     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
                                                               August 9, 2018

                               2018COA112

No. 15CA1365 Peo v Jones — Criminal Law — Jury Instructions
— Use of Physical Force, Including Deadly Physical Force
(Intruder Into A Dwelling); Affirmative Defenses — Self-Defense
— Use of Physical Force in Defense of a Person

     The defendant, charged with assaulting two occupants of a

home, alleged that he had inadvertently trespassed into the home

and asserted a self-defense defense. The prosecution requested an

instruction pursuant to Colorado’s make-my-day statute, which

gives homeowners who satisfy the statutory elements the exclusive

right to use force in a homeowner-trespasser encounter, thereby

negating a trespasser’s right to claim self-defense.

     The division holds that the trial court erred in failing to

instruct the jury that the make-my-day statute requires a

“knowingly” unlawful entry into the home. Because the jury could

have found the defendant’s entry to be mistaken or accidental, it
could have further determined that the homeowners did not have

the exclusive right to use force during the encounter. Under those

circumstances, the jury could then have considered the defendant’s

self-defense defense. But the omission of the “knowingly” element

effectively negated the defendant’s defense. And because the

evidence supported such a defense, the instructional error was not

harmless.

         The dissent concludes that the district court properly

instructed the jury on the make-my-day statute and, in any event,

any error was harmless because the defendant did not have a viable

self-defense defense.

         The division reverses the judgment and remands for a new

trial.
COLORADO COURT OF APPEALS                                         2018COA112


Court of Appeals No. 15CA1365
City and County of Denver District Court No. 14CR1481
Honorable Elizabeth A. Starrs, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gregory Ray Jones,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VI
                          Opinion by JUDGE HARRIS
                              Terry, J., concurs
                            Casebolt*, J., dissents

                          Announced August 9, 2018


Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Michael J. Sheehan, Centennial, 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. 2017
¶1    Gregory Ray Jones was convicted of assault after he entered

 an apartment occupied by four young men and a physical

 altercation ensued.

¶2    At trial, he argued that he had mistakenly entered the

 apartment and had used force against the homeowners only in self-

 defense. Finding there was some evidence to support Jones’s

 theory of defense, the court gave a self-defense instruction,

 explaining that a person is entitled to use force to defend himself

 against any unlawful use of force.

¶3    But the court also instructed the jury that, under Colorado’s

 “make-my-day” statute, a homeowner has the right to use any

 degree of physical force against a person who makes an “unlawful

 entry” into the home. In other words, where the make-my-day

 statute applies, the homeowner’s use of force is necessarily lawful

 and therefore a trespasser has no right to use self-defense.

¶4    On appeal, Jones argues that the make-my-day instruction

 was overly broad. He says the trial court erred in failing to instruct

 the jury that only a “knowingly” unlawful entry, rather than a

 mistaken entry, triggers the statute. He contends that the court’s

 error allowed the jury to determine that even a mistaken entry gave

                                   1
 the homeowners the exclusive right to use force during the

 altercation which, in turn, prevented the jury from properly

 considering his claim of self-defense.

¶5    We agree and, because we conclude that the error was not

 harmless, we reverse Jones’s conviction and remand for a new trial.

                           I.   Background

¶6    Late one night, in March 2014, Jones opened the unlocked

 door of an apartment located in a large, gated apartment complex.

 He turned on the hall light and walked into one of the bedrooms.

¶7    The apartment was occupied by two brothers, Daniel and

 Ruben Peacemaker, and the brothers’ two cousins (the

 homeowners). Jones and the homeowners had never met each

 other, and the homeowners all characterized Jones’s entry into the

 apartment as a “completely random” occurrence.

¶8    It turned out that Jones’s cousin lived in an apartment at the

 complex. Sometime in the previous year, the cousin had moved to a

 different apartment in the same complex. According to the

 testimony of various witnesses, the apartment complex was laid out

 in a confusing way: the five buildings all looked alike, and neither

 the buildings nor the apartments were numbered sequentially. One

                                   2
  of the police officers who responded to the scene got lost looking for

  the homeowners’ apartment. He testified that the complex was

  “really confusing” because the “numbers are labeled really odd,”

  and that a person would “really have to spend a lot of time in that

  complex so that [he] would remember which building is which.”

¶9     Jones had visited his cousin at the complex on multiple

  occasions, sometimes late at night. But on that night in March

  2014, Jones had been drinking. His wife estimated that the couple

  started drinking at 6:00 that evening and that Jones drank about

  five glasses of brandy before she went to bed. When Jones woke

  her up at around 2:00 a.m. to tell her a joke, she thought he was

  drunk.

¶ 10   About an hour later, after parking his car at roughly the

  midpoint between his cousin’s former and current apartments,

  Jones walked into the homeowners’ apartment.

¶ 11   One of the occupants, a cousin, was sleeping on the couch.

  He heard Jones come in and turn on the light, but he assumed —

  because the person who had entered acted as though he “belonged

  there” and was not “somebody who was busting into the place” —



                                    3
  that it was one of the Peacemaker brothers coming home late from

  work.

¶ 12   Jones walked past the cousin on the couch and through the

  open bedroom door where Daniel Peacemaker was sleeping.

  According to Daniel’s testimony, he woke up to find Jones on top of

  him, punching him repeatedly in the head. Daniel yelled, then

  rolled out of bed, and both men fell to the floor, where Jones

  continued to punch Daniel.

¶ 13   The cousin on the couch heard Daniel yell and ran into the

  bedroom. He saw that Daniel, who was bleeding, had Jones

  “pinn[ed] against the wall,” and that the two men were punching

  each other. He ran over and punched Jones “as hard as [he] could”

  in the face.

¶ 14   The other cousin arrived in the bedroom at almost the same

  time. He started punching Jones, as many times as he could, to try

  to knock him down. The fighting between Jones and the three men

  was “really fast, really aggressive”; there were “fists flying from

  everyone.”

¶ 15   But within ten or fifteen seconds, the fight started to move out

  of the bedroom. Jones was “shuffling” with his back to the wall,

                                      4
  moving toward the hallway, while he swung at the three men. One

  cousin described it as Jones “trying to fight his way out” of the

  apartment. But the homeowners “weren’t letting him get out.”

¶ 16   Eventually, though, Jones moved into the hallway. Daniel

  grabbed Jones’s hoodie to try to prevent him from leaving, and

  Jones tripped near the front door. As he tripped, Jones dropped a

  knife on the floor. He then “slipped out the door.”

¶ 17   Daniel’s brother, Ruben, who had woken to the commotion

  just before Jones ran out of the apartment, chased Jones out the

  front door, with one of the cousins in tow. Ruben and the cousin

  caught up with Jones, tackled him to the ground, and detained him

  until police arrived a few minutes later.

¶ 18   It was not until after Jones had left the apartment that Daniel

  realized he had been stabbed. He sustained injuries to his ears,

  neck, shoulders, and arm. One cousin also sustained less serious

  injuries.

