Peo v. Thompson

22CA1586 Peo v Thompson 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1586
Arapahoe County District Court No. 20CR2860
Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Romeo Desean Thompson,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE KUHN
J. Jones and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Romeo Desean Thompson, appeals his conviction

for second degree murder. We reverse and remand for a new trial.

I. Background

¶2 We draw the following factual background from the record,

evidence, and testimony presented at trial. In November 2020, the

victim, P.H., and his wife, D.H., were driving and came to a stop at

an intersection. Thompson; his girlfriend, I.H.; and I.H.’s two

children were in the car behind them. Thompson was driving.

After the light turned green and P.H.’s car did not move, Thompson

honked his horn. P.H. then drove forward and stopped suddenly to

brake check Thompson. Thompson braked to avoid hitting P.H.’s

car, pulled up next to P.H. and D.H., and threw a full plastic drink

bottle at their car. The bottle hit their car door, and Thompson

sped off.

¶3 P.H. then began following Thompson and pursued his vehicle

for approximately four miles. During the pursuit, I.H. noticed that

D.H. was on the phone and believed that she was recording their

car or had called the police. The pursuit eventually concluded in a

residential neighborhood, where Thompson stopped his car on the

side of the road. P.H., following close behind, pulled in front of

1
Thompson’s car and parked. After getting out of their respective

cars, P.H. walked around the rear of his car and approached

Thompson. The two exchanged insults, and, according to I.H., P.H.

pushed Thompson against the backseat window of his vehicle.

¶4 From there, a brief physical altercation ensued between P.H.

on one side and Thompson and I.H. on the other. P.H. and

Thompson rolled onto the ground. There, Thompson pulled a

firearm from his waistband and shot P.H. three times.1 Thompson

and I.H. then returned to their car and left the scene. P.H. was

transported to the hospital but died from his wounds.

¶5 Thompson was charged with first degree murder and

possession of a weapon by a previous offender (POWPO).2 After the

trial court granted his motion to bifurcate the counts, Thompson

went to trial on the first degree murder charge. The jury found him

guilty of the lesser included offense of second degree murder. The

1 A total of four shell casings were found at the scene, but the exact

number of rounds Thompson fired is not relevant to this appeal.

2 Thompson eventually pleaded guilty to the POWPO charge,

receiving three years in Department of Corrections’ custody to be
served concurrently with the sentence on his second degree murder
conviction.

2
court sentenced him to thirty years in the Department of

Corrections.

II. Analysis

¶6 Thompson contends that the trial court reversibly erred by

(1) instructing the jury on the initial aggressor exception to

self-defense; (2) failing to prevent prosecutorial misconduct; and

(3) disallowing one of his attorneys from objecting during the

prosecution’s closing argument. We agree on the first point and

need not reach the remaining contentions.

A. Initial Aggressor Instruction

¶7 Thompson contends that the trial court reversibly erred by

instructing the jury on the initial aggressor exception to

self-defense. We agree.

1. Additional Background

¶8 Thompson endorsed the affirmative defense of self-defense. As

a result, both parties tendered self-defense jury instructions

reciting the elements of the affirmative defense and the

prosecution’s accompanying burden. However, the prosecution

included the provocation and initial aggressor exceptions to

3
self-defense in its proposed instruction, while Thompson’s counsel

did not.

¶9 On the fourth day of trial, the trial court convened a jury

instruction conference, during which it heard arguments from both

sides regarding the inclusion of initial aggressor and provocation

jury instructions.3 The prosecutor based his argument in favor of

the initial aggressor instruction on three pieces of evidence: the

honk, the bottle throw, and Thompson getting out of his car before

P.H. In the prosecutor’s view, these three acts constituted “some

evidence of [Thompson] being the initial aggressor in this case.”

Thompson’s counsel disagreed, arguing that the honking and bottle

throwing occurred ten to twenty minutes before the physical

confrontation, when P.H. initially slammed Thompson against his

vehicle.

¶ 10 Thompson’s counsel argued that the thrown bottle may have

been rude, but it was not an imminent use of unlawful physical

force against P.H. And she further observed that the two men got

out of their cars “very close in time to one another.” She asserted

3 The trial court ultimately excluded the provocation exception

instruction.

4
that this undercut the prosecutor’s argument that Thompson — as

the first one out of a car — was the aggressor. Thompson’s attorney

argued, therefore, that an initial aggressor instruction was

inappropriate and unsupported by the evidence.

