Peo v. Reeves-Burrola

23CA0574 Peo v Reeves-Burrola 06-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0574
Weld County District Court No. 22CR86
Honorable Timothy Kerns, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jessica Reeves-Burrola,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE SCHOCK
Dunn and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 26, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jessica Reeves-Burrola, appeals her convictions for

first degree murder (extreme indifference), first degree assault,

reckless endangerment, and illegal discharge of a firearm. She

argues that the district court erred by (1) denying her motion to

suppress Facebook records obtained through an overbroad search

warrant; (2) admitting Facebook messages without proper

authentication; (3) failing to give the jury a “multiple assailant” or

“apparent necessity” instruction; and (4) instructing the jury on the

provocation exception to self-defense. We affirm the judgment.

I. Background

¶2 During an evening gathering at an apartment, Reeves-Burrola

knocked on the door, armed with a gun and accompanied by three

other people. According to the resident of the apartment, when she

and another man, Henry “Hank” Sandoval, opened the door and

saw the gun, they immediately slammed the door shut. As they did,

Reeves-Burrola shot through the door, hitting and killing Sandoval

and striking another occupant, Ruben Moreno, in the arm.

¶3 Reeves-Burrola gave a different account of the shooting.

According to her, Sandoval and others had attacked her and stolen

her car about a week earlier. The morning of the shooting, Reeves-

1
Burrola had learned that her car had been recovered, but she was

still missing her keys. So at the behest of a friend, she went to the

apartment to retrieve her keys in exchange for an ounce of

methamphetamine. Reeves-Burrola said that when the door

opened, Sandoval and Moreno rushed toward her. As they did so,

Sandoval pulled out a gun and shot at her, and she shot back.

¶4 Reeves-Burrola was charged with first degree murder for

shooting Sandoval and attempted first degree murder and first

degree assault for shooting Moreno, in addition to other counts.

Testifying at trial, Reeves-Burrola admitted that she shot Sandoval

and Moreno but claimed she had done so in self-defense.

¶5 The jury convicted Reeves-Burrola of first degree murder, first

degree assault, illegal discharge of a firearm, and reckless

endangerment (as a lesser included offense of attempted first degree

murder). She was sentenced to life in prison without parole.

II. Motion to Suppress

¶6 Reeves-Burrola first contends that the district court erred by

denying her motion to suppress Facebook records because the

search warrant for those records was overbroad. We agree that the

2
warrant was not sufficiently particular, but we nevertheless affirm

the denial of the motion to suppress under the good faith exception.

A. Additional Background

¶7 A couple days after the shooting, law enforcement received an

anonymous tip that Reeves-Burrola had sent Facebook messages

referring to the shooting and her stolen vehicle. The tipster sent the

detective a screenshot of the Facebook account and confirmed it

belonged to Reeves-Burrola. Based on that tip, the detective

applied for and received a search warrant for records associated

with the account. The supporting affidavit said the detective was

requesting a warrant for the account from December 20, 2021 (ten

days before the shooting and the day before Reeves-Burrola

reported her vehicle stolen), to January 3, 2022 (four days after the

shooting), “in order to recover evidence of this murder investigation

as well as Reeves-Burrola’s assault and stolen vehicle.”

¶8 But the warrant itself was not so limited. Instead, the warrant

identified twenty-three broad categories of information, including,

among other things, profile information, email addresses, GPS

locations, status update history, notes, shares, mini-feeds, wall

posts, friend lists, group listings, events, video listings, applications,

3
messages, a user photoprint and user comments, private messages,

and IP logs. The only categories that were limited by date were

logins and the associated IP addresses, which were limited to a date

range of December 20, 2021, through January 7, 2022.

¶9 Reeves-Burrola moved to suppress all evidence obtained from

the search of her Facebook account on the grounds that the

warrant was not supported by probable cause and was not

sufficiently particular. She argued that the good faith exception did

not apply because the language of the warrant was similar to the

language of warrants the supreme court has deemed overbroad.

