People v. Taunia Marie Whiteaker

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
July 28, 2022

2022COA84

No. 20CA1339, People v. Whiteaker — Constitutional Law —
Fifth Amendment — Double Jeopardy — Presumption of
Innocence; Crimes — Second Degree Burglary — First Degree
Criminal Trespass; Criminal Law — Prosecution of Multiple
Counts for Same Act — Lesser Included Offenses — Jury
Instructions

A division of the court of appeals considers whether the trial

court violated the defendant’s right against double jeopardy by not

merging her conviction for first degree criminal trespass into her

conviction for second degree burglary. The division holds that,

under the express language of People v. Garcia, 940 P.2d 357, 362

(Colo. 1997), a conviction for first degree criminal trespass does not

merge into a conviction for second degree burglary. The division

acknowledges that later supreme court decisions have called

Garcia’s reasoning into question but concludes that it must adhere

to Garcia because the supreme court never expressly overruled that
decision. The special concurrence would hold that Garcia is not

directly controlling because it was explicitly decided under the prior

version of the strict elements test. Under the now-controlling

replacement test articulated in Reyna-Abarca v. People, 2017 CO

15, ¶¶ 51-53, 64, 390 P.3d 816, 824, 826, the special concurrence

would conclude that first degree criminal trespass is a lesser

included offense of second degree burglary.

The division also considers, as an issue of first impression,

whether a defendant in a criminal case is entitled to be referred to

by name, rather than as the defendant, in the jury instructions.

The division holds that the trial court did not err by declining the

defendant’s request to be referred to by name.
COLORADO COURT OF APPEALS 2022COA84

Court of Appeals No. 20CA1339
Adams County District Court No. 19CR1036
Honorable Caryn A. Datz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Taunia Marie Whiteaker,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Graham*, J., concurs
Kuhn, J., specially concurs

Announced July 28, 2022

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State
Public Defender, Denver, 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. 2021.
¶1 A court may not punish a criminal defendant twice for the

same offense: “The Double Jeopardy Clauses of the United States

and Colorado Constitutions provide that an accused shall not be

twice placed in jeopardy for the same offense.” Reyna-Abarca v.

People, 2017 CO 15, ¶ 49, 390 P.3d 816, 824 (first citing U.S.

Const. amends. V, XIV; and then citing Colo. Const. art. II, § 18).

An accused is protected “not only from facing a second trial for the

same offense but also from suffering multiple punishments for the

same offense.” Id.

¶2 The merger doctrine, like the double jeopardy doctrine,

generally seeks to “protect[] against punishing one criminal act

twice.” People v. Henderson, 810 P.2d 1058, 1060 (Colo. 1991); cf.

People v. Leske, 957 P.2d 1030, 1035 (Colo. 1998) (holding that, for

purposes of double jeopardy and merger, a defendant may be

“subjected to multiple punishments based upon the same criminal

conduct” but only if the General Assembly “specifically authorized”

the punishments). “Merger is an aspect of double jeopardy. Double

jeopardy applies to subsequent prosecutions; merger applies to the

concept of multiple punishment when multiple charges are brought

1
 in a single prosecution.” Henderson, 810 P.2d at 1060 (quoting

State v. Gammil, 769 P.2d 1299, 1300 (N.M. Ct. App. 1989)).

¶3 In this case, Taunia Marie Whiteaker contends that the trial

court violated her right against double jeopardy by not merging her

conviction for first degree criminal trespass into her conviction for

second degree burglary. The last time the Colorado Supreme Court

directly addressed this issue, it expressly held that “first degree

criminal trespass is not a lesser included offense of second degree

burglary.” People v. Garcia, 940 P.2d 357, 362 (Colo. 1997). As the

special concurrence explains in a thoroughly researched opinion,

however, later supreme court decisions have called Garcia’s

reasoning into question. See infra ¶¶ 50-60.

¶4 But the supreme court has never expressly overruled Garcia.

For this reason, we must adhere to that precedent. Because we are

bound to follow Garcia, we reject Whiteaker’s merger argument.

See People v. Tarr, 2022 COA 23, ¶ 33, 511 P.3d 672, 681

(explaining that the court of appeals is bound by, and may not

depart from, supreme court precedent).

¶5 In addition, in this case, we address the novel issue of whether

a criminal defendant is entitled to be referred to by her name, and

2
 not generically as “the defendant,” in the jury instructions. We

conclude that she is not entitled to be referred to by her name.

¶6 For the reasons explained further below, we affirm Whiteaker’s

judgment of conviction entered on jury verdicts finding her guilty of

second degree burglary, first degree criminal trespass, third degree

assault, and harassment.

I. Background Facts and Procedural History

¶7 Whiteaker lived with her husband, J.W. (husband), and

husband’s daughter A.W. (stepdaughter). After Whiteaker and

stepdaughter got into an argument, husband told stepdaughter to

go to the house of her grandmother, L.W. (grandmother). Whiteaker

could not confront stepdaughter at grandmother’s house because

Whiteaker was not welcome there.

