Peo v. Parks

22CA0864 Peo v Parks 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0864
City and County of Denver District Court No. 19CR7094
Honorable Adam J. Espinosa, Judge

The People of the State of Colorado,

Plaintiff-Appellee and Cross-Appellant,

v.

Aubrey Depriest Parks,

Defendant-Appellant and Cross-Appellee.

JUDGMENT AND ORDER AFFIRMED
AND RULING APPROVED

Division III
Opinion by JUDGE DUNN
Lipinsky and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado; John Walsh, District Attorney, Richard F. Lee, Senior Deputy District
Attorney, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-
Appellee
¶1 Defendant, Aubrey Depriest Parks, appeals the judgment of

conviction and restitution order entered after a jury found him

guilty of second degree assault, third degree assault, and

trespassing. He argues that the district court erred by (1) admitting

improper other act evidence; (2) failing to instruct the jury on self-

defense as an affirmative defense to third degree assault; (3) failing

to completely instruct the jury on self-defense as an affirmative

defense to second degree assault; (4) allowing prosecutorial

misconduct in closing argument; and (5) awarding restitution to an

insurance company.

¶2 The People cross-appeal, arguing that the district court erred

by failing to instruct the jury on the lawful use of force in defense of

premises.

¶3 We affirm the judgment of conviction and restitution order and

approve the district court’s ruling.

I. Background

¶4 One fall morning, Parks entered a marijuana dispensary while

playing loud music. A security guard asked Parks to turn the

music volume down; Parks refused. The security guard then

instructed Parks to leave. Parks initially headed toward the front

1
door, but after the security guard yelled at Parks to never return,

Parks headed back toward the security guard. After exchanging

words with the security guard, Parks flipped the security guard’s

baseball hat off his head. The security guard then grabbed a cup

Parks was holding and tried to lead Parks by the arm out the

dispensary’s back door. As they reached the back door, Parks

punched the security guard and the two tumbled through the

doorway.

¶5 Now outside, the security guard fell against a railing and a

surveillance video captured Parks punching and kicking the

security guard in the head. The store manager quickly intervened,

pulled Parks off the security guard, and tossed him backward onto

the ground. The manager stood between Parks and the security

guard (who remained crouched against the railing), and asked

Parks to leave. Parks threatened to kill the security guard and the

manager. Roughly a minute later, another dispensary employee

returned the cup to Parks and Parks then punched the manager in

the face and left. An employee called 911. Not long after, officers

located and arrested Parks.

2
¶6 The assault left the security guard with a fractured orbital

bone and a ruptured eyeball.

¶7 For this conduct, the prosecution charged Parks with second

degree assault against the security guard, third degree assault

against the manager, trespassing, and violation of bail bond

conditions.1

¶8 Parks did not testify at trial. Defense counsel generally denied

the trespass charge. And as to the assault charges, defense counsel

argued that Parks acted in self-defense. The court instructed the

jury on self-defense and heat of passion as defenses to the second

degree assault charge but denied Parks’s request for a self-defense

instruction as to the third degree assault charge.

¶9 The jury rejected Parks’s defenses and convicted him as

charged. The district court imposed a controlling fifteen-year prison

sentence. The court later ordered Parks to make restitution to the

insurance company that paid for the security guard’s medical bills

and lost wages.

1 The prosecution later dismissed the violation of bail bond

conditions charge.

3
II. Other Act Evidence

¶ 10 Parks contends that the district court reversibly erred by

admitting evidence that Parks threatened police officers after his

arrest. We see no basis for reversal.

A. Additional Background

¶ 11 The prosecution did not submit a pretrial notice of intent to

introduce other act evidence under CRE 404(b).

¶ 12 At trial, Officer Larry Casados — one of the responding police

officers — described his initial contact with Parks. He testified that

Parks was volatile, aggressive, “extremely agitated and very hostile.”

And he explained that, after officers arrested Parks and placed him

in the patrol car, Parks became “more agitated and more hostile,

was trying to kick out the windows of the vehicle, threatening to kill

me.”

¶ 13 At this point, defense counsel objected on relevance grounds.

At a bench conference, defense counsel explained that footage from

the officer’s body camera included the officer’s response to Parks’s

threats: “Go ahead, keep talking; we can add additional charges for

threatening a police officer.” Because the prosecution had not filed

charges related to the officer, and the officer had already testified to

4
Parks’s demeanor, defense counsel argued that “going into the

particulars of any threats” would not be relevant.

