     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
                                                   Date, February 13, 2020

                                2020COA23

No. 15CA2076, Peo v Stone — Criminal Law — Provisions
Applicable to Offenses Generally — Intoxication


     Section 18-1-804(1), C.R.S. 2019, states that “[i]ntoxication of

the accused is not a defense to a criminal charge . . . .” This

opinion of a division of the court of appeals addresses, for the first

time in a published opinion in Colorado, the contention that this

statutory subsection is unconstitutional because it bars the

defendant from presenting evidence of voluntary intoxication to

contest his guilt in a trial involving only general intent crimes.
COLORADO COURT OF APPEALS                                         2020COA23


Court of Appeals No. 15CA2076
Douglas County District Court No. 14CR154
Honorable Paul A. King, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan Cole Stone,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division I
                      Opinion by CHIEF JUDGE BERNARD
                       Taubman and Navarro, JJ., concur

                         Announced February 13, 2020


Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    “Qui peccat ebrius, luat sobrius” means “[h]e who offends

 while drunk suffers punishment when sober.” Ballentine’s Law

 Dictionary 1043 (3d ed. 1969). This venerable Latin legal maxim is

 expressed in Colorado in section 18-1-804(1), C.R.S. 2019, which

 states that “[i]ntoxication of the accused is not a defense to a

 criminal charge . . . .”

¶2    There is an express exception to this general rule, which is

 found in section 18-1-804(3): involuntary intoxication is an

 affirmative defense to a criminal charge. As an affirmative defense,

 involuntary intoxication does not “simply challenge the existence of

 an element of the offense, but [it] seek[s] to justify or mitigate the

 entire crime, and [is] therefore [a] complete defense[].” People v.

 Miller, 113 P.3d 743, 750 (Colo. 2005).

¶3    As is pertinent to our discussion, section 18-1-804(1), which

 we will shorten to “subsection (1)” for the rest of this opinion, does

 two other things.

¶4    First, subsection (1) states that a defendant may introduce

 evidence of voluntary, self-induced intoxication to “negative the

 existence” of specific intent. § 18-1-804(1). But such evidence does

 not create an affirmative defense. Miller, 113 P.3d at 750. Rather,


                                     1
 this evidence only challenges the existence of an element of the

 crime, i.e., specific intent. See id. As a result, the introduction of

 such evidence establishes only a partial defense. See Brown v.

 People, 239 P.3d 764, 769 (Colo. 2010). “[V]oluntary intoxication is

 not a true element-negating defense because it is possible for an

 intoxicated person to form specific intent.” People v. Lara, 224 P.3d

 388, 394 n.4 (Colo. App. 2009), overruled on other grounds by

 People v. Pickering, 276 P.3d 553 (Colo. 2011).

¶5    Second, by expressing the general rule that intoxication is not

 a defense to a criminal charge, subsection (1) makes clear that

 voluntary intoxication is not a defense to general intent crimes.

 People v. Vigil, 127 P.3d 916, 930-31 (Colo. 2006). To phrase this

 concept differently, evidence of voluntary intoxication “is

 incompetent as a defense to general intent crimes,” People v. Low,

 732 P.2d 622, 628 (Colo. 1987), and “[i]t is the settled law of

 [Colorado] that evidence of self-induced intoxication is not

 admissible to negate the culpability element of ‘knowingly,’” People

 v. Aragon, 653 P.2d 715, 719 (Colo. 1982).

¶6    The rationale for barring defendants from introducing evidence

 of voluntary, self-induced intoxication to negate general intent


                                    2
 arises from a recognition that “voluntary impairment of one’s

 mental faculties with knowledge that the resulting condition is a

 source of potential danger to others” involves “moral

 blameworthiness.” Hendershott v. People, 653 P.2d 385, 396 (Colo.

 1982). Indeed, “[i]t is a matter of common knowledge that the

 excessive use of liquor or drugs impairs the perceptual, judgmental

 and volitional faculties of the user.” Id.

