Peo v. Barnes

23CA0337 Peo v Barnes 06-25-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0337
Arapahoe County District Court No. 22CR641
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Barnes,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE SCHOCK
Welling and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 25, 2026

Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Meyers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Michael Barnes, appeals his convictions for

aggravated robbery and menacing. He argues, among other things,

that the district court reversibly erred by instructing the jury on the

provocation exception to self-defense. Because we agree, we reverse

the convictions and remand for a new trial on those charges.1

I. Background

¶2 Dominique Thomas owned an old Ford Bronco that was

parked in the parking lot of his apartment complex. The vehicle

was inoperable and had been “out of commission” for two years.

¶3 One evening, Thomas noticed the vehicle’s hood was up, and

there was a second battery connected with wires to the car battery.

There was a screwdriver in the ignition, and it appeared to Thomas

that someone had been trying to steal the vehicle. Thomas duct-

taped the door shut (because it did not lock) and decided to keep

his eye on the vehicle for the rest of the night. A couple hours later,

he saw two people “eyeing” it, but they left when he approached.

¶4 Later that evening, Thomas heard the Bronco running and ran

outside, where he saw Barnes working under the hood and another

1 Barnes does not challenge his conviction for first degree criminal

trespass. That conviction therefore remains undisturbed.

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man standing nearby. Thomas went inside, got a rifle, and called

the police, telling them that if they did not arrive in thirty seconds,

he would “shoot these people that’s trying to steal my car.” As

Thomas approached, the other man drove off in a van. Thomas

then told Barnes to get away from the vehicle, but Barnes just

looked at Thomas and went back to working on the vehicle.

¶5 Thomas decided to “knock [Barnes] out with the gun” rather

than shoot him. As he swung the gun at Barnes’s head, Barnes

“sprung into action and put [Thomas] into a chokehold.” During

the ensuing tussle, Thomas took the clip out of his gun and put the

gun down so he could break free. The two men then rolled to the

ground and threw punches at one another before Barnes picked up

the gun and ran to the other side of the sidewalk. According to

Thomas, Barnes pointed the gun at him and “tried to pull the

trigger” before realizing the gun was unloaded. Barnes then fled

with the gun into the apartment complex, where he was arrested.

¶6 Barnes was charged with two counts of aggravated robbery (for

taking the rifle), felony menacing (for threatening Thomas with the

rifle), first degree criminal trespass of a motor vehicle, and a crime

of violence sentence enhancer. At trial, his primary defense to the

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aggravated robbery and menacing charges was that he took the rifle

from Thomas in self-defense. A jury convicted Barnes as charged.

II. Provocation Instruction

¶7 Barnes argues that the district court erred by instructing the

jury on the provocation exception to self-defense because there was

no evidence that he intentionally goaded Thomas into attacking him

so that he would have a pretext to injure or kill him. We agree.

A. Additional Background

¶8 In Barnes’s post-arrest interview, he told an officer that he was

working under the hood of the Bronco when Thomas “ran up on

[him] and hit [him] in the back of the head with a gun” without

announcing himself or saying anything first. Barnes said he “felt

like [his] life was in danger,” so he grabbed Thomas and threw him

to the ground. During the tussle, Thomas “kept trying to go for the

gun,” and Barnes was trying to keep him away from it.

¶9 Barnes’s theory of defense at trial was that he took the gun

from Thomas in self-defense. The jury was instructed as follows:

It is [Barnes’s] theory of defense that he is not
guilty of menacing and aggravated robbery
because his actions after he was confronted
and physically assaulted by [Thomas] were
justified by the affirmative defense of self-

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defense because he used physical force and
took the rifle from [Thomas] to defend himself
from what he reasonably believed to be the use
of physical force and used a degree of force
that was necessary for the purpose of
defending himself against [Thomas].

The district court also instructed the jury on self-defense.

¶ 10 The prosecution requested that the court instruct the jury on

the provocation exception to self-defense — namely, that Barnes,

“[w]ith intent to cause bodily injury or death to another person . . .

provoke[d] the use of unlawful physical force by that other person.”

