     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                  May 9, 2019

                              2019COA69

No. 17CA0279, People v. Neckel — Civil Procedure — Process —
Process Servers — Execution of Public Duty; Crimes — Trespass

     A division of the court of appeals considers whether “No

Trespassing” signs render a process server a trespasser the moment

he enters a property to effectuate process. Relying in part on the

reasoning in Florida v. Jardines, 569 U.S. 1, 8 (2013), the division

concludes that a sign alone does not revoke the implied license to

approach the front door of a home. Although the implied license

may be revoked, a process server’s conduct remains statutorily

privileged to the extent that it is consistent with the laws governing

the execution of legal process. Therefore, a process server’s entry

onto a property with “No Trespassing” signs does not automatically

render him a trespasser.
     The division further rejects defendant’s contentions that the

trial court erroneously rejected his tendered jury instruction

concerning the duty to retreat as it applies to the affirmative

defense of defense of premises; and that the trial court should have

provided supplemental instructions to the jury defining “unlawful

trespass” in the context of the affirmative defense of defense of

premises.

     Accordingly, the division affirms the judgment.
COLORADO COURT OF APPEALS                                        2019COA69


Court of Appeals No. 17CA0279
Larimer County District Court No. 15CR1844
Honorable Daniel J. Kaup, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Eric Alexus Neckel,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division V
                          Opinion by JUDGE GROVE
                        Terry and J. Jones, JJ., concur

                            Announced May 9, 2019


Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Alan M. Lijewski, Alternate Defense Counsel, Longmont, Colorado, for
Defendant-Appellant
¶1    Defendant, Eric Alexus Neckel, appeals his convictions for

 felony menacing and second degree criminal tampering. He

 contends the trial court erred by not sua sponte correcting alleged

 misstatements by the victim and the prosecutor and by rejecting

 defense-tendered jury instructions. We affirm.

                          I.    Background

¶2    The People charged Neckel with felony menacing and second

 degree criminal tampering after he threatened a process server with

 a lead pipe and then jacked up the process server’s car, preventing

 him from leaving.

¶3    Neckel lives in a rural area of Larimer County. His house is

 set back approximately a quarter mile from a county road. A long

 U-shaped driveway circles behind the house and meets the road at

 two points. Neither driveway entrance is gated, and there is no

 fencing along the road. There is, however, a small “No Trespassing”

 sign nailed to a telephone pole near one entrance. Another similar

 sign is on the side of a barn behind the house.

¶4    A process server (the victim) drove to Neckel’s house one

 afternoon to serve Neckel with some papers. He parked in the

                                   1
 driveway and knocked on the door. Hearing no immediate

 response, the victim left a note with his contact information and

 turned away. As the victim was walking back toward his car,

 Neckel opened the door and asked the victim if he had “ever been

 killed.” The victim answered “no.” Neckel then asked the victim if

 he had “ever been shot.” The victim said “not yet.”1

¶5    The victim tried to tell Neckel why he was there and asked

 Neckel to confirm his identity. Rather than responding directly,

 Neckel began berating the victim, telling him that he had no right to

 be there and was trespassing, and demanding that the victim get off

 his land. When the victim asked Neckel to identify himself so that

 he could confirm service of the papers, Neckel picked up a large

 metal pipe and raised it over his head. The victim said, “[I]f you do

 that, it’s murder.” When Neckel said “it’s coming on three,” the

 victim retreated behind his car. He then told Neckel that he was

 serving him by refusal, but Neckel began circling the car with the




 1 Immediately after this exchange, the victim turned on a voice
 recorder. Audio of the remainder of the interaction was captured on
 that device, on contemporaneous 911 recordings, or both.
                                   2
 pipe. The victim kept the car between himself and Neckel, but after

 a few circuits Neckel placed a hydraulic jack under the front wheels

 of the victim’s car and lifted it off the ground.

¶6    Both men called 911 in the midst of this slow-motion chase.

 The victim reported that Neckel had threatened him with “a three

 foot piece of pipe” and had put a jack under his car, thus

 preventing him from leaving the property. Neckel called 911 four

 times. During the first call he and the 911 operator had the

 following exchange:

            Neckel: He’s on private property and I’m going
            to neutralize the threat right now.

