Peo v. Worthy

23CA1207 Peo v Worthy 09-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1207
Arapahoe County District Court No. 21CR2715
Honorable Michelle Jones, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Ray Worthy,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Pawar and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 11, 2025

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Katherine Brien, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Anthony Ray Worthy appeals his convictions on one count of

first degree murder - after deliberation (the murder count), one

count of first degree assault, two counts of possession of a weapon

by a previous offender, one count of possession of an illegal weapon,

and one count of possession of a controlled substance. We affirm.

I. Background

¶2 A jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 Stephen Cullinane was on the phone with Wayne Dowst when

Dowst suddenly said, “I think I got shot.” Cullinane told Dowst to

“hang up with [him] and call [911].”

¶4 Dowst told the 911 operator that he had been shot in the

stomach while sitting in a parking lot. He reported that he was

bleeding from his arm and having difficulty breathing. When the

operator asked Dowst if he knew who had shot him, Dowst

responded that he did not know and said the unknown shooter had

“pulled up” on him in a gray SUV.

¶5 Dowst informed the responding police officers that the shooter

appeared suddenly and shot him “two or three times” from an old

silver or gray SUV, that he did not know who shot him or why

1
someone would shoot him, and that he had “a bullet in his hand.”

Police recovered a bullet from the scene.

¶6 Dowst was taken to a hospital, where he died five days later.

A coroner concluded that Dowst died from “complications of a

perforating gunshot wound of the abdomen” and opined that

Dowst’s “manner of death,” meaning “the circumstances as to how

[the] cause [of death] came about,” was homicide.

¶7 Police officers obtained a surveillance video from a building

near the shooting location that depicts a silver or gray SUV driving

erratically in the parking lot and adjoining alley near Dowst shortly

before the shooting. The SUV drove up and down the alley; paused

near Dowst; exited the alley; returned and quickly exited the alley a

second time; traveled into the parking lot, close to where Dowst was

sitting; drove backward; and then moved forward again. The video

then shows the SUV stopping at the shooting location for about two

minutes and rapidly driving away.

¶8 Police later located the SUV and found Worthy sleeping inside

it. During an interview with police officers, Worthy said, among

other things, that

• he was living in the SUV;

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• on the day of the shooting, he drove to his bank, which

was in the same area as the shooting location;

• nobody else drove the SUV;

• he did not know anything about the shooting;

• he did not shoot Dowst;

• he recognized the SUV in an image taken from the

surveillance video;

• he did not have a gun in the SUV; and

• he occasionally used drugs.

¶9 After the interview, police obtained a search warrant for the

SUV and found a gun, drug paraphernalia, and suspected narcotics

in it. A firearms examiner determined that the gun found in the

SUV had fired the bullet that the officer recovered at the scene.

¶ 10 As noted above, the jury convicted Worthy on six counts.

¶ 11 On appeal, Worthy contends that the court abused its

discretion by giving the jury an erroneous response to its question

regarding the elements of the murder count to which the term “after

deliberation” applies (the question) and by denying defense

counsel’s motion for a new trial (the motion) premised on that

response. Additionally, Worthy asserts that the court’s jury

3
instruction on reasonable doubt (the court’s instruction) violated

his constitutional rights and that the court erred by denying

defense counsel’s proposed supplemental reasonable doubt

instruction (the proposed supplemental instruction).

II. Analysis

A. The Court Abused Its Discretion by
Providing an Erroneous Response to the Question

¶ 12 Worthy contends that the trial court’s erroneous response to

the question and rejection of the defense’s proposed response

constituted an abuse of discretion. He argues that the court’s

response “merely reminded the jury [that] it was to determine

whether the prosecution had proven the elements [of the murder

count] and referred the jury back to the original instruction defining

‘after deliberation,’” even though the jury was asking whether the

“after deliberation” element applies to the fifth and sixth elements of

the murder count. We agree that the court abused its discretion by

giving its response.