¶7    Subsection (1)’s distinction between specific intent and general

 intent crimes is not new. In fact, in 1906, our supreme court

 observed that the common law “uniformly held that drunkenness is

 not an excuse for crime.” Brennan v. People, 37 Colo. 256, 261, 86

 P. 79, 81 (1906). But, if the mental state for a crime was “willful,

 deliberate, and premeditated,” evidence of intoxication was “a

 material and necessary subject of consideration by the jury whether

 the accused [was] in such condition of mind by reason of

 drunkenness . . . to be capable of deliberation and premeditation.”

 Id. at 262, 86 P. at 81.

¶8    In the course of appealing a judgment of conviction,

 defendant, Ryan Cole Stone, submits that subsection (1) is

 unconstitutional. He says that it violates his due process rights


                                    3
  because it is “an evidentiary rule” that prohibited him “from

  presenting reliable and relevant evidence to contest his guilt,” and

  that it is unconstitutional as applied because it “preclude[d]” him

  from introducing evidence of voluntary intoxication where general

  intent crimes are charged.” He adds that the trial court should not

  have instructed the jury that voluntary intoxication was not a

  defense to these general intent crimes. We disagree with both

  contentions, so we affirm. (In a separate appeal, we address

  defendant’s contentions concerning a restitution order. See People

  v. Stone, 2020COA24.)

                            I.   Background

¶9     A group of firefighters found defendant wandering the streets

  and agreed to give him a ride. He asked them to drop him off at a

  “warming” station. They instead let him out at a gas station.

¶ 10   Outside the gas station, he found a parked car. Its engine was

  running, and a four-year-old boy was in the back seat.

¶ 11   Defendant got in the car and drove it away. Police officers

  located the stolen car, and they followed it. After leading them on a

  high-speed chase, defendant abandoned the car. He

  commandeered a second car, and the chase continued.


                                    4
¶ 12   The officers deployed “stop sticks” — sticks with spikes on

  them designed to puncture a car’s tires to disable it — but

  defendant swerved around them, driving onto the shoulder of the

  road. In doing so, he hit an officer with the car, causing him

  serious injuries.

¶ 13   Defendant continued driving, eventually abandoning the

  second car and hijacking a third one. His subsequent attempt to

  steal a fourth car was thwarted, so he ran off. The officers finally

  caught up with him, and they arrested him.

¶ 14   The prosecution charged him with several general intent

  crimes. See § 18-1-501(6), C.R.S. 2019 (stating that offenses using

  “knowingly” are “general intent crimes”). The prosecution also

  charged him with theft, which contained an element of specific

  intent. § 18-1-501(5) (stating that offenses using “intentionally”

  and “with intent” are “specific intent offenses”).

¶ 15   Before trial, defendant raised the defense of “voluntary

  intoxication,” and he said that he would present the testimony of

  two expert witnesses. The prosecution asked the trial court to bar

  defendant from raising the voluntary intoxication defense.




                                     5
¶ 16   At a motions hearing, defendant contended that he should be

  allowed to present “any information that tends to negate an element

  of the crime,” including evidence of voluntary intoxication. The

  prosecutor asserted that subsection (1) prohibited him from using

  voluntary intoxication as a defense to a general intent crime.

¶ 17   The trial court agreed with the prosecutor. It concluded that,

  “[i]f there are no specific intent crimes listed, then the defense is not

  entitled to present any evidence as it relates to intoxication because

  it’s simply not relevant.” After this ruling, the prosecutor asked the

  court to dismiss a count of theft, the only specific intent crime that

  the prosecution had charged. The court granted the request.

¶ 18   Defendant asked the court to reconsider its ruling barring him

  from introducing evidence that he was intoxicated at the time of the

  crimes. He argued that the ruling violated his due process rights

  for reasons that we describe in more detail below. The court denied

  this request.

¶ 19   The jury convicted defendant of attempted manslaughter, first

  degree assault, vehicular eluding, criminal mischief, six counts of

  leaving the scene of an accident, two counts of robbery, two counts

  of child abuse, and three counts of aggravated motor vehicle theft.


                                      6
       II.        Constitutionality of the Voluntary Intoxication Statute

¶ 20    Defendant contends that subsection (1) is unconstitutional

  because it (1) lightens the prosecution’s burden to prove every

  element of a crime beyond a reasonable doubt; and (2) prevents a

  defendant from presenting a complete defense. We disagree.