¶8 Believing that stepdaughter was at grandmother’s house,

Whiteaker sent several text messages to grandmother, telling her to

send stepdaughter home, insulting grandmother, and threatening

to call the police. Grandmother did not respond to the text

messages. Around this time, husband arrived at grandmother’s

house.

3
¶9 Whiteaker drove to grandmother’s house and entered through

the unlocked front door. After grandmother told Whiteaker to leave,

a physical confrontation ensued between them. Husband

intervened and, while he and Whiteaker were struggling, Whiteaker

punched him “two or three” times.

¶ 10 The prosecution charged Whiteaker with second degree

burglary, first degree criminal trespass, third degree assault, and

harassment. Whiteaker presented a theory of self-defense, arguing

that grandmother attacked her immediately when she entered

grandmother’s house and that husband attacked her while she was

defending herself from grandmother.

¶ 11 A jury convicted Whiteaker of the charged offenses.

II. Analysis

¶ 12 Whiteaker contends that the trial court reversibly erred by

(1) failing to merge her conviction for first degree criminal trespass

into her conviction for second degree burglary; (2) denying defense

counsel’s request that the jury instructions refer to Whiteaker by

name; and (3) instructing the jury on the initial aggressor exception

to self-defense while rejecting the defense’s tendered supplemental

instruction.

4
 A. The Merger Doctrine

¶ 13 Whiteaker asserts that first degree criminal trespass is a lesser

included offense of second degree burglary and, thus, that the trial

court erred by failing to merge her convictions. We disagree.

¶ 14 “Whether two convictions must merge is a question of law that

we review de novo.” Thomas v. People, 2021 CO 84, ¶ 19, 500 P.3d

1095, 1101.

¶ 15 “[A] defendant may not be convicted of two offenses for the

same conduct if the lesser offense is included in the greater.”

Page v. People, 2017 CO 88, ¶ 9, 402 P.3d 468, 470; see

§ 18-1-408(1)(a), C.R.S. 2021 (providing that a defendant “may not

be convicted of more than one offense if . . . [o]ne offense is included

in the other”). The supreme court expressly held in Garcia that

“first degree criminal trespass is not a lesser included offense of

second degree burglary.” 940 P.2d at 362.

¶ 16 Whiteaker directs us to recent cases that clarify the standard

for identifying a lesser included offense. See, e.g., Reyna-Abarca,

¶¶ 51-53, 64, 390 P.3d at 824, 826 (articulating the statutory

elements test for determining whether two convictions must merge).

Some of these cases appear to question — without overruling

5
 — Garcia’s holding on merger. See People v. Rock, 2017 CO 84,

¶ 19 n.5, 402 P.3d 472, 478 n.5 (explaining that, “at least until [the

supreme court’s] holding in Reyna-Abarca, first degree criminal

trespass . . . was clearly not considered to be a lesser included

offense of second degree burglary”). The supreme court has never

overruled Garcia, however, and the General Assembly has not

materially amended the relevant language in the first degree

criminal trespass and the second degree burglary statutes since the

supreme court decided the case.

¶ 17 Because the supreme court “alone can overrule [its] prior

precedents concerning matters of state law,” People v. Novotny,

2014 CO 18, ¶ 26, 320 P.3d 1194, 1203, we must follow Garcia.

See Tarr, ¶ 33, 511 P.3d at 681. “It matters not that the supreme

court authority is old or that we purportedly discern a better rule of

law. It is the prerogative of the supreme court alone to overrule its

cases.” DIA Brewing Co. v. MCE-DIA, LLC, 2020 COA 21, ¶ 63, 480

P.3d 703, 714, aff’d on other grounds sub nom. Schaden v. DIA

Brewing Co., 2021 CO 4M, 478 P.3d 1264; cf. People v. LaRosa,

2013 CO 2, ¶ 51, 293 P.3d 567, 580 (Coats, J., dissenting) (“[I]t . . .

remains the prerogative of the [United States] Supreme Court alone

6
 to overrule one of its precedents, which must therefore continue to

be followed, even if they have been significantly undermined by

subsequent changes in judicial doctrine.”) (citation omitted). This

prerogative applies even when the precedent’s legal foundations are

“infirm[],” “increasingly wobbly,” and “moth-eaten.” State Oil Co. v.

Khan, 522 U.S. 3, 20 (1997) (quoting Khan v. State Oil Co., 93 F.3d

1358, 1363 (7th Cir. 1996)).

¶ 18 So, regardless of the persuasiveness of Whiteaker’s merger

argument, we are bound to follow Garcia. We adopt the reasoning

of the division in People v. Denhartog, which considered the same

issue presented here and in Garcia — whether convictions for first

degree criminal trespass and second degree burglary merge:

[T]he supreme court has expressly held [in
Garcia] that first degree criminal trespass is
not a lesser included offense of second degree
burglary.