¶ 10 The district court acknowledged that, read in isolation, the

warrant was overbroad. But it concluded that the warrant had to

be read in the context of the affidavit, which “limit[ed] the duration

and the nature of the information that was being sought.” Based

on those affidavits, the court ruled that the warrant was sufficiently

particular, and it denied the motion to suppress. After hearing

testimony from the lead detective, the court further found that, even

if the warrant was invalid, the good faith exception would apply.

4
B. Applicable Law and Standard of Review

¶ 11 The Fourth Amendment requires search warrants to

“particularly describ[e] the place to be searched, and the persons or

things to be seized.” U.S. Const. amend. IV; see also Colo. Const.

art. II, § 7. This requirement protects against “general, exploratory

rummaging in a person’s belongings” by ensuring that the search is

“confined in scope to particularly described evidence relating to a

specific crime for which there is demonstrated probable cause.”

People v. Seymour, 2023 CO 53, ¶ 44 (citations omitted). A warrant

without particularity is invalid. People v. Coke, 2020 CO 28, ¶ 38.

¶ 12 In some cases, a supporting affidavit may provide the requisite

particularity that is not contained in the warrant itself. People v.

Staton, 924 P.2d 127, 132 (Colo. 1996). For it to do so, three

conditions must be satisfied: (1) the warrant must incorporate the

affidavit by reference; (2) both documents must be presented to the

issuing magistrate or judge; and (3) either the affidavit must

accompany the warrant during the search or the search must be

conducted under the supervision and control of the affiant. Id.

¶ 13 Generally, evidence seized under an overbroad warrant must

be suppressed. See Seymour, ¶ 62; Coke, ¶ 38. But under the good

5
faith exception to the exclusionary rule, evidence should not be

suppressed if officers “act[ed] in objectively reasonable reliance on a

warrant issued by a detached and neutral magistrate.” Seymour,

¶ 63 (citation omitted); see also § 16-3-308(1), C.R.S. 2024. An

officer’s reliance on a warrant is unreasonable when, as relevant

here, the warrant is “so facially deficient . . . in failing to

particularize the place to be searched or the things to be seized . . .

that the executing officers cannot reasonably presume it to be

valid.” United States v. Leon, 468 U.S. 897, 923 (1984).

¶ 14 The district court’s denial of a motion to suppress presents a

mixed question of fact and law. Seymour, ¶ 19. We defer to the

district court’s factual findings if they are supported by competent

evidence, but we review the legal effect of those findings de novo.

Id. In particular, we review de novo whether a search warrant and

supporting affidavit satisfied the particularity requirement and

whether the good faith exception applies. Pettigrew v. People, 2022

CO 2, ¶ 49; People v. Hagos, 250 P.3d 596, 619 (Colo. App. 2009).

C. Analysis

¶ 15 There can be little question that the Facebook warrant itself

lacked the requisite particularity — and indeed, the People do not

6
argue otherwise. Like the overbroad warrant in Coke, the warrant

“contains no particularity as to the alleged victim or,” with one

exception, “to the time period during which the [crimes] allegedly

occurred.” Coke, ¶ 38. The only category with any date limitation

is “Logins for dates between 12/20/2021 and 01/07/2022.” But

the warrant also separately lists “IP Logs” with no date limitation.

And none of the other categories — which effectively comprise the

entirety of the Facebook account — are limited by date either.

¶ 16 Nor does the warrant identify the crime under investigation.

Cf. United States v. Zelaya-Veliz, 94 F.4th 321, 337 (4th Cir. 2024)

(holding that broad warrant to search Facebook records was

sufficiently particular because the seizure was limited to evidence of

enumerated offenses); United States v. Suggs, 998 F.3d 1125, 1134

(10th Cir. 2021) (“[A] warrant may satisfy the particularity

requirement if its text constrains the search to evidence of a specific

crime . . . .”). Although the warrant quoted Crim. P. 41(b)’s

requirement that the requested data was “designed or intended for

use” or was or had “been used as a means of committing a criminal

offense” and “would be material evidence in a subsequent criminal

prosecution,” it never said what that crime was. C.R.C.P. 41(b)(2)-

7
(3), (5) (emphasis added); see Mink v. Knox, 613 F.3d 995, 1010-11

(10th Cir. 2010) (holding that citation to Crim. P. 41(b), without

more, did not provide requisite particularity); Suggs, 998 F.3d at

1134-35 (holding that this language “provides no context from

which to constrain the search to evidence of a specific crime”).