             A.     Standard of Review and General Legal Principles

¶ 21    Defendant’s contention requires us to interpret section 18-1-

  804. Our review is de novo. People v. Jenkins, 2013 COA 76, ¶ 12.

¶ 22    When we interpret a statute, we must determine and

  effectuate the legislature’s intent. Colo. Dep’t of Revenue v. Creager

  Mercantile Co., 2017 CO 41M, ¶ 16. “We construe the entire

  statutory scheme to give consistent, harmonious, and sensible

  effect to all [of its] parts,” and “[w]e give effect to words and phrases

  according to their plain and ordinary meaning[s].” Denver Post

  Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011). If a statute’s

  language is clear, we apply it as written. Id.

¶ 23    We also review de novo the constitutionality of a statute. Dean

  v. People, 2016 CO 14, ¶ 8. Because we presume a statute to be

  constitutional, the challenging party must prove that it is

  unconstitutional beyond a reasonable doubt. Id.


                                          7
                        B.   Montana v. Egelhoff

¶ 24   Relying on Montana v. Egelhoff, 518 U.S. 37 (1996), defendant

  asserts that subsection (1) is unconstitutional because it

  constitutes an evidentiary rule that prohibits a defendant from

  presenting relevant and exculpatory evidence. In Egelhoff, the

  prosecution charged the defendant with “deliberate homicide, a

  crime defined by Montana law as ‘purposely’ or ‘knowingly’ causing

  the death of another human being.” Id. at 40 (opinion of Scalia,

  J.)(quoting Mont. Code Ann. § 45-5-102 (1995)). Montana’s

  intoxication statute provides that “an intoxicated condition is not a

  defense to any offense and may not be taken into consideration in

  determining the existence of a mental state that is an element of the

  offense.” Mont. Code Ann. § 45-2-203 (West 2019). The court at

  the defendant’s trial allowed him to present evidence of his

  intoxication, but it instructed the jury on Montana’s intoxication

  statute. Egelhoff, 518 U.S. at 41 (opinion of Scalia, J.). The jury

  convicted the defendant of deliberate homicide. Id.

¶ 25   The Montana Supreme Court reversed the conviction. State v.

  Egelhoff, 900 P.2d 260, 265 (Mont. 1995), rev’d, 518 U.S. 37. It




                                    8
  concluded that Montana’s statutorily required instruction violated

  the due process clause because

          • the instruction lessened the burden of proof by

            precluding the defendant from “presenting arguments

            concerning the prosecution’s ‘failure of proof’ of the

            subjective mental state element required for conviction of

            a crime which includes the mental state of acting

            ‘knowingly’ or ‘purposely[,]’” id. at 266; and

          • “the defendant had a due process right to present and

            have considered by the jury all relevant evidence to rebut

            the State’s evidence on all elements of the offense

            charged[,]” id.

¶ 26   The United States Supreme Court reversed the Montana

  Supreme Court in a fractured opinion. For the purposes of our

  discussion, we focus on the four-justice plurality written by Justice

  Scalia, the opinion concurring in the judgment written by Justice

  Ginsburg, and a four-justice dissent.

¶ 27   Justice Ginsburg stood astride the rift zone between the

  plurality and the dissent, and she described their disagreement.

  She wrote that Montana’s statute was, according to the plurality, a

                                    9
  “redefinition of the mental-state element of the offense,” Egelhoff,

  518 U.S. at 57 (Ginsburg, J., concurring in the judgment), or,

  according to the dissent, a rule that “removed from the jury’s

  consideration a category of evidence relevant to determination of

  mental state where that mental state [was] an essential element of

  the offense that must be proved beyond a reasonable doubt[,]” id. at

  61 (O’Connor, J., dissenting).

¶ 28   The resolution of this disagreement, Justice Ginsburg thought,

  depended on the answer to this fundamental question: “Can a

  State, without offense to the Federal Constitution, make the

  judgment that two people are equally culpable where one commits

  an act stone cold sober, and the other engages in the same conduct

  after his voluntary intoxication has reduced his capacity for

  self-control?” Id. at 57 (Ginsburg, J., concurring in the judgment).

  In the course of answering this question “yes,” Justice Ginsburg

  decided that Montana’s statute was, as the plurality had

  characterized it, a redefinition of the mental-state element of a

  crime.