¶ 19   Jones was charged with burglary, attempted first degree

  murder, and two counts of second degree assault. The jury

  convicted him of one count of second degree assault and one count



                                     5
  of third degree assault, but acquitted him of the attempted murder

  and burglary charges.

                           II.   Jury Instructions

¶ 20   At trial, Jones argued that he had entered the apartment by

  mistake. Then, when the homeowners used force against him, he

  justifiably defended himself, using the knife he carried for

  protection.1

¶ 21   The court gave two instructions relevant to the issue on

  appeal: a self-defense instruction, requested by Jones, and an

  instruction pursuant to section 18-1-704.5, C.R.S. 2017, known as

  the “make-my-day” statute, requested by the prosecution.

¶ 22   The self-defense instruction allowed the jury to acquit Jones of

  the assault charges if it found that Jones had used physical force to

  defend himself from the use of unlawful physical force by the

  homeowners. The make-my-day instruction, however, directed the

  jury that, if the statutory elements were met, the homeowners’ use


  1 Jones’s tendered theory of defense instruction read: “The
  defendant, Gregory Ray Jones, asserts that he did not knowingly
  make an unlawful entry into the apartment occupied by [the
  homeowners]. Mr. Jones asserts that after [going] inside the
  incorrect apartment, he attempted to retreat and leave the
  apartment.”
                                     6
  of force against Jones was lawful. Thus, because self-defense

  applies only where the defendant confronts unlawful force, a finding

  that the make-my-day statute applied would necessarily negate

  Jones’s defense.

¶ 23   On appeal, Jones contends that the trial court erred in

  instructing the jury that the make-my-day statute is triggered upon

  any unlawful entry into a dwelling, rather than upon a “knowingly”

  unlawful entry. The error, Jones says, meant that the jury could

  have concluded that the make-my-day statute applied even though

  Jones’s unlawful entry into the homeowners’ apartment was

  mistaken or accidental, not “knowing.” As a result, he argues, the

  erroneous make-my-day instruction negated his otherwise valid

  claim of self-defense.

                           A.   Standard of Review

¶ 24   A trial court has a duty to instruct the jury correctly on the

  applicable law. People v. Pahl, 169 P.3d 169, 183 (Colo. App. 2006).

  We review jury instructions de novo to determine whether the

  instructions as a whole accurately informed the jury of the

  governing law. People v. Lucas, 232 P.3d 155, 162 (Colo. App.

  2009).

                                      7
¶ 25   We review a preserved objection to a jury instruction for

  harmless error. People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). A

  jury instruction error is not harmless when the error permits the

  jury “to hold [the] defendant to a higher standard in establishing

  self-defense than is required by law.” People v. Ferguson, 43 P.3d

  705, 708 (Colo. App. 2001).

                B.    Affirmative Defense of Self-Defense

¶ 26   Under section 18-1-704(1), C.R.S. 2017, a person has the right

  to use force to defend himself from the use or imminent use of

  unlawful physical force by another person, and he may use a degree

  of force that he reasonably believes is necessary for that purpose.

¶ 27   That right is not absolute, however. As relevant here, an

  “initial aggressor” may use physical force to defend himself only if,

  after he withdraws from the encounter and effectively

  communicates to the other person his intent to do so, the other

  person nevertheless continues the use of unlawful physical force.

  § 18-1-704(3)(b).

¶ 28   As a general matter, though, a person’s ability to defend

  himself — even an initial aggressor’s — does not turn on whether he

  is where he has a right to be. People v. Toler, 9 P.3d 341, 352 (Colo.

                                     8
  2000). “[T]respassers do not forfeit their rights to self-defense

  merely by the act of trespassing.” Id. Thus, a trespasser may use

  physical force to defend himself where, for example, the occupant of

  the property confronts him with unlawful physical force. Id. And

  even an initial aggressor may assert self-defense, irrespective of his

  status as a trespasser, so long as he “withdraws and communicates

  as required by the statute.” Id.

¶ 29   These rules animate the principle that the touchstone of

  self-defense is a belief that one is defending against the unlawful

  use of force. People v. Silva, 987 P.2d 909, 915 (Colo. App. 1999).

  The corollary to that principle is that a person is not justified in

  using force to defend against another person’s lawful use of force.

                     C.    The Make-My-Day Statute

¶ 30   Under the make-my-day statute, any degree of physical force

  by a homeowner against certain trespassers is lawful. Thus, when

  the make-my-day statute applies, it operates as a bar to a

  trespasser’s claim of self-defense. See People v. Chirico, 2012 COA

  16, ¶ 15.

¶ 31   Section 18-1-704.5(2) provides, in relevant part, as follows:



                                     9
               Notwithstanding the provisions of section 18-
               1-704 [the self-defense statute], any occupant
               of a dwelling is justified in using any degree of
               physical force, including deadly physical force,
               against another person when that other person
               has made an unlawful entry into the dwelling,
               and when the occupant has a reasonable belief
               that such other person has committed a crime
               in the dwelling in addition to the uninvited
               entry, or is committing or intends to commit a
               crime against a person or property in addition
               to the uninvited entry, and when the occupant
               reasonably believes that such other person
               might use any physical force, no matter how
               slight, against any occupant.

¶ 32      The make-my-day statute therefore has three elements: (1) an

  unlawful entry; (2) the occupant’s reasonable belief that the person

  entering unlawfully has committed, is committing, or intends to

  commit a crime other than the entry; and (3) the occupant’s

  reasonable belief that the person entering unlawfully might use

  physical force against an occupant. See People v. Zukowski, 260

  P.3d 339, 343 (Colo. App. 2010). Only the first element is at issue

  here.

¶ 33      The “vexing question” of the proper definition of “unlawful

  entry” was resolved in People v. McNeese, 892 P.2d 304, 310 (Colo.

  1995): “[A]n unlawful entry means a knowing, criminal entry into a

  dwelling.” Though the statute does not contain the word

                                      10
  “knowingly,” the supreme court construed the statute to require a

  “culpable mental state” because, without such a requirement, the

  occupant of a dwelling could lawfully use physical force, even

  deadly physical force, against “any unanticipated or unexpected

  ‘intruder.’” Id. at 311. And surely, the court reasoned, the

  legislature did not intend the statute to justify the use of physical

  force against “persons who enter a dwelling accidentally or in good

  faith.” Id. Thus, the statutory language justifies an occupant’s use

  of physical force against another person only when the other person

  has made “an entry in knowing violation of the criminal law” — that

  is, when the other person is “knowingly engaging in criminal

  conduct.” Id. at 310-11.

¶ 34   Jury Instruction Number 29 instructed the jury that any

  occupant of a dwelling is justified in using any degree of physical

  force, including deadly physical force, against another person when

  that other person “has made an unlawful entry into the dwelling,”

  and the other elements of the make-my-day statute are established.

  Over defense counsel’s objection, the court declined to add the word

  “knowingly” to modify the “unlawful entry” element.



