             offense did commit that offense.

  Compare People v. Marks, 2015 COA 173, ¶ 57 (“The same is true of

  an alternate suspect defense.”), with People v. Grizzle, 140 P.3d

  224, 226 (Colo. App. 2006) (“A defendant must admit to having

  engaged in the proscribed conduct to be entitled to an entrapment

  instruction.”).




                                    9
¶ 20   By any fair reading of the record, defendant never admitted

  the criminality of her conduct. Just the opposite — she attested to

  her sobriety when the accident occurred.

¶ 21   Even so, the Huckleberry court went on to point out,

            [a]lthough the General Assembly has expressly
            recognized several affirmative defenses, the
            defense of alibi has not been established by
            statute. We reject Huckleberry’s argument
            that the affirmative defense statute . . .
            encompasses the defense of alibi even though
            such defense is not specified by any statute.

  768 P.2d at 1239 (footnote omitted). So, is Huckleberry controlling

  here, where the statute says that “such issue shall be an affirmative

  defense”? We conclude that it is, despite this difference.

¶ 22   Thus, we decline to treat the statutory mandate as trumping

  the broader principle — explained in Huckleberry and reiterated in

  Montoya — that an affirmative defense instruction need not be

  given where the defense is only an element-negating traverse. As

  the division in People v. Nelson, 2014 COA 165, ¶ 52, noted,

            [w]e acknowledge that the General Assembly
            has, paradoxically, characterized consent of
            the victim as an “affirmative defense” if “the
            consent negatives an element of the offense or
            precludes the infliction of the harm or evil
            sought to be prevented by the law defining the
            offense.” § 18-1-505(1), C.R.S. 2014; see


                                    10
               People v. Bush, 948 P.2d 16, 19-20 (Colo. App.
               1997) (Briggs, J., specially concurring) (opining
               that where consent and mistake of fact merely
               negate an element of the crime charged, they
               are not truly affirmative defenses,
               notwithstanding section 18-1-505). But even
               were we to regard consent and mistake of fact
               as affirmative defenses under the facts of this
               case, it would not follow that defendant was
               entitled to separate instructions on those
               defenses. Where proof of the elements of the
               charged offense necessarily requires disproof of
               the issue raised by the affirmative defense, a
               separate instruction on that defense need not
               be given.

¶ 23     In sum, because we discern no error in the trial court’s failure

  to instruct the jury sua sponte on the statutory affirmative defense,

  we need not consider the other plain error factors. See People v.

  Ortiz, 2016 COA 58, ¶ 23 (“Because the district court did not err, we

  need not address the other elements of plain error analysis.”).

       II. Jury Instruction No. 15 and the Court’s Answer to a Related
                    Jury Question Do Not Require Reversal

¶ 24     For the first time on appeal, defendant contends that Jury

  Instruction No. 15 and the court’s response to a related jury

  question reduced the prosecution’s burden. As a result, defendant

  continues, the Attorney General’s position that by proving the

  elements of the offense beyond a reasonable doubt, the prosecution



                                      11
  necessarily disproved the affirmative defense, (which we accepted in

  the prior section of this opinion), is flawed. Although with

  somewhat less clarity, defendant also contends that the instruction

  created a constructive amendment or a simple variance that

  prejudiced her. We reject the first contention and conclude that

  invited error bars review of the second contention.

                        A. Additional Background

¶ 25   Instruction No. 15 explained that “the amount of alcohol in the

  Defendant’s blood at the time of the commission of the offense, or

  within a reasonable time thereafter, as shown by chemical analysis

  of the Defendant’s blood or breath, gives rise to the following . . . .”

  Then it set forth the various statutory presumptions.

¶ 26   During deliberations, the jury asked, as to the DUI verdict

  form, “is this specific to the time of the collision, at or around 10:30

  a.m., or at any time thereafter (on or around the time she was

  stopped by the police at 10:58 a.m.)?” After discussion with

  counsel, the court answered, “It can be either or both, but any

  decision you make concerning the particular time must be

  unanimous.”