Denhartog points out that the supreme court’s
more recent case law, in which it clarified the
standard for identifying a lesser included
offense, appears to call into question Garcia’s
continued viability. Still, the supreme court
“alone can overrule [its] prior precedents
concerning matters of state law.” Thus, if a
precedent of the supreme court “has direct
application in a case, yet appears to rest on
reasons rejected in some other line of

7
 decisions,” the court of appeals “should follow
the case which directly controls,” leaving to the
supreme court “the prerogative of overruling
its own decisions.”

2019 COA 23, ¶¶ 77, 78, 452 P.3d 148, 160 (citations omitted).

¶ 19 We therefore reject Whiteaker’s assertion that her conviction

for first degree criminal trespass must merge into her conviction for

second degree burglary under the statutory elements test

articulated in Reyna-Abarca.

B. Defense Counsel’s Request that the
Jury Instructions Refer to Whiteaker by Name

¶ 20 Whiteaker contends that the trial court reversibly erred by

denying defense counsel’s request that the jury instructions refer to

Whiteaker by name. She argues that the references to “the

defendant” in the instructions violated her right to due process. We

are not persuaded.

1. Additional Facts

¶ 21 At the jury instruction conference, defense counsel requested

that the jury instructions refer to Whiteaker as either “Ms.

Whiteaker” or “Taunia Whiteaker,” instead of as “the defendant.”

The trial court denied the request, reasoning that

8
 for the sake of consistency and, as I
mentioned, there are three different female
Whiteakers involved in this trial, [so] I’m going
to have the People simply make any necessary
changes to the final packets that refer[] to “the
defendant” throughout. I’m not aware of a
requirement that we must use the defendant’s
surname, although I understand the request.
Of course, [Whiteaker] is certainly referred to
and has been throughout this trial as Ms.
Whiteaker and is on the verdict forms.

2. Applicable Law

¶ 22 “The trial court has a duty to correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving the instructions.” People v. Lopez, 2018 COA 119, ¶ 35,

488 P.3d 373, 380. “We review de novo the question of whether a

jury instruction accurately informed the jury of the governing law.”

Id. (quoting People v. Carbajal, 2014 CO 60, ¶ 10, 328 P.3d 104,

106). “If the jury instructions properly inform the jury of the law,

the trial court has ‘broad discretion to determine the form and style

of the jury instructions.’” Id. (quoting Day v. Johnson, 255 P.3d

1064, 1067 (Colo. 2011). “A court abuses its discretion when its

ruling is manifestly arbitrary, unreasonable, or unfair, and when it

misconstrues or misapplies the law.” People v. Stellabotte,

9
 2016 COA 106, ¶ 18, 421 P.3d 1164, 1170 (citations omitted), aff’d,

2018 CO 66, 421 P.3d 174.

3. The Trial Court Did Not Abuse Its Discretion by
Denying Defense Counsel’s Request that the Jury Instructions
Refer to Whiteaker by Name

¶ 23 While “every defendant is entitled to be brought before the

court with the appearance, dignity, and self-respect of a free and

innocent [wo]man,” Eaddy v. People, 115 Colo. 488, 492, 174 P.2d

717, 719 (1946), Whiteaker does not direct us to any authority, and

we are aware of none, holding that a trial court errs by including

references to “the defendant” — as opposed to the defendant’s

surname — in the jury instructions. Rather, each case Whiteaker

cites analyzes whether a trial court violated a defendant’s right to

due process by requiring the defendant to appear before the jury

either shackled or in prison attire. See Deck v. Missouri, 544 U.S.

622, 630-32 (2005) (shackled); Estelle v. Williams, 425 U.S. 501,

503-05 (1976) (prison attire); People v. Dillon, 655 P.2d 841, 846

(Colo. 1982) (shackled); Eaddy, 115 Colo. at 492, 174 P.2d at

718-19 (prison attire); People v. Thames, 2019 COA 124, ¶ 47,

467 P.3d 1181, 1191 (prison attire); People v. James, 40 P.3d 36, 41

(Colo. App. 2001) (leg restraint), overruled on other grounds by

10
 McDonald v. People, 2021 CO 64, 494 P.3d 1123. Those cases

therefore provide little guidance on whether the trial court erred by

denying defense counsel’s request to identify Whiteaker by name in

the jury instructions.

¶ 24 Whiteaker’s cited cases uniformly explain, using analogous

language, that “[t]he presumption of innocence requires the garb of

innocence.” See, e.g., Eaddy, 115 Colo. at 492, 174 P.2d at 718.

Whiteaker asks us to hold for the first time that the presumption of

innocence also requires the “parlance of innocence.” The rationale

underlying the adoption of the “garb of innocence” requirement,

however, does not extend to the adoption of a “parlance of

innocence” requirement. In Deck, the Supreme Court explained

that shackling the defendant undermined “three fundamental legal

principles”: the defendant’s presumption of innocence, the

defendant’s right to counsel, and “maintain[ing] a judicial process

that is a dignified process.” 544 U.S. at 630-32.