                                    11
       D.     McNeese’s Definition of “Unlawful Entry” is Not Limited to
                                  Immunity Cases

¶ 35        The People contend that the supreme court’s interpretation of

  the term “unlawful entry” in the make-my-day statute is limited to

  cases in which the homeowner, not the trespasser, asserts the

  affirmative defense of self-defense.2 We are not persuaded.

¶ 36        To be sure, the make-my-day statute can apply outside the

  immunity context. See People v. Hayward, 55 P.3d 803, 805 (Colo.

  App. 2002). The question is whether the supreme court intended

  “unlawful entry” to have a different meaning depending on whether

  the homeowner or the trespasser is on trial.




  2 The People raised this argument for the first time at oral
  argument. Though we ordinarily decline to consider arguments
  raised for the first time at oral argument, see People v. Becker, 2014
  COA 36, ¶ 23, we exercised our discretion to consider the argument
  and ordered the parties to file supplemental briefing on the issue of
  whether the definition of “unlawful entry” articulated in People v.
  McNeese, 892 P.2d 304, 310 (Colo. 1995), applies to this case. In
  addition to addressing the supplemental issue, Jones argued for the
  first time that we should review his challenge to the make-my-day
  instruction under a constitutional harmless error standard.
  Because we conclude that Jones prevails under a harmless error
  standard, we decline to address his new argument. The People also
  raised new, nonresponsive arguments in their supplemental
  briefing. We likewise decline to consider those arguments.
                                       12
¶ 37   We begin with the uncontroversial proposition that we are

  “bound to follow supreme court precedent.” In re Estate of

  Ramstetter, 2016 COA 81, ¶ 40 (quoting People v. Gladney, 250

  P.3d 762, 768 n.3 (Colo. App. 2010)). Our obligation takes on even

  greater import when it comes to statutory interpretation, because

  our departure from supreme court precedent amounts to an

  amendment of the statute that the legislature has not approved.

  See Kimble v. Marvel Entm’t, 576 U.S. ___, ___, 135 S. Ct. 2401,

  2410 (2015).

¶ 38   Nonetheless, the People urge us to abandon the definition of

  “unlawful entry” articulated in McNeese. They contend the McNeese

  court adopted the “knowing” element of the “unlawful entry”

  requirement to temper the statute’s grant of immunity to

  homeowners who use what would otherwise amount to excessive

  force against trespassers. See 892 P.2d at 310-11. We agree that

  this concern informed the supreme court’s statutory interpretation,

  at least in part, but the People do not explain why this concern

  would not be present in cases where an unwitting trespasser is

  prosecuted and seeks to invoke self-defense.



                                   13
¶ 39   As the McNeese court observed, the make-my-day statute “is

  similar to self-defense,” but is much broader because it justifies

  deadly physical force, not just physical force, against an intruder,

  even when the intruder threatens the slightest use of force against

  the homeowner. Id. at 309. Thus, the court construed the statute

  to shield the homeowner only when the intruder made a “knowing,

  criminal entry” into the home. Id. at 310. Otherwise, a homeowner

  could take advantage of the statute’s grant of immunity to use

  otherwise excessive force against a person who had a good faith

  belief that he was making a lawful entry. At bottom, the purpose of

  the “knowing” element is to protect the accidental trespasser. See

  id. at 310-11. (The supreme court apparently did not consider the

  second and third statutory requirements sufficient to achieve that

  goal.)

¶ 40   Given that purpose, we do not see why the knowing element

  would suddenly become irrelevant simply because the trespasser,

  not the homeowner, is ultimately prosecuted. An accidental

  trespasser who is confronted by a homeowner’s excessive force

  would be unable to lawfully use force to defend himself, giving the

  homeowner a “license” to use unnecessary force against any

                                    14
  intruder — the same scenario the supreme court intended to

  discourage in McNeese. Id. at 309; see also id. at 311 (“The

  immunity was not intended to justify use of physical force against

  persons who enter a dwelling accidentally or in good faith.”).

¶ 41   The dissent raises a different reason to disregard McNeese’s

  definition of “unlawful entry.” According to the dissent, the

  “knowing” element is tied not to the consequences of granting

  immunity, but instead to the burden of proof. In an immunity case,

  when the defendant homeowner raises the make-my-day defense at

  trial, it operates as an affirmative defense, meaning the prosecution

  bears the burden to disprove the defense beyond a reasonable

  doubt, including that the victim’s entry was knowingly unlawful.

  People v. Janes, 982 P.2d 300, 303 (Colo. 1999). But in a case

  where the trespasser is prosecuted, the dissent says, the

  prosecution’s task is to prove the elements of the charged offenses;

  it should not bear the additional burden of proving that the

  homeowner used lawful force against the trespasser under the

  make-my-day statute.

¶ 42   The issue on appeal, though, is simply whether the instruction

  should have included the “knowingly” element of the statute’s

                                    15
  unlawful entry requirement. The dissent’s argument goes to a

  different issue: Who should bear the burden of proof when the

  make-my-day statute is not raised by the homeowner as an

  affirmative defense?

¶ 43   Assuming the burden of proof were our concern, though, we

  note that the prosecution requested the make-my-day instruction in

  this case. It asked the jury to find that, at the moment Jones

  “unlawfully” entered the apartment, the homeowners were “justified

  in using any degree of physical force, including deadly physical

  force,” against him. The instruction’s effect — and, presumably, its

  purpose — was to give the homeowners the exclusive right to self-

  defense and thereby negate any such claim by Jones.

¶ 44   But regardless of whose burden it was to prove the application

  (or nonapplication) of the make-my-day statute, the jury had to be

  correctly instructed as to its elements. The dissent does not explain

  why the prosecution should be entitled to the benefit of a broader

  definition of “unlawful entry” simply because Jones was on trial, not

  the homeowners. Indeed, even if Jones should have borne the

  burden of proof (and we do not decide that issue, as it was not

  raised in the trial court or on appeal), he could not have disproved

                                   16
  the homeowner’s exclusive right to use physical force unless the

  instruction included the disputed “knowingly” element.

¶ 45        Accordingly, we see no reason to depart from McNeese’s

  definition of “unlawful entry.”

       E.    The Make-My-Day Instruction Improperly Abridged Jones’s
                             Self-Defense Defense

¶ 46        Jones presented two theories of self-defense, both of which

  started from the premise that Jones had unlawfully, but

  mistakenly, entered the homeowners’ apartment. Under the first

  theory, after the mistaken entry, Daniel was the initial aggressor,

  and Jones’s use of physical force was justified as a reasonable

  response to the homeowners’ unlawful use of force. Under the

  alternative theory, even if, after the mistaken entry, Jones was the

  initial aggressor, he tried to retreat by leaving the apartment, but

  the homeowners nevertheless used unlawful physical force to try to

  detain him, and therefore Jones’s use of physical force after his

  attempt to retreat was justified as self-defense.

¶ 47        But if the make-my-day statute applied — that is, if Jones

  made an “unlawful entry” into the apartment (and the other

  statutory criteria were met) — then he would not be justified in


                                       17
  using physical force against the homeowners. That is true because,

  under those circumstances, the homeowners’ use of physical force

  against Jones was necessarily lawful, and, as we have noted, self-

  defense is only a defense to another’s use of unlawful physical

  force.