                                     12
  B. Effect of Instruction No. 15 and the Answer to the Jury Question
    on Failure Sua Sponte to Give the Statutory Affirmative Defense
                               Instruction

                              1. Preservation

¶ 27   Defense counsel did not object to Instruction No. 15 and

  participated in the trial court’s formulating an answer to the jury

  question. On these bases, the Attorney General asserts that

  defendant invited any error. We resolve the invited error question

  as to a constructive amendment or a simple variance in the next

  section of this opinion.

¶ 28   But as for this section, invited error becomes “a convoluted

  chicken-egg argument.” Widefield Water & Sanitation Dist. v. Witte,

  2014 CO 81, ¶ 26. We have concluded that defendant did not invite

  the alleged error in the trial court’s failure to give the statutory

  affirmative defense instruction, but merely failed to request that

  this instruction be given. So, if the affirmative defense instruction

  was not even contemplated, much less argued, how could we apply

  invited error to preclude defendant from now arguing that such an

  instruction was necessary based on Instruction No. 15 and the

  answer to the jury question?




                                     13
¶ 29   We escape this dilemma by declining to apply invited error at

  this level of the analysis because defendant does not argue that

  Instruction No. 15 and the answer to the jury question incorrectly

  stated the law. Thus, invited error does not prevent our

  reconsidering whether the jury should have been instructed on the

  statutory affirmative defense because Instruction No. 15 and the

  court’s answer to the jury’s question could have reduced the

  prosecution’s burden.

                                   2. Law

¶ 30   “In any prosecution for DUI or DWAI, the defendant’s BAC or

  drug content at the time of the commission of the alleged offense or

  within a reasonable time thereafter gives rise to the following

  presumptions or inferences.” § 42-4-1301(6)(a).

¶ 31   In Charnes v. Boom, 766 P.2d 665, 669 (Colo. 1988), the

  supreme court explained, “the relevance of the results of a chemical

  test in a criminal trial . . . is not limited to tests conducted within

  one hour after the alleged offense. Instead, such test results may

  be admissible and provide significant evidence if obtained within a

  reasonable time after the alleged offense, even if that time exceeds

  one hour.” More recently, in People v. Wehmas, 246 P.3d 642, 650


                                     14
  (Colo. 2010), the court noted that while a “delay in obtaining a BAC

  will lead to a gradual loss of perhaps the strongest evidence of a

  defendant’s BAC at the time of the offense because of the ongoing

  metabolism of alcohol . . . expert testimony can be used to

  otherwise analyze and extrapolate a person’s BAC to provide an

  opinion as to the BAC at the time of the offense.”

¶ 32   Yet, neither the supreme court nor any division of this court

  has looked at “a reasonable time after” driving through the lens of

  whether allowing a jury to determine guilt based on such evidence

  of the BAC unfairly reduces the prosecution’s burden. Defendant

  cites no authority supporting this proposition, from Colorado or

  elsewhere.

¶ 33   In People v. Emery, 812 P.2d 665, 667 (Colo. App. 1990),

  however, the division explained, “the prosecution presented

  evidence that approximately three hours after the accident,

  defendant’s blood alcohol level was above the statutory percentage.

  From that evidence, the jury could infer that defendant was under

  the influence at the time of the offense.” The division concluded,

  “defendant’s blood alcohol level was, within a reasonable time after




                                    15
  the accident, sufficient to permit an inference that he was under the

  influence when the accident occurred.” Id. at 668.

                               3. Discussion

¶ 34   Defendant’s assertion that Instruction No. 15 encouraged the

  jury to convict based on her intoxication “a reasonable time after,”

  as opposed to at the time of the accident, runs head long into

  Instruction No. 8, quoted above. Defendant does not challenge this

  instruction. And it required the prosecution to prove that

  defendant had been intoxicated when the accident occurred. In

  contrast, Instruction No. 15 dealt with the inferences that could be

  drawn from results of the BAC tests, not the elements of the

  offense.

¶ 35   But the possibility that the answer to the jury question

  undercut Instruction No. 8 and thereby reduced the prosecution’s

  burden warrants a closer look. After all, based on the answer, the

  jury could have convicted defendant by unanimously agreeing on

  her intoxication as of 10:58 a.m., approximately one-half hour after

  the collision. Still, for three reasons, this possibility does not

  change our conclusion that the prosecution’s proof also disproved

  the affirmative defense.


