People v. William Benjamin Cline VI

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
November 23, 2022

2022COA135

No. 20CA1121, People v. Cline — Crimes — Second Degree
Assault of a Police Officer; Criminal Procedure — Subpoena —
In Camera Review; Criminal Law — Jury Instructions — Use of
Deadly Physical Force Against an Intruder — Unlawful Entry

In this direct criminal appeal, a division of the court of appeals

clarifies that a defendant who has been charged with assaulting a

police officer must make the showing required by People v.

Spykstra, 234 P.3d 662, 666 (Colo. 2010), when requesting an in

camera review of the police officer’s subpoenaed personnel files.

Because the defendant failed to make the requisite showing, the

division concludes that the district court need not have conducted

an in camera review before quashing a subpoena for the file.

The division also declines to follow another division’s

interpretation of the term “unlawful entry” in the context of the
force-against-intruders statute, § 18-1-704.5(2), C.R.S. 2022. See

People v. Zukowski, 260 P.3d 339, 344 (Colo. App. 2010). Instead,

the division defers to the Colorado Supreme Court’s definition as set

forth in People v. McNeese, 892 P.2d 304, 311-12 (Colo. 1995).

Because no credible evidence supported an unlawful entry under

the McNeese definition, the division rejects the defendant’s

contention that a force-against-intruders instruction should have

been given to the jury.

The division also rejects the defendant’s remaining contentions

that the district court erroneously instructed the jury in other ways

and erred by limiting the defendant’s expert witness’ testimony.

Accordingly, the division affirms the defendant’s convictions.
COLORADO COURT OF APPEALS 2022COA135

Court of Appeals No. 20CA1121
La Plata County District Court No. 19CR91
Honorable William L. Herringer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Benjamin Cline VI,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE BROWN
J. Jones and Kuhn, JJ., concur

Announced November 23, 2022

Philip J. Weiser, Attorney General, Christine Brady, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

The Law Office of Haddon, Morgan & Foreman, P.C., Adam Mueller, Denver,
Colorado, for Defendant-Appellant
¶1 Defendant, William Benjamin Cline VI, appeals the judgment

of conviction entered on jury verdicts finding him guilty of first

degree criminal trespass, second degree assault of a peace officer,

third degree assault, harassment, and criminal mischief. Cline

contends that the district court erred by (1) refusing to conduct an

in camera review of a police officer’s personnel file; (2) erroneously

instructing the jury on his defenses; and (3) precluding him from

presenting certain expert testimony.

¶2 Resolving Cline’s first contention requires us to clarify that a

defendant who has been charged with assaulting a police officer

must make the showing required by People v. Spykstra, 234 P.3d

662, 666 (Colo. 2010), to be entitled to an in camera review of the

officer’s subpoenaed personnel file. Because Cline failed to make

the required showing, we affirm the district court’s order quashing

his subpoena without conducting an in camera review.

¶3 In resolving Cline’s second contention, we decline to follow

People v. Zukowski, 260 P.3d 339, 344 (Colo. App. 2010), a decision

from a division of this court interpreting the term “unlawful entry”

for purposes of the force-against-intruders statute, § 18-1-704.5(2),

1
C.R.S. 2022.1 Instead, we defer to the Colorado Supreme Court’s

definition as set forth in People v. McNeese, 892 P.2d 304, 311-12

(Colo. 1995). Because no credible evidence showed an unlawful

entry under the McNeese definition, we conclude that the district

court did not err by refusing Cline’s force-against-intruders

instruction.

¶4 And because we reject the balance of Cline’s contentions, we

affirm his judgment of conviction.

I. Background

¶5 The evidence presented at trial, including body camera

footage, would have allowed the jury to find the following facts. On

February 13, 2019, Cline crashed a golf cart into a snowbank near

his neighbor W.P.’s house. Cline entered W.P.’s house through an

unlocked garage door and woke W.P. up by flashing a light into his

bedroom. W.P. got out of bed and saw Cline inside his kitchen and

then again outside his garage. W.P. first called the neighborhood’s

security gate guard and then called 911. The gate guard informed

1The force-against-intruders statute is nicknamed the “Make My
Day Law” and is referred to as such by the parties. Following
People v. Rau, 2022 CO 3, ¶¶ 1-2, we refer to it as the “force-
against-intruders” statute.

2
the responding officers, Deputy Draughon and Deputy Christensen,

that the golf cart belonged to the Cline family.

¶6 Once the deputies arrived at Cline’s home, they knocked on

the front door, identified themselves as sheriff’s deputies, and told

Cline to open the door and step out to talk with them. Cline instead

invited the deputies inside and offered them a drink.

¶7 Once inside, Deputy Draughon faced Cline and began reading

him his Miranda rights while Deputy Christensen moved to Cline’s

left. Cline took issue with Deputy Christensen’s position and

gestured toward Deputy Christensen while telling him to move

back. The deputies handcuffed Cline and sat him on the floor.

After Cline was handcuffed, he would not stand and struggled with

the deputies. At one point, all three men tumbled to the floor.