¶ 11 The trial court grappled with this issue on the record, and it

indicated several times that the evidence presented might not

support the instruction. Discussing Castillo v. People, 2018 CO 62,

the court repeatedly expressed concerns that none of Thompson’s

actions amounted to a threat of imminent unlawful physical force,

as required to support an initial aggressor instruction. The

prosecutor explained that, in his view, by throwing an object at

another vehicle in traffic, Thompson engaged in actual unlawful

physical force that went “beyond the pale of conduct that

reasonable people expect . . . during . . . traffic disputes.” Still, the

trial court remained unconvinced, saying, “Even throwing the bottle

at the vehicle, I don’t know that we get to a place where there is any

evidence that, then, there was a threatened use of unlawful

physical force . . . .”

¶ 12 Despite its concerns, the trial court decided to include the

initial aggressor instruction, reasoning “that there [wa]s some

5
evidence . . . about who gets out of the car first[] [and] who [wa]s

approaching who first,” which could implicate questions of fact for

the jury to determine. The final instruction that went to the jury

read as follows:

Jury Instruction No. 13

The evidence presented in this case has raised
the affirmative defense of “deadly physical
force in defense of person,” as a defense to
Murder in the First Degree. Mr. Thompson
was legally authorized to use deadly physical
force upon another person without first
retreating if:

1. he used that deadly physical force in order
to defend himself from what he reasonably
believed to be the use or imminent use of
unlawful physical force by that other person,
and

2. he reasonably believed a lesser degree of
force was inadequate, and

3. he had a reasonable ground to believe, and
did believe, that he was in imminent danger of
being killed or of receiving great bodily injury,
and

4. he was not the initial aggressor, or, if he
was the initial aggressor, he had withdrawn
from the encounter and effectively
communicated to the other person his intent
to do so, and the other person nevertheless
continued or threatened the use of unlawful
physical force.

6
2. Applicable Law and Standard of Review

¶ 13 By raising an affirmative defense, the defendant “essentially

admits the commission of the elements of the charged offense but

seeks to justify, excuse, or mitigate [the] conduct.” Galvan v.

People, 2020 CO 82, ¶ 21. If the presented evidence properly

“raises the issue of an affirmative defense, the affirmative defense

effectively becomes an additional element, and the trial court must

instruct the jury that the prosecution bears the burden of proving

beyond a reasonable doubt that the affirmative defense is

inapplicable.” People v. Pickering, 276 P.3d 553, 555 (Colo. 2011).

¶ 14 Colorado’s affirmative defense of self-defense is codified in

section 18-1-704, C.R.S. 2025. As pertinent here, a person may

use deadly physical force only if (1) the “person reasonably believes

a lesser degree of force is inadequate”; and (2) the person “has

reasonable ground to believe, and does believe, that he or another

person is in imminent danger of being killed or of receiving great

bodily injury.” § 18-1-704(2)(a).

¶ 15 The prosecution can overcome the affirmative defense by

disproving either of the two above-listed requirements. See Galvan,

¶ 22. Alternatively, the prosecution could “prove beyond a

7
reasonable doubt that an exception to self-defense applies.” Id.

(quoting Castillo, ¶ 40). As relevant here, the jury was instructed

on the initial aggressor exception. That exception provides that a

person is not justified in using physical force if the person “is the

initial aggressor,” unless the person “withdraws from the encounter

and effectively communicates to the other person [their] intent to do

so, but the latter nevertheless continues or threatens the use of

unlawful physical force.” § 18-1-704(3)(b).

¶ 16 It is the trial court’s duty to “instruct the jury on all matters of

law for which there is sufficient evidence to support giving

instructions.” Castillo, ¶ 34. But this duty does not extend to

abstract legal principles that bear no relation to the issues in

controversy, nor does it permit instructions predicated upon

“fanciful interpretations of the facts unsupported by the record.” Id.

(quoting People v. Alexander, 663 P.2d 1024, 1032 (Colo. 1983)).

¶ 17 “An initial aggressor instruction is warranted when the

evidence suggests the defendant initiated the physical conflict by

using or threatening imminent use of unlawful physical force.”