¶ 17 By failing to do so, the warrant authorized officers to search

the entire Facebook account — all messages, videos, photos,

contact lists, posts, location data, and more — for evidence wholly

unrelated to the crimes under investigation. See Coke, ¶ 38.

¶ 18 Conflating the warrant and the supporting affidavit, the People

rely entirely on the affidavit to provide the requisite particularity.

Unlike the warrant, the affidavit did specify the crimes under

investigation and a date range tethered to those crimes (though it

also included the same list of unrestricted categories). The problem

is that the People do not argue that the Staton factors for

incorporation of a curative affidavit are satisfied. And they are not.

¶ 19 Most importantly, an affidavit can be used to satisfy the

Fourth Amendment’s particularity requirement only if the warrant

incorporates the affidavit by reference. Staton, 924 P.2d at 132. It

is not enough that the warrant mentions the affidavit; it must

8
incorporate it through “appropriate words of incorporation.” Groh v.

Ramirez, 540 U.S. 551, 558 (2004); see also Suggs, 998 F.3d at

1135. Such express incorporation is critical because “[t]he Fourth

Amendment by its terms requires particularity in the warrant, not

in the supporting documents.” Groh, 540 U.S. at 557.

¶ 20 The warrant in this case mentions the affidavit only twice,

once to say that an affidavit had been filed — “Detective Fidel

Sanchez, having this date filed an Affidavit for a Search Warrant” —

and once to again identify the affiant — “[t]he names of persons

whose affidavits have been taken in support hereof are: Detective

Fidel Sanchez.” In neither instance did the warrant incorporate the

affidavit or suggest that the affidavit further defined the scope of the

search. See id. at 555-58 (holding that warrant did not incorporate

affidavit where it “recite[d] that the Magistrate was satisfied the

affidavit established probable cause”); United States v. Tracey, 597

F.3d 140, 149 (3d Cir. 2010) (holding that warrant did not

incorporate affidavit where “a reader of the warrant would know

that an affidavit is attached, but would have no indication that the

attached affidavit limits the officers in their search”); cf. Staton, 924

P.2d at 132 (holding that warrant incorporated affidavit by twice

9
saying that the subject of the search was “as described in the

[affidavit]”). Because the warrant did not incorporate the affidavit,

we may not look to the affidavit to cure the deficient warrant.1

¶ 21 We nevertheless conclude for three reasons that the good faith

exception applies. First, no Colorado case law has specifically

addressed the degree of particularity required for a Facebook search

warrant, and other courts have wrestled with this question. See

Zelaya-Veliz, 94 F.4th at 340-41 (applying good faith exception

based on “unsettled nature of whether a temporal limitation is

required on a warrant authorizing the search and seizure of

Facebook account data”). Absent such precedent, a reasonable

officer would not necessarily have known that the warrant was

unlawful despite the magistrate’s authorization. See id.; Seymour,

¶ 70 (applying good faith exception based on “absence of precedent

explicitly establishing” a constitutionally protected privacy interest).

¶ 22 Second, the detective who signed the affidavit also conducted

the Facebook search. In that affidavit, he stated that he was

1 We also note that, although the other two factors in People v.

Staton, 924 P.2d 127 (Colo. 1996), appear to be satisfied based on
the record, the People make no argument as to those factors either.

10
requesting a warrant for the Facebook account from “December

20th, 2021 – January 3rd, 202[2] in order to recover evidence of

this murder investigation as well as Reeves-Burrola’s assault and

stolen vehicle.” The detective could have reasonably believed the

scope of the warrant was limited to what he had requested. See

United States v. Russian, 848 F.3d 1239, 1246 (10th Cir. 2017)

(“Although a warrant . . . affidavit cannot save a warrant from facial

invalidity, it can support a finding of good faith, particularly

where . . . the officer who prepared the . . . affidavit also executed

the search.”). And consistent with that understanding, there is no

indication in the record that the search exceeded that scope.