¶ 25 As an initial matter, references to “the defendant” in jury

instructions do not undermine a defendant’s presumption of

innocence. Unlike shackling or prison attire, the term “defendant”

does not suggest a “need to separate [the accused] from the

11
 community at large,” id. at 630 (quoting Holbrook v. Flynn, 475 U.S.

560, 569 (1986)), and, thus, that the defendant is guilty as charged.

Rather, “defendant” is a legal term of art that does not suggest

criminal guilt. Indeed, the party sued in a civil case, in which a

person’s guilt or innocence is not determined, is described as the

“defendant.” See, e.g., CJI-Civ. 1:1 (2022) (“The case which we are

about to try is a civil case and not a criminal case. . . . The

opposing (party) (parties) (is) (are) called (the) defendant(s).”); see

also Black’s Law Dictionary 528 (11th ed. 2019) (defining

“defendant” as a “person sued in a civil proceeding or accused in a

criminal proceeding”). There is no suggestion in such cases that

the person who was sued faces separation “from the community at

large.”

¶ 26 Moreover, the Colorado Model Criminal Jury Instructions

repeatedly refer to the accused as “the defendant.” The instructions

do not bracket the term or otherwise indicate that trial courts

should replace it with the defendant’s surname. See, e.g.,

COLJI-Crim. 4-2:03 (2021) (second degree burglary). A comment to

the instructions states that trial courts should “[a]void using

. . . words which can be construed as connoting prejudgment of the

12
 evidence (e.g., the term ‘victim,’ which presupposes the commission

of a crime),” COLJI-Crim. ch. A, miscellaneous cmt. 2 (2021). But

another comment notes that, “[i]n 2016, the [Model Criminal Jury

Instructions] Committee deleted the following sentence from

comment 2 above: ‘When possible, draft instructions using the

proper names of all parties and witnesses,’” id. at cmt. 4. By

removing the instruction to trial courts to use parties’ and

witnesses’ proper names whenever possible in criminal cases, the

supreme court impliedly rejected Whiteaker’s contention that use of

“the defendant” biases the jury by presupposing the guilt of the

accused. See People v. Garcia, 2012 COA 79, ¶ 50, 296 P.3d 285,

292 (“Pattern jury instructions carry weight and should be

considered by a trial court.”).

¶ 27 Second, using the term “the defendant” in jury instructions

does not undermine the accused’s right to counsel. The defendant

can still communicate with her attorney and “participate in [her]

own defense, say, by freely choosing whether to take the witness

stand on [her] own behalf.” Deck, 544 U.S. at 631. Indeed,

Whiteaker does not argue that the references to “the defendant” in

the jury instructions hampered her ability to present a defense.

13
¶ 28 Finally, a trial court does not create an undignified process by

referring to “the defendant” in the jury instructions. As noted, the

supreme court expressly approved this terminology in COLJI-Crim.

ch. A, miscellaneous cmt. 4 (2021), and impliedly approved the use

of “defendant” through its adoption of the Model Criminal Jury

Instructions, see, e.g., id. at 4-2:03. In approving the use of

“defendant” in jury instructions, the supreme court was surely

aware that “judges must seek to maintain a judicial process that is

a dignified process.” Deck, 544 U.S. at 631.

¶ 29 We conclude that the trial court did not abuse its discretion by

denying defense counsel’s request because (1) it was not required to

grant it; (2) the jury instructions accurately stated the governing

law, see People v. Coahran, 2019 COA 6, ¶ 13, 436 P.3d 617, 620;

and (3) three females named Whiteaker were involved in this case,

which could have confused the jury. See Stellabotte, ¶ 18, 421 P.3d

at 1170. (Nothing in this opinion should be construed as

precluding a trial judge from referring to the defendant by name in

the jury instructions, in the judge’s discretion.)

14
 C. The Initial Aggressor Exception to Self-Defense

¶ 30 Whiteaker asserts that the trial court violated her right to

present a defense by including initial aggressor language in the self-

defense instruction and by rejecting her tendered supplemental

instruction explaining the term “initial aggressor.” According to

Whiteaker, initial aggressor language is appropriate in a self-

defense instruction only if “there is evidence the defendant initiated

the physical conflict prior to the conduct giving rise to the self-

defense claim.” We disagree.

1. Additional Facts

¶ 31 Multiple witnesses testified about the physical confrontation

between Whiteaker and grandmother. Whiteaker testified that she

went to grandmother’s house, entered through the unlocked front

door (as she had several times before), and “grabbed

[grandmother’s] hair” only after grandmother “grabbed” her and

“wouldn’t let go.” Whiteaker said that she was “protecting herself”

and that she “never hit [grandmother] or anything like that.”

¶ 32 Grandmother testified that Whiteaker entered the front door

with her “fists balled up,” announced “[t]he bitch is here,” “lunged

at [grandmother],” and “hit [grandmother] in the face.”

15
 Grandmother said that Whiteaker was the first person to make

physical contact. Husband, his brother, and stepdaughter’s sister

corroborated grandmother’s description of the incident, each

testifying that Whiteaker started the physical confrontation by

entering grandmother’s house in an aggressive manner and making

physical contact with grandmother.