            911 Operator: No, you can’t do that.

            Neckel: Would you like me to ahh, render him
            incompetent? Would you like me to shoot
            him?

            911 Operator: No, I want you to go inside and
            shut and lock the door and wait for a deputy.

            Neckel: That I won’t do. He’s in front of my
            house —

            911 Operator: OK —

            Neckel: — and he has no business.


                                     3
           911 Operator: OK. Are you behind on any
           payments? Why is he there?

           Neckel: It matters not. . . .

 The 911 operator repeatedly told Neckel to go inside, although it is

 not clear from the record whether he did so before the victim left.

 Nonetheless, at some point during the 911 calls, the victim’s vehicle

 was released from the jack and he left the area to meet the police.

¶7    Neckel was charged with one count of felony menacing for

 threatening the victim with the metal pipe and one count of second

 degree criminal tampering for using the jack to prevent the victim

 from leaving in his car. A jury found Neckel guilty of both counts.

                             II.   Analysis

¶8    Neckel raises three contentions on appeal. First, he argues

 that the trial court committed plain error when it failed to sua

 sponte correct four alleged misstatements by the victim and the

 prosecutor regarding the law of trespass. Second, he contends that

 the trial court erroneously rejected his tendered jury instruction

 concerning the duty to retreat as it applies to the affirmative

 defense of defense of premises. And last, he asserts that the trial

 court erroneously refused his supplemental instructions defining
                                    4
  “unlawful trespass” in the context of the affirmative defense of

  defense of premises. We address and reject each argument in turn.

  A.       The Trial Court Did Not Err by Failing to Sua Sponte Correct
       Alleged Misstatements of Law by the Victim and the Prosecutor

¶9        Neckel asserts that the trial court committed plain error when

  it failed to correct what he contends were a total of “four

  misstatements regarding the law of trespass” made by the victim

  while testifying and the prosecutor during closing arguments. We

  discern no error at all, much less plain error.

                 1.    Standard of Review and Preservation

¶ 10      The legal accuracy of the challenged statements is a question

  of law that we review de novo. See People v. Lopez, 2018 COA 119,

  ¶ 21.

¶ 11      Neckel says that he did not preserve this issue and, as a

  result, asserts that the plain error standard should apply. We only

  partially agree with his concession. Indeed, our review of the record

  reveals that defense counsel did object to the first alleged

  misstatement of law made by the victim, thereby preserving that

  statement for our review. We review any error in allowing that

  statement for harmless error — meaning we will reverse only if
                                      5
  there is a reasonable possibility that it contributed to the

  conviction. Pernell v. People, 2018 CO 13, ¶ 22.

¶ 12   On the other hand, the second alleged misstatement was made

  by defense counsel during his cross-examination of the victim —

  who merely agreed with the proposition that defense counsel posed.

  Any error associated with the victim’s answer to that question

  would be invited, see People v. Wittrein, 221 P.3d 1076, 1082 (Colo.

  2009), and is therefore unreviewable. People v. Foster, 2013 COA

  85, ¶ 36.

¶ 13   The prosecutor made the third and fourth alleged

  misstatements during closing argument. Because defense counsel

  did not object to them, we review those statements only for plain

  error. Plain error is obvious and substantial error that so

  undermined the fundamental fairness of the trial itself as to cast

  serious doubt on the reliability of the judgment of conviction.

  Hagos v. People, 2012 CO 63, ¶ 14. In the context of unpreserved

  prosecutorial misconduct claims, to rise to the level of plain error

  the misconduct must be “flagrant or glaringly or tremendously

  improper.” People v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App.

                                     6
  2005) (citation omitted). “[A]n improper statement by a prosecutor

  in closing argument rarely constitutes plain error requiring

  reversal.” People v. Douglas, 2012 COA 57, ¶ 64.