                                     16
¶ 36   First, consistent with Charnes and Wehmas, the prosecution

  presented expert testimony that based on the trending in

  defendant’s BAC when her blood was drawn three separate times,

  several hours after the collision, her BAC had been .274 at the time

  of the accident. Defendant does not explain, nor can we discern,

  how she could have been heavily intoxicated at 10:58 a.m. — if that

  is the time on which the jury agreed — but not been intoxicated

  when the collision occurred at 10:30 a.m. And the process whereby

  the expert arrived at the .274 opinion precludes this conclusion.

¶ 37   Second, defendant also does not discuss how her testimony

  that she consumed an alcoholic beverage around 10:45 a.m. — but

  not before the collision — would neutralize the expert’s opinion that

  her BAC had been .274 at the time of the accident. To the contrary,

  the prosecution’s expert opined that “chugging” significant amounts

  of an alcoholic beverage at 10:45 would not explain the results of

  the three blood draws, given the time between them and the rate

  the body metabolizes alcohol.

¶ 38   Third, to the extent that defendant implies 10:58 a.m. is more

  than a reasonable time after 10:30 a.m., Emery holds otherwise.




                                   17
  And as for a jury’s ability to determine reasonableness, the word

  “reasonable” appears in numerous Colorado criminal statutes.2

¶ 39   Given all this, the answer to the jury question does not lead us

  to reconsider whether the prosecution disproved the statutory

  affirmative defense.

            C. Constructive Amendment and Simple Variance

¶ 40   The precise difference between this contention and defendant’s

  affirmative defense contention is unclear. But defendant could be

  understood as raising a separate argument based on a temporal

  discrepancy between the charging document and the references to

  “a reasonable time after” in Instruction No. 15, coupled with the

  trial court’s response to the jury question. If so, invited error bars

  review.

                1. Preservation and Standard of Review

¶ 41   Defendant concedes that she did not raise this issue below,

  but urges plain error review. The Attorney General responds that

  2 See, e.g., § 18-9-305, C.R.S. 2016 (“if reasonable notice of the use
  of such devices is given to the public”); § 18-12-108.7, C.R.S. 2016
  (“fails to make reasonable efforts to prevent such violation”);
  § 18-1-705, C.R.S. 2016 (“using reasonable and appropriate
  physical force upon another person”); § 18-18-420, C.R.S. 2016
  (“would lead a reasonable person to believe that the substance is
  the controlled substance that it is purported to be”).

                                    18
  defendant invited any error. We now address invited error because

  it could obviate further analysis of a constructive amendment and a

  simple variance.

¶ 42   During the instruction conference, defense counsel raised

  Instruction No. 15. The prosecutor interjected that defense

  counsel, “had suggested to me, and I think that I agree, that this

  presumption instruction would apply to both vehicular homicide

  and the DUI charges” instead of having separate instructions. After

  defense counsel responded, “I’m good with that,” the court added

  that the change would be made. As given to the jury, the

  instruction referred to “any prosecution in which the defendant is

  charged with Vehicular Homicide and/or Driving under the

  Influence.” (Emphasis added.)

¶ 43   At the end of the conference, the court asked the prosecutor

  about any objections and then asked defense counsel:

            I’m going to ask you the same questions.
            You’ve been given seventeen jury instructions
            and nine forms of verdict. Do you have any
            objections to those verdict forms and jury
            instructions other than as was expressed in
            chambers?

  Both counsel answered “no.”



                                   19
¶ 44   Turning to the jury question, the court, the prosecutor, and

  defense counsel discussed how to answer it at length. The court

  expressed concern over unanimity because “we can’t have six of

  them deciding that it’s 10:30 and six of them deciding it’s 10:58 and

  finding ‘you’re guilty.’” After the court posited possible unanimity

  language, the following colloquy occurred:

            [DEFENSE COUNSEL]: I think we have to be a
            little more careful in terms of the phraseology,
            in terms of maybe following —

            THE COURT: I wasn’t positing that. I’m open
            to suggestion.