¶ 33 Whiteaker tendered a stand-alone instruction on self-defense,

which contained a reference to the initial aggressor exception, and a

supplemental instruction saying that “[u]ttering an insult or

arguing with an individual is not enough to make a person the

initial aggressor.” Over defense counsel’s subsequent objection, the

trial court included initial aggressor language in the self-defense

instruction. The court rejected Whiteaker’s proposed supplemental

instruction after finding it could confuse the jury because it did not

fit the facts presented at trial.

2. Standard of Review

¶ 34 Whether sufficient evidence supports an instruction on the

initial aggressor exception to self-defense is a question of law that

we review de novo. Castillo v. People, 2018 CO 62, ¶ 32, 421 P.3d

1141, 1146. “[W]e view the evidence in the light most favorable to

16
 giving the instruction.” People v. Knapp, 2020 COA 107, ¶ 21,

487 P.3d 1243, 1250; accord Galvan v. People, 2020 CO 82, ¶ 33,

476 P.3d 746, 756.

3. Applicable Law

¶ 35 Colorado’s self-defense statute provides that “a person is

justified in using physical force upon another person in order to

defend [herself] or a third person from what [she] reasonably

believes to be the use or imminent use of unlawful physical force by

that other person.” § 18-1-704(1), C.R.S. 2021. The right to self-

defense is not limitless, however. For example,

a person is not justified in using physical force
if . . . she is the initial aggressor; except that
. . . her use of physical force upon another
person under the circumstances is justifiable if
. . . she withdraws from the encounter and
effectively communicates to the other person
. . . her intent to do so, but the latter
nevertheless continues or threatens the use of
unlawful physical force.

§ 18-1-704(3)(b).

¶ 36 “The trial court has a duty to correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving instructions.” Castillo, ¶ 34, 421 P.3d at 1146-47. “[W]hen

the trial court instructs the jury on the affirmative defense of self-

17
 defense, it should instruct the jury on . . . any . . . exception to that

defense if the exception is supported by some evidence.” Galvan,

¶ 25, 476 P.3d at 754.

4. The Trial Court Did Not Err by Including Initial Aggressor
Language in the Self-Defense Instruction and Rejecting
Whiteaker’s Tendered Supplemental Instruction

¶ 37 We reject Whiteaker’s assertion that the trial court erred by

providing the jury with the initial aggressor language because the

prosecution presented “some evidence” that Whiteaker was the

initial aggressor. Grandmother, husband, husband’s brother, and

stepdaughter’s sister each testified that Whiteaker started the

physical confrontation by entering grandmother’s house in an

aggressive manner and making the first physical contact.

Grandmother also testified that Whiteaker had her “fists balled up”

when she entered the house.

¶ 38 When we view this “evidence in the light most favorable to

giving the instruction,” Knapp, ¶ 21, 487 P.3d at 1250, we conclude

that the prosecution presented “some evidence” that Whiteaker was

the initial aggressor, Galvan, ¶ 25, 476 P.3d at 754. Thus, the trial

court did not err by providing the jury with a self-defense

instruction containing initial aggressor language.

18
¶ 39 Whiteaker’s testimony that she acted in self-defense by

grabbing grandmother only after grandmother grabbed her first

does not alter our analysis. See People v. Newell, 2017 COA 27,

¶ 28, 395 P.3d 1203, 1208 (“It is for the jury, not the judge, to

decide which witnesses and even which version of the witnesses’

testimony is to be believed.”); Knapp, ¶ 28, 487 P.3d at 1251 (“[T]he

jury was ‘entitled to accept parts of [the defendant’s] testimony and

reject other parts,’ particularly given that [the other witnesses] gave

a completely different account of the encounter from [the

defendant’s].” (quoting Gordon v. Benson, 925 P.2d 775, 778 (Colo.

1996))). “When a trial court is presented with some evidence that a

defendant used force in self-defense, and some evidence that the

defendant is the initial aggressor, the court should instruct the jury

on both self-defense and the initial aggressor exception.” Newell,

¶ 25, 395 P.3d at 1207.

¶ 40 Moreover, we disagree with Whiteaker’s interpretation of the

initial aggressor exception. Contrary to Whiteaker’s assertion,

neither People v. Manzanares, 942 P.2d 1235 (Colo. App. 1996), nor

any other Colorado case of which we are aware holds that a court

may provide an initial aggressor instruction only if “there is

19
 evidence the defendant initiated the physical conflict prior to the

conduct giving rise to the self-defense claim.” See People v.

Roberts-Bicking, 2021 COA 12, ¶ 36, 490 P.3d 1128, 1136 (rejecting

the defendant’s argument that the initial aggressor instruction was

inappropriate because “the act giving rise to the charged offense

cannot serve as evidence that the defendant was the initial

aggressor”).