          2.    The Victim’s and the Prosecutor’s Statements

¶ 14   The victim’s first alleged misstatement occurred during his

  direct examination when the following exchange occurred:

            Q. While you’re driving up Neckel’s driveway,
            do you see a no-trespass sign?

            A. I don’t recall.

            Q. Okay. If you had seen it, would that have
            stopped you from approaching his home?

            A. No.

            Q. Why is that?

            A. Because it’s not trespass. It’s not
            considered trespass. As long as you’re
            attempting to serve somebody and you’re there
            for a legitimate reason, then you’re not
            trespassing.

            DEFENSE COUNSEL: I object to that, Judge.
            That’s a misstatement of the law.

            THE COURT: Based on his training and
            experience, that’s his testimony. You’ll have a
            chance later to ask him questions. Overruled.


                                    7
¶ 15   Defense counsel elicited the second alleged misstatement

  during his cross-examination of the victim. While asking questions

  about guidance created by the Process Servers Association of

  Colorado, defense counsel and the victim had the following

  colloquy:

              Q: Okay. So let me ask you about some of the
              tenets of that organization. They publish to
              their members that we have a right to
              approach a residence. That right ends the
              moment a resident tells us to leave their
              property; correct?

              A: That’s how I understand the law as well, yes.

¶ 16   The last two alleged misstatements occurred during the

  prosecutor’s closing argument. The first of these occurred while the

  prosecutor was addressing Neckel’s claim that he reasonably

  believed that the victim was trespassing:

              Now, defense of premise, I have to disprove
              that he was in possession or control of any
              building, realty or premise. Clearly it’s Mr.
              Neckel’s farm. He lives there. I can’t disprove
              that. Right? But number two is did he use
              reasonable and appropriate physical force
              when and to the extent it was reasonably
              necessary to prevent or terminate what he
              reasonably believed was the commission or


                                     8
             attempted commission of an unlawful
             trespass. Right?

             Now we’re back to the trespass thing. Was it
             reasonable for Mr. Neckel to believe that [the
             victim] was trespassing? Possibly. There is a
             no-trespass sign at the end of the driveway. If
             someone is to go up that driveway, that doesn’t
             mean they’re illegally trespassing
             automatically.

             It’s just a sign. It’s not the law. But did Mr.
             Neckel reasonably believe that [the victim] was
             trespassing? Possibly. But it also requires a
             reasonable and appropriate use of physical
             force to keep that person from trespassing.

¶ 17   The second statement occurred near the end of the

  prosecutor’s closing argument, when he said,

             Would it be reasonable for Mr. Neckel to
             come out wielding a pipe if there was a Girl
             Scout selling cookies on his property? That
             would be a trespass in his world. What if it
             was a high school kid trying to make money
             for the track team? Would that be reasonable?

¶ 18   Neckel maintains that these statements, taken individually

  and together, suggested to the jury “that the process server could

  not, by law, suffer liability as a trespasser, and thus the jury could

  not therefore find Mr. Neckel’s attempts to eject him reasonable.”



                                     9
  We reject this argument because both statements accurately

  reflected that the victim’s initial entry onto the property was lawful.

       3.     Neither the Victim Nor the Prosecutor Misstated the Law
            Because the Victim’s Entry Onto Neckel’s Property Was Not a
                                      Trespass

¶ 19        Neckel contends that, because there were “No Trespassing”

  signs posted near one of the driveway entrances and on an

  outbuilding near his house, the victim became a trespasser the

  moment that he drove onto Neckel’s property. He argues, however,

  that the testimony and statements described above could have

  misled the jury into believing that the victim was privileged to enter

  and remain on the property by virtue of his status as a process

  server. And indeed, that is precisely what the People argue in this

  court. They assert that under section 18-1-701, C.R.S. 2018, the

  victim was essentially immune from trespass laws so long as he was

  working to serve Neckel with papers as contemplated by the Rules

  of Civil Procedure. Although the license established by section 18-

  1-701 is not unlimited, we agree with the People that the

  statements in question accurately described the victim’s privileges

  and obligations under the circumstances of this case.

                                      10
¶ 20   We first address Neckel’s claim that his “No Trespassing”

  signage closed his property to legal visitation absent an express

  invitation. Courts have universally acknowledged, based on “the

  habits of the country,” McKee v. Gratz, 260 U.S. 127, 136 (1922), an

  “implicit license [that] typically permits the visitor to approach the

  home by the front path, knock promptly, wait briefly to be received,

  and then (absent invitation to linger longer) leave.” Florida v.

