and County of Denver District Court No. 14CR6405 Honorable
Kenneth M. Laff, Judge
Cynthia H. Coffman, Attorney General, Jillian J. Price,
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Jessica A. Pitts,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Brian Michael Koper, appeals the judgment of
conviction entered on jury verdicts finding him guilty of two
counts of felony menacing and one count of prohibited
possession of a firearm while under the influence of
intoxicating liquor. He contends that the trial court failed
to give a self-defense instruction, to which he was entitled,
on the felony menacing counts and plainly erred in allowing
the prosecutor to pose at least forty-four improper
"were they lying" type questions during
cross-examination. He also contends that the court erred in
rejecting his tendered instruction concerning the presumption
and inferences that arise when a person's blood alcohol
level is less than .05 and in precluding his expert witness
from giving testimony concerning the same. In an issue of
first impression, we conclude that defendant was entitled to
a self-defense instruction concerning the menacing charges
based on the legal doctrine of transferred intent, and we
further conclude that prosecutorial misconduct requires
reversal of the prohibited possession of a firearm
conviction. We therefore reverse and remand for a new trial
on all counts.
2 While at a bar one evening, defendant saw an acquaintance
he knew only as "Abraham" or "Abram"
along with several members of his family. Defendant said
something to Abram's sister that offended Abram. Trying
to make amends, defendant approached Abram on the bar's
patio to offer him a beer. Abram responded by punching
defendant twice in the face. Defendant then drew his firearm,
for which he had a concealed carry permit, and aimed it at
Abram. After a short standoff, defendant handed the gun to
his fiancee and the two left the bar.
3 The People charged defendant with two counts of felony
menacing under section 18-3-206(1)(a), C.R.S. 2017
(proscribing the knowing placement of or attempt to place
another person in fear of imminent serious bodily injury by
employing any threat or physical action by the use of a
deadly weapon). The first count named the alleged victim as
M.B., a security guard at the bar who had stepped between
defendant and Abram after defendant drew his weapon. The
second count named the alleged victim as B.B., another bar
patron who had been sitting on the patio at a picnic table
behind Abram. The People also charged defendant with
prohibited possession of a firearm under section
18-12-106(1)(d), C.R.S. 2017 (prohibiting "possession
[of] a firearm while [a] person is under the influence of
intoxicating liquor"). The jury found defendant guilty
4 Defendant contends that the trial court erred in rejecting
his jury instructions on the affirmative defense of
self-defense. We agree.
5 During trial, the defense tendered jury instructions
defining the elements of "defense of person,"
explaining "apparent necessity," and raising the
affirmative defense of self-defense as to the menacing
charges. The People objected to the instructions, arguing
that defendant had not acted in self-defense as to the named
victims but rather in response to Abram's actions, and no
offense concerning Abram had been charged. In response, the
defense argued that, though defendant "certainly . . .
wasn't defending himself against [M.B.] or [B.B.] . . .
he pulled the weapon in defense of an assault that had
actually occurred, and in his opinion, was ongoing. The jury
needs to know in some way, shape, or fashion, in these
instructions, that he is entitled to defend himself against
6 The trial court rejected the affirmative defense
instructions. However, it allowed the defense to incorporate
a self-defense argument in a theory of the case instruction
that read, in relevant part, that defendant "drew his
firearm and used it solely for the purposes of preventing
further assault [by Abram] and holding his assailant at
bay." In permitting that instruction, the trial court
stated, "[T]here was an element of self-defense in the
case; it was not as to the people who were allegedly
7 During closing argument, the prosecutor argued that
"nowhere in the jury instructions does the word or
concept 'self-defense' show up." He also stated
that when a person points a gun at another, whether it is in
self-defense is "immaterial" because the action
inevitably scares the person at whom the gun is pointed.
Standard of Review
8 If there is some credible evidence presented that a
defendant has acted in self-defense, "the prosecution
bears the burden of proving beyond a reasonable doubt that
the defendant did not act in self-defense, and the trial
court must instruct the jury accordingly." People v.