¶ 14 The prosecutor responded that the testimony went to Parks’s

“general demeanor” and to rebut the self-defense claim. She added,

“This is this individual’s demeanor on that day and his reaction

towards authority when he’s being told to do things.”

¶ 15 Defense counsel confirmed that she was not objecting to

testimony about Parks’s demeanor but was objecting to “any threats

that [Parks] allegedly made to Officer Casados as those don’t go to

the charges in this case.”

¶ 16 The court allowed the testimony about Parks’s response to the

officer, finding the testimony went “directly to the demeanor of

[Parks]” and the contact was within “five to six minutes” of the

charged crimes. But the court precluded the prosecution “from

eliciting a statement that [Parks] could be charged with threatening

an officer.”

¶ 17 To avoid any reference to additional, unfiled charges, the court

allowed the prosecution to lead the witness. Officer Casados then

responded “yes” to the each of following three questions: (1) “[Parks]

threatened to kill you?”; (2) “He threatened that multiple times?”;

5
and (3) “At one point he asked you to take the handcuffs off of him

so you could fight outside?” We will refer to the officer’s collective

testimony about the threats as “the statements.”

¶ 18 A second responding officer later testified, without objection,

that Parks was “somewhat agitated” and “tense” at the scene. At

the end of this officer’s testimony, the court sustained both parties’

objections to a juror’s question asking whether “bodycam video”

was available “to show interactions between officer and [Parks]?”

¶ 19 During rebuttal closing argument, the prosecutor argued —

without objection — that Parks “has a problem with authority, as

we could see from the way he responded to [the security guard] and

then later on with those police officers.”

B. Legal Principles and Standard of Review

¶ 20 Evidence of other crimes or acts is not admissible “to prove a

person’s character in order to show that on a particular occasion

the person acted in conformity with the character.” CRE 404(b)(1).

But such evidence is admissible for non-propensity purposes.

Rojas v. People, 2022 CO 8, ¶ 28; see also CRE 404(b)(2). If the

other act evidence suggests bad character and is extrinsic to the

charged offense, Rule 404(b) applies. To be admissible under Rule

6
404(b), such evidence must be (1) logically relevant (2) to a material

fact (3) independent of the prohibited inference of the defendant’s

bad character, and (4) the probative value of the evidence must not

be substantially outweighed by the risk of unfair prejudice. See

Rojas, ¶ 27 (citing People v. Spoto, 795 P.2d 1314, 1318 (Colo.

1990)).

¶ 21 But if the acts are intrinsic, meaning they either (1) directly

prove the charged offense or (2) occurred contemporaneously with it

and facilitated its commission, then Rule 404(b) doesn’t

apply. Rojas, ¶ 44. The admissibility of intrinsic evidence is

governed by general rules of relevance and prejudice. See id. at

¶ 52.

¶ 22 We review a district court’s evidentiary rulings, including the

admission of other act evidence, for an abuse of discretion. Perez v.

People, 2015 CO 45, ¶ 22. A court abuses its discretion if its ruling

is manifestly arbitrary, unreasonable, or unfair, or if it misapplies

the law. People v. Abdulla, 2020 COA 109M, ¶ 61.

C. Preservation

¶ 23 The parties dispute whether Parks preserved his Rule 404(b)

objection. We agree with the People that defense counsel objected

7
only to the relevancy of the statements and that the general

relevancy objection was not “specific enough” to alert the district

court to the argument Parks now makes on appeal — that the

statements were inadmissible under Rule 404(b). See Martinez v.

People, 2015 CO 16, ¶ 14. And without a specific objection, the

district court had no opportunity to make factual findings and legal

conclusions on the issue. See id.; see also People v. Rodriguez, 209

P.3d 1151, 1156 (Colo. App. 2008) (noting that an objection must

be specific enough to allow the district court a meaningful chance

to “prevent or correct” the error), aff’d, 238 P.3d 1283 (Colo. 2010).

