Peo v. Dearing

20CA2072 Peo v Dearing 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA2072
Adams County District Court No. 18CR375
Honorable Mark D. Warner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dreion Martise Dearing,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE HARRIS
J. Jones and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrew C. Heher, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury found defendant, Dreion Martise Dearing, guilty of

felony murder of a peace officer, reckless manslaughter, and first

degree burglary.

¶2 On appeal, he raises multiple challenges to his convictions,

primarily arguing that because the first degree burglary predicate to

felony murder cannot stand, his felony murder conviction must be

reversed. We reject that argument, as well as his other challenges,

and therefore affirm the judgment.

I. Background

¶3 On an evening in January 2018, Dearing, his sixteen-year-old

female cousin, and two or three others went to the apartment that

Peter Aquino shared with his girlfriend and a roommate. Dearing’s

cousin had been involved in a sexual relationship with Aquino, a

teacher at her high school. Earlier that day, Aquino’s girlfriend had

confronted the cousin in a nearby parking lot, and, while Aquino

and some others looked on, the girlfriend assaulted the cousin.

¶4 When Aquino opened the apartment door that evening and

stepped outside to the landing, he heard a female voice say, “that’s

him,” and then the group began punching and kicking him.

1
Aquino’s girlfriend followed him outside, and the group assaulted

her too.

¶5 Two males and a female from the group entered Aquino’s

apartment. The third roommate and a friend, Raymondo

Valenzuela, were inside. One of the males punched Valenzuela,

knocking him unconscious. The female hit the third roommate in

the face and the two males punched and “stomp[ed]” on him.

¶6 A neighbor who called 911 watched the group leave the

apartment building and gather in the adjacent parking lot. She saw

some of the group leave in a black SUV, but one man, whom she

identified by his black hoodie and turquoise boxer shorts, was left

behind. She saw him walk east into a residential neighborhood.

¶7 About ten minutes later, two police officers who had

responded to a dispatch call about the assault saw a man, later

identified as Dearing, in the neighborhood, standing in front of a

house. When one of the officers attempted to contact him, Dearing

ran. The two officers chased him into a backyard where Dearing

and the officers exchanged gun fire. Dearing’s shots hit one of the

officers, killing him. While the second officer was giving aid,

Dearing fled the scene.

2
¶8 Officers responding to the shooting tracked Dearing to a

treehouse in a nearby yard. They pulled him from the treehouse

and arrested him. He was wearing a black hoodie and turquoise

boxer shorts. He told police that he did not know how he got to the

yard. He said that he had been driving around with a friend,

became intoxicated and blacked out, and woke up as he was pulled

out of the treehouse.

¶9 The People charged Dearing with first degree murder (after

deliberation), first degree felony murder,1 first degree burglary, and

third degree assault.2

¶ 10 After a lengthy trial, the jury returned a mixed verdict. It

acquitted Dearing of first degree murder (after deliberation) and

instead convicted him of the lesser included offense of reckless

manslaughter. It found Dearing guilty of felony murder and first

degree burglary but not guilty of third degree assault.

1 In April 2021, the General Assembly reclassified felony murder as

a class 2 felony. Ch. 58, sec. 2, § 18-3-103, 2021 Colo. Sess. Laws
236. The reclassification applies to offenses committed on or after
September 15, 2021. Sec. 6, 2021 Colo. Sess. Laws at 238.

2 Dearing was also charged with possession of a weapon by a

previous offender, but that charge was not submitted to the jury.

3
¶ 11 At sentencing, the court merged the manslaughter and first

degree burglary convictions into the felony murder conviction.

Then, for the felony murder conviction, it imposed the mandatory

sentence of life in prison without the possibility of parole.

II. Judicial Bias

¶ 12 Dearing first contends that the trial judge’s failure to recuse

himself from the case resulted in structural error requiring reversal

of his convictions.

A. Facts Related to the Disqualification Motions

¶ 13 An Adams County district court judge presided over Dearing’s

trial. At the time, the judge’s wife was a prosecutor in the office of

the Jefferson County district attorney (JeffCo D.A.) and a supervisor

in the unit that prosecutes sexual offenses.

¶ 14 About a year after Dearing’s arrest, the JeffCo D.A.’s office

filed a criminal complaint charging Aquino with sexual offenses

arising out of his relationship with Dearing’s underage cousin.

Shortly thereafter, Dearing’s lawyer issued a subpoena to the JeffCo

D.A.’s office requesting essentially all the records relating to law

enforcement’s investigation of Aquino.

4
¶ 15 The JeffCo D.A.’s office moved to quash the subpoena. The

next business day, without awaiting a response from defense

counsel or holding a hearing, the trial judge granted the motion to

quash in a one-sentence order.

¶ 16 Dearing’s lawyers then moved to disqualify the judge, arguing

that the judge’s wife was “engaged in the case” by virtue of her

employment with the JeffCo D.A.’s sexual offense unit and that the

judge’s handling of the motion to quash demonstrated bias or an

appearance of bias. The trial judge concluded that the facts alleged

did not support disqualification and denied the motion. Dearing

petitioned for review in the supreme court under C.A.R. 21,

reiterating his arguments for disqualification, but the supreme

court denied review.

¶ 17 Six months later, defense counsel renewed their motion to

disqualify the judge. The renewed motion alleged that the judge

had exhibited bias by refusing to order pretrial disclosure of

Aquino’s offense-specific evaluation prepared in connection with his

criminal case. The trial judge denied the renewed motion.

5
B. Discussion

¶ 18 “Basic to our system of justice is the principle that a judge

must be free of all taint of bias and partiality.” People v. Jennings,

2021 COA 112, ¶ 18. That principle is enforced through the Due

Process Clause; section 16-6-201, C.R.S. 2024; Crim. P. 21(b); and

Colorado Code of Judicial Conduct (C.J.C.) Rule 2.11(A). See

Sanders v. People, 2024 CO 33, ¶¶ 27, 39, 45; see also People v.

Garcia, 2024 CO 41M, ¶ 22.

¶ 19 We review de novo whether a trial judge was required to recuse

himself from a case. Richardson v. People, 2020 CO 46, ¶ 22.

1. Due Process

¶ 20 “Due process guarantees ‘an absence of actual bias’ on the

part of a judge.” Williams v. Pennsylvania, 579 U.S. 1, 8 (2016)

(quoting In re Murchison, 349 U.S. 133, 136 (1955)). Actual bias is

bias that in all probability will prevent a judge from dealing fairly

with a party. Jennings, ¶ 28.

¶ 21 A claim of actual bias generally focuses on the subjective

motivations of the judge. People in Interest of A.G., 262 P.3d 646,

651 (Colo. 2011). Under those circumstances, the party asserting

actual bias must show that the judge had a “substantial bent of

6
mind against him.” People v. Drake, 748 P.2d 1237, 1249 (Colo.

1988).

¶ 22 But the Due Process Clause also protects a defendant from an

unacceptably high risk of judicial bias. When a defendant raises

that kind of claim, courts apply an objective standard that asks not

whether a judge harbors an actual subjective bias, but instead

whether, “objectively speaking, ‘the probability of actual bias . . . is

too high to be constitutionally tolerable.’” Sanders, ¶ 29 (quoting

Rippo v. Baker, 580 U.S. 285, 287 (2017)). Still, this standard does

not require a judge to recuse himself “whenever a party can assert

some objective probability of bias.” Id. at ¶ 31. The risk of bias

must be concrete; a risk that is “too remote and insubstantial does

not violate the Due Process Clause.” Id. at ¶ 32.