¶ 29   Rejecting the dissent’s position, Justice Ginsburg first decided

  that Montana’s statute was not an evidentiary rule. Id. It did not


                                    10
  appear among the statutes listing evidentiary rules, but among the

  statutes addressing general principles of criminal liability, such as

  duress and entrapment. Such placement “embodie[d] a legislative

  judgment regarding the circumstances under which individuals

  may be held criminally responsible for their actions.” Id.

¶ 30   She next concluded that Montana’s statute removed the issue

  of voluntary intoxication from the analysis of a defendant’s mental

  state, “thereby rendering evidence of voluntary intoxication logically

  irrelevant to proof of the requisite mental state.” Id. at 58. As a

  result, the statute did not lighten the prosecution’s burden of proof

  because “[t]he applicability of the reasonable-doubt standard . . .

  has always been dependent on how a State defines the offense that

  is charged.” Id. (quoting Patterson v. New York, 432 U.S. 197, 211

  n.12 (1977)).

¶ 31   Third, statutory redefinitions of mental states in criminal

  cases “encounter[] no constitutional shoal” because “States enjoy

  wide latitude in defining the elements of criminal offenses,

  particularly when determining ‘the extent to which moral culpability

  should be a prerequisite to conviction of a crime.’” Id. (citations

  omitted)(quoting Powell v. Texas, 392 U.S. 514, 545 (1968)(Black,


                                    11
  J., concurring)). Indeed, defining the culpable mental state “to

  eliminate the exculpatory value of voluntary intoxication does not

  offend a ‘fundamental principle of justice,’ given the lengthy

  common-law tradition, and the adherence of a significant minority

  of the States to that position today.” Id. at 59 (Ginsburg, J.,

  concurring in the judgment)(quoting id. at 43 (opinion of Scalia, J.)).

¶ 32   The reference to a “fundamental principle of justice” was a nod

  to the plurality opinion, which observed that the defendant’s

  burden for establishing a due process violation was heavy. Id. at 43

  (opinion of Scalia, J.). Because it is normally within a State’s power

  to establish the procedures for enforcing its laws, the plurality

  wrote, statutes such as Montana’s are “not subject to proscription

  under the Due Process Clause” unless they “offend[] some principle

  of justice so rooted in the traditions and conscience of our people as

  to be ranked as fundamental.’” Id. at 43 (quoting Patterson, 432

  U.S. at 201-02).

¶ 33   Continuing its analysis, the plurality described the relevant

  traditions in England and in the United States, concluding that a

  “stern rejection of inebriation as a defense” had become fixed in

  American jurisprudence. Id. at 44. The plurality also recognized


                                    12
  the emergence of the exception in some states allowing juries to

  consider whether a defendant’s inebriation negated specific intent.

  Id. at 46. But it nonetheless concluded that this trend was “of too

  recent vintage, and has not received sufficiently uniform and

  permanent allegiance, to qualify as fundamental, especially since it

  displaces a lengthy common-law tradition which remains supported

  by valid justifications today.” Id. at 51.

¶ 34   And the plurality noted that the Due Process Clause does not

  give defendants an “unfettered right” to introduce relevant evidence.

  Id. at 42 (quoting Taylor v. Illinois, 484 U.S. 400, 410 (1988)). For

  just two examples, procedural and evidentiary rules “authorize the

  exclusion of relevant evidence.” Id.

¶ 35   Returning to Justice Ginsburg’s opinion, she next pointed out

  that other states had upheld statutes like Montana’s, “not simply as

  evidentiary rules, but as legislative redefinitions of the mental-state

  element.” Id. at 59 (Ginsburg, J., concurring in the judgment).

  Circling back to the fundamental question that she raised at the

  beginning, Justice Ginsburg reasoned that, if it was within the

  power of Montana’s legislature “to instruct courts to treat a sober

  person and a voluntarily intoxicated person as equally responsible


                                     13
  for conduct — to place a voluntarily intoxicated person on a level

  with a sober person” — then Montana’s statute was “no less tenable

  under the Federal Constitution” than the laws upheld by these

  other states. Id. at 59-60.