¶ 23 Third, other divisions of this court have concluded that a

search warrant did incorporate a supporting affidavit by cross-

referencing it without using express words of incorporation. See,

e.g., People v. Rodriguez-Ortiz, 2025 COA 30, ¶¶ 29, 33 & n.2; see

also Chavez v. Chavez, 2020 COA 70, ¶ 13 (“[D]ivisions are not

bound by the decisions of other divisions . . . .”). A reasonable

officer could have reached the same conclusion.

¶ 24 Reeves-Burrola contends that the good faith exception should

not apply because the warrant (1) was based on an anonymous tip

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and (2) authorized a “largely unrestrained search of anything and

everything related to [her] Facebook account.” Reeves-Burrola’s

first argument goes to whether the affidavit was supported by

probable cause — an issue she does not raise on appeal — not

whether the warrant was sufficiently particular. See People v.

Leftwich, 869 P.2d 1260, 1266-67 (Colo. 1994) (holding that

anonymous letter did not establish probable cause).2 As to her

second argument, we agree, and that is why the warrant is invalid.

But it does not refute our conclusion that the detective could have

reasonably believed the warrant was limited by his affidavit.

¶ 25 Under these circumstances, we conclude that it was

objectively reasonable for the detective to rely on the warrant —

issued by a neutral and detached magistrate — even though we

have determined that warrant to be invalid. See Seymour, ¶ 63;

§ 16-3-308(1)-(2)(a) (providing that evidence shall not be suppressed

if it was seized as a result of “a reasonable judgmental error

2 The affidavit also stated that, in addition to the anonymous tip,

which referred to the shooting and Reeves-Burrola’s stolen vehicle,
the tipster sent the detective a screenshot of the account.

12
concerning the existence of facts or law”). We therefore affirm the

district court’s denial of Reeves-Burrola’s motion to suppress.

III. Authenticity of Facebook Records

¶ 26 Reeves-Burrola next argues that the district court erred by

admitting Facebook messages into evidence without proper

authentication. We disagree.

A. Additional Background

¶ 27 Reeves-Burrola moved before trial to preclude the prosecution

from relying on a certificate of authenticity from Facebook to self-

authenticate the Facebook records. She argued that the certificate

of authenticity could not establish the authenticity of those records

under CRE 902(11) because the Facebook custodian did not have

personal knowledge of the content of the records. Because the

prosecution did not yet know what records it intended to introduce,

the district court deferred ruling on the motion until trial.

¶ 28 At trial, the prosecution sought to admit the certificate of

authenticity and a two-page Facebook message exchange between

Reeves-Burrola and a third party, in which Reeves-Burrola referred

to the shooting. The certificate of authenticity was signed by a

Facebook custodian of records and attested, among other things,

13
that the records were “an exact copy of the records that were made

and kept by the automated systems of Facebook in the course of

regularly conducted activity as a regular practice of Facebook.”

¶ 29 Reeves-Burrola objected to the certificate of authenticity and

the underlying records, arguing that the records could be

authenticated only through testimony from the Facebook custodian.

Relying on People v. Glover, 2015 COA 16, the prosecution asserted

that the records could be authenticated through (1) testimony from

the lead detective that he had received the records from Facebook

through a warrant and (2) evidence tying the account to Reeves-

Burrola. The court ruled that, if the evidence was consistent with

the prosecution’s offer of proof, the records would be admitted.

¶ 30 The detective testified that he found a Facebook page in

Reeves-Burrola’s name with her profile picture that said she was

from Greeley (where Reeves-Burrola lived). He requested records for

that account through a court order and received those records from

Facebook. When he received them, he recognized one of the email

addresses associated with the account as an email address that

Reeves-Burrola had admitted was hers in a jail call to her father.