¶ 23 Though Dearing does not develop a specific due process

argument, he generally contends that the judge’s marital

relationship with a supervising attorney in the JeffCo D.A.’s office —

the office prosecuting a witness in Dearing’s case — created too

high a probability of bias. We disagree.

¶ 24 Dearing’s motion did not allege that the judge’s wife was one of

the lawyers who prosecuted Aquino. But even if she was, the

7
allegations do not establish that she had an interest in the outcome

of Dearing’s case. Thus, as an objective matter, a judge presiding

over Dearing’s trial would not be faced with “a possible temptation”

to forgo his neutrality for the sake of helping his wife. Aetna Life

Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986) (citation omitted); see

also State v. Harrell, 546 N.W.2d 115, 118 (Wis. 1996) (explaining

that, because prosecutors do not “have the same type of interest in

the outcome of a trial as does a member of a private law firm,” it is

unlikely that a judge’s marital relationship with a prosecutor who is

not directly involved in the case “would affect his . . . impartiality”);

C.J.C. 2.11(A)(2)(c) (A judge should recuse himself if his spouse has

an interest that could be “substantially affected by the

proceeding.”).

¶ 25 Even if the trial judge himself had been employed by the

JeffCo D.A.’s office during some part of Aquino’s prosecution,

recusal would not have been required unless he worked directly on

the case. See People v. Julien, 47 P.3d 1194, 1198 (Colo. 2002).

Indeed, even if the trial judge had previously prosecuted Dearing in

a different case, he would not necessarily have been disqualified

from presiding over the trial. See People v. Flockhart, 2013 CO 42,

8
¶¶ 51-52 (judge who previously prosecuted defendant on unrelated

charges was not required to recuse himself). It follows that the Due

Process Clause does not require the trial judge’s disqualification

merely because his wife worked for the district attorney’s office

prosecuting a witness in Dearing’s case.

¶ 26 To the extent Dearing argues that the trial judge was unlikely

to be able to resolve the subpoena issues impartially because the

average judge would feel compelled to rule in favor of his wife’s

employer in all circumstances, we reject that argument. In our

view, any general interest the trial judge had in currying favor with

his wife’s colleagues is simply “too remote and insubstantial to

violate the constitutional constraints.” Lavoie, 475 U.S. at 826

(citation omitted); see also Sanders, ¶ 36 (risk of bias was “merely

theoretical” where trial judge experienced criminal conduct similar

to that presented in the criminal case over which she was

presiding).

2. Section 16-6-201 and Crim. P. 21(b)

¶ 27 Under both section 16-6-201(1)(a) and Crim. P. 21(b)(1)(I), a

judge is disqualified if he is “related to . . . any attorney of record or

attorney otherwise engaged in the case.” Dearing says the judge’s

9
wife was “engaged in the case” because, during the pretrial

proceedings, a lawyer from the JeffCo D.A.’s office moved to quash

the subpoena issued by Dearing’s defense counsel.

¶ 28 “[A] government attorney is only ‘engaged in the case’ when

[s]he has worked on it directly.” Smith v. Beckman, 683 P.2d 1214,

1216 (Colo. App. 1984). The trial judge’s wife did not work directly

on Dearing’s case: she did not enter an appearance, appear in

court, file or sign any motions or other documents, or otherwise

participate directly in any capacity in the case. That someone from

her office filed a motion to quash a subpoena does not show that

she worked directly on Dearing’s case. Dearing alleged in his

motion that the judge’s wife was a supervisor in the special victims

unit, but he did not allege — and the record does not support a

finding — that the judge’s wife supervised the filing of the motion to

quash, which was signed by the chief deputy district attorney in the

appellate division of the JeffCo D.A.’s office. Under these

circumstances, the judge’s wife was not “engaged in the case,” and

the judge was not required to recuse himself on this basis. See id.

(judge’s wife was not “engaged in” the defendant’s misdemeanor

case merely because she was a deputy district attorney in the same

10
county); see also United States v. Vazquez-Botet, 453 F. Supp. 2d

362, 365-67 (D.P.R. 2006) (judge’s spouse was not “acting as a

lawyer in the proceeding” where she had previously represented two

potential witnesses); Laurence v. State, 394 So. 3d 241, 245-46 (Fla.

Dist. Ct. App. 2024) (recusal was not required where the judge’s

wife was executive director of the state attorney’s office prosecuting

the defendant but did not participate in the case); In re

Disqualification of Carr, 2004-Ohio-7357, ¶ 17 (“Where a judge is

married to a prosecutor whose office is representing the state in a

case before him or her, disqualification of the judge is not required,

as long as the judge’s spouse has neither entered an appearance in

the case nor participated in the preparation or presentation of the

case.”).

3. C.J.C. 2.11(A)

¶ 29 Under C.J.C. 2.11(A), a judge must recuse himself from “any

proceeding in which [his] impartiality might reasonably be

questioned.”

¶ 30 Citing Flockhart, Dearing argues that even if the judge’s wife

was not engaged in his case, she was engaged in the related case

against Aquino. See Flockhart, ¶ 52 (A judge who, as a district

11
attorney, previously prosecuted the defendant is not disqualified

from presiding over the defendant’s trial “[a]bsent facts

demonstrating some material relationship between the two

proceedings, or facts showing that the [judge’s] past prosecution [of

the defendant] is relevant to the current case.”). And he says that

under Beckman, we must presume that the judge and his wife

shared facts about the two cases, including the motion to quash,

thereby giving rise to an appearance of impropriety. 683 P.2d at

1216.

¶ 31 We disagree that Dearing’s allegations state “sufficient factual

grounds” to “cause a reasonable, objective person, knowing all the

relevant facts, to question the judge’s impartiality.” United States v.

Woodmore, 135 F.4th 861, 873 (10th Cir. 2025) (citation omitted).

As noted, the judge’s wife did not work directly on Aquino’s case

and had nothing to do with the motion to quash the subpoena. See

State ex rel. Brown v. Dietrick, 444 S.E.2d 47, 54 (W. Va. 1994) (no

appearance of impropriety where judge issued a search warrant

requested by the police department overseen by the judge’s spouse

because the spouse was not involved in requesting the warrant).

And the two cases were only tangentially related; the outcome of

12
Aquino’s case did not affect Dearing’s case. See People in Interest of

C.Y., 2018 COA 50, ¶¶ 19-23 (finding a “material relationship or

relevancy” between two cases when the facts of the former

dependency and neglect case were used to prove mother’s unfitness

in the later dependency and neglect case). More to the point, the

concern in Flockhart was that the judge himself, not the judge’s

spouse, had previously prosecuted the defendant. Even then, the

division concluded that recusal was not required because the prior

case and the current case, though both involving marijuana, were

not sufficiently related. Flockhart, ¶ 53.

¶ 32 That leaves only the fact of the marital relationship. But

Beckman is the only support for Dearing’s position on this front, see

In re Jacobs, 802 N.W.2d 748, 753 (Minn. 2011) (observing that the

“vast weight of persuasive authority runs contrary to Beckman”),

and Beckman has never been extended beyond its limited holding —

that recusal is required if the judge’s wife works for the district

attorney’s office in the same county. Id. Here, the judge’s wife was

an assistant district attorney in a different county.

¶ 33 Regardless, reversal of Dearing’s convictions is not warranted.