People v. Roberts-Bicking, 2021 COA 12, ¶ 33. But engaging in the

conduct giving rise to the charged offense cannot form the basis of

8
an initial aggressor instruction. See People v. Manzanares, 942

P.2d 1235, 1241 (Colo. App. 1996) (explaining that defendant firing

his pistol could not show he was the initial aggressor because that

“would be no more than a rejection of the claim of self-defense”),

abrogated on other grounds by, Riley v. People, 266 P.3d 1089 (Colo.

2011). And mere insults, without more, are insufficient to

transform a defendant into an initial aggressor. Castillo, ¶ 44.

¶ 18 When a trial court instructs a jury on self-defense, it “should

[also] instruct the jury on the [initial aggressor] exception . . . to

that defense if the exception is supported by some evidence.”

Galvan, ¶ 25 (explaining that the exceptions to self-defense are

governed by the same quantum of proof as the defense itself); see

also § 18-1-407(1), C.R.S. 2025 (“[T]he defendant, to raise the

[affirmative defense], shall present some credible evidence on that

[affirmative defense].”). This quantum of proof is exceedingly low.4

People v. Gallegos, 2023 COA 47, ¶ 47, aff’d, 2025 CO 41M.

4 In the context of affirmative defenses, the terms “some evidence,”

“some credible evidence,” “a scintilla of evidence,” “any evidence,” a
“small quantum of evidence,” and “any credible [even if highly
improbable] evidence” are all synonymous. Galvan v. People, 2020
CO 82, ¶ 24 (citations omitted).

9
Accordingly, a court should decline to instruct on an affirmative

defense or an accompanying exception only when there is no

evidence in the record to support it. Id.

¶ 19 “Whether sufficient evidence exists to support the requested

instruction is a question of law that we review de novo.” Castillo,

¶ 32.

3. No Evidence Supported Giving the Instruction

¶ 20 The People contend that Thompson’s collective actions —

specifically, honking his horn, throwing a bottle, and getting out of

his car slightly before P.H. — constituted sufficient evidence to

support the initial aggressor exception instruction. We disagree.

¶ 21 First, the parties agree — as do we — that honking a horn in

traffic is analogous to a verbal insult, which, without more, does not

create initial aggressor status. See Castillo, ¶ 44 (“[I]nsults alone do

not make someone an initial aggressor.”).

¶ 22 Second, under the specific circumstances of this case,

Thompson throwing the bottle at P.H. and D.H.’s vehicle did not

support an initial aggressor instruction based on the later

altercation. To become the initial aggressor, “[a] defendant must

initiate the physical conflict.” People v. Roadcap, 78 P.3d 1108,

10
1113 (Colo. App. 2003) (emphasis added). Further, “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. Whiteaker, 2022 COA 84, ¶ 42

(quoting People v. Griffin, 224 P.3d 292, 300 (Colo. App. 2009)),

rev’d on other grounds, 2024 CO 25. As the trial court noted, the

bottle throw does not meet this standard. To be sure, the bottle

throw was, as Thompson argues, rude, and it may have been an

attempt to provoke P.H. and D.H. or damage their vehicle. But it

did not threaten their persons or initiate the physical conflict

between Thompson and I.H. and P.H.

¶ 23 Instead, the evidence shows that the physical conflict occurred

ten to twenty minutes later when P.H. — after chasing Thompson

for four miles — got out of his car; approached Thompson; and,

according to I.H.’s testimony and the video footage, pushed

Thompson up against his car. This evidence demonstrates that if

anyone was the initial aggressor in this conflict it was P.H., not

Thompson, because P.H. escalated the situation from insults and

provocation when he initiated the actual physical conflict. See id.

(determining that the initial aggressor is the person who initiates

11
“the physical conflict by using or threatening the imminent use of

unlawful physical force” (quoting Griffin, 224 P.3d at 300)).

¶ 24 Finally, the video evidence contradicts the prosecutor’s claim

that Thompson initiated the physical conflict by getting out of his

car. The video, taken from the doorbell camera of a nearby home,

shows the two men exiting their vehicles almost simultaneously.5

And contrary to the trial court’s determination, the video clearly

shows that P.H. swiftly approached Thompson. Likewise, the only

eyewitness testified that P.H. shoved Thompson into the car.6 The

evidence at the hearing was not in conflict; instead, it was solely in

Thompson’s favor on this point.

¶ 25 Because the prosecution failed to introduce any evidence to

support the initial aggressor instruction, we conclude that the trial

court erred by giving the instruction to the jury. We now turn to

whether this error warrants reversal.