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¶ 31 The detective then testified about the message exchange

between Reeves-Burrola and the third party, which occurred within

hours of the shooting. In the exchange, Reeves-Burrola says she

“[f]ucked up by shooting a little bitch that fucking stole my keys,”

and “[H]ank stole my car after stomping on me . . . so I shot him.”

¶ 32 The district court admitted the certificate of authenticity and

the message exchange over Reeves-Burrola’s objection.

B. Standard of Review and Applicable Law

¶ 33 We review evidentiary rulings, including as to authentication,

for an abuse of discretion. Glover, ¶ 10. A court abuses its

discretion if it “misconstrues or misapplies the law or otherwise

reaches a manifestly arbitrary, unreasonable, or unfair result.” Id.

¶ 34 Authentication requires “evidence sufficient to support a

finding that the evidence in question is what its proponent claims.”

Id. at ¶ 12; see also CRE 901(a). The burden to authenticate “is not

high — only a prima facie showing is required.” Glover, ¶ 13

(citation omitted). A district court’s role is not to decide definitively

whether the evidence is authentic but “whether the proponent has

offered a satisfactory foundation from which the jury could

reasonably [so] find.” Id. (citation omitted). If this standard is met,

15
the evidence should be admitted and “the fact finder determines its

weight.” People in Interest of A.C.E-D., 2018 COA 157, ¶ 43.

¶ 35 The authentication of Facebook messages requires two

showings: (1) that the records are those of Facebook and (2) that the

communications were made by the purported sender. Glover, ¶ 23.

The first showing can be made through the testimony of a witness

with knowledge or consideration of the distinctive characteristics of

the records. Id. at ¶ 24. Such evidence may include “testimony

regarding how the records were obtained, the substance of the

records themselves, and affidavits or testimony from employees of

the social networking site.” Id. at ¶ 26. The second showing

requires “additional corroborating evidence of authorship . . .

beyond confirmation that the [Facebook] account is registered to the

party purporting to create those messages.” Id. at ¶ 30. This

standard is satisfied by testimony establishing any combination of

the following factors:

(1) the account was registered to the purported sender;

(2) corroborative evidence showed that the account was used

by the purported sender;

16
(3) the substance of the communication was recognizable as

being from the purported sender;

(4) the sender “responded to an exchange in such a way as

to indicate circumstantially that he or she was in fact the

author of the communication”; and

(5) any other confirming evidence under the circumstances.

People v. Heisler, 2017 COA 58, ¶ 12 (citation omitted).

C. Analysis

¶ 36 The district court did not abuse its discretion by concluding

that the prosecution cleared the low hurdle of authentication.

¶ 37 First, Reeves-Burrola does not dispute that the evidence was

sufficient to show that the records came from Facebook. See

Glover, ¶ 23. As in Glover, the detective testified that he received

the records from Facebook in response to the warrant. See id. at

¶ 27. He also testified that he reviewed the records when he

received them and that the message exchange was part of those

records. And the records were accompanied by the certificate of

authenticity, which stated that the records were an exact copy of

records made and kept by Facebook’s automated systems. See id.

Reeves-Burrola does not challenge the admission of that certificate

17
of authenticity on appeal. This evidence was sufficient to support a

finding that “the printouts contained content from Facebook.” Id.

¶ 38 Second, the evidence was also sufficient to support a finding

that the Facebook account belonged to Reeves-Burrola and that she

sent the messages. See id. at ¶ 33. The account was registered in

Reeves-Burrola’s name and included her profile photo and

hometown. Reeves-Burrola’s email address was also associated

with the account.3 Moreover, the substance of the messages

provided further indication that Reeves-Burrola sent them. See

Heisler, ¶ 12. The messages, sent hours after the shooting, referred

to the shooting, the victim, and the theft of Reeves-Burrola’s car

and keys. And the person Reeves-Burrola messaged called her

“Jessica” in response. See Glover, ¶ 32 (noting that others referred

to the defendant by his nickname in the Facebook messages).

¶ 39 Under these circumstances, we conclude that the district

court did not abuse its discretion under CRE 901(b) by admitting

3 Reeves-Burrola later testified that the messages came from her

Facebook account and that she was next to her roommate while
they were written, but she denied writing the messages.