¶ 24 Because we are not persuaded that the relevancy objection

sufficiently alerted the district court that it should have evaluated

the statements under Rule 404(b), we will reverse only if the error

was plain, meaning an error occurred, the error was obvious, and

“the error’s effect is so grave that it undermines the fundamental

fairness of the trial itself and casts doubt upon the reliability of the

8
conviction.” People v. Ambrose, 2021 COA 62, ¶ 66 (citation

omitted).2

D. The District Court Did Not Plainly Err

¶ 25 Because the statements neither directly proved that Parks

committed the assaults nor occurred contemporaneously with and

facilitated the assaults, we agree with Parks that the statements

were extrinsic — not intrinsic — evidence. See Rojas, ¶ 52.

¶ 26 But even if we assume that the court obviously erred by

admitting the statements under Rule 404(b) — and that may be

generous — the statements do not cast serious doubt on the

reliability of the conviction. That’s because it was undisputed that

Parks beat the security guard and punched the manager. The only

question for the jury was whether Parks was lawfully defending

himself from what he reasonably believed to be the use or imminent

use of unlawful physical force. And because the assaults were

2 To the extent Parks contends that his pretrial request for the

prosecution to give notice of its intent to introduce other act
evidence somehow alerted the district court that it needed to
analyze the statements under CRE 404(b), he neither sufficiently
develops this argument nor directs us to supporting legal authority.
We therefore decline to address it. See People v. Lowe, 2021 CO 51,
¶ 20 n.4.

9
captured on video, the jury didn’t need to rely on any testimony or

weigh witness credibility to make that determination. Rather, it

could independently view the video of the assaults and assess the

actions of all involved. Parks’s post-assault statements shed no

light on his self-defense claim and are unimportant given the video

evidence.3

¶ 27 Still, Parks argues that the admission of the statements

requires reversal because they were unaccompanied by a limiting

instruction. But defense counsel didn’t ask for a limiting

instruction, and a court is under no obligation to sua sponte issue

one that isn’t otherwise required by statute.4 People v. Griffin, 224

P.3d 292, 298 (Colo. App. 2009); see also People v. Clark, 2015 COA

44, ¶ 135 (concluding that the lack of a limiting instruction wasn’t

error when defense counsel neither requested one nor offered any

legal support showing that one was required).

3 Parks doesn’t argue that the statements had any bearing on the

trespass charge.
4 Even beyond not requesting a limiting instruction, during trial,

defense counsel agreed with the prosecutor to remove a limiting
instruction from the original set of proposed instructions.

10
¶ 28 We are equally unpersuaded by Parks’s contention that

reversal is required because the prosecutor made an improper

propensity argument in rebuttal closing by saying that Parks “has a

problem with authority, as we could see from the way he responded

to [the security guard] and then later on with those police officers.”

The prosecutor referenced Parks’s general demeanor and reaction to

the officers, not the statements. See People v. Constant, 645 P.2d

843, 846 (Colo. 1982) (noting that a prosecutor may draw

reasonable inferences as to the demeanor of a witness).

¶ 29 Finally, we reject Parks’s claim that he suffered prejudice

because a juror asked whether a bodycam video was available to

show “interactions between officer and [Parks]?” Not only did the

court not ask the question, but the question was not directed at

Officer Casados. Rather, it was directed at the second responding

officer, who did not testify about the statements.

¶ 30 For these reasons, even if we assume the court erred by

admitting the statements, the error wasn’t plain.

11
III. Self-Defense Instruction – Third Degree Assault

¶ 31 Parks contends that the district court erred by refusing his

request to instruct the jury on self-defense as an affirmative defense

to the third degree assault charge involving the manager.

¶ 32 A person has a right to use physical force against another

person to defend himself from what he reasonably believes to be the

use or imminent use of unlawful physical force by that other

person, and he can use a degree of force that he reasonably believes

is necessary for that purpose. People v. Opana, 2017 CO 56, ¶ 9;

see also § 18-1-704(1), C.R.S. 2025. 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.

¶ 33 A court must instruct the jury on a requested affirmative

defense if there is “some credible evidence” to support the defense.

Pearson v. People, 2022 CO 4, ¶ 16 (quoting § 18-1-407(1), C.R.S.

2025). While this threshold is low, “it is not negligible.” Opana,

¶ 17.

12
¶ 34 Whether a defendant meets this burden is a question of law

that we review de novo, in the light most favorable to the defendant.

People v. Coahran, 2019 COA 6, ¶ 15.

¶ 35 The surveillance video shows that, while Parks was beating the

security guard outside the dispensary, the manager came out,

pulled Parks off the security guard, and tossed Parks backward.