§ 18-1-704(3)(a), C.R.S. 2025. Defense counsel objected, asserting

that there was no evidence that Barnes provoked Thomas’s use of

force through words or physical action toward Thomas.

¶ 11 The district court did not directly address defense counsel’s

objection to the provocation exception, instead focusing its ruling

on its denial of an initial aggressor instruction (which the parties

addressed at the same time). But the court included the

provocation exception in the self-defense jury instruction.

¶ 12 In closing argument, the prosecution told the jury that “this

case is going to come down to whether or not you believe that by

stealing the car, the defendant provoked the victim into acting.”

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The prosecutor continued: “In order for self-defense to apply, the

defendant cannot provoke the fight . . . by trying to steal that car.”

B. Applicable Law and Standard of Review

¶ 13 When a defendant claims self-defense, one way for the

prosecution to defeat that defense is by proving beyond a

reasonable doubt that the provocation exception applies. People v.

Roberts-Bicking, 2021 COA 12, ¶ 30. But the court may instruct

the jury on the exception only if there is “some evidence” to support

it. Galvan v. People, 2020 CO 82, ¶ 25. Although this threshold is

low, it requires evidence that “would support a reasonable

inference” that the exception applies. Roberts-Bicking, ¶ 31.

¶ 14 Under the provocation exception, a defendant forfeits the right

to self-defense when, “[w]ith intent to cause bodily injury or death

to another person, he provokes the use of unlawful physical force

by that other person.” § 18-1-704(3)(a). The exception has three

elements: “(1) the other person uses unlawful physical force against

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

force by the other person; and (3) the defendant intended his

provocation to goad the other person into attacking him in order to

provide a pretext to injure or kill that person.” Galvan, ¶ 19.

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¶ 15 We review de novo whether some evidence exists to support a

provocation instruction, viewing the evidence in the light most

favorable to the giving of the instruction. Roberts-Bicking, ¶ 32.

C. No Evidence to Support Instruction

¶ 16 We agree with Barnes that the record contains no evidence to

support a provocation instruction in this case. Even assuming that

Barnes’s apparent attempt to steal the Bronco could be deemed to

have provoked Thomas to attack him, no evidence supports a

reasonable inference that by attempting to steal the vehicle, Barnes

intended “to goad [Thomas] into attacking him” so that he would

have “a pretext to injure or kill [Thomas].” Galvan, ¶ 19.

¶ 17 Viewing the evidence in the light most favorable to the

prosecution, all Barnes did before Thomas attempted to hit him

with the gun was work on the vehicle and fail to respond when

Thomas told him to get away. The clear implication was that

Barnes was trying to steal the vehicle. There was no suggestion

that his intent was instead to get Thomas to come out of his

apartment and attack him so Barnes could injure Thomas in

response. See id. at ¶ 31 (“[A]bsent evidence of the requisite intent,

the provocation exception cannot defeat the affirmative defense of

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self-defense.”). There was no indication that Barnes knew Thomas

or had any reason to harm him — much less through such a

convoluted scheme. See People v. Silva, 987 P.2d 909, 913-15

(Colo. App. 1999) (holding that there was no evidence the defendant

intended to provoke a fight to injure the victims where “there was

no meeting or altercation between the two groups” before the fight);

cf. Galvan, ¶ 33 (holding that there was evidence to support a

provocation instruction where the charged assault followed a prior

verbal altercation and unwanted sexual advances); Roberts-Bicking,

¶¶ 9, 40 (holding that there was evidence to support a provocation

instruction where the victim had kicked the defendant out of his

apartment and “previously threatened to physically harm him”).

¶ 18 The People concede there was no evidence of the requisite

intent before Thomas approached Barnes, disclaiming the

prosecution’s argument in the district court that Barnes’s attempt

to steal the car was enough. Now, the People argue that the

provocation occurred when Barnes “looked at” Thomas and then

continued working on the vehicle. They contend that “a reasonable

jury could infer that Barnes’s intent for ignoring [Thomas’s]

command to stop was so that he could commit a surprise attack.”