5 Although grainy and low resolution, the video is clear enough to

glean the limited information discussed here.

6 As Thompson’s counsel aptly observed at the jury instruction

conference, the trial court was able to review this video before
making its determination.

12
4. Constitutional Harmless Error Applies

¶ 26 The parties disagree on the applicable standard of reversal.

Thompson argues for constitutional harmless error, while the

People assert that nonconstitutional harmless error applies. We

agree with Thompson.

¶ 27 Constitutional harmless error applies to “trial errors of

constitutional dimension that were preserved by objection.” Hagos

v. People, 2012 CO 63, ¶ 11. Thompson’s counsel properly

preserved this issue for appeal by tendering his proposed

self-defense instruction, which did not include the initial aggressor

exception, and by objecting to the court giving the initial aggressor

instruction. See People v. DeGreat, 2015 COA 101, ¶ 10 (“Tendering

the desired instruction sufficiently preserved this claim.”), aff’d on

other grounds, 2018 CO 83.

¶ 28 As stated above, an affirmative defense “effectively becomes an

additional element” of the charged crime. Pickering, 276 P.3d at

555. And “when a trial court misinstructs the jury on an element of

an offense, either by omitting or misdescribing that element, that

error is subject to constitutional harmless or plain error analysis.”

Griego v. People, 19 P.3d 1, 8 (Colo. 2001); see also People v.

13
Ridgeway, 2013 COA 17, ¶ 9 (“Where a defendant properly

preserves an objection to an elemental jury instruction, the

instruction is subject to constitutional harmless error analysis.”);

Pearson v. People, 2022 CO 4, ¶ 16 (determining that an

instructional error that lowers the prosecution’s burden of proof is

subject to constitutional harmless error review).

¶ 29 Here, the trial court misinstructed the jury on Thompson’s

affirmative defense by including the initial aggressor exception.

And because the affirmative defense is treated as an additional

element of the charged crime, the improper instruction effectively

misdescribed that element of the offense, lowering the prosecution’s

burden of proof. Thus, we review for constitutional harmless error.

See Griego, 19 P.3d at 8.

5. The Error Was Not Harmless
Beyond a Reasonable Doubt

¶ 30 A constitutional error requires reversal unless we can “declare

a belief that [the error] was harmless beyond a reasonable doubt.”

Hagos, ¶ 11 (quoting Chapman v. California, 386 U.S. 18, 24

(1967)). Put differently, “we reverse, if ‘there is a reasonable

possibility that the [error] might have contributed to the

14
conviction.’” Id. (quoting Chapman, 386 U.S. at 24). The People

bear the burden of proving the error harmless beyond a reasonable

doubt. Id.

¶ 31 Here, the jury instructions accurately conveyed that “[t]he

prosecution ha[d] the burden to prove, beyond a reasonable doubt,

that [Thompson’s] conduct was not legally authorized by this

defense. In order to meet this burden of proof, the prosecution

must disprove, beyond a reasonable doubt, at least one of the

above[-]numbered conditions [in Jury Instruction 13].” (Emphasis

added.) See Galvan, ¶ 22. However, one of the numbered

conditions that the prosecution needed to disprove was that

“[Thompson] was not the initial aggressor.”

¶ 32 As relevant to the erroneous instruction, the prosector argued

during closing argument that Thompson knew he was the initial

aggressor, and that’s why he didn’t want to involve law

enforcement. This is because, the prosecutor argued, the entire

chase started because Thompson threw the bottle — though

defense counsel countered that the thrown bottle was not a

sufficient act of initial aggression.

15
¶ 33 Furthermore, when referring to the initial aggressor

instruction, the prosecutor said, “[I]f [Thompson] is the initial

aggressor, [he] do[es]n’t get to jump into a fight here and then claim

self-defense or the need to use self-defense.” According to the

prosecutor, Thompson made “an aggressive movement” that

“elevat[ed] the situation to the next level,” and Thompson’s allegedly

getting out of his car before P.H., actively looking for P.H., and

carrying a gun on his hip all showed that Thompson acted as the

initial aggressor.

¶ 34 Consequently, the prosecutor’s statements prejudicially

suggested that the jury should “try to fit facts into an erroneously

given instruction” by finding Thompson the initial aggressor.