After stopping the assault on the security guard, the manager stood

between Parks and the security guard but did not touch Parks. The

video shows Parks and the manager exchanging words and, during

some of the encounter, the manager — who is shorter than Parks —

is partially turned sideways away from Parks and using his arm as

a barrier to prevent Parks from getting close to him. Though Parks

approached the manager during a portion of the post-assault

encounter, the manager never touched Parks. Around forty-five

seconds after the manager stopped the assault on the security

guard, another employee returned a cup to Parks. Parks then

punched the manager in the face and walked away. The manager’s

hands were not raised when Parks punched him. Thus, at the time

Parks assaulted him, no evidence showed that the manager was

“using or reasonably appear[ed] about to use physical force against

13
[Parks].” People v. Jones, 2023 COA 104, ¶ 34 (citation omitted);

see also id. ¶¶ 29-34 (upholding the court’s refusal to instruct on

self-defense when unsupported by the evidence).

¶ 36 We therefore conclude that the court did not err by declining

to instruct the jury on self-defense as an affirmative defense to third

degree assault.5

IV. Self-Defense Instruction – Second Degree Assault

¶ 37 Parks contends that the district court erred by declining his

tendered multiple assailants self-defense instruction (supplemental

instruction).

¶ 38 In connection with the second degree assault charge involving

the security guard, Parks asked the court to instruct the jury as

follows:

When a person has reasonable grounds to
believe that he is faced with multiple
assailants or potential assailants, he may
legitimately act in defense of a person against
any of those who he reasonably perceives to be
an assailant or potential assailant.

In determining whether [Parks] reasonably
believed that defensive action was necessary
and in determining whether [Parks] used a

5 Even without the instruction, defense counsel generally argued

that Parks was defending himself throughout the encounter.

14
reasonable degree of force, you must consider
the totality of the circumstances, including the
number of persons reasonably appearing to be
threatening [Parks].

¶ 39 Finding no “reasonable grounds to believe” that Parks faced

multiple assailants while interacting with the security guard, the

court declined the supplemental instruction. But the court

instructed the jury on self-defense as an affirmative defense to the

second degree assault charge. That instruction tracked the

Colorado model jury instructions on self-defense.

¶ 40 The court must correctly instruct the jury on all applicable

matters of law. People v. Roberts-Bicking, 2021 COA 12, ¶ 17. If

the court did so, then we review its decision not to give a particular

instruction for an abuse of discretion and will not disturb that

decision unless it is manifestly arbitrary, unreasonable, or unfair.

Id.

¶ 41 The evidence did not support the supplemental instruction.

No evidence was presented showing that Parks faced multiple

assailants (or multiple potential assailants). Parks himself doesn’t

identify anyone else who was present during his confrontation with

the security guard. And the video confirms that only Parks and the

15
security guard were present during their exchange inside the

dispensary. Similarly, the video shows Parks beating the security

guard outside the dispensary with no other individuals around.

While the manager eventually pulled Parks off the security guard,

that wasn’t part of the assault; it ended the assault. Cf. People v.

Green, 2012 COA 68M, ¶ 19 (“Because there was no evidence

[supporting the defendant’s tendered possessory rights instruction],

we conclude that the district court did not err by refusing to give

the requested instruction.”).6

¶ 42 The court therefore did not err by declining the supplemental

self-defense instruction.

V. Prosecutorial Misconduct

¶ 43 Parks contends that the prosecutor made multiple improper

comments during closing argument that, if not individually, then

cumulatively, require reversal. We disagree.

6 To the extent Parks argues that the court erred by failing “to

instruct the jury that it should consider reasonable appearances
and the totality of circumstances when determining whether Parks
acted in self-defense,” he provides no authority to suggest that such
instructions are required independent from a multiple assailant
instruction. Because the evidence did not support a multiple
assailant instruction, we don’t address this argument further.

16
A. Legal Principles and Standard of Review

¶ 44 We apply a two-step analysis to claims of prosecutorial

misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

We first determine “whether the prosecutor’s questionable conduct

was improper based on the totality of the circumstances.” Id. If it

was improper, we then determine whether the misconduct warrants

reversal. Id.

¶ 45 Because Parks didn’t object to any of the prosecutor’s

statements, we review for plain error. People v. Licona-Ortega, 2022

COA 27, ¶ 88. Only misconduct that is “flagrantly, glaringly, or

tremendously improper” warrants reversal under the plain error

standard. Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.