¶ 48   The trial court, however, declined to instruct the jury that

  Jones’s entry was not an “unlawful entry” for purposes of the make-

  my-day statute unless it was made “knowingly” — meaning, with a

  “mental state [that] reflect[s] an entry in knowing violation of the

  criminal code.” McNeese, 892 P.2d at 312. A mistaken or

  accidental entry is not a knowingly unlawful entry. Id. at 312.

¶ 49   Although it is generally true that “an instruction couched in

  terms of the language of the statute is proper,” a trial court must

  tailor those instructions to the particular circumstances of the case.

  Idrogo v. People, 818 P.2d 752, 754 (Colo. 1991). Therefore, an

  instruction clarifying the meaning of “unlawful entry” is necessary

  where the evidence supports a theory that the defendant

  accidentally entered the dwelling or otherwise entered without the

  requisite mental state. Cf. Hayward, 55 P.3d at 805 (perceiving no

  error in the trial court’s decision to give the make-my-day

                                    18
  instruction in the exact terms of the statute, where the evidence

  was undisputed that the defendant’s attempted entry into his

  estranged wife’s home was knowingly unlawful).

¶ 50   Here, in the absence of any further instructions to the jury

  about the meaning of “unlawful entry,” the jury could have

  erroneously concluded that even an accidental entry into the

  apartment triggered application of the make-my-day statute. A

  mistaken entry, after all, could still be unlawful under the criminal

  code, see § 18-4-504, C.R.S. 2017 (criminal trespass in the third

  degree); see also McNeese, 892 P.2d at 316 (Scott, J., dissenting)

  (“[U]nder the majority’s definition [of unlawful entry], third degree

  criminal trespass would not fulfill the ‘unlawful entry’ requirement

  because it lacks the culpable mental state of knowingly.”), even if it

  does not count as “knowingly” unlawful for purposes of the make-

  my-day statute.

¶ 51   We therefore conclude that the court erred in failing to

  instruct the jury that the make-my-day statute’s “unlawful entry”

  element requires that the unlawful entry be made “knowingly.”

¶ 52   We further conclude that the instructional error was not

  harmless. The evidence supported Jones’s theory that he entered

                                    19
  the apartment accidentally, under the mistaken belief that he was

  entering his cousin’s apartment: Jones’s cousin lived in the

  complex, the cousin had recently moved, the complex was difficult

  to navigate, and Jones was apparently drunk. Indeed, after

  receiving an instruction on “mistaken belief of fact,”3 the jury

  acquitted Jones of first degree burglary.

¶ 53   Accordingly, the record supported a determination by the jury

  that Jones’s entry was accidental and that the make-my-day statute

  did not apply.

¶ 54   Under those circumstances, the jury would then have

  evaluated Jones’s claim of self-defense under ordinary self-defense

  principles. If the jury determined that Daniel was the initial

  aggressor, Jones was entitled to use physical force to defend himself

  from the moment Daniel used unlawful physical force against him.

  But even if the jury determined that Jones was the initial aggressor,



  3 The “mistaken belief of fact” instruction applied only to the
  burglary charge and provided, in relevant part, that “[t]he
  defendant’s conduct was legally authorized if: (1) the defendant
  engaged in prohibited conduct under a mistaken belief and (2) due
  to this mistaken belief he did not form the particular mental state
  required in order to commit the offense.” The requisite mental state
  for burglary is “knowingly.”
                                    20
  it could nonetheless have credited Jones’s theory of self-defense if it

  also determined that Jones had attempted to withdraw from the

  encounter and had effectively communicated his intent to the

  homeowners, but that the homeowners nevertheless continued the

  use of unlawful physical force against him.

¶ 55        The erroneous make-my-day instruction, though, meant that

  the jury might not have evaluated the claim of self-defense even

  though it found that Jones’s entry was not “knowingly” unlawful.

  See Ferguson, 43 P.3d at 708 (An error in the self-defense

  instruction is not harmless where “we simply cannot determine the

  manner in which the jury applied the self-defense instruction, if at

  all.”).

¶ 56        The People contend that any error was harmless because

  Jones’s acquittal on the burglary charge rendered the make-my-day

  instruction “moot.” According to the People, in acquitting Jones of

  burglary, the jury necessarily determined that Jones had not made

  a knowingly unlawful entry. Therefore, the jury would have known

  that the make-my-day instruction did not apply and would have

  considered Jones’s self-defense defense.



                                      21
¶ 57   Not true, because only the burglary instruction required a

  “knowingly” unlawful entry; the make-my-day instruction required

  only an “unlawful” entry. Thus, the jury could have determined

  that Jones did not “knowingly” enter the homeowners’ apartment

  unlawfully, for purposes of the burglary statute, because his entry

  was accidental or mistaken. But it could still have concluded, for

  purposes of the make-my-day statute, which did not include a

  “knowingly” element, that Jones committed an unlawful (though

  accidental or mistaken) entry — i.e., a third degree trespass. See §

  18-4-504.

¶ 58   The likelihood that this precise problem occurred was only

  increased by the mistaken-belief-of-fact instruction. The jury was

  told that, for purposes of the burglary charge only, if Jones engaged

  in prohibited conduct — presumably, entering the apartment —

  under a mistaken belief, and the mistaken belief precluded him

  from forming the requisite mens rea (knowingly), his conduct was

  “legally authorized.” The jury, following this instruction, could have

  concluded that Jones’s entry into the apartment was made under a

  mistaken belief that he was entering his cousin’s apartment and it

  could have acquitted Jones of burglary on that basis. But because

                                    22
  the instruction applied only to the burglary charge, the jury could

  reasonably have understood that it could not consider the

  “mistaken” or “accidental” nature of the entry for any other

  purpose, including applicability of the make-my-day statute.

¶ 59   Nor are we persuaded by the People’s alternative argument,

  that the error was harmless because the evidence overwhelmingly

  disproved Jones’s claim of self-defense.

¶ 60   True, Daniel testified that he awoke to Jones jumping on top

  of him and “throwing blows to [his] head . . . more [times than he]

  could count.” That testimony was sufficient to establish that Jones

  was the initial aggressor and not entitled to claim self-defense

  unless he met other criteria. But other evidence contradicted

  Daniel’s testimony. Despite the nearly twenty punches to his head

  and face, on cross-examination he admitted that he did not sustain

  any injuries to his face, and he agreed that photographs taken just

  after the fight and a week later showed no facial injuries. There was

  also the lack of any motive. The homeowners testified that they had

  never met Jones and that his entry into their apartment was

  “completely random.” A rational juror was not compelled to accept

  Daniel’s testimony that Jones was the initial aggressor. And if

                                    23
  Jones was not the initial aggressor, and the make-my-day statute

  did not apply, he was entitled to use physical force against Daniel

  from the inception of the incident.