Our ethical rules, including C.J.C. 2.11, are “intended to protect

13
public confidence in the judiciary rather than to protect the

individual rights of litigants.” Richardson, ¶ 39 (quoting A.G., 262

P.3d at 650). Thus, while the appearance of bias is a proper ground

on which to base a motion to disqualify, Sanders, ¶ 51, “[o]nly when

a judge was actually biased will we question the reliability of the

proceeding’s result,” People in Interest of A.P., 2022 CO 24, ¶ 29. In

other words, “a trial judge’s potential violation of [C.J.C. 2.11] does

not mandate reversal.” Sanders, ¶ 49 (quoting Richardson, ¶ 39).

¶ 34 In the absence of any showing of actual bias or prejudice, we

discern no basis for reversing Dearing’s convictions.

III. Challenges to the First Degree Burglary Conviction

A. Procedural Background

1. Trial Court Proceedings

¶ 35 As noted, and as relevant to the appeal, Dearing was charged

with felony murder, first degree burglary, and third degree assault.

The felony murder count3 alleged that Dearing, acting alone or with

others, “committed or attempted to commit burglary” and, in the

3 The People charged Dearing with two substantially identical

counts of felony murder, the only difference being that one count
alleged that the victim was a peace officer. We refer to the felony
murder charges as a single count.

14
immediate flight therefrom, he caused the officer’s death. The first

degree burglary count (count 5) alleged that Dearing unlawfully

entered a building or occupied structure “with the intent to commit

the crime of assault” and, while effecting entry or while inside, he or

another participant “assaulted or menaced” the four named

occupants. The third degree assault count (count 7) alleged that

Dearing knowingly or recklessly caused bodily injury “to the victim.”

¶ 36 Dearing’s counsel moved for a bill of particulars, arguing that

the complaint and information failed to give Dearing sufficient

notice of the charges against him. Counsel asked the prosecution

to identify (1) the form of burglary serving as the predicate offense

for the felony murder count as well as the other participants

allegedly involved in the burglary; (2) the “factual and legal

elements” of the ulterior crime for first degree burglary; and (3) the

victim of the third degree assault count.

¶ 37 In response, the prosecution filed an amended information.

The felony murder count identified the same predicate offense —

burglary or attempted burglary. The first degree burglary count

remained the same, except that it identified the victims of the

ulterior crimes (assault and menacing) as Valenzuela and the third

15
roommate. The third degree assault count identified the victim as

Valenzuela.

¶ 38 In a written order, the court granted the bill of particulars

motion in part and denied it in part.

¶ 39 With respect to the felony murder charge, the court agreed

that the prosecution had to give notice of the form of burglary it

intended to prove as the predicate offense. Because count 5

charged first degree burglary, the court ruled that the “version [of

burglary] . . . alleged in count 5” would constitute the predicate

offense for felony murder unless the prosecution notified the

defense that it would proceed differently. But the court disagreed

with Dearing’s counsel that the prosecution had to identify the

other participants in the burglary, because its burden was only to

prove that in committing the predicate offense, Dearing “was either

acting alone or with one or more other co-participants.”

¶ 40 With respect to the ulterior crime for first degree burglary, the

court found that the amended information had sufficiently

narrowed the factual and legal bases for assault and menacing: it

identified Valenzuela and the third roommate as the victims of the

assault or menacing in the burglary count and identified Valenzuela

16
as the victim in the stand-alone third degree assault count. Based

on those amendments, the court inferred that the prosecution

intended to “rely on the assault alleged in Count 7 to satisfy the

assault element” of the ulterior crime and intended to rely on

“simple menacing” as the other charged ulterior crime. If the

prosecution intended to proceed differently, it had to notify the

defense.

¶ 41 A week later, the prosecution filed a notice advising that it

intended to rely on both first and second degree burglary (and

attempt) as the predicate offenses for felony murder. The

prosecution did not file any notice regarding the ulterior crimes, but

it later abandoned menacing as an alternative and elected to rely

only on third degree assault as the ulterior crime for burglary.

¶ 42 The case proceeded to a six-week jury trial. During trial, the

parties and the court conferred multiple times about the jury

instructions.

¶ 43 One dispute centered on whether the court should give a

complicity instruction with respect to the burglary predicate

offense. The defense objected on the sole ground that the evidence

did not support giving the instruction. The court overruled the

17
objection, concluding that the jury “could convict under a

complicity theory.”

¶ 44 Another dispute involved whether the prosecution had to elect

the acts supporting the predicate burglary offenses, including the

ulterior crime, and, if not, whether the court had to give a

unanimity instruction. The court declined to require the

prosecution to elect the “specific acts” that Dearing or his “alleged

accomplices or complicitors may have engaged in.” The court did

not give the pattern unanimity instruction, but it did instruct the

jurors that “[t]he verdict for each charge . . . must be unanimous.

In other words, all of you must agree to all parts of it.”

¶ 45 The jury received a series of elemental instructions. The

felony murder instruction generally directed the jury that to convict

Dearing of that offense, it had to find beyond a reasonable doubt

that he (acting alone or with one or more persons) “committed or

attempted to commit the crime of First Degree Burglary . . . or

Second Degree Burglary, as defined in Instructions 18 and 19,” and

that in the course of or in furtherance of the immediate flight

therefrom, Dearing caused the officer’s death.

18
¶ 46 Instruction No. 18, in turn, set forth the elements of first

degree burglary as follows:

1. That Mr. Dearing, the defendant,
2. in the State of Colorado, at or about the
date and place charged,
3. knowingly,
4. entered unlawfully, or remained unlawfully
after a lawful or unlawful entry,
5. in a building or occupied structure,
6. with intent,
7. to commit therein the crime of Assault in
the Third Degree, as defined in Instruction[]
No. 20 against any person, and
8. in effecting entry or while in the building or
occupied structure or in immediate flight
from the building or occupied structure,
9. the defendant or another participant in the
crime committed the crime of Assault in the
Third Degree.

¶ 47 Instruction No. 20 explained that to find Dearing guilty of

third degree assault, as alleged in count 7, the jury had to find

beyond a reasonable doubt that he knowingly or recklessly “caused

bodily injury to another person, Raymundo Valenzuela.”

¶ 48 Finally, the complicity instruction told the jury that it could

find Dearing guilty of first degree burglary as a complicitor if it

determined that one of the coparticipants entered the apartment

with the intent to commit assault against any person and “Dearing

19
or another participant in the crime committed the crime of Assault

in the Third Degree.”

¶ 49 As noted, the jury found Dearing guilty of felony murder and

first degree burglary (count 5) but not guilty of third degree assault

(count 7).

2. Issues on Appeal

¶ 50 On appeal, Dearing challenges his first degree burglary

conviction on five grounds:

• he cannot be guilty of first degree burglary because the jury

acquitted him of the burglary count’s ulterior crime — third

degree assault;

• in the alternative, the burglary instruction constructively

amended, or caused a prejudicial simple variance from, the

charging document, as narrowed by the court’s bill of

particulars order;

• the court erred by neither requiring an election nor giving a

unanimity instruction;

• the court erred by failing to give a self-defense instruction on

the ulterior crime of third degree assault; and

20
• the evidence was insufficient to support the first degree

burglary conviction.

¶ 51 Dearing contends that because the first degree burglary

conviction is invalid, his felony murder conviction must be reversed.

B. Inconsistent Verdicts

¶ 52 Dearing says that because the jury acquitted him of third

degree assault (count 7), the prosecution failed to prove the ulterior

crime for the predicate offense of first degree burglary, and,

therefore, it necessarily failed to prove felony murder.