18
the Facebook messages. To the extent Reeves-Burrola denied

sending them, that was a question for the jury. See A.C.E-D., ¶ 43.

IV. Jury Instructions

¶ 40 Reeves-Burrola also contends that the district court plainly

erred by (1) failing to give the jury a multiple assailant or apparent

necessity instruction and (2) giving a provocation instruction that

was unsupported by the evidence. We perceive no plain error.

A. Additional Background

¶ 41 The district court gave the jury four instructions on self-

defense: two on deadly physical force for the shooting of Sandoval

(one as an affirmative defense and one as an element-negating

traverse) and two on general “defense of person” for the shooting of

Moreno (again as an affirmative defense and as an element-negating

traverse). All four instructions tracked the Colorado model jury

instructions on self-defense, and each incorporated the provocation

exception, providing that self-defense does not apply if the actor,

“with intent to cause bodily injury or death to another person,”

provokes “the use of unlawful physical force by that other person.”

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¶ 42 Reeves-Burrola did not request an instruction regarding

multiple assailants or apparent necessity. Nor did she object to the

inclusion of the provocation exception in the instructions.

B. Standard of Review

¶ 43 The district court must correctly instruct the jury on all

applicable matters of law. Riley v. People, 266 P.3d 1089, 1092

(Colo. 2011); People v. Roberts-Bicking, 2021 COA 12, ¶ 17. We

review jury instructions de novo to determine whether the

instructions as a whole accurately informed the jury of the

governing law. Riley, 266 P.3d at 1092-93. If the district court

properly instructed the jury on the applicable law, we review its

decision to give or not give a particular instruction for an abuse of

discretion and will not disturb that decision unless it is manifestly

arbitrary, unreasonable, or unfair. Roberts-Bicking, ¶ 17.

¶ 44 Because Reeves-Burrola did not raise either of her challenges

to the instructions in the district court, we may reverse only for

plain error. Hoggard v. People, 2020 CO 54, ¶ 13. Plain error is

obvious and substantial error that “so undermine[d] the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” Id. (citation omitted).

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C. Multiple Assailants and Apparent Necessity

¶ 45 In a self-defense case involving multiple assailants, the jury

must consider the “totality of the circumstances, including the

number of persons reasonably appearing to be threatening the

defendant,” in evaluating the reasonableness of the defendant’s

belief in the need for self-defense and the degree of force used.

Riley, 266 P.3d at 1094. But the district court does not need to give

a specific multiple assailants instruction in every such case.4 Id.

Rather, all that is required is that “the given instructions properly

direct the jury to consider the totality of the circumstances” in

assessing the reasonableness of the defendant’s actions. Id.

¶ 46 For two reasons, the district court did not plainly err by failing

to give a multiple assailants instruction when Reeves-Burrola did

not request one. First, the evidence and defendant’s argument did

not obviously implicate a multiple assailants theory of defense.

4 Reeves-Burrola relies on People v. Manzanares, 942 P.2d 1235,

1240 (Colo. App. 1996), abrogated by Riley v. People, 266 P.3d 1089
(Colo. 2011), and other cases that predate Riley for the proposition
that a multiple assailants instruction must be given in any case
involving multiple participants. But to the extent pre-Riley case law
suggests that such an instruction is always required, Riley held
otherwise. See People v. Roberts-Bicking, 2021 COA 12, ¶¶ 20-21.

21
Although Reeves-Burrola testified that two men rushed toward her

when they opened the door, she said she fired her gun because

Sandoval shot at her. In both opening and closing, Reeves-

Burrola’s counsel similarly argued that she shot because she

believed that Sandoval was going to kill her. She did not assert that

Moreno did anything other than follow Sandoval. Nor did she

assert that anyone else in the apartment had done anything at all.