¶8 Once Cline seemed to calm down, Deputy Christensen went

outside to move the patrol vehicle closer to Cline’s front door while

Deputy Draughon held Cline prone on the floor. When Deputy

Draughon took his hand off Cline and reached for his radio, Cline

flipped over onto his back and kicked Deputy Draughon. The two

physically struggled. Deputy Draughon punched Cline, wrapped

his legs around Cline, and put Cline in a chokehold. Cline pulled

3
Deputy Draughon’s genitals during this struggle. Deputy

Christensen returned during the episode and tased Cline, subduing

him. Eventually, after other officers arrived, the deputies stood

Cline up and escorted him to the patrol vehicle.

¶9 Deputy Draughon transported Cline to jail. During the drive,

Cline shouted at the deputy and called him racist names. Cline

also kicked the door of the police vehicle, causing damage.

¶ 10 Cline was charged with second degree burglary, first degree

criminal trespass, second degree assault of a peace officer, third

degree assault, harassment, and criminal mischief.2 The district

court bifurcated Cline’s charges for trial.

¶ 11 The court first held a jury trial on the charges of burglary and

criminal trespass (the burglary trial). Cline’s theory of defense was

that he lacked the requisite mens rea to carry out a burglary or

trespass. A jury convicted Cline of first degree trespass and

acquitted him of second degree burglary.

2 Cline was also charged with resisting arrest, prohibited use of a
weapon, and driving under the influence, but the People dismissed
those charges.

4
¶ 12 The court later held a jury trial on the charges of second

degree assault of a peace officer, third degree assault, harassment,

and criminal mischief (the assault trial). Cline’s theory of defense

was that his actions were justified under the force-against-intruders

statute and as self-defense. A jury convicted Cline of all four

charged crimes.

II. In Camera Review of Personnel File

¶ 13 Cline contends that the district court erred by not conducting

an in camera review of Deputy Draughon’s personnel file before

granting the La Plata County Sheriff’s motion to quash a subpoena

requesting the file. We perceive no error.

A. Standard of Review and Generally Applicable Law

¶ 14 We review a district court’s decision to quash a subpoena for

an abuse of discretion. People v. Battigalli-Ansell, 2021 COA 52M,

¶ 69 (citing Spykstra, 234 P.3d at 666). A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair, or if it misconstrues or misapplies the law. People v. Liggett,

2021 COA 51, ¶ 16.

¶ 15 Crim. P. 17(c) generally authorizes the prosecution or the

defense to subpoena documentary evidence to be produced at a

5
hearing or trial. But “[t]he rule does not create an equivalent to the

broad right of civil litigants to discovery of all information that is

relevant or may lead to the discovery of relevant information.”

Spykstra, 234 P.3d at 669. Thus, the court, on motion, “may quash

or modify [a] subpoena if compliance would be unreasonable or

oppressive.” Crim. P. 17(c).

B. Additional Background

¶ 16 Before trial, Cline served a subpoena duces tecum on the La

Plata County Sheriff seeking, among other things, the personnel file

of Deputy Draughon. The Sheriff filed a motion to quash the

request for the personnel file because it was “unreasonable” and

sought confidential documents and information.

¶ 17 During a hearing on the motion to quash, Cline’s counsel

acknowledged this was “a Spykstra issue” and that Cline would not

be entitled to the entire personnel file. Instead, defense counsel

argued that Cline was entitled to “things like credibility, aggression,

use of [t]aser, [and] use of force” documented in the personnel file.

Defense counsel asked the Sheriff to submit the records to the

district court for in camera review after which the parties could

“fine tune” their arguments about what should be produced. The

6
attorney for the Sheriff argued that Cline had failed to make the

necessary showing to trigger an in camera review.

¶ 18 The court received the records and took the matter under

advisement. In a brief written order, the court quashed the

subpoena as to the personnel file of Deputy Draughon because

Cline “failed to show a specific factual basis demonstrating [a]

reasonable likelihood that documents exist within the file that

would be relevant to this action.” The court declined to conduct an

in camera review of the file and ordered the return of the records to

the Sheriff.

¶ 19 Cline filed a motion for reconsideration, essentially arguing

that a defendant charged with assaulting a police officer is entitled

to automatic disclosure of information regarding “excessive force

and dishonesty” under People v. Walker, 666 P.2d 113, 122 (Colo.

1983). The district court denied the motion, reasoning that Cline

was not entitled to the subpoenaed documents without meeting the

five-part test set forth in Spykstra, 234 P.3d at 669. The court

found that Cline “made no showing that evidentiary and material

documents relevant to this case exist within the file.”

7
C. The District Court Did Not Abuse Its Discretion by Quashing
the Subpoena Without Reviewing the Personnel File In Camera

¶ 20 Cline argues that, because he was charged with assaulting a

police officer, the district court was required to conduct an in

camera review of the officer’s personnel file and then release to him

any complaints of excessive force and other information in the file

relating to the officer’s credibility. See Walker, 666 P.2d at 121-22;

see also Martinelli v. Dist. Ct., 199 Colo. 163, 173, 612 P.2d 1083,

1091 (1980). He argues that the test articulated in Spykstra, on

which the court relied in granting the motion to quash, does not

apply under these circumstances; but even if it did, he made the

requisite showing. We disagree.