¶ 36   Last, Justice Ginsburg concluded that the mistake made by

  the Montana Supreme Court was that it had not “undertake[n] an

  analysis in line with the principle that legislative enactments plainly

  capable of a constitutional construction ordinarily should be given

  that construction.” Id. at 60.

                             C.    Discussion

¶ 37   Defendant asserts that Justice Ginsburg’s concurrence in

  Egelhoff controls this case because our supreme court once

  characterized subsection (1) as “a rule concerning the admissibility

  of evidence of intoxication by the defendant to counter the

  prosecution’s evidence that the defendant had the requisite specific

  intent of the charged offense.” People v. Harlan, 8 P.3d 448, 471

  (Colo. 2000), overruled on other grounds by Miller, 113 P.3d 743. If

  it is such an evidentiary rule instead of a redefinition of the mental

  state element of a crime, defendant continues, Justice Ginsburg’s

  opinion concurring in the judgment, when combined with the


                                    14
  opinion of the four dissenters, renders subsection (1)

  unconstitutional. See Verigan v. People, 2018 CO 53, ¶ 31 (When

  the United States Supreme Court “issues a fractured opinion

  providing no clear holding, the holding ‘may be viewed as that

  position taken by those [Justices] who concurred in the judgments

  on the narrowest grounds.’” (ultimately quoting Marks v. United

  States, 430 U.S. 188, 193 (1977))). We disagree for the following

  reasons.

¶ 38   First, we recognize that the Montana statute in Egelhoff differs

  from subsection (1) in a meaningful way. Subsection (1) contains

  an exception for specific intent crimes; the Montana statute

  categorically prohibited the use of voluntary intoxication as a

  defense in all cases. But the categorical exclusion in the Montana

  statute, which the United States Supreme Court found to be

  constitutional, is, for the purposes of this case, the same as the

  general rule of subsection (1) that “[i]ntoxication of the accused is

  not a defense to a criminal charge[,]” section 18-1-804(1), because

  Montana’s statute and subsection (1) both bar the use of voluntary

  intoxication as a defense to general intent crimes.




                                    15
¶ 39   Second, Harlan specifically and clearly limited its statement

  that subsection (1) was an evidentiary rule to specific intent

  offenses. The opinion states that, after introducing intoxication

  evidence to counter the prosecution’s evidence that the defendant

  acted with specific intent, a defendant “nonetheless remains liable

  for a lesser included general intent offense . . . .” 8 P.3d at 471. In

  other words, while subsection (1) might create an evidentiary rule

  for specific intent offenses, our supreme court expressly made clear

  that it did not apply to general intent offenses.

¶ 40   Third, Harlan’s statement that subsection (1) is an evidentiary

  rule was not accompanied by a citation to Egelhoff, which had been

  decided about four years before Harlan was released, or to any

  other authority. As a result, we cannot read Harlan as even a tacit

  incorporation of the dissenters’ reasoning in Egelhoff.

¶ 41   Fourth, our supreme court has pulled back from its statement

  in Harlan characterizing subsection (1) as an “evidentiary rule.” In

  Brown, 239 P.3d at 769, the court did not describe subsection (1)

  as an evidentiary rule; it instead described it as a “partial defense.”

¶ 42   Fifth, it was important to Justice Ginsburg that the Montana

  statute appeared among the statutes addressing general principles


                                     16
  of criminal liability, and not among statutes setting forth

  evidentiary rules. Subsection (1) does not appear in Title 13, Article

  25 of Colorado’s Revised Statutes containing evidentiary rules or in

  the Colorado Rules of Evidence, “the expected placement of a

  provision regulating solely the admissibility of evidence at trial.”

  Egelhoff, 518 U.S. at 57 (Ginsburg, J, concurring in the judgment).

  Rather, its home is among the statutes that discuss general

  criminal liability. We find it in Article 1 of Title 18, which includes

  “Provisions Applicable to Offenses Generally.” Part 8 of that article

  includes provisions that deal with “[r]esponsibility.” As Justice

  Ginsburg observed, such placement reflects a legislative choice

  “regarding the circumstances under which individuals may be held

  criminally responsible for their actions.” Egelhoff, 518 U.S. at 57

  (Ginsburg, J., concurring in the judgment).