¶ 61   But even if Jones was the initial aggressor, he was entitled to

  claim self-defense if he attempted to withdraw from the encounter

  and effectively communicated his intent to do so but the

  homeowners nonetheless continued any unlawful use of physical

  force. See § 18-1-704(3)(b). Each of the four occupants testified

  that very quickly after the altercation started — within ten or fifteen

  seconds, according to one of the cousins — Jones attempted to

  extricate himself from the melee and leave the apartment. But each

  of the four occupants also testified that they continued to use

  physical force against Jones in an effort to detain him. Some

  evidence, or at least reasonable inferences drawn from it, also

  supported Jones’s argument that he did not use the knife until after

  he had attempted to withdraw from the altercation and get out of

  the apartment.

¶ 62   The dissent says Jones’s efforts to extricate himself from the

  altercation were merely an “attempt to flee a crime scene.” The jury

  could have adopted that view, but we cannot say that it is the only

                                    24
  reasonable view of the evidence. See State v. Jones, 165 So. 3d 74,

  87 (La. Ct. App. 2013) (the jury is the “ultimate fact-finder” in

  determining whether the defendant acted in self-defense, including

  whether the defendant was the initial aggressor who had withdrawn

  from the conflict); see also People v. Hernandez, 3 Cal. Rptr. 3d 586,

  588 (Cal. Ct. App. 2003) (an initial aggressor may communicate

  withdrawal either by words or conduct; verbal notification is not

  required).

¶ 63   In sum, we cannot say that the evidence was so overwhelming

  that the instructional error was harmless. See Garcia, 28 P.3d at

  344 (error in jury instruction is not harmless where the language of

  the instruction creates a reasonable probability that the jury could

  have been misled in reaching a verdict).

¶ 64   Finally, to the extent the People argue that defense counsel’s

  closing argument cured the effect of an erroneous jury instruction,

  we reject that argument. True, in his closing argument, defense

  counsel told the jury that Jones’s mistaken or accidental entry into

  the apartment did not constitute a “knowing unlawful entry,” and

  therefore Jones could use physical force to defend himself from the

  homeowners’ use of physical force against him. But defense

                                    25
  counsel’s closing argument, even if a correct statement of the law,

  did not remove the taint of the court’s error. “[A]rguments by

  counsel cannot substitute for instructions by the court.” Taylor v.

  Kentucky, 436 U.S. 478, 488-89 (1978). It is the duty of the trial

  court — not counsel — to “correctly instruct the jury on all matters

  of law for which there is sufficient evidence to support giving

  instructions.” People v. Jacobson, 2017 COA 92, ¶ 10 (quoting

  People v. Carbajal, 2014 COA 60, ¶ 10). Consistent with its

  obligation, the trial court repeatedly admonished the jury to “go

  with the instructions,” reminding the jury that “if the lawyers say

  the law is something and it’s something different in the

  instructions, then you go with the instructions.”

¶ 65   The language of the make-my-day instruction improperly

  abridged Jones’s claim of self-defense and created a reasonable

  probability that the jury could have been misled in reaching a

  verdict. Accordingly, we reverse Jones’s convictions and remand for

  a new trial.

                       III.   Remaining Contentions

¶ 66   Jones also contends that the trial court erred in denying his

  motion for a mistrial after he sought to add a dismissed juror to his

                                    26
  witness list and in denying his request for the juror’s contact

  information. In light of our disposition, we do not address these

  additional claims.

                              IV.   Conclusion

¶ 67   The judgment of conviction is reversed, and the case is

  remanded to the trial court for a new trial.

       JUDGE TERRY concurs.

       JUDGE CASEBOLT dissents.




                                    27
       JUDGE CASEBOLT, dissenting.

¶ 68   For a number of reasons, I perceive no error by the trial court

  that prejudiced defendant’s substantial rights. Therefore, I

  respectfully dissent.

¶ 69   At approximately 3:30 a.m., defendant opened the unlocked

  door of an apartment, turned on the hall light, and walked into the

  bedroom of Daniel Peacemaker, who woke up to find defendant on

  top of him. Defendant struck Daniel at least seven times in the

  head, face, and shoulder areas. Testimony at trial established that

  Daniel yelled, “Who are you?” and “What are you doing here?” The

  two then rolled out of the bed and fell to the floor, where defendant

  continued to punch Daniel approximately ten more times. Daniel

  testified that he did not return defendant’s strikes until after the

  two men rolled onto the floor and defendant continued to pummel

  him there. Daniel then responded with his own blows.

¶ 70   Another resident of the apartment heard Daniel’s yells and ran

  into the bedroom. He saw that Daniel was bleeding but had

  defendant pinned against the wall, and that the two men were

  punching each other. The resident joined in the altercation and



                                    28
  punched defendant multiple times. A third resident ran into the

  bedroom and joined the fray.

¶ 71   After ten or fifteen seconds, the fight started to move out of the

  bedroom. All the occupants testified that defendant appeared to be

  attempting to get out of the apartment while the fight continued.

  After additional blows and pushing occurred, defendant dropped a

  knife (on which Daniel’s blood was found) onto the floor and slipped

  out the front door. Two of the apartment residents chased

  defendant and detained him until police arrived.

¶ 72   Meanwhile, Daniel realized he had been stabbed. He

  sustained injuries to his ears, neck, shoulders, and arm. Daniel’s

  cousin, another resident, also sustained less serious injuries.

¶ 73   The prosecution charged defendant with first degree burglary

  as to Daniel and the cousin; attempted first degree murder of

  Daniel; and two counts of second degree assault, one as to Daniel

  and one as to the cousin.

¶ 74   Defendant did not testify at trial. His theory of the case

  instruction asserted that he did not knowingly make an unlawful

  entry into the apartment and that, after he realized he was in the

  incorrect apartment, he attempted to retreat and leave.

                                    29
¶ 75   The jury convicted defendant of one count of second degree

  assault as to Daniel and one count of the lesser included offense of

  third degree assault (knowing) as to the cousin, but acquitted him

  of the attempted murder and burglary charges.

                           I.   Jury Instructions

¶ 76   During the jury instruction conference, defense counsel

  argued that there was sufficient evidence to warrant instructing the

  jury on self-defense. Over the prosecutor’s objection, the trial court

  agreed that there was at least a scintilla of evidence on the issue

  and instructed the jury, pursuant to the self-defense statute,

  section 18-1-704, C.R.S. 2017, in pertinent part, as follows:

            The defendant was legally authorized to use
            physical force upon another person without
            first retreating if:
            (1) he used that physical force in order to
            defend himself or a third person from what he
            reasonably believed to be the use or imminent
            use of unlawful physical force by that other
            person, and:
            (2) he used a degree of force which he
            reasonably believed to be necessary for that
            purpose, and
            (3) he did not, with intent to cause bodily
            injury or death to another person, provoke the
            use of unlawful physical force by that other
            person, and
            (4) he was not the initial aggressor, or, if he
            was the initial aggressor, he had withdrawn

                                    30
             from the encounter and effectively
             communicated to the other person his intent
             to do so, and the other person nevertheless
             continued or threatened the use of unlawful
             physical force.
             The prosecution has the burden to prove,
             beyond a reasonable doubt, that the
             defendant’s conduct was not legally authorized
             by this defense. In order to meet this burden
             of proof, the prosecution must disprove,
             beyond a reasonable doubt, at least one of the
             above numbered conditions.