¶ 21 True, Walker held that “[a] defendant who is charged with

assaulting a police officer is entitled to disclosure of the fact that

complaints charging excessive use of force have been filed against

the officer involved.” 666 P.2d at 121-22. But Walker did not

address what showing a defendant must make to be entitled to an

in camera review of the officer’s personnel file, nor did it mandate

that a court must conduct an in camera review any time a

defendant asks for an officer’s personnel file. Id. Rather, the trial

8
court in Walker had already conducted an in camera review of the

officer’s personnel file but had declined to disclose certain

complaints charging excessive force and untruthfulness because

they had not been “sustained” and declined to disclose other such

complaints because they would not be admissible at trial. Id. at

121. Rejecting the distinctions drawn by the trial court, the

supreme court explained that “[i]nformation in such complaints,

whether sustained or unsustained, could be relevant to the issues

in [the] case.” Id. The supreme court thus instructed the trial court

on remand to conduct an in camera review and to disclose

information “in accordance with the standards announced in

Martinelli.” Id. at 122.

¶ 22 Almost thirty years later, in Spykstra, the supreme court

articulated a multi-factor test to aid trial courts in determining

whether to quash a third-party subpoena because it is

unreasonable or oppressive:

[W]hen a criminal pretrial third-party
subpoena is challenged, a defendant must
demonstrate:

(1) A reasonable likelihood that the
subpoenaed materials exist, by setting forth a
specific factual basis;

9
(2) That the materials are evidentiary and
relevant;

(3) That the materials are not otherwise
procurable reasonably in advance of trial by
the exercise of due diligence;

(4) That the party cannot properly prepare for
trial without such production and inspection
in advance of trial and that the failure to
obtain such inspection may tend unreasonably
to delay the trial; and

(5) That the application is made in good faith
and is not intended as a general fishing
expedition.

234 P.3d at 669; see also Crim. P. 17(c).

¶ 23 The supreme court explained that, in addition to this five-part

test, subpoenas issued for materials that may be protected by a

privilege or a right to confidentiality require the court to balance the

parties’ competing interests. Spykstra, 234 P.3d at 670. And, “[i]n

such circumstances, the defendant must make a greater showing of

need and, in fact, might not gain access to otherwise material

information depending on the nature of the interest against

disclosure.” Id.

¶ 24 Though the supreme court recognized that, once a defendant

makes the required initial showing, an in camera review may be

helpful in balancing the parties’ competing interests, it also

10
explicitly held that in camera review of subpoenaed documents was

not automatically required: “We do not, however, adopt a mandate

of in camera review, although such review may in some instances

be necessary in the interest of due process.” Id.

¶ 25 Referring us back to Walker, Cline attempts to equate

Spykstra’s acknowledgment of the usefulness of in camera reviews

with a mandate for in camera reviews when police officer personnel

files are at issue. We do not read Spykstra the same way. Although

police officer personnel files were not at issue in Spykstra, the court

did not exempt such files from the five-factor test and it did not

mandate in camera reviews for such files simply because a

defendant charged with assaulting a police officer requested them.

And we know the Spykstra court was aware of Walker. Indeed, it

cited Walker in reference to the requirement that a defendant make

a “greater showing of need” when the requested materials may be

protected by a right to confidentiality. Spykstra, 234 P.3d at 670

(citing Walker, 666 P.2d at 122). Had the supreme court wished to

absolve defendants charged with assaulting a police officer from

making the showing required under the test it articulated to obtain

the officer’s personnel file, it would have said so.

11
¶ 26 Thus, a trial court is not required to conduct an in camera

review of documents subpoenaed by a defendant in a criminal case

before determining whether the documents should be produced to

the defense. Battigalli-Ansell, ¶ 79. And if a defendant fails to

make the initial showing required by Spykstra, the court does not

abuse its discretion by declining to conduct an in camera review

before quashing the subpoena. See id. at ¶ 80.

¶ 27 Here, the district court quashed the subpoena Cline issued for

Deputy Draughon’s personnel file because Cline failed to make the

first showing required by Spykstra: “A reasonable likelihood that

the subpoenaed materials exist, by setting forth a specific factual

basis.” 234 P.3d at 669. Cline did not articulate any factual basis

for believing that Deputy Draughon’s personnel file includes

complaints of excessive force or dishonesty. His claim that such

documents exist was mere speculation. “It is the moving party’s

responsibility — not the court’s — to independently conduct [his]

own investigation and present witnesses or documents that

demonstrate the likelihood that the evidence [he] intends to bring to

court through Crim. P. 17(c) in fact exists.” Id. at 672.

12
¶ 28 On this record, we conclude the court did not abuse its

discretion by not conducting an in camera review of Deputy

Draughon’s personnel file before granting the Sheriff’s motion to

quash.

III. Jury Instructions

¶ 29 Cline contends that the district court erred by (1) refusing to

instruct the jury on the force-against-intruders defense;

(2) instructing the jury on the initial aggressor exception to self-

defense; and (3) refusing to instruct the jury on the reasonable

mistake of fact defense. We reject each of these contentions.

A. Standard of Review

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

applicable law when there is sufficient evidence to support giving an

instruction. Castillo v. People, 2018 CO 62, ¶ 34. We review de

novo whether the instructions accurately informed the jury of the

law. Pearson v. People, 2022 CO 4, ¶ 15.

¶ 31 A defendant is entitled to a jury instruction on a defense if

“some credible evidence” supports it. Galvan v. People, 2020 CO

82, ¶ 24 (quoting the affirmative defense statute, § 18-1-407(1),

C.R.S. 2022) (“[O]ur appellate courts have understood ‘some

13
credible evidence’ to be interchangeable with ‘some evidence,’ ‘any

credible [even if highly improbable] evidence,’ ‘a scintilla of

evidence,’ a ‘small quantum of evidence,’ and ‘any evidence.’”). We

review de novo whether there was sufficient evidence to support

giving an instruction on a claimed defense. People v. Garcia, 113

P.3d 775, 784 (Colo. 2005).