1. Standard of Review

¶ 13 “We review de novo whether a particular jury instruction

correctly states the law.” People v. Nerud, 2015 COA 27, ¶ 35, 360

4
P.3d 201, 207. However, we review the court’s “response to a jury

question for an abuse of discretion.” People v. Cox, 2023 COA 1,

¶ 16, 528 P.3d 204, 210. “A court abuses its discretion where its

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

applies an incorrect legal standard.” People v. Rodriguez, 2022 COA

98, ¶ 12, 521 P.3d 678, 681. In assessing whether a court’s

“decision is manifestly unreasonable, arbitrary, or unfair, we ask

not whether we would have reached a different result” but whether

the court’s “decision fell within the range of reasonable options.”

People v. Archer, 2022 COA 71, ¶ 23, 518 P.3d 1143, 1149-50

(quoting Hall v. Moreno, 2012 CO 14, ¶ 54, 270 P.3d 961, 973).

¶ 14 The parties agree that Worthy preserved his argument

regarding the court’s response to the question. “We review

nonconstitutional trial errors that were preserved by objection for

harmless error.” Castillo v. People, 2018 CO 62, ¶ 56, 421 P.3d

1141, 1150; see People v. Snelling, 2022 COA 116M, ¶ 15, 523 P.3d

477, 482-83. “Under this standard, reversal is required only if the

error affects the substantial rights of the parties.” Hagos v. People,

2012 CO 63, ¶ 12, 288 P.3d 116, 119; see Snelling, ¶ 15, 523 P.3d

at 483.

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¶ 15 Worthy further argues that the court’s response to the

question deprived him of his constitutional rights to due process,

conviction by proof beyond a reasonable doubt, trial by jury, and a

fair trial. To the extent that the response implicated Worthy’s

constitutional rights, we review for constitutional harmless error if

we determine that the court erred. See Hagos, ¶ 11, 288 P.3d at

119. Under this standard of review, an error “require[s] reversal

unless the reviewing court is ‘able to declare a belief that [the error]

was harmless beyond a reasonable doubt.’” Id. (second alteration in

original) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)).

2. Additional Facts

¶ 16 Jury instruction twelve, in relevant part, defined “after

deliberation” and “‘intentionally’ or ‘with intent’” as follows:

The term “after deliberation” means not only
intentionally, but also that the decision to
commit the act has been made after the
exercise of reflection and judgment concerning
the act. An act committed after deliberation is
never one which has been committed in a
hasty or impulsive manner.

A person acts “intentionally” or “with intent”
when his conscious objective is to cause the
specific result proscribed by the statute
defining the offense. It is immaterial whether
or not the result actually occurred.

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(Emphases added.)

¶ 17 Jury instruction fourteen set out the elements of the murder

count:

1. That the defendant,

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

3. after deliberation, and

4. with the intent,

5. to cause the death of a person other than
himself,

6. caused the death of that person or of
another person.

¶ 18 The jury asked the question during its deliberations. It

concerned the definition of “after deliberation” in instruction twelve

and element 3 in instruction fourteen: “[D]oes the ‘deliberation’

relate to the ‘[a]ct’ or relate to elements 5 [and] 6 ‘cause of death’”?

¶ 19 The court and the lawyers discussed at length how the court

should respond to the question. Defense counsel argued that,

because “the mental states of intent and deliberation apply to the

rest of the elements” for the murder count, the court “should

answer that after deliberation and intent apply to whatever the

elements are following [them],” meaning elements five and six. The

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prosecutor asserted that the court should answer the question by

referring the jury back to instruction number twelve and its

“definition of after deliberation.” The prosecutor argued that

instruction twelve was sufficient to answer the question because the

definition of “after deliberation” said that the term “applies to the

act.”

¶ 20 Defense counsel responded that

the mens rea, which would include both intent
and after deliberation, applies to all of the
elements including the actus reus itself. So
the reflection and judgment ha[ve] to be on the
killing as well as on the act that is the cause.
So I think it’s important that the jury
understand that.

Defense counsel and the prosecutor continued to dispute whether,

as the defense argued, the court needed to inform the jury that “the

reflection and the judgment ha[ve] to be on the killing as well as on

the act that is the cause” or, as the prosecutor asserted, the court

merely needed to clarify the meaning of “after deliberation.”

¶ 21 The trial court agreed with the prosecutor and concluded as

follows:

So I do believe the instructions they have are
sufficient, but I am going to just direct them
that they’re to consider whether the

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prosecution has proven each of the elements of
[the murder count] beyond a reasonable doubt
and that the state of mind in element three
after deliberation is defined in instruction
number [twelve].