Castillo, ¶ 61. Given the prosecution’s prompting, there is a

reasonable possibility that the jury was misled into applying the

initial aggressor instruction, avoiding deciding if the prosecution

disproved at least one of the other affirmative defense conditions,

and then arriving at the conviction. Cf. Kaufman v. People, 202

P.3d 542, 562 (Colo. 2009) (“During deliberations, it is possible that

the jury may have wondered why it was given the instruction,

decided that it must have been for some purpose, and forced the

16
evidence to fit the instruction, thereby denying [the defendant] his

claim to self-defense.”).

¶ 35 To illustrate the point, contrast Manzanares with the situation

here. 942 P.2d at 1241. There, the division held that the trial court

had no evidentiary basis for providing an initial aggressor

instruction. Id. However, the division deemed the error harmless

because there was not a reasonable possibility that the instruction

misled the jury for two reasons. Id. First, the jury acquitted the

defendant of the crimes that required the same intent needed by the

initial aggressor instruction. Id. And second, the prosecutor made

no reference to the initial aggressor instruction and made no

attempts to characterize the defendant as the initial aggressor. Id.

¶ 36 Here, though, nothing within the instructions necessarily

prevented the jury from finding Thompson guilty after first deciding

that he was the initial aggressor. And the prosecutor did reference

the initial aggressor instruction during closing argument,

characterizing Thompson as the initial aggressor. See Castillo, ¶ 60

(“[W]e have recognized that errors regarding jury instructions can

be ‘exacerbated by the prosecution’s misleading comments during

17
its closing argument.’” (quoting People v. Garcia, 28 P.3d 340, 346

(Colo. 2001)).

¶ 37 Nonetheless, the People argue that the instruction could not

have misled the jury because the evidence was overwhelming that

Thompson did not act in self defense, implying that the jury

necessarily would have reached the same verdict without the error.

And to be sure, there is significant evidence aligned against

Thompson’s affirmative defense — especially the evidence regarding

a third shot. It’s also true that we cannot conclusively determine

whether the jury, in fact, applied the initial aggressor instruction or

if it instead found that the People had disproved at least one other

condition for the affirmative defense.

¶ 38 Still, the People’s position overlooks the standard of reversal

that controls our decision. “The inquiry . . . is not whether, in a

trial that occurred without the error, a guilty verdict would surely

have been rendered, but whether the guilty verdict actually

rendered in this trial was surely unattributable to the error.” People

v. Mendenhall, 2015 COA 107M, ¶ 49 (alteration omitted) (quoting

Blecha v. People, 962 P.2d 931, 942 (Colo. 1998)). Accordingly,

whatever the likelihood of a guilty verdict, the references to

18
overwhelming evidence disproving the affirmative defense fail to

show that the jury surely did not disregard the affirmative defense

after it found that Thompson was the initial aggressor. Thus, the

People fail to rule out the reasonable possibility that the jury’s

verdict rested on the erroneous instruction. See Hagos, ¶ 11; cf.

Mendenhall, ¶ 46 (“When there is legal error as to one basis for

finding an element, the submission of an alternative theory for

making that finding cannot sustain the verdict unless it is possible

to determine the verdict rested on the valid ground.” (alteration

omitted) (emphasis added) (quoting United States v. McKye, 734

F.3d 1104, 1110 n.6 (10th Cir. 2013)).

¶ 39 Therefore, because the People cannot meet their heavy burden

of disproving the reasonable possibility that the jury’s reliance on

the initial aggressor instruction contributed to the conviction in this

case, we must reverse. See Hagos, ¶ 11; People v. Beasley, 778

P.2d 304, 306 (Colo. App. 1989) (holding that the trial court

reversibly erred by giving an erroneous initial aggressor instruction

because “the court may have induced the jurors to characterize the

defendant as the first aggressor even though another individual

actually started the conflict and thereby unjustifiably to conclude

19
that defendant lost his right of self-defense”), abrogated on other

grounds by, Riley, 266 P.3d at 1094.

B. Remaining Contentions

¶ 40 Thompson also contends that the prosecutor committed

reversible misconduct during voir dire and closing argument, and

the court improperly limited objections during closing argument.

We do not address these arguments because they are unlikely to

arise in the same context on remand. See People v. Gillespie, 2024

COA 98, ¶ 56.

III. Disposition

¶ 41 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE J. JONES and JUDGE MOULTRIE concur.

20