¶ 77    Pursuant to the prosecutor’s request and over defense

  counsel’s objection, the court also instructed the jury on the

  Colorado “make-my-day” statute, section 18-1-704.5(2), C.R.S.

  2017. The instruction, which quoted that statute almost verbatim,

  stated as follows:

             Any occupant of a dwelling is justified in using
             any degree of physical force, including deadly
             physical force, against another person when
             that other person has made an unlawful entry
             into the dwelling, and when the occupant has
             a reasonable belief that such other person has
             committed a crime in the dwelling in addition
             to the uninvited entry, or is committing or
             intends to commit a crime against a person or
             property in addition to the uninvited entry,
             and when the occupant reasonably believes
             that such other person might use any physical
             force, no matter how slight, against any
             occupant.



                                    31
¶ 78   Defense counsel objected that the instruction was extraneous

  and confusing, “especially when it comes to [defendant’s] right to

  defend himself when he is attempting to retreat to the wall” and

  that “even if [defendant] was the initial aggressor he is still allowed

  to use force to defend himself when he is effectively communicating

  to these people his intent to retreat to the wall.” Counsel also

  stated that, “I don’t feel that it’s necessary or relevant to advise the

  jury on what the rights of these four occupants of the apartment

  are, because they are not on trial.” Defense counsel further argued

  that, if the court was going to give the instruction, it should insert

  the word “knowing” before the word “unlawful,” such that an

  intruder entering the dwelling had to have made a knowing

  unlawful entry before the occupants could use physical force.

  Counsel asserted:

             [T]he point I’m trying to make is that a person
             may have known that they were walking
             through a door, but they may not have
             believed that it was unlawful. So I think it’s
             important to make that distinction in there
             because without it, all it was is knowingly
             walked through a door, when really, the crux
             of the argument when it comes to burglary is
             whether [defendant] knew he was breaking the
             law when he walked through the door.


                                     32
¶ 79   Over the prosecutor’s objection, the court also determined that

  it would instruct the jury on mistake of fact as an affirmative

  defense. The court found that there was at least a scintilla of

  evidence that defendant was intoxicated on the night of the

  occurrence, that his cousin lived in the apartment complex and

  defendant had visited him there previously, and that the complex

  was extremely confusing in its configuration and numbering.

  Accordingly, it instructed the jury, in pertinent part, that

             [t]he evidence in this case has raised the
             affirmative defense of “mistaken belief of fact”
             as a defense to First Degree Burglary. The
             defendant’s conduct was legally authorized if:
             (1) the defendant engaged in prohibited
             conduct under a mistaken belief and
             (2) due to this mistaken belief he did not form
             the particular mental state required in order to
             commit the offense.

¶ 80   Without objection, the court also instructed the jury on second

  degree assault on Daniel and third degree assault (knowing) on the

  cousin. Those instructions provided, again as pertinent here, as

  follows:

             The elements of the crime of Second Degree
             Assault [Daniel] are:
             (1) that the defendant
             ...


                                    33
            (3) with intent to cause bodily injury to
            another person
            (4) caused such injury to any person, namely:
            [Daniel]
            (5) by means of a deadly weapon, namely: knife
            [and]
            (6) that the defendant’s conduct was not legally
            authorized by the affirmative defense [of self-
            defense].

            The elements of the crime of Assault in the
            Third Degree- (Knowing) [the cousin] are:
            (1) that the defendant
            ...
            (3) knowingly . . .
            (4) caused bodily injury to another person,
            namely: [the cousin], and
            (5) that the defendant’s conduct was not legally
            authorized by the affirmative defense [of self-
            defense].

             II.   Self-Defense and Make-My-Day Instruction
¶ 81   Unlike the majority, I do not perceive that the trial court erred

  in giving the make-my-day instruction without inserting the

  modifier “knowing” as requested by defendant.

                        A.   Standard of Review

¶ 82   The trial court has a duty to instruct the jury on all matters of

  law. People v. Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009).

  “The district court has substantial discretion in formulating the jury




                                    34
  instructions, so long as they are correct statements of the law and

  fairly and adequately cover the issues presented.” Id.

¶ 83   We review de novo whether a particular jury instruction

  correctly states the law. Day v. Johnson, 255 P.3d 1064, 1067

  (Colo. 2011). We review a trial court’s decision to give a particular

  jury instruction for an abuse of discretion. Id. We also review the

  question whether the trial court erred when it denied a defendant’s

  request for a particular instruction for an abuse of discretion. See

  People v. Marks, 2015 COA 173, ¶ 53. A trial court abuses its

  discretion if its decision is manifestly arbitrary, unreasonable, or

  unfair. Id. A court may also abuse its discretion if its decision is

  based on an erroneous understanding or application of the law.

  People v. Ortiz, 2016 COA 58, ¶ 14.

¶ 84   A trial court should not instruct a jury on abstract principles

  of law unrelated to the issues in controversy. People v. Silva, 987

  P.2d 909, 913 (Colo. App. 1999). “Although it is appropriate for the

  jury to resolve questions of fact, the court has the duty to determine

  first which issues have been raised by the evidence

  presented.” Id. at 915.



                                    35
                 B.   Applicability of People v. McNeese

¶ 85   The majority relies on People v. McNeese, 892 P.2d 304, 310

  (Colo. 1995), for the proposition that the phrase “unlawful entry” in

  section 18-1-704.5(2) must be construed to mean a “knowing”

  criminal entry into a dwelling, and the jury must be so instructed.

  While that construction of the statute makes sense when an

  occupant of a dwelling seeks immunity from prosecution for (or as

  an affirmative defense justifying) the employment of physical or

  deadly force against an intruder, the same cannot be said when the

  defendant is the intruder, as here, and seeks to justify his use of

  physical force against the occupant of a dwelling. An examination

  of the factual circumstances and rationale of McNeese reveals why.

¶ 86   In McNeese, the defendant was the occupant of a dwelling who

  was bound over for trial on attempted first degree murder and first

  degree assault charges arising out of the stabbing of Vivian Daniels,

  his roommate, and two counts of second degree murder as to

  victims John Daniels, the roommate’s estranged husband, and

  David Wessels. The defendant pleaded not guilty and filed a motion

  to dismiss, asserting that he was immune from prosecution under

  the make-my-day statute. Id. The trial court granted his motion as

                                    36
  to the second degree murder charge for the stabbing death of John

  Daniels, but denied the motion as to the remaining charges. Id.

  The prosecution appealed the grant of immunity and a division of

  this court affirmed. See People v. McNeese, 865 P.2d 881 (Colo.

  App. 1993).