¶ 32 We review a trial court’s decision whether to give a particular

jury instruction for an abuse of discretion. People v. Payne, 2019

COA 167, ¶ 16.

B. The District Court Did Not Err by Declining to Instruct the
Jury on the Force-Against-Intruders Defense

¶ 33 Cline contends that the district court erred by refusing to

instruct the jury in the assault trial on the force-against-intruders

defense. We conclude that no credible evidence supported the

instruction, so the court did not err by refusing it.

¶ 34 The force-against-intruders statute provides as follows:

Notwithstanding the provisions of section
18-1-704[, C.R.S. 2022, the self-defense
statute], any occupant of a dwelling is justified
in using any degree of physical force, including
deadly physical force, against another person
when that other person has made an unlawful
entry into the dwelling, and when the occupant
has a reasonable belief that such other person

14
has committed a crime in the dwelling in
addition to the uninvited entry, or is
committing or intends to commit a crime
against a person or property in addition to the
uninvited entry, and when the occupant
reasonably believes that such other person
might use any physical force, no matter how
slight, against any occupant.

§ 18-1-704.5(2). The dispute in this case centers on whether the

officers made an “unlawful entry” into Cline’s residence.

¶ 35 Cline does not dispute that he invited the deputies inside, but

he argues his invitation was coerced or involuntary based on the

totality of the circumstances (i.e., Cline’s intoxication, the deputies’

tone and use of their “color of authority,” and the time). Cline

essentially asks us to conclude that an entry premised upon a

coerced invitation is an unlawful entry. To bolster his argument,

Cline relies heavily on the district court’s suppression order.

¶ 36 But the suppression order addressed whether there had been

a Fourth Amendment violation based on an “unlawful seizure” of

Cline rather than an “unlawful entry” by the deputies into Cline’s

home for purposes of the force-against-intruders statute. In that

order, the court first found that the deputies’ commands to Cline to

open his door under the color of their authority constituted an

15
unlawful seizure. Then the court found “by clear and convincing

evidence that [Cline] voluntarily opened the door and consented to

the deputies entering his home.” In the end, though, the court

found that Cline’s consent was not sufficiently attenuated from the

unlawful seizure for the evidence obtained after entry (Cline’s

statements and the deputies’ observations) to be admissible.

Because “[t]he deputies obtained consent to enter the home through

the exploitation of their initial unlawful seizure,” the evidence

obtained was inadmissible as “the unlawful fruit of” that

constitutional violation.

¶ 37 Still, the court continued to analyze the scope of suppression

in light of Cline’s intervening assault on Deputy Draughon and

decided to sever the burglary charges from the assault charges so

that evidence obtained after the entry into Cline’s home could be

suppressed in the burglary trial but admitted in the assault trial.

True, in this latter context, the court referred to the constitutional

violation as an “illegal entry” and an “unlawful entry,” but the

court’s rationale makes clear that the illegality with which it was

concerned was the seizure of Cline.

16
¶ 38 Importantly, whether there was a Fourth Amendment violation

and whether there was an “unlawful entry” for purposes of the

force-against-intruders defense are two separate inquiries. And

Cline’s argument ultimately fails because, when we consider the

correct definition of “unlawful entry” for purposes of the force-

against-intruders defense, the instruction he requested was not

supported by the evidence.

¶ 39 McNeese defines “unlawful entry” in the context of the force-

against-intruders statute as “a knowing, criminal entry into a

dwelling.” 892 P.2d at 310. An “unlawful entry” requires a

“culpable mental state.” Id. at 311. More specifically, “[t]he

intruder’s mental state must reflect an entry in knowing violation of

the criminal code.” Id. at 312. So, under McNeese, there had to be

some evidence that the deputies engaged in conduct they knew

violated the criminal code by entering Cline’s home at his invitation

before the district court would have been required to give a force-

against-intruders instruction. Id. at 310 (alternatively describing

this element as requiring “an entry in knowing violation of the

criminal law”).

17
¶ 40 At trial, both deputies testified they had no intention of

entering Cline’s home before he invited them in. Deputy Draughon

testified that he did not have an arrest or search warrant. He also

said that no exigent circumstances existed, and he would not have

gone into Cline’s home without Cline’s permission. And the jury

saw the bodycam footage, which reflected Cline casually asking the

deputies, “Why don’t you guys come in?”

¶ 41 Based on this evidence, the district court denied Cline’s force-

against-intruders instruction, finding no evidence to support “any

knowing unlawful entry.” The court found that Cline invited the

deputies inside and the deputies did not enter Cline’s home until

Cline asked them to come in. The court also explained (as we have)

that its previous suppression order addressed a different question

— whether Cline was unlawfully seized under the Fourth

Amendment, not whether there was an unlawful entry under the

force-against-intruders statute.

¶ 42 We are bound by the supreme court’s definition of “unlawful

entry.” See id. at 311-12; see also People v. Cox, 2021 COA 68, ¶ 8

(“Both this court and the trial court are bound by supreme court

decisions.”). Cline does not explain what provision of the criminal

18
code the deputies violated by entering his home or point to evidence

in the record from which a reasonable jury could conclude that the

deputies knowingly committed a criminal offense under the

circumstances.