¶ 43   Sixth, subsection (1) does not lighten the prosecution’s burden

  to prove the culpable mental state beyond a reasonable doubt. The

  prosecution still has to prove beyond a reasonable doubt that a

  defendant acted “knowingly,” and “[t]he applicability of the

  reasonable-doubt standard . . . has always been dependent on how




                                     17
  a State defines the offense that is charged.” Id. at 58 (quoting

  Patterson v. New York, 432 U.S. at 211 n.12).

¶ 44   Seventh, the legislature has “wide latitude” to redefine

  elements of criminal conduct, especially when determining “the

  extent to which moral culpability should be a prerequisite to

  conviction of a crime.” Id. (quoting Powell, 392 U.S. at 545

  (1968)(Black, J., concurring)). In Colorado, our legislature has

  determined that “[s]elf-induced intoxication . . . by its very nature

  involves a degree of moral culpability” and has therefore limited a

  defendant’s ability to use it as a defense to general intent crimes.

  Hendershott, 653 P.2d at 396. By doing so, the legislature

  instructed courts trying cases involving general intent crimes “to

  treat a sober person and a voluntarily intoxicated person as equally

  responsible for conduct,” thus “plac[ing] a voluntarily intoxicated

  person on a level with a sober person.” Egelhoff, 518 U.S. at 59

  (Ginsburg, J., concurring in the judgment). Subsection (1) is

  therefore “no less tenable under the Federal Constitution” than the

  Montana statute that the Supreme Court upheld in Egelhoff. Id. at

  59-60.




                                    18
¶ 45          Eighth, because our legislature has exercised its authority to

  define criminal conduct, “we inquire only whether the law ‘offends

  some principle of justice so rooted in the traditions and conscience

  of our people as to be ranked as fundamental.’” Id. at 58 (quoting

  Patterson, 432 U.S. at 202). As the Egelhoff plurality pointed out,

  there is a “lengthy common-law tradition” of barring defendants

  from using voluntary intoxication as an excuse to a crime. Id. at

  44-51 (opinion of Scalia, J.).

¶ 46          Last, if we were to declare subsection (1) unconstitutional for

  the reasons that defendant presses upon us, we would make the

  same mistake that Justice Ginsburg attributed to the Montana

  Supreme Court: not “undertak[ing] an analysis in line with the

  principle that legislative enactments plainly capable of a

  constitutional construction ordinarily should be given that

  construction.” Id. at 60 (Ginsburg, J., concurring in the judgment).

       III.     As-Applied Challenge to the Voluntary Intoxication Statute

¶ 47          We now turn to the question of whether subsection (1) is

  unconstitutional as applied to defendant’s case. We conclude that

  he did not preserve this issue in the trial court, so we will not

  address it.


                                          19
¶ 48    Defendant asserts that he made the same claim in the trial

  court that he makes on appeal: Subsection (1) “could not be used to

  deprive him of his constitutional right to present a defense and to

  require the prosecution to prove, beyond a reasonable [doubt], all

  elements of the charged offense.” True, defendant made this claim

  in the trial court, but it is the claim that we already addressed in

  Part II.

¶ 49    Defendant makes a different as-applied claim on appeal:

  subsection (1) is unconstitutional as applied because it allowed the

  prosecution to present evidence of his voluntary intoxication to

  prove his guilt, but it prohibited him from offering the same

  evidence to prove his innocence. We do not consider as-applied

  challenges that are not presented to the trial court, People v.

  Thompson, 2017 COA 56, ¶ 199, because “it is imperative that the

  trial court make some factual record that indicates what causes the

  statute to be unconstitutional as applied,” People v. Veren, 140 P.3d

  131, 140 (Colo. App. 2005).




                                    20
                 IV.   Voluntary Intoxication Instruction

¶ 50   Defendant contends that the trial court erred when it

  instructed the jury that voluntary intoxication was not a defense to

  any of the charged general intent crimes. We disagree.

                          A.   Additional Facts

¶ 51   The prosecutor asked the trial court to instruct the jury that

  “intoxication is not a defense to any of the charges in this case”

  because the evidence had “raised the specter of intoxication in the

  jury’s mind.” Defendant asserted that the instruction was

  inappropriate because he had not presented any evidence of

  intoxication and did not intend to argue intoxication in closing

  argument.