Pickering, 276 P.3d 553, 556 (Colo. 2011). "The
question of whether the defendant has presented 'some
credible evidence' to support each element of an
affirmative defense is a question of law," and we
therefore review the issue de novo. People v.
Oslund, 2012 COA 62, ¶ 16.
9 We review preserved instructional errors for
nonconstitutional harmless error. See Castillo v.
People, 2018 CO 62, ¶¶ 55-61 (reviewing
erroneous initial aggressor instruction for harmless error);
People v. Garcia, 28 P.3d 340, 344 (Colo. 2001).
Under that standard, we reverse only if the error
"substantially influenced the verdict or affected the
fairness of the trial proceedings." Hagos v.
People, 2012 CO 63, ¶ 12 (quoting Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986)).
10 Colorado recognizes a limited statutory right to use
physical force in self-defense. See generally §
18-1-704, C.R.S. 2017. In particular, a person may use
physical force on another person to defend himself from what
"he reasonably believes to be the use or imminent use of
unlawful physical force by that other person." §
18-1-704(1). Additionally, a person acting in self-defense
may employ "a degree of force which he reasonably
believes to be necessary" to defend himself.
11 The doctrine of transferred intent "is a legal
fiction that is used to hold a defendant criminally liable to
the full extent of his or her criminal culpability."
People v. Hunt, 2016 COA 93, ¶ 24 (quoting
State v. Fekete, 901 P.2d 708, 714 (N.M. 1995)). The
doctrine is typically invoked when an actor intends to commit
a criminal act, but "the actual result differs from the
result designed or contemplated only in that a different
person or property was injured or affected."
Id. (quoting Fekete, 901 P.2d at 714). By
way of example, if A intends to shoot B, but misses and
instead shoots and kills unintended victim C, A can be held
criminally liable for C's murder even though A did not
intend to harm C. In that scenario, A's criminal intent
to harm B "transfers" to C. See People v.
Jackson, 2018 COA 79, ¶ 89 (discussing transferred
intent in the context of determining whether attempted murder
after deliberation of one person is a lesser included offense
of the murder after deliberation of another person).
12 Thus, the doctrine of transferred intent is most
frequently used as a "sword" by the prosecution to
hold a defendant criminally liable. Nevertheless, the
doctrine can also limit a defendant's liability:
There are, of course, some situations where, though
A intentionally kills or injures B,
A is not guilty of murder or battery. Though he
kills B, . . . he may be guilty of no crime at all
(e.g., when he is privileged to kill or injure B in
self-defense, or to prevent B's commission of a
felony). Now suppose A shoots at B under
these circumstances but, missing B, hits and kills
or injures C, an innocent bystander. If A
aims at his attacker B in proper self-defense, but
hits C instead, he is not generally guilty of murder
or battery of C. Once again, he is only as guilty as
to C as he would have been had his aim been accurate
enough to have hit B.
1 Wayne R. LaFave, Substantive Criminal Law §
6.4(d) (3d ed. 2017) (footnote omitted).
13 Accordingly, several jurisdictions have embraced the
concept of "transferred intent self-defense." Under
that concept, "the doctrine of self-defense is available
to insulate one from criminal responsibility where his act,
justifiably in self-defense, inadvertently results in the
injury of an innocent bystander." People v.
Mathews, 154 Cal.Rptr. 628, 631-32 (Cal.Ct.App. 1979);
see State v. Clifton, 290 N.E.2d 921, 923 (Ohio Ct.
App. 1972); Holloman v. State, 51 P.3d 214, 221-22
(Wyo. 2002) (collecting cases); see also State v.
Bellinger, 278 P.3d 975, 989-91 (Kan.Ct.App. 2012)
(Atcheson, J., dissenting). Colorado's appellate courts
have not addressed this precise issue. But see Henwood v.
People, 54 Colo. 188, 194, 129 ...