People v. Degreat

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ADVANCE SHEET HEADNOTE
October 15, 2018

2018 CO 83

No. 15SC754, People v. DeGreat—Self-defense—Aggravated Robbery—Jury
Instructions—Affirmative Defenses.

This case requires the supreme court to decide whether a division of the court of

appeals erred in concluding that the statutory right to self-defense can apply to justify a

defendant’s robbery of taxi cab services. On the unique facts presented, the court

concludes that the division correctly determined that the defendant was entitled to a

self-defense instruction as to the aggravated robbery charge, although the court’s

reasoning differs from that on which the division relied. The court concludes that the

defendant presented some credible evidence to allow a reasonable jury to conclude that

the robbery of services that he allegedly committed was committed in self-defense.

Accordingly, the court affirms the division’s judgment, albeit based on different

reasoning.
 The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203

2018 CO 83

Supreme Court Case No. 15SC754
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 10CA2481

Petitioner:

The People of the State of Colorado,

v.

Respondent:

Edward Kevin DeGreat.

Judgment Affirmed
en banc
October 15, 2018

Attorneys for Petitioner:
Cynthia H. Coffman, Attorney General
John T. Lee, Senior Assistant Attorney General
Kevin E. McReynolds, Assistant Attorney General
Denver, Colorado

Attorneys for Respondent:
Megan A. Ring, Public Defender
Jason C. Middleton, Deputy Public Defender
Denver, Colorado

JUSTICE GABRIEL delivered the Opinion of the Court.
CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT and JUSTICE
SAMOUR join in the dissent.
¶1 This case requires us to decide whether a division of the court of appeals erred in

concluding that the statutory right to self-defense can apply to justify a defendant’s

robbery of taxi cab services.1 Prosecutors charged respondent Edward Kevin DeGreat

with attempted second degree murder, first degree assault, and aggravated robbery

arising out of an incident in which DeGreat did not pay his taxi fare after an altercation

with a taxi driver. According to DeGreat, he initially intended to pay the fare but then

realized that he was a few dollars short and offered to go into his apartment to retrieve

the rest of the money. DeGreat claims that the driver then attacked him, the two began

fighting, and when DeGreat believed he saw the driver brandish a weapon, he stabbed

the driver in self-defense. Thereafter, the driver fled and DeGreat left the scene.

¶2 On these unique facts, we conclude that the division correctly determined that

DeGreat was entitled to a self-defense instruction as to the aggravated robbery charge,

although our reasoning differs from that on which the division relied. In our view,

DeGreat presented some credible evidence to allow a reasonable jury to conclude that the

robbery of services that DeGreat allegedly committed was committed in self-defense.

¶3 Accordingly, we affirm the division’s judgment, albeit based on different

reasoning.

1 Specifically, we granted certiorari to review the following issue:
Whether the court of appeals erred in concluding that the statutory right to
use self-defense can apply to justify the taking of services in a robbery.

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 I. Facts and Procedural History

¶4 One evening, DeGreat and two neighbors shared a taxi ride home. When they

arrived, the neighbors exited the cab, leaving DeGreat to pay the fare, as the passengers

had agreed he would do.

¶5 The parties disagree about what happened next. According to DeGreat, when he

attempted to pay the fare, he realized that he was four dollars short, and he told the driver

that he would go get the remaining amount from his apartment. The driver asked

DeGreat for his identification, DeGreat provided it to the driver, and the driver put it in

his pocket. The driver then made a telephone call and locked DeGreat in the taxi.

DeGreat asked the driver why he had locked the doors, and the driver responded that he

had called the police. DeGreat, who had been sitting in the front passenger seat, then

jumped into the backseat to try to get out of the locked taxi, after which the driver got

out, unlocked the doors, and allowed DeGreat to get out. DeGreat reiterated that he

would go get the money, but the driver responded that he should not leave because the

police were on their way. DeGreat again said that he was going to get the money, and he

turned around to go to his apartment.