            [DEFENSE COUNSEL]: It can be either or
            both, but for you — it can be either or both as
            —

            THE COURT: But any decision you make
            must be unanimous.

            [DEFENSE COUNSEL]: As to the
            particularized time.

  Following further discussion, the court proposed to answer the

  question, “It can be either or both, but any decision you make

  concerning a particular time must be unanimous.” Then the court

  separately asked the prosecutor and defense counsel if they agreed.

  Both answered “yes.”




                                    20
                                2. Law

¶ 45   The invited error doctrine rests on the principle that “a party

  may not complain on appeal of an error that he has invited or

  injected into the case; he must abide the consequences of his acts.”

  People v. Zapata, 779 P.2d 1307, 1309 (Colo. 1989). This doctrine

  “prevents a party from inducing an inappropriate or erroneous

  [ruling] and then later seeking to profit from that error.” Horton v.

  Suthers, 43 P.3d 611, 618 (Colo. 2002) (citation omitted).

¶ 46   “Invited error most often arises in holding a defendant

  responsible for tendering or agreeing to a jury instruction later

  challenged on appeal.” People v. Foster, 2013 COA 85, ¶ 26.

  Similarly, as to answering a jury question, “[b]ecause defendant

  acceded to the court’s response, he is precluded from raising this

  issue on appeal.” People v. Phillips, 91 P.3d 476, 484 (Colo. App.

  2004).

¶ 47   In jury instruction appeals, invited error analysis has

  expanded from instructions tendered by the defense to affirmative

  acquiescence. Compare People v. Gregor, 26 P.3d 530, 533 (Colo.

  App. 2000) (“Thus, defendant’s affirmative proposal with respect to

  one instruction and acquiescence in two others, which related


                                    21
  directly to the first instruction, led to invited error here.”), with

  People v. Butler, 251 P.3d 519, 523 (Colo. App. 2010) (Invited error

  does apply where “[t]he record shows that when the trial court

  proposed amending the jury instruction defining when a police

  officer acts under color of official authority by adding the phrase ‘or

  search warrant executed,’ [and] defense counsel responded, ‘That’s

  fine with me.’”). As the division explained in Foster, ¶ 36, “we read

  [People v. Gross, 2012 CO 60M] to distinguish errors based on trial

  counsel’s omission from those of commission in limiting appellate

  review. While appellate courts may review the former for plain

  error, the latter generally will be unreviewable.”

                               3. Application

¶ 48   Based on the extensive colloquy, in which defense counsel

  actively participated, on both Instruction No. 15 and answering the

  jury question, we conclude that error, if any, in either was invited.

¶ 49   Starting with the instruction, as in Gregor, Butler, and Foster,

  defense counsel proposed a change and then affirmatively

  acquiesced in the modified instruction. People v. Perez-Rodriguez,

  2017 COA 77, does not suggest otherwise.




                                      22
¶ 50   Granted, as in Perez-Rodriguez, here the trial court ultimately

  grouped all seventeen instructions in asking whether defense

  counsel had any objection. Still, counsel’s “no” answer must be

  read in context of the earlier specific discussion of Instruction No.

  15, which defendant now seeks to challenge. Because no similar

  specific discussion occurred in Perez-Rodriguez, the division

  concluded that “[i]t is not clear whether defense counsel’s blanket

  statement indicating ‘no objection’ reflected deliberate agreement

  with all the instructions or was an inadvertent failure to object to

  the error defendant now claims.” Id. at ¶ 28.

¶ 51   As for the answer to the jury question, defense counsel’s

  approval is even clearer than in Phillips. After the court proposed

  “But any decision you make must be unanimous,” defense counsel

  responded, “As to the particularized time.” And the answer

  (“concerning a particular time”) addressed this concern.

¶ 52   In the end, we go no further because “[t]he doctrine of invited

  error generally precludes appellate review of alleged errors that were

  invited by a party’s affirmative conduct.” People v. Becker, 2014

  COA 36, ¶ 20.




                                    23
                           III. Conclusion

¶ 53   The judgment is affirmed.

       JUDGE NAVARRO and JUDGE KAPELKE concur.




                                   24