¶ 53 We agree with the People that this assertion amounts to an

inconsistent verdict claim. Whether verdicts are logically or legally

inconsistent is a question of law that we review de novo. People v.

Delgado, 2019 CO 82, ¶ 13.

1. Legal Principles

¶ 54 To be convicted of felony murder, a defendant must have

committed or attempted to commit the charged predicate offense.

Doubleday v. People, 2016 CO 3, ¶ 22. Accordingly, the prosecution

must prove beyond a reasonable doubt all the elements of the

predicate offense. Id. at ¶ 26.

21
¶ 55 While a verdict in a criminal case should be certain and devoid

of ambiguity, People v. Brooks, 2020 COA 25, ¶ 11, consistency in

the verdict is not generally necessary, United States v. Powell, 469

U.S. 57, 62 (1984). Only when verdicts for two counts (or a

response to an interrogatory and a verdict) are mutually exclusive

will the inconsistency result in an infirm verdict. See Shockey,

¶¶ 40-42.

¶ 56 We have a duty to “reconcile and uphold verdicts if the

evidence so permits.” People v. Scearce, 87 P.3d 228, 232 (Colo.

App. 2003). Thus, “[i]f the verdicts are consistent in any view of the

evidence, the presumption is that the jury took that view.” Id.

2. Analysis

¶ 57 The verdicts are not inconsistent. The third degree assault

(count 7) instruction allowed the jury to return a guilty verdict only

if it found that Dearing assaulted Valenzuela. But the first degree

burglary (count 5) instruction allowed the jury to return a guilty

verdict if it found that Dearing “or another participant in the

[burglary]” committed third degree assault.

¶ 58 Thus, the jury could have found that Dearing entered the

apartment with the intent to commit an assault and one of his

22
coparticipants assaulted Valenzuela. In that instance, Dearing

would be guilty of first degree burglary but not guilty of third degree

assault as charged in count 7.

C. Variance

¶ 59 Dearing’s counter to the inconsistent verdict analysis is that

the jury instructions should have precluded an outcome in which

he was found guilty of first degree burglary but not guilty of the

separate third degree assault charge. He says that the court’s bill

of particulars order required the prosecution to prove the third

degree assault as charged in count 7 as the ulterior crime for first

degree burglary. Therefore, he argues, if the jury could convict him

of first degree burglary even though he did not assault Valenzuela,

then the jury instructions constructively amended, or the

prosecution’s proof prejudicially varied from, the burglary charge as

narrowed by the court’s bill of particulars order.

¶ 60 According to Dearing, the instructions created a variance in

two ways. First, element 9 of the first degree burglary instruction

expanded the number of possible victims of third degree assault to

include any of the four occupants of the apartment. Second,

element 9 and the complicity instructions expanded the number of

23
possible perpetrators of the assault to include any of the

coparticipants.

1. Legal Principles and Standard of Review

¶ 61 A defendant has a constitutional right to notice of the charges

against him. People v. Martinez, 2024 COA 34, ¶ 21. Thus, an

impermissible variance may arise when the charge in the charging

document varies from the charge of which the defendant is

convicted. People v. Deutsch, 2020 COA 114, ¶ 25.

¶ 62 There are two types of variances: a constructive amendment

and a simple variance. “A constructive amendment occurs when a

jury instruction ‘changes an essential element of the charged

offense and thereby alters the substance of the charging

instrument.’” Bock v. People, 2024 CO 61, ¶ 14 (quoting People v.

Rediger, 2018 CO 32, ¶ 48); see also Esquivel-Castillo v. People,

2016 CO 7, ¶ 13 (A constructive amendment occurs when jury

instructions permit the jury to convict the defendant of an offense

“that is substantively different from any charged in the

information.”). A simple variance occurs when the charging terms

are unchanged, but the evidence at trial proves facts materially

24
different from those alleged in the charging document. Deutsch,

¶ 25.

¶ 63 A bill of particulars “is intended to define the charged offense

more specifically” when the charging document, though sufficient to

give notice of the charges, is nonetheless too indefinite to provide

the defendant a fair opportunity to “properly prepare his defense.”

Erickson v. People, 951 P.2d 919, 921 (Colo. 1998) (citation

omitted). To this end, the court may order the prosecution to file a

bill of particulars, see Crim. P. 7(g), or, as in this case, clarify the

charges in an order.

¶ 64 Variance principles apply equally to a bill of particulars. In

other words, the defendant can only be convicted of the charges

contained in the charging document as clarified in a bill of

particulars. See, e.g., People v. Vigil, 2015 COA 88M, ¶ 31

(assuming that variance jurisprudence applies to a bill of

particulars), aff’d, 2019 CO 105; United States v. Kaplan, 490 F.3d

110, 129 (2d Cir. 2007) (explaining that a variance occurs when the

evidence differs from the facts alleged “in the indictment or bill of

particulars”); United States v. Adamson, 291 F.3d 606, 616 (9th Cir.

2002) (concluding that a prejudicial variance occurred when the

25
evidence at trial differed from the facts represented at a hearing on

the motion for a bill of particulars); see also 5 Wayne R. LaFave et

al., Criminal Procedure § 19.4(a), Westlaw (4th ed. database updated

Nov. 2024) (“The rules governing variance between proof and

pleading apply to the bill of particulars just as they do to an

indictment or information.”).

¶ 65 We review de novo whether a constructive amendment or

simple variance occurred. See People v. Carter, 2021 COA 29, ¶ 35.

Dearing did not preserve this claim.4 His attorney objected to the

number of possible paths to a guilty verdict on the burglary charge

(i.e., multiple perpetrators and multiple victims), but counsel did

not alert the trial court to an alleged variance between the bill of

particulars order and the jury instructions. And, as noted, counsel

objected to the complicity instructions based on a lack of evidence

to support them, not on variance grounds. Therefore, even if a

variance occurred, we will not reverse unless the error was plain.

4 We are somewhat hindered in determining preservation because

Dearing’s brief does not contain “under a separate heading placed
before the discussion of each issue, [a] statement[] . . . whether the
issue was preserved, and if preserved, the precise location in the
record where the issue was raised and where the court ruled.”
C.A.R. 28(a)(7)(A).

26
See Bock, ¶ 23. “An error is plain only if it is obvious, substantial,

and so undermined the trial’s fundamental fairness as to cast

doubts on the reliability of the conviction.” Id. at ¶ 24.

2. Analysis

¶ 66 Dearing’s variance argument rests on a misreading of the

record. First, the first degree burglary instruction did not amend

the bill of particulars order by expanding the number of possible

victims for the ulterior crime of assault. For a conviction, element 9

of the first degree burglary instruction required the jury to find that

during entry or while inside the apartment, Dearing “or another

participant” committed “the crime of Assault in the Third Degree.”

The crime of assault in the third degree was defined in Instruction

No. 20, which identified Valenzuela as the victim. To expand the

number of possible assault victims, element 9 would have had to

include language that the crime of third degree assault could be

committed “against any person.” Indeed, that is what element 7

said — that Dearing had to enter the apartment with the intent “to

commit therein the crime of Assault in the Third Degree, as defined

in Instruction[] No. 20 against any person.” The absence of the

“against any person” language in element 9 meant the prosecution

27
had to prove that the ulterior crime of assault was committed

against Valenzuela. Thus, no amendment occurred with respect to

the assault victim.

