Peo v. Al-Jihad

23CA1867 Peo v Al-Jihad 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1867
Jefferson County District Court No. 23CR846
Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

Nasser Ismail Al-Jihad,

Defendant-Appellee.

RULING DISAPPROVED

Division III
Opinion by JUDGE DUNN
Brown, J., concurs
Schock, J., dissents

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 18, 2025

Alexis King, District Attorney, Colleen R. Lamb, Senior Appellate Deputy
District Attorney, Golden, Colorado, for Plaintiff-Appellant

Megan A. Ring, Colorado State Public Defender, James S. Hardy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellee
¶1 The People bring this appeal after a jury acquitted defendant,

Nasser Ismail Al-Jihad, of felony menacing and obstructing a peace

officer. Among other things, they contend that the district court

erred by instructing the jury on self-defense as an affirmative

defense to felony menacing. We agree and therefore disapprove this

ruling.

I. Background

¶2 Al-Jihad lived in an assisted living facility with staff members

and several other residents. On the day of the incident, he became

agitated, prompting a staff member to call 911.

¶3 When the police arrived, Al-Jihad was in the backyard with a

fake gun in his hand. One of the officers went to a gated fence on

the side of the group home and looked through the slats into the

backyard. The officer then opened the gate and “peeked” around

the fence, exposing only her head and “upper body-ish.” Al-Jihad

pointed the fake gun at her and jumped over the fence.

¶4 After Al-Jihad refused to comply with commands to stop, other

officers tased and arrested him. Al-Jihad later told police that he

pointed the fake gun toward the officers “not in a term of oh, shoot,

1
but in term of, maybe this will give me time to run away, because I

don’t know if they’re going to tase me.”

¶5 For his actions, the prosecution charged Al-Jihad with felony

menacing and obstructing a peace officer.

¶6 Defense counsel asked the district court to instruct the jury on

self-defense as an affirmative defense to menacing, arguing that Al-

Jihad reasonably believed he was going to be tased by the person

who peeked into the backyard. The prosecution objected,

countering that no evidence suggested it was reasonable for Al-

Jihad to believe the officer was imminently going to tase him or use

physical force against him. The district court opted to give the

instruction, concluding that Al-Jihad’s statement that he feared he

was going to be tased was “some evidence” to support self-defense.

¶7 The jury acquitted Al-Jihad on both charges.

¶8 On appeal, the People contend that the district court erred by

(1) instructing the jury on self-defense and (2) refusing to instruct

the jury on the initial aggressor exception to self-defense. Because

we agree with the People’s first contention, we don’t reach the

second.

2
II. Appellate Jurisdiction

¶9 At the outset, we address Al-Jihad’s argument that we should

dismiss this appeal because (1) it does not present a question of

law, as required by section 16-12-102, C.R.S. 2025; and (2) it was

rendered moot by the jury verdict acquitting him of the menacing

charge.

¶ 10 “The prosecution may appeal any decision of a court in a

criminal case upon any question of law.” § 16-12-102(1); see also

People v. Gabriesheski, 262 P.3d 653, 656 (Colo. 2011) (noting this

“uncommonly broad authority to appeal”). Whether the evidence

was sufficient to support a self-defense instruction is a question of

law. See Pearson v. People, 2022 CO 4, ¶ 16 (whether a defendant

has met their burden to present an affirmative defense “is a

question of law”).1

1 Al-Jihad characterizes the People’s appeal as challenging the

district court’s “weighing of the evidence.” But it was the jury who
weighed the evidence. See People v. Moore, 2021 CO 26, ¶ 48
(“[W]hether [the defendant] acted reasonably remains a question of
fact for the jury to resolve.”). The question for the district court,
and the one raised on appeal, was whether the evidence was
sufficient to support the self-defense instruction.

3
¶ 11 Where section 16-12-102(1) authorizes an appeal, we must

“issue a written decision answering the issues in the case and will

not dismiss the appeal on the ground that a decision will have no

precedential value.” C.A.R. 4(b)(6)(A). This is true even though,

after an acquittal, our review is “limited to approval or disapproval

of the district court’s order.” People v. Gentry, 738 P.2d 1188, 1188

n.2 (Colo. 1987).

¶ 12 While we question the People’s decision to expend limited

prosecutorial and judicial resources on this appeal — which has no

impact on either this case or any future case — we accept that the

People are “authorized by” section 16-12-102(1) to appeal the legal

question of whether sufficient evidence supported the self-defense

instruction. C.A.R. 4(b)(6)(A). We also accept that we must “issue a

written decision answering” that question, despite the fact that our

opinion will have no precedential or practical effect. Id.