¶ 41 In Manzanares, “[t]he evidence was undisputed that [the]

defendant himself did not engage in the initial altercation. Hence,

nothing that occurred in that fight provided a basis for giving the

instruction.” 942 P.2d at 1241. “[T]he only issue remaining upon

[the] defendant’s return to the party was whether, by firing his

pistol, he committed any of the crimes charged and, if so, whether

the conduct was justified because he had acted in self-defense.” Id.

Thus, in Manzanares, the division held that the trial court erred by

providing an instruction referencing the initial aggressor exception

because the facts did not show that the defendant was the initial

aggressor during the initial altercation, and not because the

exception requires a break between the conduct that made the

person the initial aggressor and the conduct supporting the charged

20
 offenses. See id.; see also Castillo, ¶¶ 46-53, 421 P.3d at 1149-50

(observing that a person could be the initial aggressor to an entire

criminal episode if he threatened the imminent use of unlawful

physical force at the onset of the episode).

¶ 42 We also reject Whiteaker’s assertion that a court may not give

an initial aggressor instruction unless “[t]he defendant makes the

initial attack on the victim . . . ; the defendant’s conduct or words

were sufficient to cause the victim to act in self-defense; [and]

. . . [i]n a separate episode, evidenced by withdrawal or retreat, the

defendant claims self-defense.” Colorado case law establishes that

an “initial aggressor” is a person who “initiated the physical conflict

by using or threatening the imminent use of unlawful physical

force.” People v. Griffin, 224 P.3d 292, 300 (Colo. App. 2009); see

Castillo, ¶ 41, 421 P.3d at 1148 (same). The exception does not

require that the alleged victim acted in self-defense or, more

generally, implicate the conduct of the alleged victim. Rather, the

definition solely considers the actions of the first party to “us[e] or

threaten[] the imminent use of unlawful physical force.” Griffin,

224 P.3d at 300.

21
¶ 43 Although section 18-1-704(3)(b) refers to the alleged victim, it

does so to explain when an initial aggressor is entitled to use

justifiable physical force in self-defense — only if the initial

aggressor “withdraws from the encounter and effectively

communicates to the [alleged victim] his or her intent to do so, but

the latter nevertheless continues or threatens the use of unlawful

physical force.” But even under such circumstances, an individual

remains the initial aggressor if he or she “initiated the physical

conflict by using or threatening the imminent use of unlawful

physical force,” Griffin, 224 P.3d at 300, and a trial court does not

err by giving a self-defense instruction that includes initial

aggressor language.

¶ 44 Finally, we conclude that the trial court did not abuse its

discretion by rejecting Whiteaker’s tendered supplemental

instruction. While the evidence showed that Whiteaker uttered an

insult after entering grandmother’s house, it also showed that

Whiteaker, through her action of entering grandmother’s house with

her fists balled up, “threaten[ed] the imminent use of unlawful

physical force” before making physical contact with grandmother.

Id.

22
¶ 45 Thus, we agree with the trial court that Whiteaker’s tendered

supplemental instruction did not fit the facts of the case and,

therefore, could have confused the jury. The court did not abuse its

discretion by rejecting the potentially misleading, and largely

inapplicable, supplemental instruction. See People v. Pahl,

169 P.3d 169, 184 (Colo. App. 2006) (holding that the trial court did

not err by rejecting misleading instructions); see also Cassel v.

People, 92 P.3d 951, 956 (Colo. 2004) (“The trial court must tailor

the self-defense instructions to the particular circumstances of the

case in order to adequately apprise the jury of the law of self-

defense from the standpoint of the defendant.”).

¶ 46 Accordingly, we conclude that the trial court did not err by

instructing the jury on the initial aggressor exception to self-defense

as it did. For this reason, we hold that the court’s instructions did

not violate Whiteaker’s right to present a defense.

III. Conclusion

¶ 47 The judgment of conviction is affirmed.

JUDGE GRAHAM concurs.

JUDGE KUHN specially concurs.

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 JUDGE KUHN, specially concurring.

¶ 48 For the reasons aptly articulated by the majority, I agree that

the trial court did not abuse its discretion in connection with the

jury instructions issued in this case. I accordingly join Parts II.B

and II.C of the opinion in full.

¶ 49 But I respectfully disagree with the majority’s conclusion that

first degree criminal trespass is not a lesser included offense of

second degree burglary. I believe that we should apply the clarified

strict elements test articulated in Reyna-Abarca v. People, 2017 CO

15, and that, under that test, the trial court erred by not merging

these convictions. Nonetheless, this error was not plain and

therefore is not reversible. I thus write separately to explain why I

only concur with the majority’s judgment in Part II.A.

I. Reyna-Abarca, not Garcia, is the Precedent that “Directly
Controls” the Outcome of this Case

¶ 50 The majority bases its conclusion on People v. Garcia,

940 P.2d 357 (Colo. 1997), in which the supreme court held that

— including a portion of the quote the majority omits — “under the

statutory test applied in [Armintrout v. People, 864 P.2d 576 (Colo.