¶ 67 Second, neither the first degree burglary instruction nor the

complicity instructions amended the bill of particulars order to

expand the possible perpetrators of the assault. The bill of

particulars order did not require the prosecution to prove that

Dearing himself committed the ulterior crime of assault. In

considering Dearing’s bill of particulars motion, the court found

that the prosecution’s amended complaint and information cured

any lack of specificity in the original complaint because the first

degree burglary count, as amended, specified the ulterior crimes as

assault and menacing and identified the victims as Valenzuela and

the third roommate, while the separate third degree assault count

identified Valenzuela as the victim. Thus, the court concluded that

for the ulterior crime of assault, the prosecution intended to prove

third degree assault against Valenzuela. But the amended first

degree burglary count charged that Dearing “or a participant”

committed the ulterior crime — language that, contrary to Dearing’s

assertion on appeal, the court neither referenced nor limited. In

28
other words, when the court said that it would “infer that the People

will rely on the assault alleged in Count 7 to satisfy the assault

element of First Degree Burglary,” it was referring to the fact that

the amended information named the victim for count 7. The court

could not have meant that the prosecution was limited to proving

that Dearing was the perpetrator because the amended information

did not specifically allege the perpetrator’s identity, and the court

found that, as amended, the information “satisf[ied] the perceived

deficienc[ies].”

¶ 68 Accordingly, we discern no constructive amendment of the

charges, as narrowed through the bill of particulars order.

¶ 69 For the same reason, we reject Dearing’s simple variance

argument. He says that the amended first degree burglary charge,

circumscribed by the bill of particulars order, alleged that he

entered the apartment and assaulted Valenzuela, but instead, the

prosecution presented evidence that Valenzuela was assaulted by

someone else.

¶ 70 But as we have explained, the amended first degree burglary

charge (even as limited by the bill of particulars order) did not allege

that Dearing assaulted Valenzuela; it alleged that Dearing “or a

29
participant” assaulted Valenzuela. Therefore, the evidence

presented at trial — that one of the two males who entered the

apartment assaulted Valenzuela — did not prove facts materially

different from those alleged in the charging document.

¶ 71 But even if the evidence had varied from the facts alleged in

the amended information, the proof on which the first degree

burglary conviction is based “corresponds to an offense that was

clearly set out in the charging instrument.” Campbell v. People,

2020 CO 49, ¶ 45. Under those circumstances, reversal is not

required unless Dearing demonstrates prejudice. Id. He says that

had he known the prosecution could prove first degree burglary by

showing that a coparticipant committed the ulterior crime, he

would have “approached and defended against the State’s case far

differently.” That conclusory argument is unpersuasive, though,

because the undisputed evidence showed that someone in Dearing’s

group assaulted Valenzuela; the only question was who. So it is not

clear what alternative approach Dearing would have taken had the

amended information identified the perpetrator of the assault.

¶ 72 Regardless, any error in instructing on first degree burglary is

not substantial, and therefore not plain, because the jury was

30
properly instructed on second degree burglary as an alternative

predicate felony for felony murder. Contrary to Dearing’s

recollection of the record, on January 30, 2020, one week after the

court issued the bill of particulars order and eight months before

trial, the prosecution provided notice of its intent to also rely on the

lesser included offense of second degree burglary as the predicate

felony. See Esquivel-Castillo, ¶ 20 (a charge of “kidnapping” as the

predicate felony for felony murder includes every version of

kidnapping, regardless of whether a specific version is charged in a

separate count of the information). Thus, the felony murder

instruction allowed the jury to find Dearing guilty of felony murder

if the prosecution proved beyond a reasonable doubt that, among

other elements, Dearing “acting alone or with one or more persons”

committed first degree burglary “or Second Degree Burglary.”

¶ 73 Dearing does not challenge the second degree burglary

instruction. And because second degree burglary does not require

proof of an ulterior crime, see § 18-4-203(1), C.R.S. 2024, the

instruction informed the jury that the elements of the offense were

that Dearing knowingly entered the apartment unlawfully “with

intent” to commit third degree assault “as defined in [the third

31
degree assault instruction],” but not that he or another person

actually committed that crime. For reasons that we explain below,

the evidence was sufficient to support a finding that Dearing

committed first degree burglary. Thus, the evidence necessarily

supported a finding that he committed second degree burglary. See

Lucero v. People, 2012 CO 7, ¶ 29 (“Second degree burglary is a

lesser included offense of first degree burglary.”) (citation omitted).

¶ 74 The alleged amendment affected only element 9 of the first

degree burglary instruction regarding the ulterior crime of assault.

Consequently, even if the instruction impermissibly expanded the

number of possible perpetrators of the assault from one (Dearing) to

three (Dearing or two others who entered the apartment), such that

first degree burglary cannot constitute the predicate felony, the

felony murder conviction is nonetheless supported by a second

degree burglary predicate felony.5

¶ 75 In his reply brief, Dearing says that if the first degree burglary

conviction is a product of a constructively amended charge, any

5 Dearing did not sustain a conviction for first degree burglary, as

that conviction merged into the felony murder conviction. See
People v. Wood, 2019 CO 7, ¶ 29 (merger has the same effect as
vacating the merged conviction).

32
lesser offense is “not [a] truly lesser cognizable offense[],”

particularly because “the jury had no moment to consider and

decide” the elements of second degree burglary. The first part of

that argument is a bald legal proposition unsupported by any

authority, see People v. Houser, 2020 COA 128, ¶ 24, and the

second part is contradicted by the record. We cannot say, then,

that any error in element 9 of the first degree burglary instruction

amounted to plain error.

D. Unanimity

¶ 76 Dearing contends that the court’s refusal to give a unanimity

instruction permitted the jury to disagree on the identity of the

victim and the perpetrator of the burglary count’s ulterior crime and

therefore render a nonunanimous verdict on the first degree

burglary charge and, consequently, the felony murder charge.

1. Legal Principles and Standard of Review

¶ 77 In criminal cases, “a jury verdict to convict must be

unanimous.” People v. Mosely, 2021 CO 41, ¶ 14. However,

unanimity in a verdict is required “only with respect to the ultimate

issue of the defendant’s guilt or innocence of the crime charged and

not with respect to alternative means by which the crime was

33
committed.” People v. Archuleta, 2020 CO 63M, ¶ 20 (citation

omitted). Thus, jurors must unanimously agree only on the

elements of the charged offense, not on the “several possible sets of

underlying brute facts [that] make up a particular element.” Id.

(quoting Richardson v. United States, 526 U.S. 813, 817 (1999)); see

also People v. Roberts-Bicking, 2021 COA 12, ¶ 46 (“[T]he jury is not

required to unanimously agree on the evidence or theory by which a

particular element is established.”) (citation omitted). “In short,

different theories of liability or guilt are tolerated so long as the

prosecution presented sufficient proof for at least one theory.”

Mosely, ¶ 16.

¶ 78 When, however, the prosecution presents evidence of multiple

discrete acts, any one of which would constitute the offense

charged, and there is a reasonable likelihood that jurors will

disagree regarding which act was committed, the court must either

give a modified unanimity instruction or require the prosecution to

elect the transaction on which it is relying for a conviction.

Archuleta, ¶¶ 21-22. The requirement of a modified unanimity

instruction or an election “assures that a conviction does not result

from some members of the jury finding the defendant guilty of one

34
act, while others convict based on a different act.” People v. Rivera,

56 P.3d 1155, 1160 (Colo. App. 2002).

¶ 79 We review de novo whether a court erred by failing to give a

unanimity instruction or require an election. People v. Ryan, 2022

COA 136, ¶ 15.