¶ 13 Quoting People v. Tharp, 746 P.2d 1337, 1339 (Colo. 1987), Al-

Jihad contends that section 16-12-102 should be reserved for cases

involving “egregious errors” by the district court and that it should

not be used for review of “a unique set of circumstances [that]

would shed no light on broader legal issues.” Much as we would

4
like to agree, Tharp was decided before C.A.R. 4(b)(6) made clear

that we must resolve any appeal by the People raising a question of

law. See People v. Jackson, 972 P.2d 698, 700-01 (Colo. App.

1998). Tharp no longer supports limitations on a People’s appeal

beyond those in section 16-12-102.

¶ 14 For similar reasons, while we agree with Al-Jihad that any

opinion we issue has no practical impact, we disagree that we may

dismiss the appeal as moot; we must issue an opinion nonetheless.

See People v. Wilburn, 2013 COA 135, ¶¶ 8-9 (rejecting argument

that appeal was moot because the charges had been dismissed and

could not be reinstated); People v. Richardson, 58 P.3d 1039, 1048

(Colo. App. 2002) (holding that the People’s lack of remedy did not

“require or permit dismissal of the appeal”).2

¶ 15 We therefore conclude that we have jurisdiction under section

16-12-102 and may not dismiss the appeal.

2 To the extent Al-Jihad asserts that the acquittal means the jury

necessarily found there was evidence of self-defense, we decline to
speculate as to the basis of the jury verdict. See People v. Delgado,
2019 CO 82, ¶ 26 (noting that an acquittal may have “various
explanations”). In any event, the district court — not the jury —
must determine whether sufficient evidence supports a self-defense
instruction.

5
III. Self-Defense Instruction

¶ 16 The People contend that the district court erred by instructing

the jury on self-defense because there was no evidence that Al-

Jihad’s stated belief in the imminent use of unlawful physical force

against him was objectively reasonable. We agree.

¶ 17 A defendant is entitled to a self-defense instruction so long as

there’s “some credible evidence” to support it. Pearson, ¶ 16

(quoting § 18-1-407(1), C.R.S. 2025). While this threshold is low, “it

is not negligible.” People v. Opana, 2017 CO 56, ¶ 17. To

determine whether this threshold was satisfied, “we consider the

evidence in the light most favorable to the defendant.” Cassels v.

People, 92 P.3d 951, 955 (Colo. 2004); see also Galvan v. People,

2020 CO 82, ¶ 33 (viewing the evidence “in the light most favorable

to giving” the instruction).

¶ 18 We review de novo whether there was sufficient evidence to

support a self-defense instruction. Pearson, ¶ 16; Castillo v. People,

2018 CO 62, ¶ 32.

¶ 19 As relevant here, a person’s use of self-defense is justified only

if he “reasonably believes” another person is using or about to use

“unlawful physical force” against him. § 18-1-704(1), C.R.S. 2025

6
(emphasis added). This reasonable belief standard is an objective

one; while it accounts for the defendant’s state of mind, it

“ultimately requires that a reasonable person would have believed

and acted as the defendant did.” People v. Martinez, 2022 COA 111,

¶ 36, aff’d, 2024 CO 48. A “reasonable person” means “an

objectively reasonable individual and not a subjectively reasonable

one possessing the individual defendant’s personality traits or

defects.” Id. (citation omitted).

¶ 20 The evidence at trial showed only that an officer peered

through the fence slats into a shared backyard of the group home

and then opened the gate, leaning her head and upper body around

the fence. But the officer was over twenty feet from Al-Jihad and

didn’t enter the yard or approach him. She didn’t display any

weapons, didn’t yell at or threaten Al-Jihad, and wasn’t aggressive.

So even if Al-Jihad subjectively believed that he was in imminent

danger from someone peeking into the backyard in the middle of

the day, no evidence was presented to demonstrate that this belief

was objectively reasonable. And while Al-Jihad later told police that

he pointed the fake gun at the officer because he “[didn’t] know if

they’re going to tase me,” nothing the officer did would lead a

7
reasonable person to believe that the officer was about to use any

physical force against him. Al-Jihad’s statement again shows, at

most, that he subjectively believed the officer might tase him.