¶6 According to DeGreat, the driver then grabbed him by the back of his shirt, and

the two men began fighting. In the course of this altercation, DeGreat felt a burning

sensation on his chin, saw blood on his shirt, and asked the driver if the driver had

stabbed him. According to DeGreat, the driver then put his hand behind his leg, and

DeGreat “saw something gleam in the [driver’s] hand.” The driver walked toward

DeGreat and said, “I told you, you not going nowhere. I’m tired of this, people running

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off with my money . . . . I want all of my money.” At that point, DeGreat decided that

he needed to protect himself. So, he took a knife from his pocket and started swinging at

the driver. DeGreat felt the knife hit the driver, after which the driver fled and DeGreat

walked away toward his apartment.

¶7 The driver recalled the events differently. He claimed that after DeGreat had

handed over his identification, he refused to get out of the car and became agitated.

DeGreat then suddenly jumped into the backseat. The driver did not know what was

going on, but he “knew it was not good in any case,” and so he got out of the taxi.

According to the driver, DeGreat then became more agitated, an altercation ensued, and

DeGreat ultimately stabbed him, causing him to flee.

¶8 The People subsequently charged DeGreat with attempted second degree murder,

first degree assault, aggravated robbery, and two crime of violence counts, and the case

proceeded to trial. At trial, DeGreat admitted that he stabbed the driver and that he did

not pay the driver for the taxi services. He asserted, however, that in doing so, he acted

in self-defense.

¶9 At the close of the evidence, the trial court instructed the jury, as pertinent here,

that self-defense is an affirmative defense to the attempted second degree murder and

first degree assault charges, as well as to a number of lesser included offenses on which

the jury was instructed. The court denied DeGreat’s request for a self-defense instruction

on the aggravated robbery charge, however, relying on People v. Beebe, 557 P.2d 840, 841

(Colo. App. 1976), in which the division had concluded that “self-defense is not an

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affirmative defense to the crime of aggravated robbery,” and People v. Laurson, 15 P.3d

791, 794 (Colo. App. 2000), which cited Beebe for the same proposition.

¶10 The jury ultimately convicted DeGreat of aggravated robbery, second degree

assault—reckless, and two of the crime of violence counts. The jury acquitted DeGreat of

the remaining counts.

¶11 DeGreat appealed, arguing, as pertinent here, that the trial court had erroneously

refused to instruct the jury on self-defense in relation to the aggravated robbery charge.

DeGreat contended that the trial court improperly relied on Beebe because, after that

decision, Colorado courts, including this court, had made clear that self-defense is an

affirmative defense to specific and general intent offenses. In particular, DeGreat relied

on this court’s decision in People v. Pickering, 276 P.3d 553, 555 (Colo. 2011), in which we

stated, “With respect to crimes requiring intent, knowledge, or willfulness, such as

second-degree murder, self-defense is an affirmative defense.” DeGreat asserted that

because aggravated robbery is a general intent crime and he had offered evidence that he

acted in self-defense, the trial court erred in refusing to instruct the jury on self-defense

as an affirmative defense to robbery.

¶12 In a unanimous, published decision, a division of the court of appeals reversed

DeGreat’s aggravated robbery and related crime of violence convictions, remanded for a

new trial on those counts, and otherwise affirmed the trial court’s judgment. People v.

DeGreat, 2015 COA 101, ¶ 57, ___ P.3d ___. As pertinent here, relying on Pickering, the

division concluded that self-defense could apply to any general intent crime, irrespective

of the type of crime at issue. Id. at ¶¶ 11–13, ___ P.3d at ___. The division thus concluded

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that because DeGreat presented evidence that his failure to pay was “entangled with his

belief” that the use of physical force was necessary to defend himself from the driver’s

use of force, DeGreat was entitled to a self-defense instruction as to the aggravated

robbery charge. Id. at ¶ 15, ___ P.3d at ___. In so ruling, the division acknowledged the

prior division’s ruling in Beebe but observed that Beebe did not analyze the self-defense

statute and was irreconcilable with Pickering. Id. at ¶ 16, ___ P.3d ___.

¶13 The People petitioned this court for certiorari review, and we granted that petition.

II. Analysis

¶14 We begin by setting forth the applicable standard of review. We then discuss the

statutes and case law related to robbery and self-defense. Finally, we apply this law to

the facts before us.