....

[Jury instruction twelve] will tell them . . .
[that] [a]fter deliberation means not only
intentionally but after the exercise of reflection
and judgment, and the intentionally part
directs them to the conscious objective to
cause the result proscribed by the statute.

I believe that [response] gives [the jury]
sufficient information to proceed with
deliberations and answers the question
appropriately without any further confusion to
the jury.

¶ 22 After the court ruled, defense counsel “persist[ed] in [her]

request to clarify for the jurors” that the “after deliberation” element

of the murder count applied to elements five and six — “to cause

the death of a person other than himself” and “caused the death of

that person or of another person.” The court disagreed, saying that,

because instruction twelve told the jury “after deliberation means

. . . intentionally” and “intentionally” means that the “objective has

to . . . cause a specific result proscribed by the statute,” referring

the jury back to instruction twelve was “sufficient” to answer the

question and would not result in “further [jury] confusion.”

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¶ 23 Accordingly, the court answered the question as follows: “The

jury is to determine whether the prosecution has prove[d] each of

the elements of count 1 beyond a reasonable doubt. The state of

mind in element 3 “after deliberation” is defined in instruction #12.”

3. The Court Abused Its Discretion by
Referring the Jury Back to Instruction Twelve

¶ 24 Worthy contends that the court abused its discretion because

its response “provided no clear answer” to the question and its

reference to jury instruction twelve “served no useful purpose.” We

agree. (Notably, Worthy does not contend that the court erred by

giving the twelfth and fourteenth jury instructions. His first

argument is limited to the court’s answer to the question.)

¶ 25 When a jury asks a question during deliberations, an

additional instruction is “often appropriate” unless

(1) the jurors can be adequately informed by
directing their attention to some portion of the
original instructions; (2) the request concerns
matters not in evidence or does not pertain to
the law of the case; or (3) the request would
call upon the judge to express an opinion upon
factual matters that the jury should determine.

People v. Frye, 2014 COA 141, ¶ 26, 356 P.3d 1000, 1005 (quoting

Copeland v. People, 2 P.3d 1283, 1288 (Colo. 2000)).

10
¶ 26 “Absent a contrary showing, it is presumed that the jury

understood and heeded the trial court’s instructions.” Leonardo v.

People, 728 P.2d 1252, 1255 (Colo. 1986) (quoting People v. Moody,

676 P.2d 691, 697 (Colo. 1984)). However, where “a jury

affirmatively indicates that it has a fundamental misunderstanding

of an instruction it has been given, the basis for a presumption that

the jury understands the [original jury] instruction disappears.” Id.

Thus, if the jury “indicates to the judge that it does not understand

an element of the offense charged or some other matter of law

central to the guilt or innocence of the accused,” the court “has an

obligation to clarify that matter for the jury in a concrete and

unambiguous manner.” Id. at 1256.

¶ 27 We next turn to whether, as Worthy argues, the question

reflected the jury’s confusion as to whether the “after deliberation”

element of the murder count applied to the fifth and sixth elements

of the count.

¶ 28 “A person commits the crime of murder in the first degree if

. . . [a]fter deliberation and with the intent to cause the death of a

person other than himself, he causes the death of that person or of

another person . . . .” § 18-3-102(1)(a), C.R.S. 2025. “‘[A]fter

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deliberation’ is part of the culpable mental state of first degree

murder.” People v. Harlan, 8 P.3d 448, 474 (Colo. 2000), overruled

on other grounds by, People v. Miller, 113 P.3d 743 (Colo. 2005).

“What is required for the element of deliberation is that the decision

to kill be made after the exercise of reflection and judgment

concerning the act.” People v. Bartowsheski, 661 P.2d 235, 242

(Colo. 1983). Thus, “deliberation requires that a design to kill

precede the killing.” Id.

¶ 29 In the question, the jury asked whether, to convict Worthy of

the murder count, it only needed to find that Worthy decided to

commit “the act” — presumably firing the gun — after deliberation

or whether it needed to find that, “after deliberation,” he decided to

shoot the gun and “after deliberation” intended to cause Dowst’s

death and in fact caused Dowst’s death.