2005) (citation omitted); see also People v. Smalley, 2015 COA 140,

¶ 37 (“Prosecutorial misconduct in closing argument rarely

constitutes plain error.”).

B. Misstatement of the Law

¶ 46 At Parks’s request and over the prosecutor’s objection, the

court instructed the jury on the heat of passion mitigator to the

second degree assault charge. Addressing heat of passion in her

17
closing argument, the prosecutor argued that the mitigator did not

apply:

Because for heat of passion to apply, for
[Parks] to have committed second-degree
assault under heat of passion, you would have
to find that the injury was performed on a
sudden heat of passion and that the sudden
heat of passion was caused by a serious and
highly provoking act of the intended victim.

There is no basis to find that there was a
serious and highly provoking attack by [the
security guard]. Fuck you, get the fuck out,
you’re 86ed, no, that is not a serious and
highly provoking act. Those words happen all
of the time in our society. It does not give you
the right to beat someone until their orbital bone
is broken.

Is a highly provoking act opening the door and
pointing it out? No. Is a highly provoking act
taking your plastic Broncos cup? Are you
kidding? No. A highly provoking act — taking
you gently by the hand with such a light grip
that you pull back without a problem and then
punch someone in the face is not a highly
provoking act. This does not meet this
definition at all.

(Emphasis added.)

¶ 47 Parks now objects to the italicized portion of the argument,

saying it misstated the law on heat of passion because the

18
“reasonableness of the amount of force is not a limitation of the

heat-of-passion mitigator.”

¶ 48 But a prosecutor may properly argue facts in evidence and any

reasonable inferences drawn therefrom. Domingo-Gomez, 125 P.3d

at 1048. When viewed in context, the prosecutor was simply

explaining why the evidence did not support the heat of passion

mitigator. The focus was not so much on the force used but that

the mitigator did not apply because the security guard did nothing

to provoke any use of force. These comments were proper.

C. Misstatement of the Facts

¶ 49 Pointing to the initial stages of Parks’s interaction with the

security guard, defense counsel argued in closing argument that

Parks acted in self-defense. Defense counsel specifically argued

that the security guard “provoked” Parks through words and

actions, including “grabbing his arm, grabbing his cup, and trying

to force him out the back door.” Continuing that theme, defense

counsel argued that Parks was justified in defending himself when

the security guard grabbed him and tried to force him out the door.

¶ 50 In rebuttal closing argument, the prosecutor responded:

19
We heard a lot about self-defense. These are
the elements you’re going to have to look at. It
is our responsibility . . . to disprove this
beyond a reasonable doubt.

....

Now, [defense counsel] talked a lot about what
happened with [the security guard] that led to
happening — to there. We have the actions
and the words. So let’s talk about those
actions. Grabbing a cup and snatching a cup,
that is what caused [Parks] to think he needed
to act in self-defense.

....

Did he reasonably believe that grabbing a cup
was something that he needed to defend
himself from?

....

We don’t teach children if another kid takes
your toy away, you’re allowed to clock him in
the face.

¶ 51 Parks now objects that, by not also referencing the evidence

that the security guard grabbed Parks’s arm, the prosecutor “misled

the jury on the key fact of the case.” But the prosecutor was free to

challenge Parks’s theory of self-defense. And the prosecutor didn’t

argue facts not in evidence or misstate the facts she did argue.

That the prosecutor didn’t address every piece of evidence that

20
supported Parks’s defense theory doesn’t make the argument

improper; it simply makes it incomplete. See Domingo-Gomez, 125

P.3d at 1048 (explaining that, during closing argument, counsel

may “point to different pieces of evidence and explain their

significance within the case”). The comments were not improper.

D. Arguments Calculated to Elicit Sympathy

¶ 52 The security guard testified at trial that he had not watched

the video of the assault, he didn’t want to watch it, and he didn’t

“think watching [himself] on video getting pummeled on is healthy.”

¶ 53 The prosecutor later referenced that testimony during closing

argument, commenting, “[The security guard] told you, still to this

day, he cannot watch the video of what happened to him because

why would he want to watch that?”

¶ 54 Though Parks argues this argument was calculated to elicit

sympathy, it was an argument directly tethered to the facts in

evidence. It was therefore proper.