A. Standard of Review

¶15 “Trial courts have a duty to instruct the jury on all matters of law applicable to the

case.” Roberts v. People, 2017 CO 76, ¶ 18, 399 P.3d 702, 704–05. We review jury

instructions de novo to determine whether the instructions accurately informed the jury

of the governing law. Id. at ¶ 18, 399 P.3d at 705. We consider all of the instructions given

by the trial court together to determine whether they properly advised the jury. Id.

¶16 To present an affirmative defense for jury consideration, a defendant must present

some credible evidence to support the claimed defense. People v. Garcia, 113 P.3d 775,

783–84 (Colo. 2005). Whether the defendant has met this burden presents a question of

law, and we therefore review the sufficiency of the defendant’s evidence de novo. Id. at

784.

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 B. Robbery and Self-Defense

¶17 Section 18-4-301(1), C.R.S. (2018), provides that a person commits the crime of

robbery when he or she “knowingly takes anything of value from the person or presence

of another by the use of force, threats, or intimidation.” A “thing of value,” in turn, is

expressly defined to include services. See § 18-1-901(3)(r), C.R.S. (2018).

¶18 A person commits aggravated robbery if, as pertinent here, during the act of

robbery or immediate flight therefrom, the person “knowingly wounds or strikes the

person robbed or any other person with a deadly weapon.” See § 18-4-302(1)(b), C.R.S.

(2018).

¶19 When a defendant properly presents an affirmative defense, the People must

establish the guilt of the defendant beyond a reasonable doubt as to that issue and also

as to the elements of the offense. § 18-1-407(2), C.R.S. (2018). Accordingly, when a

defendant properly raises an affirmative defense, the nonapplicability of the defense

effectively becomes an element of the offense that the People must prove beyond a

reasonable doubt. See Pickering, 276 P.3d at 555.

¶20 Section 18-1-704(1), C.R.S. (2018), sets forth the pertinent elements of the

affirmative defense of self-defense. That section provides, subject to exceptions not

applicable to the question before us:

[A] person is justified in using physical force upon another person in order
to defend himself or a third person from what he reasonably believes to be
the use or imminent use of unlawful physical force by that other person,
and he may use a degree of force which he reasonably believes to be
necessary for that purpose.

Id.

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¶21 When asserting an affirmative defense, the defendant seeks to justify, excuse, or

mitigate the commission of the charged act. See Pickering, 276 P.3d at 555.

¶22 As noted above, in order to have the jury instructed on self-defense as an

affirmative defense, a defendant must present some credible evidence to support that

defense. Garcia, 113 P.3d at 783–84. The defendant’s burden in this regard is relatively

lenient. Thus, a defendant may satisfy this burden even if the only supporting evidence

is “highly improbable” testimony from the defendant himself or herself. Lybarger v.

People, 807 P.2d 570, 579 (Colo. 1991) (quoting People v. Fuller, 781 P.2d 647, 651 (Colo.

1989)).

C. Application

¶23 Here, on the unique facts presented, we conclude that DeGreat has presented some

credible evidence to support his request for an instruction on the affirmative defense of

self-defense in relation to the aggravated robbery count.

¶24 As an initial matter, we note that in concluding that DeGreat was entitled to a

self-defense instruction as to the aggravated robbery charge, the division relied on our

statement in Pickering, 276 P.3d at 555, that “[w]ith respect to crimes requiring intent,

knowledge, or willfulness, such as second-degree murder, self-defense is an affirmative

defense.” DeGreat, ¶ 13, ___ P.3d at ___. After the division issued its opinion in this case,

however, we announced our opinion in Roberts. In Roberts, ¶ 27, 399 P.3d at 706, we

clarified that Pickering did not establish a broad rule requiring trial courts to instruct the

jury that self-defense is an affirmative defense to all crimes requiring a showing of intent,

knowledge, or willfulness. We reasoned that the question before us in Pickering was

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whether the trial court had erred in instructing the jury that the prosecution did not bear

the burden of disproving beyond a reasonable doubt the defendant’s claim of self-defense

to a charge of reckless manslaughter. Id. We concluded that the trial court’s instruction

was proper and did not impermissibly shift the People’s burden of proof to the

defendant. Id. Thus, in Roberts, we observed that Pickering did not require us to

consider—and we did not consider—the range of cases in which self-defense is an

affirmative defense, although we recognized certain types of cases in which it could be,

such as second degree murder. Id.