2. Analysis

¶ 80 We begin with Dearing’s argument that the jury might have

disagreed as to the identity of the victim of the ulterior crime. The

first degree burglary instruction informed the jury that to convict, it

had to find that the prosecution proved element 9 — that “the

defendant or another participant in the crime committed the crime

of Assault in the Third Degree” — beyond a reasonable doubt. The

same instruction referenced Instruction No. 20, the elemental

instruction for third degree assault. That instruction named

Valenzuela as the victim. Thus, as we have explained, the jury

instructions required the prosecution to prove that the victim of the

ulterior crime for burglary was Valenzuela. As a result, neither an

additional unanimity instruction nor an election regarding the

victim was necessary.

35
¶ 81 Nor was a unanimity instruction necessary regarding the

identity of the perpetrator. To find Dearing guilty of first degree

burglary, the jury had to unanimously agree that the prosecution

proved element 9 — that Dearing or “another participant” assaulted

Valenzuela. See Archuleta, ¶ 20. A unanimity instruction is

required only if the prosecution presents evidence of multiple acts

that could constitute the charged offense, and here, the assault

comprised a single act: a man entered the apartment, approached

Valenzuela, and punched him in the face, knocking him

unconscious. See People v. Wester-Gravelle, 2020 CO 64, ¶¶ 31-32

(when the evidence shows a single act or transaction, a unanimity

instruction is not required). In other words, Dearing is guilty of first

degree burglary regardless of who punched Valenzuela as long as

the prosecution proved, along with the other elements, that he or

another participant committed the act. See § 18-4-202(1), C.R.S.

2024 (a person commits first degree burglary if he enters a building

unlawfully with the intent to commit a crime and he “or another

participant in the crime” assaults or menaces any person). The

identity of the “[]other participant” is not a sub-element of first

degree burglary on which the jury must unanimously agree.

36
¶ 82 That the jury could have found Dearing guilty of first degree

burglary as a complicitor does not change the result. For one thing,

the jury need not unanimously agree that the defendant acted as a

principal or a complicitor. See People v. Hall, 60 P.3d 728, 730-31

(Colo. App. 2002). But also, element 9 was the same under the

principal and complicity first degree burglary instructions. And, as

we have explained, to find that the prosecution proved element 9,

the jury had to unanimously agree only that Dearing or another

participant committed the assault.

¶ 83 Regardless, Dearing’s unanimity argument applies only to the

ulterior crime for first degree burglary. And because the evidence

was necessarily sufficient to support a finding that Dearing

committed second degree burglary, which does not contain an

ulterior crime element, any error in failing to give a unanimity

instruction was harmless on this basis too.

¶ 84 In light of our analysis, Dearing’s reliance on People v.

Simmons, 973 P.2d 627 (Colo. App. 1998), misses the mark. In

Simmons, the defendant was charged with menacing a named

victim, but at trial, the jury was instructed that it could return a

guilty verdict if it found that the defendant had menaced “another

37
person.” Id. at 628. And because the evidence supported a finding

that the defendant menaced two people, the division concluded that

the jury’s guilty verdict might have been nonunanimous. Id. at 630.

But here, the charges (as narrowed by the bill of particulars order)

and element 9 of the first degree burglary instruction required the

jury to find that Dearing or another participant committed an

assault against Valenzuela. Unanimity was not required on the

means by which the assault was committed because the

prosecution presented sufficient evidence to establish one means

for committing the ulterior crime. See Mosely, ¶¶ 16, 19.

E. Self-Defense Instruction for the Ulterior Crime of Assault

¶ 85 Dearing argues that the court reversibly erred by declining to

instruct the jury that to prove the ulterior crime of third degree

assault, the prosecution had to prove that Dearing was not acting

in self-defense.

¶ 86 We review de novo whether there was sufficient evidence

presented to support a self-defense jury instruction, see People v.

Newell, 2017 COA 27, ¶ 19, and we agree with the trial court that

the evidence did not support such an instruction. There was no

evidence that Valenzuela, who was assaulted inside the apartment,

38
used or threatened the imminent use of unlawful physical force

against Dearing or any other participant in the burglary. See

§ 18-1-704(1), C.R.S. 2024 (“[A] person is justified in using physical

force upon another person in order to defend himself or a third

person from what he reasonably believes to be the use or imminent

use of unlawful physical force by that other person . . . .”); People v.

Coahran, 2019 COA 6, ¶ 16 (a defendant must present “some

credible evidence” to support a self-defense instruction) (citation

omitted).

F. Sufficiency of the Evidence

¶ 87 Finally, Dearing argues that, in any event, the evidence was

insufficient to support the jury’s finding that he committed burglary

as the predicate for felony murder. He says the prosecution failed

to prove that he entered the apartment and did so with an intent to

commit third degree assault, and that the court’s response to a jury

question relieved the prosecution of its burden to prove all the

elements of the crime.

1. Standard of Review

¶ 88 On a challenge to the sufficiency of the evidence, we review the

record de novo to determine whether the evidence, when viewed as

39
a whole and in the light most favorable to the prosecution, is

sufficient to support a conclusion by a rational jury that the

defendant is guilty of the charge beyond a reasonable doubt. People

v. Market, 2020 COA 90, ¶ 47.

¶ 89 We examine both direct and circumstantial evidence, and we

give the prosecution the benefit of every reasonable inference that

could fairly be drawn from the evidence. People v. Perez, 2016 CO

12, ¶¶ 24-25. “If there is evidence upon which one may reasonably

infer an element of the crime, the evidence is sufficient to sustain

that element.” People v. Chase, 2013 COA 27, ¶ 50.

2. Analysis

¶ 90 At trial, the prosecution presented the following evidence to

prove that Dearing entered the apartment with the intent to commit

an assault:

• Hours after Aquino’s girlfriend beat up Dearing’s cousin in

front of Aquino and his friends, four or five people, including

Dearing’s cousin, showed up at Aquino’s apartment. The

group assaulted Aquino and his girlfriend outside the

apartment, on the landing. Then, Dearing’s cousin told the

40
group “to attack [Valenzuela and the third roommate] as well,”

who were still inside the apartment.

• Two males and a female from the group “stormed inside” the

apartment.

• One of the men punched Valenzuela and knocked him

unconscious.

• Dearing’s cousin hit the third roommate in the face, then the

two males knocked him to the ground and “stomped” him.

• A set of car keys was found in the apartment right after the

assault. The keys, which did not belong to any of the

apartment’s occupants, were for a Kia that was parked in the

parking lot adjacent to Aquino’s apartment building.

Dearing’s identification, his resume, and other items

connected to him were collected from inside the car. The

prosecution introduced evidence that Dearing was driving the

car earlier that day.

• The neighbor who called 911 testified that she saw a man who

had been involved in the assault walk away from the

apartment building and head south on an adjacent street.

She described him as a Black man wearing a dark hoodie and

41
turquoise boxer shorts. The prosecution introduced video

from a security camera that corroborated the neighbor’s

testimony.

• Dearing, a Black man, was arrested in the adjacent

neighborhood, wearing a dark hoodie and turquoise boxer

shorts.

• Valenzuela testified that his phone was in his pocket when he

was assaulted. Police found the phone on the ground across

the street from Aquino’s apartment building, three or four

blocks from the scene of the shooting.

¶ 91 From this evidence, the jury could reasonably conclude that

Dearing went to Aquino’s apartment with the intent to retaliate

against Aquino and his friends for the sexual and physical assault

of the cousin, and that he was one of the men who entered the

apartment. The temporal proximity between the assault outside the

door and the assault inside, along with the cousin’s instruction to

“get” Valenzuela and the third roommate, provided ample basis for

the jury to conclude that Dearing entered the apartment with the

intent to commit an assault once inside. See People v. Ruiz, 224

N.Y.S.3d 396, 397 (App. Div. 2025) (the temporal proximity between

42
the defendant’s unlawful entry and the taking of a cell phone

supported a finding that he entered with intent to commit a crime).