¶ 47 Second, even assuming the evidence supported a multiple

assailants theory, the instructions as a whole properly directed the

jury to “consider all relevant evidence when assessing the

reasonableness of the defendant’s actions,” which necessarily

includes the number of perceived assailants. Riley, 266 P.3d at

1094. The affirmative defense instructions each told the jury to

“consider[] all the evidence” in determining whether the prosecution

had satisfied its burden of disproving the defenses. While the

traverse instructions did not themselves include that language, the

elemental instructions to which they referred did. Moreover, each

of the instructions “accurately defined self-defense in terms of the

reasonableness” of Reeves-Burrola’s belief in the imminent use of

physical force against her and the degree of force necessary. Id.

22
Such language was not obviously insufficient to encompass a

multiple assailants theory of defense, to the extent Reeves-Burrola

asserted one. See id. at 1095 (holding that no multiple assailants

instruction was required based on similar model instruction).

¶ 48 We recognize that Roberts-Bicking concluded that the model

instruction on self-defense “alone fails to adequately instruct the

jury to consider the totality of the circumstances in a multiple

assailant scenario.” Roberts-Bicking, ¶ 26. But in Roberts-Bicking,

the defendant requested a multiple assailants instruction. Reeves-

Burrola did not. We cannot say that the district court plainly erred

by failing to sua sponte give a separate multiple assailants

instruction that was not squarely presented by the evidence or

raised by the parties, particularly when the given instructions

accurately defined self-defense. See Riley, 266 P.3d at 1094-95.

¶ 49 Finally, the district court did not plainly err by failing to give a

jury instruction on apparent necessity. A self-defense instruction

that tracks the statutory language — as the ones here did —

“sufficiently encompasses the concept of apparent necessity,” thus

making a separate instruction unnecessary. Roberts-Bicking, ¶ 23;

see also Beckett v. People, 800 P.2d 74, 77-78 (Colo. 1990).

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D. Provocation Instruction

¶ 50 We also reject Reeves-Burrola’s contention that the district

court plainly erred by instructing the jury on provocation.

¶ 51 A person may not use physical force in self-defense if, “[w]ith

intent to cause bodily injury or death to another person, [the

defendant] provokes the use of unlawful physical force by that other

person.” § 18-1-704(3)(a), C.R.S. 2024. This exception applies

when (1) the other person uses unlawful physical force against the

defendant; (2) the defendant provoked the use of such physical

force; and (3) the defendant intended the provocation to “goad the

other person into attacking [them] in order to provide a pretext to

injure or kill that person.” Galvan v. People, 2020 CO 82, ¶ 19.

¶ 52 When the district court instructs the jury on self-defense as an

affirmative defense, it should instruct the jury on the provocation

exception if there is “some evidence” to support it. Id. at ¶ 25. In

reviewing the decision to give such an instruction, we must view the

evidence in the light most favorable to the instruction. Id. at ¶ 33.

¶ 53 Viewed in that light, we conclude that there was some

evidence to support the provocation exception. The evidence

indicated that Reeves-Burrola went to the apartment armed and

24
with three other people because she believed the people who had

stolen her car were in that apartment. She knocked on the door

and held the gun in such a way that it was visible to Sandoval

immediately upon opening the door. And Reeves-Burrola testified

that Sandoval shot at her first. After the shooting, Reeves-Burrola

told a third party she shot Sandoval because he stole her car.

¶ 54 From this evidence, a jury could reasonably find that

(1) Sandoval used unlawful physical force against Reeves-Burrola;

(2) Reeves-Burrola provoked that physical force by showing up to

the apartment unannounced and brandishing a gun; and (3) by

doing so, she intended to incite a confrontation that would allow

her to shoot Sandoval in retaliation for stealing her car. There

could certainly be other reasonable interpretations of the evidence,

but the resolution of conflicting reasonable inferences is part of the

jury’s factfinding function. See Roberts-Bicking, ¶ 40.

¶ 55 At a minimum, under these facts, the provocation exception

was not so obviously inapplicable that the district court should

have been alerted to strike it from the instruction without the

benefit of an objection. See People v. Crabtree, 2024 CO 40M, ¶ 42.

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V. Disposition

¶ 56 The judgment is affirmed.

JUDGE DUNN and JUDGE BROWN concur.

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