1993)], first degree criminal trespass is not a lesser included offense

24
 of second degree burglary.” Garcia, 940 P.2d at 362. I am mindful

that the supreme court “alone can overrule [its] prior precedents

concerning matters of state law,” People v. Novotny, 2014 CO 18,

¶ 26, and I agree with the majority that Garcia has never been

explicitly overruled. However, when read in context, I believe that

Garcia articulated this holding as an outcome of the strict elements

test in effect at the time. In my view, because the supreme court

has since clarified the strict elements test, Garcia’s holding should

not be read for the broad proposition that first degree criminal

trespass is not a lesser included offense of second degree burglary

under current controlling supreme court precedent.

¶ 51 Colorado uses the strict elements test, sometimes called the

statutory elements test, which involves solely comparing the

statutory elements of two offenses to determine if one is a lesser

included of the other. Garcia, 940 P.2d at 360. If all the essential

elements of the lesser offense are a subset of the essential elements

of the greater offense, then the lesser offense is included in the

greater. Id. At the time Garcia was decided, the controlling test for

lesser included elements had been laid out in Armintrout. Id. at

359. The Armintrout test “require[d] a comparison of the elements

25
 of the statutes involved, rather than the evidence produced at trial,”

but importantly, it also “omit[ted] sentence enhancement factors

from consideration.” Id.

¶ 52 In People v. Garcia, 920 P.2d 878 (Colo. App. 1996), a division

of the court of appeals reviewed the same question on appeal here

— whether first degree criminal trespass was a lesser included

offense of second degree burglary. As directed by the Armintrout

test, it observed that entry of a “dwelling” in the second degree

burglary statute functioned as a sentence enhancer rather than an

essential element. Id. at 879. But for first degree criminal trespass,

the division continued, entry of a “dwelling” was an essential

element of the crime. Id. Relying on this critical distinction, the

division concluded that first degree criminal trespass was not, in

fact, a lesser included offense of second degree burglary under the

Armintrout test. Id. at 879-80.

¶ 53 In reviewing that case, the supreme court “f[ound] as an initial

matter that the court of appeals was correct that under the statutory

test applied in Armintrout, first degree criminal trespass is not a

lesser included offense of second degree burglary.” Garcia, 940

P.2d at 362 (emphasis added). In my view, the italicized text shows

26
 that the supreme court did not hold that, as an absolute rule, first

degree criminal trespass is not a lesser included offense of second

degree burglary. Instead, it held that the court of appeals correctly

applied the controlling test at the time in deciding that first degree

criminal trespass was not a lesser included offense of second degree

burglary under that test.

¶ 54 But, as Whiteaker points out, the Armintrout test is no longer

the current law. The supreme court clarified the strict elements

test in Reyna-Abarca. The court noted that “it ha[d] become clear

that [its] prior articulations of the strict elements test ha[d] not

provided the clear and consistent guidance that [the court] believe[d

was] necessary.” Reyna-Abarca, ¶ 59. To clarify the test, and

provide better guidance, the court adopted the elements approach

to lesser included offenses articulated in Schmuck v. United States,

489 U.S. 705 (1989). Reyna-Abarca, ¶ 59. Under the clarified strict

elements test, “an offense is a lesser included offense of another

offense if the elements of the lesser offense are a subset of the

elements of the greater offense, such that the lesser offense

contains only elements that are also included in the elements of the

greater offense.” Id. at ¶ 64.

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¶ 55 The court said that one of the advantages of the clarified

statutory elements test is that, unlike the older versions, it

captures those cases . . . in which an allegedly
greater offense can be committed in multiple
ways, without requiring [the supreme court] to
stray from [its] consistently articulated view
that in deciding whether one offense is
included in another, we must look only to the
elements of the respective offenses.

Id. at ¶ 63. Crucially, while both Garcia decisions were premised on

Armintrout’s distinction between statutory elements and sentence

enhancers, Reyna-Abarca did away with this distinction, instead

finding that one offense was the lesser included of the other

because the lesser fell “within the universe” of ways the greater

could be committed. Id.

¶ 56 The court confirmed this reading in People v. Rock, 2017 CO

84, where it examined whether second degree criminal trespass is a

lesser included offense of second degree burglary under the clarified

strict elements test. Though both crimes can be committed in

multiple ways, the court noted that “the commission of second

degree criminal trespass requires no more than knowingly and

unlawfully entering or remaining in the dwelling of another, a

subset of the statutory elements of second degree burglary.” Id. at

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 ¶ 20. The court thus concluded that the lesser crime was a lesser

included of the greater under the clarified strict elements test as

articulated in Reyna-Abarca. Id. at ¶¶ 20-21.

¶ 57 Notably, in reaching this conclusion, the court observed that

[t]he defendant would not have thought herself
entitled to a lesser-included-offense instruction
on first degree criminal trespass because, at
least until our holding in Reyna-Abarca, first
degree criminal trespass, with its limitation to
unlawfully entering or remaining in a
particular subset of buildings, that is, a
dwelling, was clearly not considered to be a
lesser included offense of second degree
burglary.