  Jardines, 569 U.S. 1, 8 (2013). And most jurisdictions — although

  not all — have held that revocation of this implied license, while

  possible, requires more than one or two out-of-the-way “No

  Trespassing” signs. See State v. Christensen, 517 S.W.3d 60, 72

  (Tenn. 2017) (acknowledging split of authority). Courts adopting

  the majority view have consistently acknowledged the importance of

  context, concluding that “No Trespassing” signs may mean different

  things to different people depending on where and how they are

  posted. As the Idaho Court of Appeals has put it,

             [while] [p]osting “No Trespassing” signs may
             indicate a desire to restrict unwanted visitors
             and announce one’s expectations of privacy[,]
             . . . such signs cannot reasonably be
             interpreted to exclude normal, legitimate

                                     11
             inquiries or visits by mail carriers, newspaper
             deliverers, census takers, neighbors, friends,
             utility workers and others who restrict their
             movements to the areas of one’s property
             normally used to approach the home.

  State v. Rigoulot, 846 P.2d 918, 923 (Idaho Ct. App. 1992). On

  rural property in particular, signs like Neckel’s are likely to be

  construed by a casual visitor not as a bar to any entry whatsoever,

  but rather as a deterrent to those “who might be tempted to leave

  the highway and use the [owner’s] driveway as an access route for

  their own purposes (e.g., hunting, camping, hiking, or the like).”

  Michel v. State, 961 P.2d 436, 438 (Alaska Ct. App. 1998). Because

  they are not talismans, “No Trespassing” signs are “not alone

  sufficient to convey to an objective officer, or member of the public,

  that he cannot go to the front door and knock.” United States v.

  Carloss, 818 F.3d 988, 995 (10th Cir. 2016).

¶ 21   We agree with those courts that hold that a sign alone does

  not provide the “clear demonstration[]” necessary to revoke “[t]he

  implicit license enjoyed by law enforcement and citizens alike to

  approach the front doors of homes.” State v. Grice, 767 S.E.2d 312,

  319 (N.C. 2015). More is needed to convey to the public that the

                                     12
  owner wants to maintain complete privacy. But Neckel employs no

  such measures on his property. While a fence line separates his

  land from at least one neighbor, there is no fence along the road,

  and no gates or other barriers block either end of the driveway. Nor

  are the two “No Trespassing” signs prominently placed. In fact, a

  visitor entering the northern driveway entrance would not see any

  sign at all before reaching the house. Given these facts, we cannot

  agree with Neckel’s assertion that the victim and the prosecutor

  misstated the law by denying that the victim was trespassing from

  the moment that he drove onto the property.

¶ 22   This is not to say, however, that, under section 18-1-701, the

  victim’s status as a process server rendered him immune from

  trespass laws.2 Section 18-1-701(1) provides that “conduct which

  would otherwise constitute an offense is justifiable and not criminal

  when it is required or authorized by a provision of law or a judicial

  decree binding in Colorado.” “Laws governing the execution of legal



  2 Because he raised it for the first time at oral argument, we decline
  to address Neckel’s assertion that section 18-1-701, C.R.S. 2018,
  establishes only an affirmative defense rather than substantive law.
  People v. Becker, 2014 COA 36, ¶ 23.
                                    13
  process” are covered by this exemption. § 18-1-701(2)(c). But the

  privilege that the statute confers is not without limits. At common

  law, for example, a process server’s authority to enter private

  property to serve legal papers ends at the door to the recipient’s

  home. See, e.g., Vanden Bogert v. May, 55 N.W.2d 115, 117-18

  (Mich. 1952); cf. People v. Lutz, 762 P.2d 715, 717 (Colo. App. 1988)

  (holding that the defendant was entitled to a defense of premises

  instruction where a police officer unlawfully forced his way into the

  defendant’s house). For much the same reason, courts commonly

  recognize that if a process server is prevented from approaching the

  front door, “the outer bounds of the actual dwelling place must be

  deemed to extend to the location at which the process server’s

  progress is arrested.” F. I. duPont, Glore Forgan & Co. v. Chen, 364

  N.E.2d 1115, 1117 (N.Y. 1977); see also Fine Homebuilders, Inc. v.