¶ 43 Still, Cline urges us to follow Zukowski, in which a division of

this court held that a force-against-intruders jury instruction that

stated, in relevant part, that “the other person’s unlawful entry into

the dwelling must have been made in knowing violation of the

criminal law,” was misleading because it suggested that “an

intruder must know that [their] conduct violates a criminal statute,

rather than that the intruder must not have a reasonable belief that

[their] entry is licensed, invited, or otherwise privileged.” 260 P.3d

at 344. The division based its conclusion on section 18-4-201(3),

C.R.S. 2022, which provides that a person “enters unlawfully” when

the person “is not licensed, invited, or otherwise privileged to do so.”

Thus, it attempted to narrow McNeese’s definition: “[I]t appears that

the phrase [‘in knowing violation of the criminal law’] was intended

to express a requirement that an intruder must knowingly engage

in criminal conduct, not that an intruder knows [they are] violating

19
a criminal statute.” Zukowski, 260 P.3d at 344 (quoting McNeese,

892 P.2d at 310).

¶ 44 For two reasons we are not persuaded by Zukowski. See

Chavez v. Chavez, 2020 COA 70, ¶ 13 (explaining that one division

of the court of appeals is not bound by another).

¶ 45 First, the McNeese definition of “unlawful entry” was not based

upon section 18-4-201(3). 892 P.2d at 311-12. That statute

defines “enters unlawfully” specifically for purposes of Title 18,

Article 4, Offenses Against Property, but the force-against-intruders

defense is set forth in Article 1, Provisions Applicable to Offenses

Generally. § 18-4-201 (preceding the definition by “[a]s used in this

article”). More importantly, we can presume that the majority in

McNeese considered and declined to adopt that definition because

Chief Justice Rovira specifically cited it when dissenting from the

majority’s definition. 892 P.2d at 315 (Rovira, C.J., concurring in

the result and dissenting in part).

¶ 46 Second, even applying the Zukowski definition, there was no

record evidence that the deputies “knowingly engage[d] in criminal

conduct” or even that they lacked a reasonable belief that their

entry was invited. See Zukowski, 260 P.3d at 344. As the district

20
court found by clear and convincing evidence after the suppression

hearing, Cline “voluntarily opened the door and consented to the

deputies entering his home.”

¶ 47 On this record, we conclude that there was no credible

evidence that the deputies made an unlawful entry, as the Colorado

Supreme Court has defined that term in this context. Thus, we

perceive no error by the district court in refusing to instruct the

jury on the force-against-intruders defense.

C. The District Court Did Not Err by Instructing the Jury on the
Initial Aggressor Exception to Self-Defense

¶ 48 Cline contends that the district court erred by instructing the

jury in the assault trial on the initial aggressor exception to self-

defense because there was no evidence that he initiated the

physical conflict. Cline argues that he either acted in self-defense

or committed assault. Either way, Cline contends, an instruction

on initial aggressor was not warranted. We conclude that the

evidence would support a jury finding that Cline was the initial

aggressor of the physical conflict when he kicked Deputy Draughon.

¶ 49 Under section 18-1-704(1), “a person is justified in using

physical force upon another person in order to defend himself . . .

21
from what he reasonably believes to be the use or imminent use of

unlawful physical force by that other person.” But a person is not

justified in using physical force if he is the “initial aggressor.” § 18-

1-704(3)(b). “A court may give an initial aggressor instruction if the

evidence will support a reasonable inference that the defendant

initiated the physical conflict by using or threatening the imminent

use of unlawful physical force.” People v. Griffin, 224 P.3d 292, 300

(Colo. App. 2009); see also Castillo, ¶ 41.

¶ 50 Cline argues that he did not use or threaten to use imminent

force before acting in self-defense. He asserts that it was

undisputed that he kicked Deputy Draughon only after the deputies

took him to the ground, so there was no evidence that he initiated

the physical conflict. Cline likens his situation to Castillo, ¶¶ 46-

53, and People v. Manzanares, 942 P.2d 1235, 1238-41 (Colo. App.

1996). These cases are distinguishable.

¶ 51 In Castillo, the supreme court concluded that there was no

evidentiary basis for giving an initial aggressor instruction. Castillo,

¶¶ 49-53. Castillo tried to leave a parking lot when an unknown

assailant opened fire. Id. at ¶ 1. Castillo got out of his car,

retrieved a shotgun from his trunk, and returned fire. Id. Nearby

22
police officers rushed to the scene and began firing at Castillo. Id.

at ¶ 16. Castillo shot at the police after they fired at him. Id. at

¶ 47 n.7. The trial court justified the initial aggressor instruction

by pointing to Castillo’s racking of the gun before the police fired as

an act of initial aggression. Id. at ¶ 46. However, the supreme

court concluded that the events constituted “one continuous

episode” that began when an unknown person first shot at Castillo.

Id. at ¶ 47. The court reasoned that the entire episode lasted a

matter of seconds; it could not be separated into segments such

that Castillo became the initial aggressor as to the second segment

involving the police. Id. It concluded that Castillo had not used or

threatened the use of imminent force before he was fired upon, so

no evidence supported an initial aggressor instruction. Id. at ¶¶ 52-

53.