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¶ 19 Not only was this not the theory argued at trial, or the theory

on which the instruction was given, but it is not a reasonable

inference under the facts of this case. First off, for the provocation

exception to apply, Barnes’s intent had to be to get Thomas to

attack him first — not simply to lull him into being vulnerable to a

surprise attack by Barnes. See People v. Rios, 2014 COA 90, ¶ 47.

But more to the point, the People’s theory stretches the “some

evidence” standard too far. The question is not simply whether

Barnes’s conduct may have actually provoked Thomas to attack

him. It is whether Barnes’s purpose in engaging in that conduct —

now characterized as ignoring Thomas’s verbal warning — was to

create a pretext for injuring Thomas. See Galvan, ¶ 19. Given the

lack of any prior interaction between the two, such an inference is

not just “highly improbable”; it makes no sense. Id. at ¶ 24 (citation

omitted); see Castillo v. People, 2018 CO 62, ¶ 64 n.8 (“[I]nferences

may be drawn only from the facts in evidence and [m]ay not be

based on mere speculation or conjecture.” (citation omitted)).

¶ 20 We therefore conclude that the district court erred by

instructing the jury on the provocation exception to self-defense.

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D. Harmlessness

¶ 21 When the district court erroneously instructs the jury on an

exception to self-defense that lacks evidentiary support, we apply

the nonconstitutional harmless error standard. See Castillo, ¶ 56.

Under this standard, we will reverse “only if the error affects the

substantial rights of the parties,” meaning it “substantially

influenced the verdict or affected the fairness of the trial

proceedings.” Id. at ¶ 57 (citation omitted). An error is not

harmless if there is a “reasonable probability” that it contributed to

the conviction. People v. Schnorenberg, 2025 CO 43, ¶ 52.

¶ 22 We conclude that the provocation instruction was not

harmless for three reasons. First, one problem with an erroneously

given instruction is that “jurors might try to fit facts” into that

instruction. Castillo, ¶ 59. That risk was particularly acute in this

case. Although there was no evidence that Barnes “provoked”

Thomas’s attack within the legal meaning of that term, there was

ample evidence that his apparent attempt to steal the Bronco was

the cause of the attack. There is a reasonable probability that a

jury trying to fit the facts of this case into the instruction could

have found (erroneously) that Barnes lost his right to self-defense

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merely because he committed a crime that prompted Thomas to

attack him. Cf. People v. Chirico, 2012 COA 16, ¶¶ 14, 18 (holding

that instruction erroneously suggesting the defendant forfeited his

right to self-defense by committing a crime was not harmless).

¶ 23 Second, the prosecutor’s comments in closing argument

played right into that concern. See Castillo, ¶ 60 (noting that errors

in jury instructions can be “exacerbated by the prosecution’s

misleading comments during its closing argument” (citation

omitted)). Not only did the prosecutor “rel[y] heavily” on the

provocation instruction, id. at ¶ 63 — telling the jury the case would

“come down to” provocation — but she urged the jury to apply it in

the problematic, nonlegal sense suggested by the evidence.

¶ 24 Repeatedly, the prosecutor told the jury that Barnes

“provoke[d] the fight . . . by trying to steal the car” — not because

he intended to goad Thomas into attacking him, but because

Thomas had a right to defend his property. In other words, the

prosecutor argued that Barnes could not claim self-defense simply

because he “started” the fight by attempting to steal the vehicle.

Not one mention of Barnes intending to injure Thomas (or that such

intent was required for the jury to find provocation). There is a

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reasonable probability that a jury faced with the inapplicable

exception and the prosecutor’s incorrect framing of it could have

concluded that Barnes’s act of attempting to steal the car was

provocation — a theory the People rightly abandon on appeal.

¶ 25 Third, there is a reasonable probability that a properly

instructed jury could have found that Barnes acted in self-defense.