¶ 87   The supreme court reversed, concluding that the General

  Assembly did not intend that the occupant of a dwelling be granted

  immunity from prosecution for a suspected unlawful entry by an

  intruder. McNeese, 892 P.2d at 308. “[Because] the occupant of a

  dwelling is granted immunity from criminal prosecution for

  homicide . . . safeguards must be imposed. Because the statute

  readily grants immunity for the taking of a life, the ‘knowingly’

  mens rea is required to carry out the principles of self-defense.” Id.

  at 309. Thus, the court ultimately concluded that the defendant

  occupant of a dwelling who seeks immunity from prosecution for

  his or her use of physical or deadly force against an intruder “must

  prove” that there was a knowing criminal entry. Id. at 310-13.

¶ 88   Hence, the court’s imposition of the “knowing” requirement is

  based on there being charges brought against an occupant of a

  dwelling, who then has the burden to prove, by a preponderance of

                                    37
  the evidence, that the intruder entered in knowing violation of the

  criminal law to obtain immunity. Id. at 308-09; see People v.

  Zukowski, 260 P.3d 339, 344 (Colo. App. 2010) (under McNeese, an

  intruder must knowingly engage in criminal conduct).

¶ 89   The factual circumstances of McNeese and the focus of the

  court’s attention were on the burden of proof to be imposed on the

  occupant, who was charged with killing an intruder, to prove the

  intruder’s state of mind on entry.

¶ 90   Here, of course, defendant was not the occupant of a dwelling

  facing a criminal charge because he employed force against an

  intruder. Instead, he was a trespassing intruder, at least as that

  term is defined under third degree criminal trespass, see § 18-4-

  504, C.R.S. 2017 (defining the crime as unlawfully entering or

  remaining in or on premises of another). This trespass offense does

  not contain a “knowing” element or any other specific mens rea.

  See also § 18-4-201(3), C.R.S. 2017 (“A person ‘enters unlawfully’ or

  ‘remains unlawfully’ in or upon premises when the person is not

  licensed, invited, or otherwise privileged to do so.”).

¶ 91   Under such circumstances, I do not perceive that the McNeese

  rationale for imposing the “knowing” requirement for unlawful entry

                                     38
  in the make-my-day statute is applicable here. See People v. Janes,

  982 P.2d 300, 302 (Colo. 1999) (stating that the McNeese court’s

  imposition of a condition requiring a homeowner defendant to prove

  by a preponderance of the evidence that the victim “knowingly made

  an unlawful entry” was interpreting the “unlawful entry” language

  “in [the] context of a defendant’s motion for pretrial statutory

  immunity”).

¶ 92   Furthermore, imposing a “knowing” requirement here would,

  contrary to McNeese’s imposition of the burden of proof on the

  occupant to show by a preponderance of the evidence that the

  intruder entered in knowing violation of the criminal law, impose on

  the prosecution the burden to prove beyond a reasonable doubt that

  the intruder entered knowingly, which essentially would turn the

  McNeese rationale on its head.

¶ 93   Thus, the trial court’s refusal to include the “knowing” element

  was, in my view, correct.

             C.   Propriety of the Make-My-Day Instruction

¶ 94   If, as I believe, McNeese does not apply here, the question is

  simply whether, as given, the make-my-day instruction was proper.



                                    39
  In my view it was, as an examination of People v. Hayward, 55 P.3d

  803 (Colo. App. 2002), reveals.

¶ 95   In Hayward, the defendant was charged with second degree

  assault on his estranged wife. The victim testified that she

  answered the door of her residence and encountered the defendant,

  who then forced his way into the residence and repeatedly stabbed

  her with a knife. In contrast, the defendant testified that the victim

  answered the door brandishing a knife, and she sustained

  accidental injuries during a struggle for control of the knife. The

  defendant admitted he was aware of the restraining order that

  prohibited him from being at the victim’s residence. Id. at 804.

¶ 96   At trial, the defendant requested and received an instruction

  on self-defense couched in the language of section 18-1-704. The

  prosecution sought to limit the applicability of self-defense by

  explaining the victim’s right to use force in her home under the

  make-my-day statute. Id. at 805. Over the defendant’s objection,

  the trial court instructed the jury concerning the victim’s right to

  defend herself in her dwelling and gave an instruction essentially

  identical to the make-my-day statute. Id. at 805.



                                    40
¶ 97   On appeal, the Hayward division perceived no error in the trial

  court’s giving of the make-my-day instruction, noting that it tracked

  the statute verbatim and provided an explanation of appropriate

  legal principles at issue in the case. Id.; see People v. Gilbert, 12

  P.3d 331, 340 (Colo. App. 2000) (the trial court may instruct the

  jury concerning a principle of law that is related to an issue in

  controversy); People v. Burke, 937 P.2d 886 (Colo. App. 1996) (jury

  instructions framed in the language of statutes are generally

  adequate and proper).

¶ 98   The Hayward division then noted that, whether the defendant

  was legally entitled to employ force in self-defense and further to

  obtain an instruction at trial concerning it were dependent on

  whether he made an unlawful entry into the dwelling. Because

  those facts were in dispute, the instruction there was properly

  given. Hayward, 55 P.3d at 805-06.

¶ 99   Here, the instruction was proper because (1) there was a

  factual dispute over whether defendant unlawfully entered the

  apartment; (2) defendant sought and received a general self-defense

  instruction; and (3) the make-my-day instruction explained that the

  victims and other occupants were entitled to employ force against

                                     41
  defendant because he was an intruder into their apartment and it

  explained a legal proposition that was raised in the case. See id. at

  805.

¶ 100    The make-my-day instruction did not, contrary to defendant’s

  further contention, unduly limit his right to assert and argue

  self-defense.

¶ 101    The court’s instructions concerning second and third degree

  assault, recited above, noted that the prosecution had to prove,

  beyond a reasonable doubt, that defendant’s conduct was not

  legally authorized by the affirmative defense of self-defense. In

  addition, defense counsel specifically argued in closing that “the

  only reasonable, the only plausible explanation for what happened

  here is that [defendant] mistakenly walked into the wrong

  apartment; and that what happened in the aftermath, it was

  necessary for him to defend himself against what he believed to be

  the threat of serious bodily injury.”

¶ 102    Counsel also argued that Daniel was the initial aggressor in

  the altercation, but, even if he was not, the evidence only proved

  defendant committed third degree assault as to Daniel and that no

  resident of the apartment testified that he saw defendant with a

                                    42
  knife until other people joined the altercation and defendant, being

  outnumbered, then employed it to defend himself. Finally, with

  regard to the make-my-day instruction, defense counsel stated:

             One thing you cannot lose sight of within the
             context of this instruction that talks about
             occupants of a dwelling being able to use force
             against a person that makes unlawful
             entries . . . [t]hat law does not prevent Mr.
             Jones from using reasonable force himself if he
             makes a mistaken entry into that apartment.
             If his entry into the apartment is a mistake, it
             is not a knowing unlawful entry into the
             apartment; and he maintains the right to
             defend himself in a situation like that.