¶25 For these reasons, although we understand and do not fault the division for

relying on the above-quoted sentence from Pickering, we conclude that the division erred

in relying substantially on that sentence to conclude that DeGreat was entitled to a

self-defense instruction as to the aggravated robbery charge at issue here.

¶26 The question nonetheless remains whether, on the facts presented, DeGreat has

satisfied his burden of introducing some credible evidence to support an instruction on

self-defense as an affirmative defense to aggravated robbery.

¶27 In addressing this question, we acknowledge that the concept of committing

robbery in self-defense may seem counterintuitive. Nonetheless, although this court does

not appear to have considered the issue, other courts have opined that under certain

circumstances, robbery may indeed be committed in self-defense. By way of example, a

number of courts have concluded that acts of robbery are justified by self-defense when

the defendant uses force to disarm an assailant and then flees with the assailant’s weapon.

See, e.g., State v. Campbell, 214 N.W.2d 195, 197 (Iowa 1974) (noting that the defendant was

9
justified in taking an assailant’s gun from him and that no crime had occurred, as long as

the defendant had used no more force than was necessary to disarm the assailant); State v.

Antwine, 607 P.2d 519, 528–29 (Kan. Ct. App. 1980) (“The taking and retention of a gun

until it is safe to return it, however, is permissible where self-defense is justified.”).

Indeed, the parties before us appear to agree that such a scenario would support an

instruction on self-defense as a defense to an aggravated robbery charge.

¶28 We also note that Colorado’s statutory scheme for robbery might make scenarios

like this more common than in some other states. In Colorado, unlike in many other

jurisdictions, a robbery (1) arguably can be committed by omission, rather than

commission (e.g., a failure to pay the victim);2 (2) may involve a taking of services, rather

than just property; and (3) can be committed upon a showing of knowing, as opposed to

intentional, conduct. See §§ 18-1-901(3)(r), 18-4-301(1) (making clear that a knowing

taking of services through the use of force can constitute robbery); see also People v.

Moseley, 566 P.2d 331, 335 (Colo. 1977) (“We therefore hold that robbery under section

18-4-301 requires no specific intent to permanently deprive the owner of the use or benefit

of his property.”).

2 Although DeGreat noted, in passing, that a legitimate question exists as to whether
inaction in failing to pay for services constitutes a “taking” for purposes of Colorado’s
robbery statute, he did not cross-petition for certiorari on that issue, and thus, the issue
is not properly before us. Accordingly, for purposes of this case, we assume without
deciding that the withholding of payment for taxi services can constitute a taking for
purposes of the robbery statute.

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¶29 Thus, unlike in some other states, in Colorado, a knowing omission amounting to

the taking of services arguably can support a robbery charge, if the other elements of that

crime are also satisfied. Compare §§ 18-1-901(3)(r), 18-4-301(1), and Moseley, 566 P.2d at

335, with Cal. Penal Code § 211 (West 2017) (“Robbery is the felonious taking of personal

property in the possession of another . . . .”) (emphasis added), State v. Bartlett, 346 P.3d

1240, 1242 (Or. Ct. App. 2015) (concluding that the failure to pay taxi cab fare could not

form the basis of a robbery charge because taxi services are not property and the offense

requires the taking of property), and Tex. Penal Code Ann. §§ 29.02, 31.01, 31.04 (West

2017) (limiting robbery to the theft of “property,” which is defined separately from

“services”).

¶30 Accordingly, in Colorado, a robbery may be found to have been committed when,

for example, a taxi cab passenger is physically attacked by the driver, uses physical force

to defend himself or herself, and immediately flees without paying. In such a scenario,

the passenger arguably would have taken the taxi services through the use of force. But

the simultaneous taking and use of force in that scenario might also have been justified

as a single act of self-defense.

¶31 Although we need not—and do not—express any opinion on the merits of

DeGreat’s defense, we conclude that he has presented at least some credible evidence to

allow a reasonable jury to conclude that this case is like the just-described hypothetical.

Specifically, DeGreat testified that (1) he used force to defend himself after the taxi driver

had attacked him; (2) the driver fled as a result of DeGreat’s justified use of force in

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self-defense; and (3) at the moment the driver fled, albeit due to DeGreat’s justifiable use

of force, DeGreat knowingly took taxi services without paying for them.