¶ 21 Even so, Al-Jihad insists that the self-defense instruction was

warranted because the court was required to “apprise the jury of

the law of self-defense from the standpoint of the defendant.” Idrogo

v. People, 818 P.2d 752, 754 (Colo. 1991) (emphasis added). But in

Idrogo, it was undisputed that, given the evidence at trial, the

defendant was entitled to a self-defense instruction. Id. Instead,

the issue there was whether the jury should have been instructed

on the defendant’s specific theory that he had no duty to retreat

before using deadly force to defend himself. Id. at 754-57. Thus,

nothing in Idrogo eliminated the requirement that a defendant’s

perceived need to use self-defense must be objectively reasonable.

See § 18-1-704(1); Martinez, ¶ 36.

¶ 22 Because there was no evidence that the officer was about to

use unlawful physical force against Al-Jihad, the district court

should not have instructed the jury on self-defense. Cf. People v.

Jones, 2023 COA 104, ¶¶ 31-34 (upholding the district court’s

refusal to instruct on self-defense because “there was no evidence

8
that the victim took any actions that would make it appear that he

was about to use physical force against [the defendant]”).

¶ 23 That said, because — as the People argue, and we agree — no

evidence warranted the self-defense instruction, it would

presumably be an easy task to debunk the defense at trial. So even

if the instruction shouldn’t have been given, we are unpersuaded

that it substantially impacted the trial.

¶ 24 We therefore disapprove the district court’s ruling, albeit

reluctantly.

IV. Disposition

¶ 25 We disapprove the district court’s ruling.

JUDGE BROWN concurs.

JUDGE SCHOCK dissents.

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JUDGE SCHOCK, dissenting.

¶ 26 In this appeal, the People ask us to review the district court’s

determination that there was some credible evidence to support a

self-defense instruction in this case. I join the majority in

questioning the wisdom of the People’s “decision to expend limited

prosecutorial and judicial resources” to appeal such an inherently

case-specific determination. Supra ¶ 12. As I explain below, I also

question the premise that we must decide this appeal. But even

assuming that we must, I would conclude that the district court did

not err by giving the self-defense instruction (and not giving the

initial aggressor instruction). I therefore respectfully dissent.

I. Propriety of Appeal

¶ 27 As a threshold matter, I am less sure than the majority that

section 16-12-102(1), C.R.S. 2025, and C.A.R. 4(b)(6)(A) compel us

to decide this appeal, which we agree will have no practical effect.

¶ 28 First, I am not fully convinced that the claimed error — the

giving of a self-defense instruction to which the defendant was not

entitled — presents a “pure question of law under section 16-12-

102(1).” People v. George, 2017 COA 75, ¶ 26; see also People v.

Martinez, 22 P.3d 915, 919 (Colo. 2001) (explaining that

10
prosecutorial appeals under section 16-12-102(1) are “strictly

limited” to questions of law (citation omitted)). When a defendant

presents some credible evidence of self-defense, disproving self-

defense is an element of the offense. Pearson v. People, 2022 CO 4,

¶ 18. Thus, the denial of a self-defense instruction to which the

defendant is entitled violates the defendant’s constitutional rights

by impermissibly lowering the prosecution’s burden of proof. Id. at

¶ 16. That is a question of law, and understandably so. Id.

¶ 29 But the same concerns do not arise when a court gives a self-

defense instruction to which the defendant is not entitled. At worst,

such an instruction simply requires the prosecution to prove the

inapplicability of a defense that there is no evidence to support

anyway. See id. at ¶ 18. The People cite no case holding that a

court erred — much less as a matter of law — by giving, rather than

denying, a self-defense (or other affirmative defense) instruction.

¶ 30 And ordinarily, when a jury instruction accurately states the

law, we review the district court’s decision to give it for an abuse of

11
discretion. See Garcia v. People, 2022 CO 6, ¶ 18; People v.

Bielecki, 964 P.2d 598, 607 (Colo. App. 1998) (holding that district

court did not abuse its discretion by giving legally correct, but

inapplicable, instruction); cf. People v. Martin, 561 P.2d 776, 778

(Colo. 1977) (holding that district court had discretion to give theory

of the case instruction that was duplicative of affirmative defense

instruction). In my view, some measure of discretion is particularly

apt in a close case when the consequences of not giving a self-

defense instruction — the omission of a necessary element — far

exceed those of giving it — the inclusion of an element that will

“presumably be an easy task to debunk.” Supra ¶ 23. Questions

within the district court’s discretion are not appealable under

section 16-12-102(1). See Hunsaker v. People, 2015 CO 46, ¶ 29.