¶ 52   The prosecutor pointed to two pieces of evidence concerning

  defendant’s intoxication that the jury had heard. First, defense

  counsel had asked a witness about a “baggie,” which, unbeknownst

  to the jury, contained methamphetamine residue. Second, during

  cross-examination, a police officer testified that he had thought that

  defendant, at the time of his arrest, might have been “on

  something,” so the officer asked the defendant whether he was “on

  something.”


                                    21
¶ 53   The trial court then instructed the jury that “[s]elf-induced

  intoxication is not a defense to any of the charges in this case.”

                         B.   Standard of Review

¶ 54   Trial courts have a duty to correctly instruct the jury on the

  applicable law. People v. Garcia, 28 P.3d 340, 343 (Colo. 2001). We

  review de novo whether jury instructions accurately reflect the law.

  Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).

¶ 55   We also review de novo whether sufficient evidence supports a

  requested jury instruction. People v. Rios, 2014 COA 90, ¶ 42. “We

  view the evidence in the light most favorable to the giving of the

  instruction.” Id.

        C.   Evidence for the Voluntary Intoxication Instruction

¶ 56   Defendant asserts that the voluntary intoxication instruction

  was not supported by sufficient evidence. We disagree.

¶ 57   We conclude that the following evidence supported an

  instruction that defendant’s voluntary intoxication was not a

  defense to any of the charged crimes:

          • One of the firefighters who picked defendant up on the

             morning of the crime stated that defendant was “very

             talkative, seemed like he had a lot of energy for [six]


                                    22
            o’clock in the morning . . . [and he was] moving kind of a

            lot.”

          • A police officer testified that he found a “baggie” on the

            ground outside of a vehicle defendant had stolen.

          • One of the arresting officers testified that defendant was

            “hyperventilating,” that his “[e]yes were rolled back in his

            head,” and that he was “incoherent.”

          • The same officer later testified that someone asked

            defendant, “What are you on?” The officer clarified that

            the question was intended to determine “what type of

            narcotics [were] in [defendant’s] system.” The officer said

            that defendant’s response to the question was “fear.”

¶ 58   We are not otherwise persuaded by Brown, 239 P.3d at 769-

  70; People v. Montez, 197 Colo. 126, 128, 589 P.2d 1368, 1369

  (1979); People v. Lucero, 623 P.2d 424, 428 (Colo. App. 1980); and

  People v. Brionez, 39 Colo. App. 396, 399, 570 P.2d 1296, 1299

  (1979), on which defendant relies. These cases are distinguishable

  for the following reasons:

          • In all four cases, the defendant requested the instruction,

            and the respective trial courts refused to give it.

                                    23
          • In Brown, 239 P.3d at 770, the supreme court concluded

            that there had been “insufficient evidence for a voluntary

            intoxication instruction to issue.” Likewise, in Lucero,

            623 P.2d at 428, the trial court refused to give the

            instruction because there was no evidence that the

            defendant was intoxicated during the commission of

            crime.

          • Montez, 197 Colo. at 128, 589 P.2d at 1369, and Brionez,

            39 Colo. App. at 399, 570 P.2d at 1299, involved a

            defendant’s request for an affirmative defense instruction

            because voluntary intoxication was considered an

            affirmative defense at that time.

¶ 59   People v. Quintana, 996 P.2d 146, 148 (Colo. App. 1998),

  disapproved of on other grounds by Harlan, 8 P.3d 448, also

  supports our analysis. In Quintana, the defendant, who had been

  charged with both general and specific intent crimes, did not raise

  voluntary intoxication as a defense, but, based on evidence that the

  defendant had elicited, the trial court instructed the jury that

  intoxication was not a defense to general intent crimes. The

  defendant asserted that the court’s instruction “interfered with his

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  tactical decision” to argue to the jury that he had not committed the

  acts with which he had been charged and that the instruction

  “misled” the jury into thinking that he had committed the acts. Id.