¶32 Stated otherwise, on the unique facts of this case, a reasonable jury could conclude

that DeGreat committed robbery (knowingly taking taxi services through the use of force)

but that this crime was justified because his knowing taking (failure to pay) and

simultaneous use of force (which caused the driver to flee, thereby ending the driver’s

alleged assault) were done in self-defense.

¶33 For these reasons, although based on different reasoning, we conclude that the

division correctly ruled that the trial court erred in refusing DeGreat’s proffered

instruction on self-defense as an affirmative defense to the aggravated robbery charge.3

¶34 In addition, we cannot say that the trial court’s error was harmless. “If the trial

court errs in disallowing an affirmative defense, then it improperly lowers the

prosecution’s burden of proof.” Garcia, 113 P.3d at 784. Moreover, we note that DeGreat

was acquitted of each charge on which the jury was given the opportunity to consider his

affirmative defense of self-defense, namely, attempted second degree murder, first

degree assault, and several lesser included assault offenses. Accordingly, the jury may

well have credited this defense when it had the opportunity to do so. The jury also

3To the extent that the court of appeals divisions’ rulings in Beebe and Laurson can be read
to suggest that self-defense can never be an affirmative defense to a charge of aggravated
robbery, we disapprove of those rulings.

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acquitted DeGreat of the lesser nonincluded offense of theft, which also suggests that the

jury may have credited DeGreat’s version of events.

¶35 We therefore agree that DeGreat is entitled to a new trial on his aggravated

robbery conviction and the related crime of violence charge.

¶36 In so concluding, we emphasize the narrow nature of our decision today. We

conclude only that on the unique facts presented, DeGreat has introduced some credible

evidence to allow a reasonable jury to find that he committed the alleged aggravated

robbery in self-defense. We acknowledge that the People’s evidence presents a very

different version of what occurred and that were a jury to find this evidence more credible

than DeGreat’s testimony, the evidence would not support a claim of self-defense.

Likewise, the conflicting evidence presented by the parties raises legitimate questions as

to when the alleged robbery occurred, and the determination of these questions might

well affect DeGreat’s claim of self-defense. For example, depending on which version of

the evidence one believes, DeGreat’s use of force may have occurred either before or after

the alleged robbery, thus undermining his claim that the robbery was committed in

self-defense.

¶37 We express no view on any of these issues. Rather, these are fact questions that

properly rest with the jury.

III. Conclusion

¶38 For these reasons, we conclude that on the unique facts of this case, the division

correctly concluded that the trial court erred in refusing DeGreat’s requested instruction

on self-defense as an affirmative defense to the aggravated robbery charge. Accordingly,

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we affirm the division’s judgment and remand this case with instructions that the

division return this matter to the trial court for further proceedings consistent with this

opinion.

CHIEF JUSTICE COATS dissents, and JUSTICE BOATRIGHT and JUSTICE
SAMOUR join in the dissent.

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CHIEF JUSTICE COATS, dissenting.

¶39 While I applaud the majority for identifying the intermediate appellate court’s

mistake in finding that our statutory defense of person could excuse or justify any

intentional or knowing conduct that would otherwise be a crime, I fear that by finding

the defendant entitled to a self-defense instruction in this case and by finding, in light of

its other verdicts, that the jury may well have credited such a defense, the majority itself

fails to fully appreciate the basis for our holding in People v. Pickering, 276 P.3d 553 (Colo.

2011), as well as our long line of holdings distinguishing a defense of denial, or traverse,

from one of excuse or justification. Complicating any articulation of the principles

governing the requested instruction in this case is the majority’s reluctance to commit

with regard to the elements of the crime of robbery in the first instance, instead adopting

the formula that the crime is “arguably” committed by certain acts. Quite apart from the

theory of prosecution or procedural defaults of the defense in this particular case, I

believe the question of an appropriate defense instruction upon which we have granted

certiorari is inseparable from the nature of the crime for which the defense is claimed and

a determination whether the trial court reversibly erred in declining to charge the

prosecution with disproving self-defense, over and above proving that the defendant

committed the elements of robbery. I therefore briefly offer my own understanding of

the applicable law and explain my reasons for understanding that both the court of

appeals and the majority analyses have slipped into error.