  Perrone, 911 A.2d 1149, 1153-54 (Conn. App. Ct. 2006).

¶ 23   We thus reject Neckel’s claim that comments by the victim and

  the prosecutor inaccurately suggested that the victim was not a

  trespasser. Based on both the implied license and section 18-1-

  701, the victim’s entry onto Neckel’s land to effect service was legal.

                                    14
  And while Neckel quickly revoked the implied license once he began

  interacting with the victim, we agree with the People that — to the

  extent the victim’s conduct was consistent with the laws governing

  the execution of legal process — it remained statutorily privileged

  even after Neckel revoked the implied license.3

          B.   Rejection of Defense-Tendered Jury Instructions

¶ 24   Neckel contends that the trial court reversibly erred by

  refusing jury instructions that he tendered on two issues. The first

  stated that Neckel had no duty to retreat before defending his

  premises. The second, which actually encompassed two separate

  instructions, ostensibly defined “unlawful trespass.” We conclude

  that the trial court appropriately exercised its discretion by rejecting

  these instructions.

               1.    Standard of Review and Preservation

¶ 25   The parties agree that Neckel preserved this issue by tendering

  the instructions in question to the trial court.



  3 We acknowledge that the protections of section 18-1-701(1) cease
  to apply once service is complete. But the victim can hardly be
  blamed for not immediately vacating the property while Neckel was
  chasing him with a lead pipe and rendering his vehicle inoperable.
                                    15
¶ 26   We apply a two-tier standard of review to jury instructions.

  People v. Stellabotte, 2016 COA 106, ¶ 18, aff’d, 2018 CO 66. First,

  “[w]e review jury instructions de novo to determine whether the

  instructions as a whole accurately informed the jury of the

  governing law.” People v. Jones, 2018 COA 112, ¶ 24. Second, “we

  review a trial court’s decision concerning a proposed jury

  instruction for an abuse of discretion and will not disturb the ruling

  unless it is manifestly arbitrary, unreasonable, or unfair.” People v.

  Trujillo, 2018 COA 12, ¶ 11.

¶ 27   “A trial court’s failure to provide a jury instruction after a

  defendant requests such instruction will be reviewed under the

  harmless error standard.” Brown v. People, 239 P.3d 764, 767

  (Colo. 2010). Under this standard, reversal is warranted only if the

  error affected the defendant’s substantial rights. Crim. P. 52(a).

  We will thus affirm “if there is no reasonable possibility that [the

  instructional error] contributed to the defendant’s conviction.”

  Pernell, ¶ 22. But see Mata-Medina v. People, 71 P.3d 973, 980

  (Colo. 2003) (holding that reversal is not required unless there is “a



                                     16
  reasonable probability that [the instructional error] contributed to

  the defendant’s conviction”).

       2.    The Trial Court Appropriately Declined the Tendered
                                Instructions

                      a.   “No Retreat” Instruction

¶ 28   At the jury instruction conference, Neckel’s attorney asked the

  trial court to instruct the jury on the affirmative defenses of defense

  of premises and defense of person. Relying on the pattern

  instructions for those affirmative defenses, the trial court granted

  that request.

¶ 29   The pattern instruction for the affirmative defense of defense

  of person provides in part that “[t]he defendant was legally

  authorized to use physical force upon another person without first

  retreating” if certain conditions are met. COLJI-Crim. H:11 (2018).

  The pattern instruction for physical force in defense of premises

  does not include similar “no retreat” language. COLJI-Crim. H:16

  (2018). However, consistent with the pattern instruction, the

  defense of premises instruction did state in pertinent part that

             [t]he defendant was legally authorized to use
             physical force upon another person if:

                                    17
             1. He was in possession or control of any
                building, realty, or other premises, and

             2. He used reasonable and appropriate
                physical force, when and to the extent it was
                reasonably necessary to prevent or
                terminate what he reasonably believed was
                the commission or attempted commission of
                an unlawful trespass by the other person in
                or upon the building, realty, or premises.