True, as Dearing points out, “no one testified that . . . [he] intended

to assault any person.” But “[i]n a burglary case, the element of

intent to commit a crime within a building entered unlawfully must

normally be proved by circumstantial evidence since it is rare that a

perpetrator will openly declare his intent to commit a crime.”

People v. Caraballo, 526 N.Y.S.2d 538, 538 (App. Div. 1988); see

also People v. Phillips, 219 P.3d 798, 800 (Colo. App. 2009) (“An

actor’s state of mind is normally not subject to direct proof and

must be inferred from his or her actions and the circumstances

surrounding the occurrence.”).

¶ 92 As for Dearing’s argument that the evidence did not show that

he committed an assault as a principal or a complicitor, for the

reasons we have explained, the jury was not required to make that

finding in order to return a guilty verdict. The jury had to find only

that Dearing or another participant assaulted Valenzuela, and the

evidence was uncontested that someone who entered the apartment

punched Valenzuela.

43
¶ 93 We also reject Dearing’s related argument that the court’s

response to a jury question allowed a guilty verdict on first degree

burglary without proof that Dearing or a participant unlawfully

entered the apartment to commit the assault.

¶ 94 During deliberations, the jury submitted the following

question: “Is the front porch of a condo/apartment considered to be

part of an occupied structure?” Over both defense counsel’s and

the prosecutor’s objections, the court responded, “The Court will

refer the jury to [the occupied structure] definition [in the jury

instructions]. If the porch of the apartment or condo is not

enclosed to restrict or prevent entry by others and other occupants

of the building, it is not part of an ‘occupied structure.’”

¶ 95 Even if we assume that the court’s response was erroneous,

any error was surely harmless. The jury instructions defined

“occupied structure” in relevant part as “any area, place, facility or

enclosure which, for particular purposes, may be used by

persons . . . upon occasion, whether or not it is a ‘building.’”

¶ 96 The court’s response effectively narrowed the definition to a

facility, enclosure, or building where entry “by others and other

occupants of the building” is restricted. Thus, the response did not

44
expand the bases on which the jury could find guilt, as Dearing

alleges; it limited the bases, and therefore it “inure[d] to [Dearing’s]

benefit.” People v. Lopez, 2015 COA 45, ¶ 46 (instruction that

required jury to consider additional factors when such factors were

irrelevant effectively added an element to the offense and therefore

any error benefitted the defendant and was harmless).

¶ 97 And there is no reasonable probability that, under the court’s

narrower definition, the jury found that the exterior landing was an

“occupied structure.” See People v. Snelling, 2022 COA 116M, ¶ 15

(Any error in the court’s response to a jury question “must be

disregarded as harmless unless there is a reasonable probability

that the error contributed to the defendant’s conviction.”). There

was no evidence presented that entry to the apartment building’s

exterior landing was restricted. Indeed, video showed Dearing’s

group arrive at and leave from Aquino’s apartment by accessing the

landing and the exterior stairs to the parking lot.

IV. Independent Challenges to the Felony Murder Conviction

¶ 98 Dearing contends that, even setting aside the alleged errors

relating to the predicate felony, the felony murder conviction must

be reversed because the jury was improperly instructed and the

45
evidence was insufficient to support the “immediate flight” element

of that crime.

A. Jury Instruction

¶ 99 It was undisputed that the officer was not killed during the

commission of the burglary. Therefore, the prosecution had to

prove, as an element of felony murder, that Dearing killed the

officer “in the course of or in furtherance of the . . . immediate

flight” from the burglary. § 18-3-102(1)(b), C.R.S. 2018.

¶ 100 The supreme court has held that the plain language of the

immediate flight provision of the felony murder statute establishes

four limitations on criminal liability. Auman v. People, 109 P.3d

647, 656 (Colo. 2005). First, the flight must be “immediate,” which

requires a “close temporal connection” between the predicate felony,

the flight, and the resulting death. Id. Second, the word “flight”

limits liability to deaths that occur while the defendant is fleeing

from a felony. Id. Third, the death must occur “in the course of” or

“in furtherance of” immediate flight, meaning the death is caused

during the defendant’s immediate flight or while he is acting to

promote immediate flight from the felony. Id. And fourth, the flight

46
must be from the predicate felony, not from “some other episode or

event.” Id.

¶ 101 Dearing requested that the court supplement the elemental

instruction for felony murder with an instruction setting out the

“four limitations on liability” from Auman.6 The trial court declined

6 The tendered instruction provided,

There are four limitations on liability for felony
murder when a death occurs during flight from
the predicate felony.

First, the flight from the predicate felony, the
burglary, must be “immediate,” which requires
a close temporal connection between the
predicate felony, the flight, and the resulting
death. . . .

Second, the word “flight” limits felony-murder
liability in such cases to those circumstances
in which death is caused while a participant is
escaping or running away from the predicate
felony.

Third, the death must occur either “in the
course of” or “in furtherance of” immediate
flight, so that a defendant commits felony
murder only if a death is caused during a
participant’s immediate flight or while a person
is acting to promote immediate flight from the
predicate felony.

Fourth, the immediate flight must be
“therefrom,” indicating that the flight must be

47
to give Dearing’s proposed instruction but agreed to give a similar

one “to make it a little more clear what things the jury may consider

with respect to immediate flight.” The court’s supplemental

instruction provided,

For the [felony murder charge], the jury must
consider whether the defendant . . . was in the
course [of] or [in] furtherance of the immediate
flight from the charged [first or second degree
burglary].

The jury should consider the time that elapsed
between the Burglary . . . and the death,
whether the defendant was fleeing from the
Burglary . . . , whether the defendant was
acting to promote or facilitate his flight from
the burglary . . . , and whether he was fleeing
from the Burglary . . . as opposed to fleeing
from some other episode or event.

1. Legal Principles and Standard of Review

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

matters of law. Roberts-Bicking, ¶ 17. An elemental instruction

should substantially track the language of the statute describing

the crime, but otherwise, trial courts have broad discretion to

from the predicate felony, burglary, as opposed
to being from some other episode or event.

48
determine the form and style of jury instructions. People v. Salazar,

2023 COA 102, ¶ 9.

¶ 103 We review de novo whether jury instructions adequately

informed the jury of the governing law. Garcia v. People, 2023 CO

30, ¶ 9. If they did, we review the court’s decision whether to give a

supplemental instruction, and the form of that instruction, for an

abuse of discretion. Day v. Johnson, 255 P.3d 1064, 1067 (Colo.

2011). A trial court abuses its discretion if its ruling is manifestly

arbitrary, unreasonable, or unfair, or is based on a misapplication

of the law. People v. Trujillo, 2025 COA 22, ¶ 24.

2. Analysis

¶ 104 Dearing contends that the court had a duty to give his

tendered “immediate flight” instruction, and that the court’s

modified version, which referred to “considerations” rather than

“requirements,” lowered the prosecution’s burden of proof.

¶ 105 But under Auman, the elemental instruction is sufficient to

inform a jury of the limits of liability, so long as the instruction

tracks the language of the felony murder statute. The court’s

elemental instruction for felony murder informed the jury that to

convict, it had to find that Dearing caused the officer’s death in the

49
course of or in furtherance of the burglary or “in the course or

furtherance of the immediate flight therefrom.” Dearing does not

challenge the accuracy of the elemental instruction.