¶40 Although for different reasons, like the court of appeals the majority concludes

that the defendant was entitled to have the jury instructed that it was the burden of the

1
prosecution to disprove that he reasonably, in self-defense, took a thing of value from the

victim by force, in addition to merely proving that he knowingly took a thing of value

from the victim by force. In Pickering, we addressed the question whether the trial court

impermissibly shifted the burden of proof to the defendant by instructing that the

prosecution did not bear an additional burden to disprove the affirmative defense of

person with regard to crimes of negligence or recklessness. 276 P.3d at 557; see also

Montoya v. People, 2017 CO 40, ¶¶ 27–29, 394 P.3d 676, 687–88 (explaining in greater detail

our rationale in Pickering). In finding that it did not, we relied generally on our long-

accepted distinction between defenses that merely deny an element of the charged

offense and those that effectively admit the elements of the offense but assert a legal

justification for committing them. Pickering, 276 P.3d at 555; see, e.g., People v. Huckleberry,

768 P.2d 1235, 1238 (Colo. 1989). In addition, we relied in particular on our similarly long-

established case law with regard to the affirmative defense of person, or self-defense,

holding that because crimes of negligence or recklessness by definition involve acts that

are not reasonable, a determination that the defendant acted reasonably to defend himself

necessarily negatives an element of the offense, or “traverses” that element, and therefore

denies commission of the offense rather than asserting justification for committing it. See,

e.g., Case v. People, 774 P.2d 866, 870 (Colo. 1989); People v. Fink, 574 P.2d 81, 83 (Colo.

1978).

¶41 Because acting reasonably in self-defense nevertheless clearly provides a defense

to crimes of negligence or recklessness, just not an affirmative defense as to which the

prosecution bears a burden over and above proving beyond a reasonable doubt the

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elements of the offense itself, the legislature, as we noted in Pickering, enacted a provision

specifically allowing a defendant to present evidence of self-defense, when relevant, and

requiring an instruction on the law of self-defense, but not an affirmative defense instruction,

permitting the jury to consider evidence of self-defense in determining whether the

defendant acted recklessly, with extreme indifference, or in a criminally negligent

manner. § 18-1-704(4), C.R.S. (2018). Neither we, in Pickering, nor the legislature,

however, remotely suggested that an affirmative defense-of-person instruction was

available whenever an intentional or knowing crime is at issue, regardless of the nature

of that crime, and the majority perhaps too generously suggests that such an inference

could reasonably have been drawn from our language in Pickering prior to subsequent

clarification.

¶42 The majority finds credible evidence that the defendant robbed the victim in self-

defense by positing that the crime of robbery includes taking a “service” by force from

the person or presence of another; that refusing to pay that person for the service

voluntarily performed “arguably” amounts to taking that service from his person or

presence; and that fleeing the scene without paying the victim after stabbing him in self-

defense amounts to robbing him of a service in self-defense. Maj. op. ¶¶ 30–31. Apart

from the torture required of the English language to even derive this syllogism from the

applicable statutory definitions, I find it simply beyond comprehension that using force

against another could be understood as simultaneously being for the purpose of taking a

thing of value (other than perhaps a weapon) from his person or presence and for the

purpose of defending himself. If the defendant reasonably used force to defend himself

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then, of necessity, the reason he used that force was not to avoid paying for the service

rendered. While proof of the reasonable use of force to defend oneself might therefore

simultaneously prove that the same force was not used to take a service from the victim,

it could not entitle the defendant to an affirmative defense instruction, which would

impose upon the prosecution a burden to prove something in addition to the elements of

robbery.

¶43 In any event, the majority’s conclusion that any error in this regard was not

harmless because the jury may have credited the affirmative defense had it been properly

instructed fails to account for the jury’s findings, based on the instructions it actually was

given. The jury was clearly instructed as to the affirmative defense of person for stabbing

the victim, with regard to the charges of attempted murder and assault, and it

nevertheless returned a verdict of guilt as to reckless assault. As we reasoned in Fink,

Case, Pickering, and Montoya, among others, by finding that the defendant stabbed the

victim recklessly, the jury necessarily rejected the proposition that he stabbed the victim

reasonably, in self-defense. No act other than stabbing the victim was at issue as the basis

for the defendant’s conviction of aggravated robbery. By rejecting the assertion that the

defendant reasonably stabbed the victim, in self-defense, the jury necessarily rejected the

proposition that the defendant took a thing of value from the victim by reasonably

stabbing him in self-defense.