Id. at ¶ 19 n.5 (emphasis added). While not explicit, this language

suggests that the court considers the test from Reyna-Abarca to be

directly controlling, not the court’s outcomes under the Armintrout

test it replaced.

¶ 58 I find further support for my conclusion in the manner in

which the supreme court has addressed its holdings under the

Armintrout test after Reyna-Abarca. In Meads v. People, 78 P.3d

290 (Colo. 2003), the supreme court explicitly held that “applying

the [Armintrout] test to the relevant statutes in this case leads to the

conclusion that second degree aggravated motor vehicle theft is not

29
 a lesser-included offense of felony theft.” Id. at 296. In Reyna-

Abarca, however, the court concluded that “the result in Meads

would have been different” under Reyna-Abarca’s clarified strict

elements test. Reyna-Abarca, ¶ 67. Yet the court did not feel the

need to overrule its prior explicit holding under the Armintrout test.

Instead, it “disavow[ed] the conclusion [it had] reached” in Meads.

Reyna-Abarca, ¶ 67. In my view, this reinforces the conclusion that

the supreme court’s precedent is focused on the appropriate lesser

included test that should be applied, not merely on the outcomes of

the previous Armintrout test divorced from the context in which

those outcomes were reached.

¶ 59 As the majority implicitly acknowledges, if, after Garcia was

decided, the General Assembly had changed the elements of one of

the crimes in question, the majority would reexamine those

changed elements under the Reyna-Abarca test — even despite

Garcia’s holding. I see the supreme court changing the statutory

elements test itself as no less of a change in the law that would

justify us in reevaluating the crimes in question here.

¶ 60 I therefore see the “directly control[ling]” supreme court

precedent in this area as requiring this court to apply the Reyna-

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 Abarca test to this case regardless of the fact that the supreme

court has not explicitly overruled Garcia. See People v. Denhartog,

2019 COA 23, ¶ 78 (quoting Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989)) (citing Novotny, ¶ 26).1 It is

not simply that I believe Garcia’s legal foundations are no longer

sound or that applying Reyna-Abarca produces a better rule of law.

See supra ¶ 17. Rather, I do not see Garcia’s holding as continuing

to be directly controlling — that is, as reaching beyond the confines

of the Armintrout test to the same issue under the now-controlling

Reyna-Abarca test. I would thus apply the clarified statutory

elements test articulated in Reyna-Abarca to this case.

II. Though the Trial Court Erred,
This Error Was Not Plain

¶ 61 Applying that test to the offenses at hand reveals that first

degree criminal trespass is a lesser included offense of second

degree burglary. A person commits first degree criminal trespass

when she knowingly and unlawfully enters or remains in a dwelling

1 For these reasons I would also depart from the division’s
conclusion in People v. Denhartog, 2019 COA 23, whose reasoning
the majority adopts. See People v. Smoots, 2013 COA 152, ¶ 21
(“[W]e are not bound by the decisions of other divisions of this
court.”), aff’d sub nom. Reyna-Abarca v. People, 2017 CO 15.

31
 of another. § 18-4-502(1)(a), C.R.S. 2021. One of the ways a

person can commit second degree burglary also requires that a

person knowingly and unlawfully enter or remain in the dwelling of

another. § 18-4-203(1), (2)(b)(I), C.R.S. 2021. The elements of first

degree criminal trespass are therefore a subset of the elements of

second degree burglary, such that the first degree criminal trespass

only contains elements that are also included in the elements of

second degree burglary. Thus, regardless of whether the “dwelling”

component of second degree burglary is a sentence enhancer, first

degree criminal trespass is a lesser included offense of second

degree burglary under the clarified strict elements test articulated

in Reyna-Abarca.

¶ 62 In my view, then, the trial court erred by not merging

Whiteaker’s convictions for second degree burglary and first degree

criminal trespass. Nonetheless, this error was not plain. See

Reyna-Abarca, ¶ 47 (holding that “an appellate court may review an

unpreserved double jeopardy claim and that the court should

ordinarily review such a claim for plain error”); see generally People

v. Wambolt, 2018 COA 88, ¶¶ 68-70; People v. Jamison, 2018 COA

121, ¶¶ 52-53. A plain error “is an error that is both obvious and

32
 substantial.” Jamison, ¶ 54. As the majority points out, Denhartog,

a published court of appeals case, explicitly rejects the argument

Whiteaker advances — even if I would depart from its conclusion.

The trial court is bound to follow the decisions of appellate courts. I

cannot say it was obvious error for the trial court to have acted

consistently with Denhartog and not to have merged the convictions

sua sponte. See Scott v. People, 2017 CO 16, ¶ 17 (“[A]n error will

not ordinarily be deemed ‘obvious’ when either [the supreme] court

or a division of the court of appeals has previously rejected an

argument being advanced by a subsequent party who is asserting

plain error.”). And I therefore cannot conclude the error here was

plain.

III. Conclusion

¶ 63 Because I would affirm Whiteaker’s convictions for first degree

criminal trespass and second degree burglary, albeit for different

reasons than those articulated by the majority, I concur in the

judgment.

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