  The division concluded that the defendant’s evidence had “created

  circumstances allowing the jury to infer that he was so intoxicated

  . . . [that] he lacked the ability to form specific intent . . . .” Id. As a

  result, “[t]he instruction . . . properly advised the jury regarding the

  legal effect of intoxication on the element of intent.” Id.

¶ 60    Defendant unsuccessfully tries to distinguish Quintana,

  contending that “there was evidence of both consumption and

  intoxication” in that case, while there was no evidence of either in

  this case. We conclude, as we have pointed out above, that there

  was such evidence and that, viewing the instruction in the light

  most favorable to giving it, the evidence was sufficient. See Rios, ¶

  42.

                 D.    Impermissible Presumption of Guilt

        We now turn to defendant’s assertion that the instruction

  created an impermissible presumption that he possessed the

  requisite mental state. We disagree.




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¶ 61   At the outset, defendant maintains that the instruction was

  erroneous because it did not appear in Colorado’s Model Criminal

  Jury Instructions. COLJI-Crim. H:34 (2018) applies to “Intoxication

  (Voluntary).” The final sentence of the instruction reads, in part,

  that “you may not consider evidence of self-induced intoxication for

  purposes of deciding whether the prosecution has proved the

  elements of [insert name(s) of general intent offense(s)].” Id.

  Comment 8 states that the above sentence “curtails a jury’s

  consideration of evidence of defendant’s intoxication where the

  defendant is also charged with general intent crimes.” Id. at cmt. 8.

¶ 62   Although the wording of Instruction H:34 and the instruction

  that the trial court read to the jury in this case differ, they mean

  much the same. Telling the jury that it could not consider evidence

  of voluntary intoxication for purposes of deciding whether the

  prosecution had proved the elements of the general intent offenses

  is much the same as telling the jury that voluntary intoxication is

  not a defense to such crimes.

¶ 63   And a trial court is not required to adhere to the pattern

  instructions for us to conclude that the court appropriately

  instructed the jury. See People v. Flockhart, 2013 CO 42, ¶ 12 (“The


                                     26
  pattern instructions are not law, not authoritative, and not binding

  on this court . . . .”). In this case, the instruction on voluntary

  intoxication essentially tracked the language of subsection (1),

  People v. Galvan, 2019 COA 68, ¶ 43 (cert. granted Jan. 13, 2020),

  and it was therefore a correct statement of the law, Rios, ¶ 46.

¶ 64   But, relying on a Missouri Supreme Court case, State v. Erwin,

  848 S.W.2d 476 (Mo. 1993), defendant maintains that the

  instruction created an impermissible presumption that he

  possessed the requisite mental state. In other words, defendant

  argues that the instruction told the jury that, if he were intoxicated,

  it should presume that the prosecution had proved that he had

  acted with the requisite culpable mental state. We are not

  persuaded.

¶ 65   The instruction told the jury that it could not consider

  evidence of intoxication as a defense. Indeed, the instruction made

  no reference to the mental state element at all. The court

  instructed the jury on the culpable mental states of “knowingly”

  and “recklessly,” and it told the jury that the prosecution had the

  burden to prove the mental state elements beyond a reasonable

  doubt. In each of the elemental instructions, the jury was again


                                     27
  told that the prosecution had the burden of proving every element

  of the charged crime, including the culpable mental state, beyond a

  reasonable doubt. When we consider the jury instructions as a

  whole, we conclude that the court properly instructed the jury on

  the prosecution’s burden to prove all the elements beyond a

  reasonable doubt. See Kaufman v. People, 202 P.3d 542, 549 (Colo.

  2009).

¶ 66   Defendant also submits that the instruction given by the trial

  court was “a far cry from the instruction approved” in People v.

  Vanrees, 125 P.3d 403 (Colo. 2005). But Vanrees did not deal with

  voluntary intoxication; it dealt with whether a jury could consider

  evidence of the defendant’s “mental slowness” when deciding

  whether he had acted with general intent. Id. at 404. The issue in

  that case was whether an instruction allowed the jury to consider

  such evidence. The supreme court did not address the issue of

  whether the instruction was proper as far as voluntary intoxication

  was concerned. We therefore conclude that Vanrees does not apply

  to our analysis.

¶ 67   The judgment is affirmed.

       JUDGE TAUBMAN and JUDGE NAVARRO concur.


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