E. Propensity Argument

¶ 55 Parks contends that the prosecutor made an improper

propensity argument in rebuttal closing by saying that Parks “has a

21
problem with authority, as we could see from the way he responded

to [the security guard] and then later on with those police officers.”

¶ 56 But as we have already discussed, this was not a propensity

argument; it was a proper comment on the evidence. The security

guard testified to Parks’s reaction when the security guard asked

him to turn down the music and later leave the dispensary. Both

officers testified to Parks’s demeanor when they contacted him.

And the prosecutor never referenced the threats Parks made to

Officer Casados. These comments weren’t improper.

F. Cumulative Prosecutorial Misconduct

¶ 57 Because we conclude that no prosecutorial misconduct

occurred, we necessarily reject Parks’s contention that cumulative

prosecutorial misconduct requires reversal. See Howard-Walker v.

People, 2019 CO 69, ¶ 24.

VI. Restitution

¶ 58 Finally, Parks contends that the district court erred by

awarding restitution to the insurance company that reimbursed the

security guard for medical bills and lost wages. He contends that

an insurance company is not a victim under the plain language of

the restitution statute.

22
¶ 59 This argument, however, has been considered and rejected by

two divisions of this court. See People v. Martinez, 2022 COA 28,

aff’d on other grounds, 2024 CO 6M; People v. Oliver, 2016 COA

180M; see also People v. Lockett, 2025 COA 1, ¶ 21 (concluding that

an insurance company may be entitled to restitution as a victim for

indemnification losses incurred related to a nonfelony traffic crime).

¶ 60 Martinez is particularly instructive. There, the division

rejected the contention that an insurance company was not a victim

under the restitution statute. In doing so, it considered the plain

language of the restitution statute, the historical amendments to

the restitution statute, the purpose of the restitution statute, and

the fact that we liberally construe the restitution statute to

accomplish its goals. Martinez, ¶¶ 32-51.

¶ 61 Although Parks disagrees with Martinez (and Oliver), we do

not. These opinions are well reasoned and rooted in the statutory

language. We therefore decline Parks’s invitation to depart from

them, and we affirm the restitution order.

VII. The Cross-Appeal

¶ 62 The People cross-appeal the district court’s refusal to instruct

the jury on lawful use of force in defense of premises. Although

23
they prevailed at trial, they now ask us to disapprove this ruling,

which they are entitled to do under section 16-12-102(1), C.R.S.

2025.

A. Additional Background

¶ 63 After the district court agreed to instruct the jury on self-

defense as to Parks’s assault on the security guard, the prosecution

asked the court to instruct the jury on the security guard’s right to

use physical force in defense of premises. The prosecution argued

that because the security guard had the right to use lawful physical

force to “eject” Parks from the dispensary (if the jury agreed that

Parks was an unlawful trespasser), the instruction was necessary to

allow the jury to evaluate whether Parks was entitled to use force in

self-defense. The prosecution specifically requested that the court

instruct the jury:

The victim was legally authorized to use
physical force upon another person if:

1. The victim was in possession or control of
any building, realty, or other premises, or was
a person licensed or privileged to be there, and

2. The victim used reasonable and
appropriate physical force, when and to the
extent it was reasonably necessary to prevent
or terminate what he reasonably believed was

24
the commission or attempted commission of
an unlawful trespass by the other person in or
upon the building, realty, or premises.

For purposes of this instruction, a person
commits an unlawful trespass if he unlawfully
enters or remains in or upon any premises of
another.

¶ 64 The prosecution clarified that the instruction was not offered

as an affirmative defense — because no charges were filed against

the security guard — but rather “as a definition to provide the jury

with context” to determine whether the force the security guard

used was lawful.

¶ 65 Defense counsel objected to the instruction, arguing that it

would shift the focus from Parks’s reasonable belief to the security

guard’s reasonable belief and that it would likely “confuse or

mislead the jury and lessen the prosecution’s burden of proof to

disprove the affirmative defense of self-defense beyond a reasonable

doubt.” But defense counsel confirmed that Parks was not

contesting that the security guard had a right to remove people

from the premises by “ejecting” or “dragging” them out.

¶ 66 The court denied the instruction because it was concerned

that the instruction would unduly emphasize a particular piece of

25
undisputed evidence — the security guard’s authority to remove

trespassers from the property. The court added, however, that the

prosecution could argue in closing argument that the security

guard’s conduct was lawful.