¶ 31 Second, even if technically a question of law, the issue on

appeal turns entirely on the district court’s “assessment of the

evidence.” Martinez, 22 P.3d at 919 (explaining that section 16-12-


The People do not dispute that the self-defense instruction was
legally correct. In contrast, when a court fails to give a self-defense
instruction to which the defendant is entitled, it inaccurately states
the law by omitting an element of the offense and lowering the
prosecution’s burden of proof. Pearson v. People, 2022 CO 4, ¶ 18.

12
102(1) “does not give the People a basis upon which to challenge the

[district] court’s assessment of the evidence”). While I agree with

the majority that the district court did not weigh the evidence,

supra ¶ 10 n.1, it did need to assess whether the evidence was

sufficient to support a finding of objective reasonableness. And the

sole issue on appeal is whether that assessment was correct.

¶ 32 Moreover, as the majority points out, the self-defense

instruction — if wrongly given — almost certainly had no impact on

the trial. Supra ¶ 23. Either there was evidence to support it and it

was properly given, or there wasn’t and the jury presumably

rejected it. The purpose of an appeal is to correct errors that

injuriously affect a party’s rights, not to nitpick every ruling the

district court makes along the way. See People v. Tharp, 746 P.2d

1337, 1339 (Colo. 1987) (“[A]ppeals by the People should be avoided

in cases which do not involve egregious errors by the trial court.”).


When a defendant appeals, we commonly decline to decide
whether the district court erred because any error would be
harmless. If we are required to decide every question of law the
prosecution chooses to appeal, regardless of its effect on the case, it
places the prosecution on better footing than defendants.

13
¶ 33 The People nevertheless argue, and the majority agrees, that

we must decide the appeal because C.A.R. 4(b)(6)(A) says we must.

And it is true that divisions of our court have interpreted the rule in

this manner. See, e.g., People v. Victorian, 165 P.3d 890, 894 (Colo.

App. 2007); People v. Jackson, 972 P.2d 698, 700 (Colo. App. 1998).

But although Rule 4(b)(6)(A) says we “will issue a written decision

answering the issues in the case,” it only explicitly bars dismissals

for lack of precedential value — one of three rationales Tharp gave

for dismissing a prosecutorial appeal. See Tharp, 746 P.2d at 1339;

Martinez, 22 P.3d at 919 (identifying “three fundamental flaws”

discussed in Tharp). It is less clear to me that the rule abrogates

Tharp’s other two rationales — the presence of factual issues and

the lack of prejudice — both of which are implicated in this case.

II. Self-Defense Instruction

¶ 34 Assuming that we are required to answer the question raised

by the People, I would approve the district court’s ruling. In my

view, the entry of an unknown person into Al-Jihad’s backyard is

“some credible evidence” to support the conclusion that Al-Jihad’s

professed fear of imminent unlawful physical force was objectively

reasonable. Pearson, ¶ 16 (quoting § 18-1-407(1), C.R.S. 2025)).

14
¶ 35 To start, I agree with the People that Al-Jihad’s statement that

he feared he was going to be tased was not alone sufficient to

warrant a self-defense instruction. Self-defense requires “both

reasonable belief and actual belief.” Sanchez v. People, 820 P.2d

1103, 1108 (Colo. 1991). At most, Al-Jihad’s statement shows his

actual belief that the use of physical force was imminent. Without

more, it could not establish the reasonableness of that belief.

¶ 36 But Al-Jihad’s statement was not all there was. Viewed in the

light most favorable to Al-Jihad, see People v. Wakefield, 2018 COA

37, ¶ 8, the evidence indicated that he was in his fenced, residential

backyard when an unknown person opened the fence and began

entering the yard. Because the person was not fully visible, Al-

Jihad did not know the person was a police officer, and the officer

did not announce herself. I would hold that these circumstances —

an unknown and unidentified intruder surreptitiously entering a

residential yard through a closed gate — satisfy the low burden of

“some evidence” that Al-Jihad’s stated fear of physical force was

15
reasonable. It does not matter whether the officer actually

intended to use force or whether Al-Jihad’s perception of her intent

was mistaken. Kaufman v. People, 202 P.3d 542, 551 (Colo. 2009).