See People v. DeGreat, 2018 CO 83, ¶ 27 (noting that acts of

robbery may be justified by self-defense “when the defendant uses

force to disarm an assailant and then flees with the assailant’s

weapon”). It is undisputed that Thomas approached Barnes with a

rifle and swung it at Barnes’s head, while Barnes was unarmed. As

Thomas approached, he told police he was about to shoot the

people trying to steal his car. Moreover, Barnes told police after his

arrest that he “felt like [his] life was in danger” and was just trying

to keep Thomas away from the gun. And although Thomas may

have had the right to use reasonable physical force to prevent the

theft, he had no right to use unreasonable or deadly force. See

§ 18-1-706, C.R.S. 2025. Based on this evidence, a jury could

reasonably have found that Barnes used force to defend himself

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

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unlawful force by Thomas, and that the degree of force he used was

reasonably necessary for that purpose. See § 18-1-704(1).

¶ 26 The People insist the error was harmless because Barnes’s

theory of self-defense was “overwhelmingly undermined by the

evidence.” In doing so, they show only (perhaps overwhelmingly)

that Barnes was attempting to steal the Bronco. But even if Barnes

was trying to steal the vehicle and knew Thomas was its likely

owner, Barnes would still have been entitled to act in self-defense if

he reasonably believed Thomas’s use of force or imminent use of

force was unreasonable, deadly, or otherwise unlawful. See People

v. Toler, 9 P.3d 341, 352 (Colo. 2000) (“[T]respassers do not forfeit

their rights to self-defense merely by the act of trespassing.”).

¶ 27 We also are unpersuaded that defense counsel cured any

harm by telling the jury that (1) Barnes “was not doing this to

intentionally cause injury or death to [Thomas], and that’s what you

have to find”; and (2) Barnes’s attempt to steal the car was not

provocation. Faced with an instruction that did not otherwise fit

the facts of the case and the prosecutor’s argument that attempting

to steal the car was provocation, defense counsel’s attempt to right

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the ship does not foreclose a reasonable probability that the jury

understood the exception exactly as the prosecution described it.2

¶ 28 Thus, because there is a reasonable probability that the

erroneously given provocation instruction contributed to Barnes’s

aggravated robbery and menacing convictions, we reverse those

convictions and remand for a new trial on those charges.

III. Other Issues

¶ 29 Barnes raises several other challenges to the jury instructions,

but he asserts that we need not reach those issues if we reverse his

convictions based on the provocation instruction. We agree.

¶ 30 The parties dispute whether Barnes’s other instructional

challenges are preserved. And although we tend to agree with

Barnes that they were, we agree with the People that they were not

articulated or developed in the district court in precisely the same

manner or to the same degree as they are on appeal. On remand,

2 The People also argue that the error was harmless because the

jurors did not “grapple with” the provocation instruction like the
jury did in Castillo v. People, 2018 CO 62, ¶ 65. But while a juror
question about the exception might indicate the jury was “closely
considering” the exception, id., the converse is not necessarily true.
The jury might not have asked a question because it believed it
understood the instruction, in the sense argued by the prosecutor.

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the parties and the district court will have an opportunity to better

develop the record on these issues in light of this opinion. We thus

cannot say the issues are likely to “arise in precisely the same

posture” at a new trial. People v. Gulyas, 2022 COA 34, ¶ 29.3

¶ 31 As for Barnes’s argument that his two aggravated robberies

should merge, which the People concede, that issue could arise

again only if Barnes is convicted of both counts after retrial and the

district court does not merge them, despite the People’s concession.

IV. Disposition

¶ 32 Barnes’s aggravated robbery and menacing convictions are

reversed, and the case is remanded for a new trial.

JUDGE WELLING and JUDGE LUM concur.

3 Because we are reversing Barnes’s convictions based on the

provocation instruction, we need not address his cumulative error
argument either. See Howard-Walker v. People, 2019 CO 69, ¶ 25
(explaining that cumulative error may require reversal when no
single error prejudices the defendant’s substantial rights, but the
combination of multiple errors does).

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