¶44 Rather than simply blurring the distinction between the prosecution’s burden

relative to a defense of traverse and an affirmative defense, however, I consider the

majority’s opinion today to be most problematic for what it implies about the crime of

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robbery. Unlike the majority, I do not believe the defendant’s failure to cross-appeal

precludes us from correctly defining a crime, where that definition is integral to

resolution of the question presented by the People. In this regard, the majority articulates

the elements of robbery as including a taking of services and, at least “arguably,” a taking

by omission, in the form of a failure to pay a person who voluntarily provided those

services. Maj. op. ¶ 29. But for these findings, or presumptions, the question whether

the defendant was entitled to an instruction concerning legal justification for robbing the

victim would evaporate.

¶45 First, the majority declares, without reasoning and by reference to no more than

the statutory definitions of the crime of “Robbery” and the term “Thing of value,” that a

knowing taking of services through the use of force can constitute robbery in this

jurisdiction. Maj. op. ¶ 28. Not only do I not find this proposition self-evident from the

applicable statutory definitions, but in fact, I find it quite impossible. The statute defines

robbery as “knowingly tak[ing] anything of value from the person or presence of another

by the use of force, threats, or intimidation.” § 18-4-301(1), C.R.S. (2018). The statute

relied on by the majority for finding a service to constitute “anything of value” defines

“Thing of value” to include “real property, tangible and intangible personal property,

contract rights, choses in action, services, confidential information, medical records

information, and any rights of use or enjoyment connected therewith.” § 18-1-901(3)(r),

C.R.S. (2018). That definition is, however, not limited to the crime of robbery but rather

appears as a general definition, governing all of the crimes and defenses in the criminal

code. § 18-1-901(1). While it may be reasonable to presume that the phrase “anything of

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value” contained in the definition of robbery refers to things of value as generally

defined, it is equally clear that many, if not most, of the things included in the general

definition could not possibly be the subject of robbery because they could not possibly be

taken from the person or presence of another by the use of force, threats, or intimidation.

It would be absurd, for example, to suggest that “contract rights” or “choses in action”

could be so taken. So too it would be highly unusual to suggest that a “service” can be

taken from the person or presence of another, not only because, as the majority concedes,

such a thing has never been included in the definition of robbery at law, or for that matter

in virtually any other jurisdiction, but also because such a construction requires

impermissible liberties to be taken with the English language.

¶46 While understanding a “service” to have been taken by force, threats, or

intimidation from the person or presence of another stretches the meaning of those terms

well beyond normal usage, if such a thing could possibly have been legislatively

intended, surely it could include no more at its outer extremity than threatening or

physically forcing another to provide or perform the service. In addition to its other

shortcomings already identified, the majority’s theory of error requires a construction of

the statutory language that would permit the requirement of taking a thing of value, in

this case a service, from the person or presence of another to include the subsequent

refusal to pay for a service voluntarily rendered; and furthermore to include within the

meaning of taking a service by force, the defendant’s flight from the scene without

paying, after assaulting the provider in self-defense. I for one not only find such an

interpretation of the statutory language far from self-evident, as the majority appears to

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accept, but in the absence of some statutory history or other aid to construction indicating

as much, I find it highly unconvincing.

¶47 Ironically, in fashioning this solution for the benefit of the defendant in this

particular case, I fear the majority greatly expands the crime of robbery well beyond

anything legislatively intended; and with its suggestion that a taking occurs by refusing

to pay for a thing of value voluntarily handed over, this may be true of theft as well.

When the statutory definition of robbery is properly construed, there may well have been

insufficient evidence to reach the jury in the first place. Whether that was in fact the case

and whether the defendant would have been permitted to assert such an error before this

court would clearly raise additional questions not addressed by the majority.

¶48 I therefore respectfully dissent.

I am authorized to state that JUSTICE BOATRIGHT and JUSTICE SAMOUR join

in this dissent.

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