¶ 67 The prosecution argued in closing that the security guard had

the right to eject Parks and did not use unlawful physical force

when he led Parks to the back door.

B. Legal Principles and Standard of Review

¶ 68 A person may use physical force upon another person to

defend himself “from what he reasonably believes to be the use or

imminent use of unlawful physical force by that other person.”

§ 18-1-704(1) (emphasis added). A person may also use

“reasonable and appropriate physical force upon another person

when and to the extent that it is reasonably necessary to prevent or

terminate what he reasonably believes to be the commission or

attempted commission of an unlawful trespass.” § 18-1-705, C.R.S.

2025. But “trespassers do not forfeit their rights to self-defense

merely by the act of trespassing.” People v. Toler, 9 P.3d 341, 352

(Colo. 2000). Instead, a trespasser may only use physical force in

self-defense when confronted with unlawful physical force. See id.

26
at 347-53. Self-defense is therefore not available as an affirmative

defense if the victim’s use of force was lawful. See id.; see also

§ 18-1-704(1).

¶ 69 We review “instructions de novo to determine whether they

accurately inform the jury of the governing law,” Hoggard v. People,

2020 CO 54, ¶ 12, but we review a court’s decision to give, or not to

give, a particular jury instruction for an abuse of discretion, People

v. Sanders, 2022 COA 47, ¶ 34, aff’d on other grounds, 2024 CO 33.

“If the instructions, taken as a whole, properly instructed the jury

on the governing law, there is no error.” People v. Bryant, 2018

COA 53, ¶ 85; see also People v. Inman, 950 P.2d 640, 645 (Colo.

App. 1997) (“[A district] court may properly refuse an instruction

which merely restates points already encompassed in other

instructions given to the jury . . . .”).

C. The Court Didn’t Abuse Its Discretion by Declining the
Prosecution’s Defense of Premises Instruction

¶ 70 The People seem to argue that defense of premises is an

exception to self-defense and the court “must instruct” on any

exception to the affirmative defense of self-defense supported by the

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evidence. While as a general proposition that may be true, it’s

beside the point.

¶ 71 The prosecution did not tender the defense of premises as an

affirmative defense to self-defense. Nor could it be an affirmative

defense because no charges were filed against the security guard

and the security guard did not admit criminal conduct. See People

v. Gallegos, 2025 CO 41M, ¶ 13 (explaining that an affirmative

defense admits the defendant’s commission of the charged crime

“but seeks to justify, excuse, . . . mitigate,” or alleviate the

commission of the crime (citation omitted)). Rather, the prosecution

offered the instruction “as a definition to provide the jury with

context” to determine whether the force the security guard used

was lawful.

¶ 72 But the “context” was simply that the security guard had the

right to use lawful force against a trespasser. And the self-defense

instruction already informed the jury that Parks was only allowed to

use physical force against the security guard’s unlawful use of

force. That the guard asked Parks to leave and then attempted to

escort Parks to the back door didn’t change the fact that the jury

still had to evaluate whether the security guard used lawful or

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unlawful force against Parks. No one suggested that the security

guard could use unlawful force against Parks, even if Parks was

trespassing.

¶ 73 Because the self-defense instructions adequately covered the

prosecution’s proposed “definition” of lawful physical force, the

court didn’t abuse its discretion by declining that instruction. See

Bryant, ¶ 85; Dunton v. People, 898 P.2d 571, 573 (Colo. 1995)

(concluding that the district court was not required to give a

requested instruction on an affirmative defense to sexual assault

when the elemental instruction necessarily required disproof of the

elements of the affirmative defense).7

¶ 74 Because the instruction wasn’t legally required under the

circumstances presented at trial, we approve the ruling.

7 The converse is also true. The court would have been within its
discretion to instruct the jury on the definition. See People v.
Palacios, 2018 COA 6M, ¶ 18 (when assessing for abuse of
discretion, “we look to whether the [district] court’s decision fell
within a range of reasonable options”); cf. People v. Hayward, 55
P.3d 803, 805 (Colo. App. 2002) (concluding that the district court
did not err by instructing the jury on the victim’s right to defend
herself under the force-against-intruders statute).

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VIII. Disposition

¶ 75 The judgment and restitution order are affirmed. The ruling is

approved.

JUDGE LIPINSKY and JUDGE KUHN concur.

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