¶ 103   Thus, defendant argued that he was entitled to use

  self-defense against the occupants and that he had to have acted

  knowing he had violated the criminal law in making an entry into

  the apartment.

¶ 104   Furthermore, the prosecutor did not argue, either in his initial

  or in his rebuttal closing argument, that defendant did not need to

  know that his conduct was criminal or that his unlawful entry into

  the apartment did not have to be performed “knowingly.” The

  prosecutor asserted that the occupants had a right to use force

  against defendant under the make-my-day instruction, but did not

  argue the instruction’s language omitting the word “knowing.”

                                    43
¶ 105   The majority perceives that the make-my-day instruction

  without the “knowing” element somehow limited defendant’s right to

  self-defense. It notes that, when the make-my-day statute applies,

  “it operates as a bar to a trespasser’s claim of self-defense” because

  the occupant’s use of physical force is lawful, not unlawful. Supra

  ¶ 30; see People v. Chirico, 2102 COA 16, ¶15; Silva, 987 P.2d at

  915 (a reasonable belief that one is defending against the use of

  unlawful force is the touchstone of self-defense).

¶ 106   But even acknowledging that this legal proposition is correct,

  the jury was not instructed about it. It was not instructed that if it

  found defendant had entered unlawfully, he then lost the right of

  self-defense or that he was not justified in using force to defend

  against the occupants’ physical force. Certainly, the make-my-day

  instruction contained no such limitation. It omitted the language

  “[n]otwithstanding the provisions of section 18-1-704” which would

  have instructed the jury that self-defense was not available if the

  provisions of the make-my-day statute were proved. As given, the

  make-my-day instruction merely explained the occupants’ right to

  employ physical force against a person who had unlawfully entered

  their apartment. Furthermore, the prosecutor did not argue that

                                    44
  defendant lost his right of self-defense if the elements of the make-

  my-day statute were proved.

¶ 107   Nor did the make-my-day instruction defeat or limit

  defendant’s theory of the case. He contended, and argued to the

  jury, that he accidentally entered the apartment and either: (1)

  Daniel was the initial aggressor and his use of force was justified as

  a reasonable response to that aggression; or (2), even if defendant

  was the initial aggressor, he tried to retreat by leaving the

  apartment, but the occupants used unlawful physical force to try to

  detain him, and, thus, his use of force after his attempt to retreat

  was justified as self-defense.

¶ 108   In addition, the jury was specifically instructed, concerning

  second and third degree assault, that it had to find that defendant

  either acted with intent to cause bodily injury (second degree

  assault) or knowingly caused bodily injury (third degree assault),

  and that even if he did, that it had to decide whether his assault

  was legally authorized by the affirmative defense of self-defense.

¶ 109   Thus, considering the jury instructions as a whole, as we

  must, see Day, 255 P.3d at 1067 (courts must examine whether the



                                    45
  instructions as a whole accurately informed the jury of the

  governing law), I perceive no reversible error here.

¶ 110   The essence of the majority’s position is that defendant was

  deprived of his full right to assert self-defense because the make-

  my-day instruction did not contain the “knowingly” modifier

  required in McNeese. But it cannot have been wrong to instruct the

  jury without the “knowing” modifier when it is clear that a

  possessor of property has the privilege to use physical force against

  an intruder even when the intruder does not enter in knowing

  violation of the criminal law. See § 18-1-705, C.R.S. 2017 (“A

  person in possession or control of any . . . premises . . . is justified

  in using reasonable and appropriate physical force upon another

  person when and to the extent that it is reasonably necessary to

  prevent or terminate what he reasonably believes to be the

  commission or attempted commission of an unlawful trespass by

  the other person.”) (emphasis added).

                           D.    Harmless Error

¶ 111   Even if an instruction is given in error, reversal is not required

  if the error can be deemed harmless. People v. Manzanares, 942

  P.2d 1235, 1241 (Colo. App. 1996). Reversal is warranted only if

                                     46
  the error affected the defendant’s substantial rights; that is, there

  must be “a reasonable probability that it contributed to the

  defendant’s conviction.” Mata-Medina v. People, 71 P.3d 973, 980

  (Colo. 2003). Stated differently, there must be a reasonable

  probability that the jury may have been misled in reaching a

  verdict. People v. Serra, 2015 COA 130, ¶56. In determining

  whether that is so, we review the entire record of the trial, People v.

  Gaffney, 769 P.2d 1081, 1088 (Colo. 1989), which includes the jury

  instructions, the evidence presented, and arguments of counsel.

  People v. Welsh, 58 P.3d 1065, 1072-73 (Colo. App. 2002), aff’d, 80

  P.3d 296 (Colo. 2003).

¶ 112   In my view, any error was harmless for a number of reasons:

           The jury instructions (1) did not instruct that defendant

             lost the right to or could not assert self-defense if the

             make-my-day statute applied; (2) allowed defendant to

             assert self-defense and be acquitted if the jury

             determined that Daniel was the initial aggressor; and (3)

             allowed defendant to assert self-defense and be acquitted

             even if he was the initial aggressor if the jury found that



                                     47
  he attempted to retreat and effectively communicated

  that attempt to the occupants.

 The mistake of fact instruction, while limited by its own

  terms to first degree burglary (a limitation defendant does

  not contest on appeal), did not preclude defendant from

  arguing that he lacked either the intent to cause injury

  (for second degree assault) or did not act knowingly in

  inflicting bodily injury (for third degree assault); thus, the

  jurors could not have understood that they were

  precluded from considering the mistaken or accidental

  entry theory. Defendant in fact made that argument to

  the jury.

 The evidence overwhelmingly disproved defendant’s

  theory of self-defense for the following reasons:

  o Defendant did not testify, but Daniel testified that he

     awoke to find defendant straddling him on the bed;

     defendant struck him approximately seven times; the

     pair then rolled to the floor and defendant struck him

     about ten additional times, but Daniel did not strike

     back until after receiving those blows on the floor; and
                          48
  Daniel had not done anything to defendant before he

  was struck. Thus, defendant was clearly the initial

  aggressor. Further, even if defendant conclusively

  proved he mistakenly entered the apartment, the

  evidence that he committed assault on Daniel with a

  knife is unrebutted.

o Defendant improperly used force as he attempted to

  withdraw from the fight. See People v. Toler, 9 P.3d

  341, 350 (Colo. 2000) (initial aggressors must retreat

  before employing physical force in self-defense).

o Defendant did not effectively communicate any intent

  to withdraw from the encounter; in fact, defendant

  said nothing at all to the apartment occupants, and

  his attempts to get away could not reasonably be

  construed as an effective communication of intent to

  withdraw as opposed to an attempt to flee a crime

  scene.

o Defendant used more force than was reasonably

  necessary by employing a knife, given that the

  occupants did not use any kind of weapon in the fight,

                         49
               even though weapons were readily available in the

               apartment.

¶ 113   Accordingly, the jury was not misled by the make-my-day

  instruction, nor was there a reasonable probability that the

  instruction contributed to defendant’s convictions for second and

  third degree assault. Therefore, I respectfully dissent.




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