¶ 52 Unlike in Castillo, where the entire series of events transpired

in “a matter of seconds, with no break in the action,” id. at ¶ 48, the

events in this case lasted several minutes with multiple breaks in

the action. The events were not necessarily “one unit of

experience,” so the jury need not have determined whether Cline

23
was the initial aggressor “as to the entire episode.” See id. at ¶¶ 48-

49. As the district court recognized,

[t]here is some lack of clarity regarding the
exact sequence of events. The jury could find
. . . that the initial . . . contact between Mr.
Cline and law enforcement . . . did not
constitute unreasonable or excessive force,
and . . . they could certainly find that Mr. Cline
. . . basically first struck the deputy, making
him the initial aggressor.

¶ 53 In Manzanares, a division of this court concluded that there

was no evidentiary basis for giving an initial aggressor instruction.

942 P.2d at 1238, 1241. Manzanares was at a party when one of

his friends became involved in an altercation. Id. at 1238.

Manzanares drove away but then returned and fired a handgun. Id.

It was undisputed that Manzanares was not part of the initial

altercation, so the division reasoned that “the only issue remaining

upon defendant’s return to the party was whether, by firing his

pistol, he committed any of the crimes charged and, if so, whether

the conduct was justified because he had acted in self-defense.” Id.

at 1241. The division explained that a finding by the jury that

Manzanares was the initial aggressor when he fired his gun would

be no more than a rejection of his claim of self-defense. Id. Under

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such circumstances, the trial court erred by giving the jury an

initial aggressor instruction. Id.

¶ 54 Unlike in Manzanares, where the defendant engaged in a

single act (firing a gun) that gave rise to the charged offenses, see

id. at 1238, Cline was alleged to have engaged in sequential

assaultive acts — the kick and the genital grab. If the kick had

been the only conduct chargeable as assault, Cline’s case would be

more like Manzanares. In that scenario, a jury would have to

decide only whether Cline was justified in kicking Deputy Draughon

because he acted in self-defense. The kick was either self-defense

or it was assault. In that scenario, an initial aggressor instruction

may not have been warranted.

¶ 55 But after Cline started kicking, Deputy Draughon punched

him and put him in a chokehold. Cline sought to justify grabbing

Deputy Draughon’s genitals as self-defense to the chokehold and

punching. In that scenario, which was supported by the evidence

at trial, the jury could find that Cline grabbed Deputy Draughon’s

genitals in self-defense but also that Cline was the initial aggressor

because he initiated the physical conflict by kicking Deputy

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Draughon. Under these circumstances, Cline would not be entitled

to claim self-defense as to the genital grab.

¶ 56 On this record, we conclude that there was sufficient evidence

to support the district court instructing the jury on the initial

aggressor exception to self-defense.

D. The District Court Did Not Err by Declining to Instruct the
Jury on the Mistake of Fact Defense

¶ 57 Cline contends that the district court erred by refusing to

instruct the jury in the burglary trial on mistake of fact as a defense

to criminal trespass. Cline argues that (1) mistake of fact was an

affirmative defense on which he was entitled to have the jury

instructed; (2) even if the defense was a traverse, the court should

have given the instruction; and (3) the elemental trespass

instruction failed to adequately articulate the People’s burden to

prove Cline knowingly entered someone else’s home. We are not

persuaded.

¶ 58 Cline was convicted of one count of first degree trespass. A

person commits first degree criminal trespass if such a person

“[k]nowingly and unlawfully enters or remains in a dwelling of

another.” § 18-4-502(1)(a), C.R.S. 2022. As relevant here, “[a]

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person is not relieved of criminal liability for conduct because he

engaged in that conduct under a mistaken belief of fact, unless . . .

[i]t negatives the existence of a particular mental state essential to

the commission of the offense.” § 18-1-504(1)(a), C.R.S. 2022. This

mistake of fact defense is “an affirmative defense.” § 18-1-504(3).

¶ 59 Cline offered a jury instruction at trial that provided, in

relevant part, as follows:

The evidence presented in this case has raised
the affirmative defense of “mistaken belief of
fact[.]”

The defendant’s conduct was legally authorized
if:

1. the defendant engaged in the prohibited
conduct under a mistaken belief, and

2. due to this mistaken belief he did not
form the particular mental state required in
order to commit the offense.

¶ 60 The district court rejected Cline’s instruction but gave an

elemental instruction on trespass that provided, in relevant part, as

follows:

The elements of First Degree Criminal
Trespass are:

1. That the defendant,

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2. in the State of Colorado, at or about the
date and place charged,

3. knowingly, and

4. unlawfully,

5. entered or remained in a dwelling of
another.

¶ 61 Given how Cline frames his contentions, a threshold question

would seem to be whether Cline’s mistake of fact defense is an

affirmative defense or a traverse. See People v. Nelson, 2014 COA

165, ¶¶ 48-49 (explaining that an affirmative defense admits

commission of the charged act but seeks to justify, excuse, or

mitigate it, while a traverse negates an element of the offense). But

even if the defense was an affirmative defense, which is what the

plain language of section 18-1-504(3) provides, Cline was not

entitled to a separate jury instruction because the requested

instruction only served to negate an element of the offense. See

Nelson, ¶¶ 51-52 (“Where proof of the elements of the charged

offense necessarily requires disproof of the issue raised by the

affirmative defense, a separate instruction on that defense need not

be given.”).