¶ 106 In Auman, the trial court’s felony murder instruction informed

the jury that the defendant could be found guilty if she caused the

victim’s death “in the course of or in the furtherance of Burglary, or

in the immediate flight therefrom.” 109 P.3d at 659. The defendant

argued that the absence of the phrase “in the course of or in the

furtherance of” before “immediate flight” constituted reversible error

because the omission allowed the jury to convict without finding the

required causal connection “between the felony, flight, and death.”

Id. at 660. The supreme court disagreed. It reasoned that the “in

the immediate flight therefrom” language “expressly contained three

of the four limitations included in the felony-murder statute”: the

phrase required an “immediate” connection between the flight and

the victim’s death; it required that the defendant or a participant be

in “flight” when the death was caused; and it required the jury to

find that the immediate flight was “therefrom” — i.e., from the

predicate felony rather than some other event. Id. And, as to the

fourth limitation, the failure to include the “in furtherance of”

50
language was not prejudicial, the court said, because that language

merely provides an alternative theory of liability. Id. at 661.

¶ 107 The upshot of Auman is that a supplemental instruction

setting forth the four limits of liability is unnecessary, as the

elemental instruction sufficiently advises the jury of those

limitations. See id. at 660 (“[T]he immediate flight language in the

instruction was well within the comprehension of the jury.”); see

also Garcia, 2023 CO 30, ¶ 20 (“[W]hen ‘a term, word, or phrase in

a jury instruction is one with which reasonable persons . . . would

be familiar, and its meaning is not so technical or mysterious as to

create confusion in jurors’ minds as to its meaning, an instruction

defining it is not required.’”) (citation omitted).

¶ 108 Thus, the only question is whether the court’s decision to give

the modified supplemental instruction was manifestly arbitrary,

unreasonable, or unfair. In our view, the court’s supplemental

instruction helped the jury implement the elemental instruction by

providing further explanation about the meaning of “in the course

or furtherance of the immediate flight therefrom.” That was the

same purpose for which Dearing’s counsel offered the proposed

instruction. And consistent with Dearing’s instruction, the court’s

51
supplemental instruction told the jury to focus on whether there

was a close temporal connection between the predicate felony and

the officer’s death, whether Dearing was “fleeing,” and whether he

was fleeing from the burglary or from some other event.

¶ 109 The supplemental instruction did not lower the prosecution’s

burden of proof because the elemental instruction properly

informed the jury that the prosecution had to prove the “immediate

flight” element beyond a reasonable doubt. See, e.g., People v.

Lucas, 232 P.3d 155, 163 (Colo. App. 2009), abrogated on other

grounds by People v. Miller, 2024 COA 66.

B. Sufficiency of the Evidence of the “Immediate Flight” Element

¶ 110 Dearing argues that the evidence was insufficient to support a

finding that he caused the death of the officer “in the course of or in

furtherance of the immediate flight” from the burglary because

“several minutes” had elapsed between the “events on the landing”

and the shooting; he was “walking away” from the scene, not

running or “escaping”; and to the extent he was fleeing, he was

fleeing from the police contact, not from the burglary.

¶ 111 First, although the “felony, the flight, and the death [must] be

close in time,” People v. Fuentes, 258 P.3d 320, 327 (Colo. App.

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2011), there is “no exact measure of time or distance” required to

satisfy the “immediate flight” element of felony murder, People v.

McCrary, 549 P.2d 1320, 1332 (Colo. 1976) (murder committed

more than thirty minutes after the robbery was committed during

the flight from the robbery); see also Fuentes, 258 P.3d at 327

(flight from burglary was “immediate” even though the defendant

stopped and fought with the victims in the street before driving

away from the burglary scene).

¶ 112 Here, the evidence established that within thirteen minutes

after Dearing left the scene of the burglary, he shot and killed the

officer. The neighbor who called 911 testified that at approximately

7 p.m., she saw the group leave the apartment building and walk

out to the adjacent parking lot. The other participants drove off in

an SUV. Two security cameras captured Dearing walking away

from the parking lot and behind the apartment building at 7:05

p.m. Three minutes later, Dearing, having walked into the

residential neighborhood where the shooting occurred, called one of

the suspected coparticipants. The prosecution argued that Dearing

had likely called for help to get away from the scene, after realizing

that he had lost his car keys during the burglary. By 7:11 p.m., the

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officers had spotted Dearing and attempted to make contact.

Dearing dropped his phone and ran. A foot chase ensued, and one

or two minutes later Dearing fired his gun and hit the officer.

¶ 113 Whether “the time and distance between the felony and the

killing” are sufficiently close “is a factual question for [the] jury to

decide.” Auman, 109 P.3d at 659. There is no authority to support

Dearing’s view that a thirteen-minute period necessarily breaks the

requisite temporal connection. Accordingly, we cannot say that, as

a matter of law, thirteen minutes is too long.

¶ 114 Second, we reject Dearing’s conclusory argument that

“immediate flight” requires evidence that the defendant was

continuously running between the time of the predicate felony and

the time of the killing. To satisfy the “flight” element of felony

murder, it is sufficient to show that the defendant was attempting

to escape or avoid arrest. See Fuentes, 258 P.3d at 327 (“[T]he word

‘flight’ limits liability to deaths that occur while a felon is escaping,

running away, or fleeing from a felony.”); see also Merriam-Webster

Dictionary, https://perma.cc/FCL8-UYKE (defining flee as “to hurry

toward a place of security”). The evidence showed that Dearing left

the scene of the burglary, walked into the adjacent neighborhood

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and called one of the coparticipants (potentially for assistance),

then ran from police who attempted to contact him. That evidence

is sufficient to establish that Dearing was attempting to escape from

the burglary scene and avoid arrest. See People v. Gladman, 359

N.E.2d 420, 424-25 (N.Y. 1976) (finding sufficient evidence of

“immediate flight” when the defendant walked through a

neighborhood and hid under a car in a parking lot).

¶ 115 Third, the officer’s attempt to contact Dearing in relation to the

burglary is not itself an intervening event that breaks the causal

connection between the burglary and the killing. The jury could

reasonably have concluded that the reason Dearing ran from the

officer was to avoid arrest for the burglary. Thus, his flight was not

“from some other episode or event.” Auman, 109 P.3d at 656; see

also Fuentes, 258 P.3d at 327 (“[T]he concept of immediate flight is

broad enough to encompass acts performed after intervening events

temporarily interrupt flight.”).

V. Cumulative Error

¶ 116 Finally, we reject Dearing’s contention that the cumulative

effect of the alleged errors deprived him of a fair trial.

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¶ 117 “For reversal to occur based on cumulative error, a reviewing

court must identify multiple errors that collectively prejudice[d]” the

defendant’s substantial rights. Howard-Walker v. People, 2019 CO

69, ¶ 25. Even considering any assumed errors, we discern no

“cumulative prejudice” that affects Dearing’s substantial rights. Id.

VI. Disposition

¶ 118 The judgment is affirmed.7

JUDGE J. JONES and JUDGE GOMEZ concur.

7 Because the jury acquitted Dearing of first degree murder (after

deliberation), we affirm Dearing’s conviction for first degree felony
murder, and the district court merged the reckless manslaughter
conviction into that conviction, we need not address Dearing’s
argument that the trial court erred by failing to instruct the jury on
negligent homicide as a lesser included offense of first degree
murder (after deliberation).

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