¶ 37 In reaching this conclusion, I do not disagree with the premise

that a self-defense instruction should not be given when it is “based

only on the actual belief of the defendant.” People v. Jones, 2023

COA 104, ¶ 1; see People v. Laurson, 15 P.3d 791, 795 (Colo. App.

2000). But in each of the cases the People cite, the circumstances

belied any reasonable belief by the defendant that the victim was

about to use physical force. For example, in Jones — a case

involving deadly self-defense — the victim was entering his own

home. Jones, ¶ 35. And in Laurson, the victims had “r[u]n from the

scene.” 15 P.3d at 795. In contrast, the imminent entry of an

unknown person into Al-Jihad’s backyard was some evidence

tending to make his subjective fear objectively reasonable.


The People assert that there was no objectively reasonable basis
for Al-Jihad’s fear that he would be tased. But self-defense does
not require a reasonable belief as to a particular form of physical
force. It simply requires a reasonable belief in the imminent use of
unlawful physical force generally. See § 18-1-704(1), C.R.S. 2024.

16
¶ 38 For the same reasons, I am not swayed by the People’s

insistence that condoning the self-defense instruction in this case

would require such an instruction in all felony menacing cases, or

worse, that it would provide a “safe haven” anytime a defendant

points a gun at a police officer. Critically, there was evidence in

this case that Al-Jihad did not know the person entering his yard

was a police officer. Without some objective basis for believing the

victim was about to use unlawful physical force, a defendant would

not be entitled to a self-defense instruction. See Jones, ¶¶ 33-34.

But if there is a basis, the defendant should be entitled to an

instruction — police officer victim or not. See Pearson, ¶ 18.

¶ 39 Because I believe the evidence in this case provides a basis,

however minimal, for finding that Al-Jihad reasonably believed he

faced imminent unlawful physical force, I would conclude that the

district court did not err by giving the self-defense instruction.

III. Initial Aggressor Instruction

¶ 40 I would also approve the district court’s decision not to

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

because there was no evidence that Al-Jihad used or threatened

physical force before the perceived threat to which he responded.

17
¶ 41 When a self-defense instruction is given, an initial aggressor

instruction is warranted if there is “some evidence” that the

defendant “initiated the physical conflict by using or threatening

imminent use of unlawful physical force.” People v. Roberts-Bicking,

2021 COA 12, ¶¶ 31, 33. In other words, there must be an act of

initial aggression by the defendant that prompts the physical

conflict. See People v. Manzanares, 942 P.2d 1235, 1241 (Colo.

App. 1996), abrogated on other grounds by, Riley v. People, 266 P.3d

1089, 1094 (Colo. 2011); People v. Cline, 2022 COA 135, ¶ 54

(explaining that an initial aggressor instruction may not be

warranted when the charged offense is based on a single act).

¶ 42 In this case, there was only one charged act: Al-Jihad’s

pointing the fake gun at the officer. If that act was a reasonable

response to a perceived threat, then that threat — not Al-Jihad’s


In People v. Whiteaker, 2022 COA 84, ¶ 40, rev’d on other grounds,
2024 CO 25, the division rejected the argument that the initial
aggressor instruction may be given only if “there is evidence the
defendant initiated the physical conflict prior to the conduct giving
rise to the self-defense claim.” But in Whiteaker, there was
evidence, albeit conflicting, that the defendant “started the physical
confrontation,” and the issue was whether the exception required “a
break” between such initial conduct and the conduct supporting
the charged offenses. Id. at ¶¶ 37, 41.

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response — was the initial act. See People v. Whiteaker, 2022 COA

84, ¶ 42 (holding that the initial aggressor exception “solely

considers the actions of the first party to ‘us[e] or threaten[] the

imminent use of unlawful physical force’” (citation omitted)), rev’d

on other grounds, 2024 CO 25. If it was not, then Al-Jihad was not

justified in acting in self-defense. There was no basis in the

evidence for a finding that Al-Jihad acted to defend himself from a

physical conflict that he “initiated.” See Roberts-Bicking, ¶ 33.

¶ 43 The People argue that Al-Jihad was the initial aggressor

because he was the first (and only) one who threatened the use of

unlawful physical force. But that is simply another way of saying

that he did not act in self-defense. As in Manzanares, “[a] finding

by the jury that [Al-Jihad] was . . . the ‘initial aggressor’ would be

no more than a rejection of the claim of self-defense.” 942 P.2d at

1241. Under these circumstances, I would conclude that the

district court did not err by declining to give the instruction.

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