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¶ 62 The present case is like People v. Walden, 224 P.3d 369, 379

(Colo. App. 2009), where the division concluded that Walden’s

requested affirmative defense instruction only served to repeat an

element of the offense. The division explained that “[t]he effect of

defendant’s instruction, if the jury were to accept defendant’s

contention that he was acting under the belief he had permission to

enter and stay at his wife’s apartment, would merely be to negate

the requisite ‘knowing’ element in the crime of trespass.” Id.

Because the instruction “was unnecessarily duplicative of the

elements the prosecution was already required to prove beyond a

reasonable doubt” — including that Walden had knowingly entered

the victim’s apartment without permission — the trial court did not

err by declining to instruct the jury on mistake of fact. Id.

¶ 63 Like in Walden, Cline’s mistake of fact instruction was

unnecessarily duplicative because the trespass instruction already

required that the prosecution prove beyond a reasonable doubt that

Cline “knowingly . . . entered or remained in a dwelling of another.”

Cline argues that Walden was wrongly decided, but we are

persuaded to follow it. See Chavez, ¶ 13. We conclude that the

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district court did not abuse its discretion by declining Cline’s

mistake of fact instruction.

¶ 64 But Cline also contends that the elemental trespass jury

instruction was erroneous because it failed to inform the jury that

the People had to prove beyond a reasonable doubt that Cline knew

he was entering the home of another. He argues that the jury was

inadequately informed of this requirement because “dwelling of

another” was not indented or offset. Reviewing de novo, see

Pearson, ¶ 15, we disagree.

¶ 65 The elemental trespass instruction accurately set forth the

elements of first degree trespass. Indeed, it tracked the pattern

instruction. See COLJI-Crim. 4-5:03 (2021); People v. Gallegos, 260

P.3d 15, 26 (Colo. App. 2010) (explaining that instructions that

accurately track pattern instructions generally are sufficient).

“Knowingly” is listed as the third element and “unlawfully” is listed

as the fourth. Following the logical flow of the numbered lines,

“knowingly” and “unlawfully” necessarily apply to the fifth element,

“entered or remained in a dwelling of another,” even if the fifth

element was not offset and even if “entered” and “dwelling of

another” were not separated.

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¶ 66 The trespass instruction in this case is unlike the theft

instructions in Auman v. People, 109 P.3d 647, 664 (Colo. 2005),

and People v. Bornman, 953 P.2d 952, 954 (Colo. App. 1997), on

which Cline relies. In those cases, the “knowingly” mens rea

element preceded some elements that were offset and other

elements that were not. Auman, 109 P.3d at 664; Bornman, 953

P.2d at 954. Essentially, the courts in those cases concluded that

the instructions were erroneous because “knowingly” should have

applied both to the elements that were offset and to those that were

not, but the difference in formatting suggested that the mens rea

did not apply to the elements that were not offset. Here, no

elements were offset. We conclude that the trespass instruction

accurately conveyed the elements of the offense.

IV. Expert Testimony

¶ 67 Finally, Cline contends that the district court abused its

discretion and violated his constitutional right to present a defense

by precluding his expert witness from testifying that the deputies’

use of the taser on Cline and their physical transport of Cline to the

patrol car were not reasonable or appropriate. We disagree.

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A. Standard of Review

¶ 68 We review a trial court’s decision whether to admit expert

testimony for an abuse of discretion. People v. Rector, 248 P.3d

1196, 1200 (Colo. 2011). A court abuses its discretion when its

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

misconstrues or misapplies the law. Id.; People v. Gee, 2015 COA

151, ¶ 23.

¶ 69 CRE 702 allows for the admission of qualified expert opinion

testimony if it will assist the trier of fact to understand the evidence

or to determine a fact in issue. The focus of a CRE 702 inquiry is

on whether the proffered evidence is both reliable and relevant.

People v. Cooper, 2021 CO 69, ¶ 1; People v. Shreck, 22 P.3d 68, 77

(Colo. 2001).

¶ 70 An erroneous evidentiary ruling may rise to the level of a

constitutional error if it deprived the defendant of a meaningful

opportunity to present a complete defense. People v. Conyac, 2014

COA 8M, ¶ 93; see also Krutsinger v. People, 219 P.3d 1054, 1061

(Colo. 2009). But the right to present a defense “is violated only

where the defendant was denied virtually his only means of

effectively testing significant prosecution evidence.” Conyac, ¶ 93.

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B. Additional Background

¶ 71 Prior to trial, Cline endorsed a former police chief as an expert

witness who proposed to testify to three categories of opinions:

[1] The handcuffing of Mr. Cline and forcefully
placing him on the floor of the residence was
not reasonable and appropriate. Mr. Cline was
not acting in an “aggressive manner” and was
not an “officer safety” concern. There was no
need to forcefully handcuff him and place him
on the floor, and there was no need apply a
wrist lock as a pain compliance tool.
Furthermore, the strikes to Mr. Cline’s face by
Deputy Draughon to a handcuffed prisoner
were not reasonable and appropriate. Strikes
to the face and head can cause very serious
injuries externally and can cause brain
damage.

[2] Using a [taser] in the “drive stun” mode on
Mr. Cline while he was handcuffed and on his
back with his hands behind him was not
reasonable and appropriate. In the “drive
stun” mode the [taser] does not create neuro-
muscular incapacitation (NMI) and only
creates excruciating pain.