¶ 30   Neckel’s counsel, asserting that the “no retreat” doctrine

  applies not only to the affirmative defense of self-defense, but also

  to the affirmative defense of defense of premises, tendered an

  additional instruction: “[i]n evaluating whether the affirmative

  defenses in this case have been disproven beyond a reasonable

  doubt, you are instructed that there is no duty to retreat before one

  is allowed to employ force in the defense of a person or premises.”

  Defense counsel argued that the need for the instruction was

  particularly acute because “the 911 operator kept telling Mr.

  Neckel, just go back in your house and lock your door.” This

  direction, counsel argued, left the jury with the “impression . . . that

  there’s some kind of requirement and you should go back in your

  house before you’re allowed to defend your premises.” The trial


                                    18
  court declined the instruction, explaining that, because the concept

  of retreat is fundamentally incompatible with defense of premises,

  there was no risk that the jury would incorrectly assume that

  Neckel had a duty to retreat before taking reasonable measures to

  defend his premises against what he reasonably believed to be an

  unlawful trespass.

¶ 31   We agree with the trial court. The concept of defense of

  premises is at odds with the duty to retreat, and the pattern jury

  instruction (which the court provided), accompanied by

  straightforward logic, makes that abundantly clear. In particular,

  the instruction states that one in possession or control of a piece of

  property may use physical force to defend it “when and to the

  extent it was reasonably necessary to prevent or terminate what he

  reasonably believed was the commission or attempted commission

  of an unlawful trespass.” (Emphasis added.) But the occupant of a

  property cannot use physical force to prevent or terminate a

  trespass while at the same time retreating. To the contrary, in

  order to prevent or terminate a trespass by using physical force, the

  occupant need not retreat at all, so long he uses force “when and to

                                    19
  the extent [that] it [is] reasonably necessary” to eject the trespasser.

  In short, because “no retreat” is inherent in both the concept of

  defense of premises and in the pattern instruction that was

  provided to the jury, the trial court did not abuse its discretion in

  rejecting the additional “no retreat” instruction that Neckel’s

  counsel tendered. See People v. Tweedy, 126 P.3d 303, 307 (Colo.

  App. 2005) (holding that a court may refuse an instruction that

  states principles already encompassed elsewhere in the court’s

  instructions).

       b.      Rejection of the Instruction Defining “Unlawful Trespass”

¶ 32        Last, Neckel argues that the trial court erroneously rejected

  his tendered instructions concerning the definition of “unlawful

  trespass.” We are not persuaded.

¶ 33        The additional instructions that Neckel’s attorney asked the

  trial court to give said, “[a] person is a trespasser if they knowingly

  and unlawfully enter or remain in or upon the premises of another,”

  and,

                  [a] person “enters unlawfully” or “remains
                  unlawfully” in or upon a premises when the
                  person is not licensed, invited, or otherwise
                  privileged to do so. A person who, regardless
                                        20
             of his intent, enters or remains in or upon
             premises that are at the time open to the
             public does so with license and privilege
             unless the person defies a lawful order not to
             enter or remain, personally communicated to
             him by the owner of the premises or some
             other authorized person. A license or privilege
             to enter or remain in a building that is only
             partly open to the public is not a license to
             enter or remain in that part of the building
             that is not open to the public.

¶ 34   Neckel argues that these instructions were necessary to clarify

  the defense of premises instruction, which applies only where the

  defendant has acted “to prevent or terminate what he reasonably

  believed was the commission or attempted commission of an

  unlawful trespass.” The additional definitions in the tendered

  instructions, Neckel contends, were needed to correct the four

  alleged misstatements of law about the legality of the victim’s entry

  onto the property that we discuss above. But as we have already

  determined, all of the statements that Neckel identifies were

  accurate. Thus, because Neckel relies on the victim’s testimony

  and the prosecutor’s argument as the basis for defining “unlawful

  trespass” for the jury, we conclude that the trial court appropriately

  declined to provide any additional definition.

                                    21
                          III.   Conclusion

¶ 35   We affirm the judgment.

       JUDGE TERRY and JUDGE J. JONES concur.




                                  22
