and County of Denver District Court No. 14CR1481 Honorable
Elizabeth A. Starrs, Judge
Cynthia H. Coffman, Attorney General, Elizabeth Ford Milani,
Assistant Attorney General, Denver, Colorado, for
Michael J. Sheehan, Centennial, Colorado, for
1 Gregory Ray Jones was convicted of assault after he entered
an apartment occupied by four young men and a physical
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 the homeowners the
exclusive right to use force during the altercation which, in
turn, prevented the jury from properly considering his claim
5 We agree and, because we conclude that the error was not
harmless, we reverse Jones's conviction and remand for a
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
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"
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 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" - 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, 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
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 of third degree assault, but acquitted him of the
attempted murder and burglary charges.
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
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
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 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.
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).
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
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. 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.
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
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
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
"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
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. 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.
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,
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.
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