[3] Deputies Draughon and Christensen
attempted to get Mr. Cline to stand up from
being in a prone position on his stomach while
handcuffed with his hands behind him, and in
so doing they lifted both of his arms upwards.
This is not the proper technique for getting a
prisoner up off the ground and is not
reasonable or appropriate. This technique
creates excruciating pain and can cause
injuries to the upper arms and/or shoulders.

33
¶ 72 In a pretrial ruling, the district court allowed the expert to

testify regarding only the first category. It ruled that the second

and third categories were irrelevant because the police conduct at

issue happened after Deputy Draughon allegedly used

unreasonable force against Cline and after Cline allegedly acted in

self-defense.

¶ 73 At trial, defense counsel cross-examined the prosecution’s

expert witness — who was qualified “in the field of self-defense,

arrest control, and use of force” — regarding levels of force an

officer can use, the tools available for officers exercising force at

different levels (e.g., physical presence, verbal commands, hands on

tactics, weapons, etc.), force escalation, arrest control, and officer

emotion regulation. Among other things, defense counsel asked the

prosecution expert to explain the difference in the use of tasers in

“drive stun” mode, which causes excruciating pain, and

“deployment mode,” which causes neuromuscular incapacitation.

¶ 74 Cline’s attorney then called the defense expert witness, who

was qualified as an expert in “police practices for arrest control and

use of force.” The defense expert’s testimony served as a critique of

many aspects of Deputy Draughon’s and Deputy Christensen’s

34
conduct during the encounter with Cline. As relevant to this issue,

the expert testified similarly to the prosecution expert about the two

ways to use a taser — to cause neuromuscular incapacitation or to

cause “an excruciatingly painful zap.” He also testified about the

concepts of “emotional capture” — when an officer has an

adrenaline overload and overreacts — and “contempt of cop” —

where an officer arrests a person because the officer is angry that

the person is not obeying the officer’s commands. The expert

opined that the reasonableness of an officer’s actions can be

determined by assessing the proportionality of the response to the

level of resistance.

C. The District Court Did Not Abuse Its Discretion by Limiting the
Defense Expert’s Testimony

¶ 75 Cline contends that the expert testimony the district court

excluded was relevant to his theory of self-defense because it

showed that Deputy Draughon overreacted at every step, used

excessive force, and escalated the entire situation.3 Cline also

3 We decline to address Cline’s argument that the expert testimony
was also relevant to the totality of the circumstances regarding the
harassment and criminal mischief charges because Cline raises
that argument for the first time in his reply brief. See People v.

35
contends that the testimony would not have been unfairly

prejudicial because the jury heard and saw evidence of the entire

encounter — from the deputies knocking on Cline’s door to the

deputies taking Cline to the patrol car.

¶ 76 But Cline does not dispute that the deputies’ tasing him and

standing him up by his arms occurred after Cline kicked Deputy

Draughon and grabbed the deputy’s genitals. Evaluating the

deputies’ conduct after Cline’s alleged assault would have done

nothing to assist the jury in deciding whether Cline’s conduct was

justified by what came before it. In other words, the evidence would

not have made it more or less probable that Cline had acted in self-

defense. See CRE 401. So we perceive no abuse of discretion in the

district court’s ruling that the challenged evidence was not

relevant.4

¶ 77 We also reject Cline’s contention that the district court’s

limitation on his expert’s testimony abridged his constitutional right

Czemerynski, 786 P.2d 1100, 1107 (Colo. 1990) (noting issues
raised for the first time in the reply brief will not be considered).
4 Because the court did not err by excluding the evidence as

irrelevant, see CRE 402, we need not decide whether it erred by
ruling that the evidence was also inadmissible under CRE 403, as
Cline alternatively contends.

36
to present a defense. “[T]he right to present a defense is not

absolute and may be conditioned upon adherence to the rules of

evidence.” People v. Rodriguez, 209 P.3d 1151, 1161 (Colo. App.

2008), aff’d, 238 P.3d 1283 (Colo. 2010). Although an erroneous

evidentiary ruling may deprive a defendant of the constitutional

right to present a complete defense, Conyac, ¶ 93, we have found no

error here.

¶ 78 Moreover, not “every restriction on a defendant’s attempts to

challenge the credibility of evidence against him, or even every

erroneous evidentiary ruling having that effect,” amounts to

constitutional error. Krutsinger, 219 P.3d at 1062. Rather, a

constitutional violation occurs only if the ruling “effectively barred

the defendant from meaningfully testing evidence central to

establishing his guilt.” Id. The district court’s ruling here had no

such effect.

¶ 79 Cline had ample opportunity to present evidence regarding the

reasonableness of Deputy Draughon’s actions and his alleged use of

excessive force, including through cross-examination of Deputy

Draughon, cross-examination of the prosecution’s expert, and direct

and redirect examination of the defense expert. Further, as Cline

37
admits, the jury saw bodycam evidence of the struggle and could

judge for itself whether Deputy Draughon escalated the situation

from the outset and overreacted throughout the encounter.

Because Cline was not barred from “meaningfully testing” the

evidence against him, Krutsinger, 219 P.3d at 1062, the court’s

ruling did not violate his constitutional right to present a defense.

V. Disposition

¶ 80 We affirm the judgment of conviction.

JUDGE J. JONES and JUDGE KUHN concur.

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