¶ 30 The question did not indicate that the “jury ha[d] overlooked

some portion of the [original jury] instructions.” Leonardo, 728 P.2d

at 1255. Rather, it showed that the jury was unsure whether “the

decision to commit the act” language in the definitional instruction

for “after deliberation” referred to the decision to cause the victim’s

death. (Emphasis added.) In other words, the question indicates

12
that the jury could have believed that “the act” was something other

than “caus[ing] the victim’s death.” The question therefore reflected

the jury’s “fundamental misunderstanding” of the instruction. Id.

¶ 31 Given the jury’s confusion reflected in the question, the court

was required to answer the question “in a concrete and

unambiguous manner.” Id. at 1256; cf. People v. Alexis, 806 P.2d

929, 931-32 (Colo. 1991) (holding that the trial court properly

referred the jury back to the original jury instructions because “the

question from the jury did not relate to the law of the case, but to

the extent and meaning of the evidence”); People v. Phillips, 91 P.3d

476, 484 (Colo. App. 2004) (concluding that, because the “jury

[question] merely sought guidance regarding which facts it should

consider in determining whether defendant’s belief was reasonable”

when acting in self-defense, the trial court did not err by referring

the jury back to an original instruction).

¶ 32 For this reason, the court’s answer directing the jury to reread

instruction twelve and saying that the jury had to “determine

whether the prosecution ha[d] prove[d] each of the elements of [the

murder count] beyond a reasonable doubt” could not provide the

clarification the jury sought.

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¶ 33 Accordingly, we hold that the court abused its discretion when

it answered the question.

4. The Court’s Error in Answering the Question
Was Harmless Beyond a Reasonable Doubt

¶ 34 Worthy contends that the trial court’s error in responding to

the question was not harmless beyond a reasonable doubt. See

Hagos, ¶ 11, 288 P.3d at 119. We disagree.

¶ 35 As explained in Part II.A.3 above, the court’s response to the

question did not resolve the jury’s confusion regarding whether, to

convict Worthy of the murder count, it only needed to find that he

decided to fire the gun “after deliberation,” or whether it also had to

find that he deliberated about causing Dowst’s death.

¶ 36 But our analysis does not stop with our determination that the

court’s answer to the question was inadequate. We must next

determine whether, as a consequence of the flaw in the court’s

answer, there is a “reasonable possibility” that the jury convicted

Worthy even though it did not find that the prosecution proved

every element of the murder count beyond a reasonable doubt.

Leonardo, 728 P.2d at 1257 (“If there is a reasonable possibility that

the defendant could have been prejudiced, the error cannot be

14
harmless beyond a reasonable doubt.”). A “reasonable possibility”

means “a degree of likelihood and implies a realistic possibility.”

People v. Wadle, 97 P.3d 932, 937 (Colo. 2004).

¶ 37 Under Worthy’s reasoning, the court’s error could have led the

jury to convict him after finding that he deliberated before

committing the “act” — firing the gun — but that he did not

deliberate about killing Dowst. As noted above, because the jury

did not express any confusion about element 4 — “with the intent”

— in instruction fourteen, we must presume it understood such

element and applied it correctly. See Leonardo, 728 P.2d at 1255.

¶ 38 Thus, to convict Worthy without finding that the prosecution

had proved all the elements of the murder count beyond a

reasonable doubt, the jury would have needed to conclude that (1)

Worthy fired the gun “after deliberation” and (2) he intended to

cause Dowst’s death, but (3) Worthy did not deliberate before

carrying out his intention to kill Dowst. Put differently, under

Worthy’s scenario, the jury could have concluded that Worthy drove

toward Dowst, backed away, drove toward him again, and fired the

gun after “the exercise of reflection and judgment,” but only decided

to kill Dowst at the last second and not after “the exercise of

15
reflection and judgment concerning the act.” Bartowsheski, 661

P.2d at 242.

¶ 39 There is no “degree of likelihood” or “realistic possibility” that

the verdict was the product of such an implausible scenario,

however. Wadle, 97 P.3d at 937. Given the evidence before the

jury, it makes little sense that the jury could have concluded that

Worthy reflected on firing the gun but did not reflect on killing

Dowst, even though he intended to take Dowst’s life when he pulled

the trigger. (We note that the defense did not argue this far-fetched

scenario at trial. Rather, defense counsel asserted that the

prosecution had not proved that Worthy acted with both “intent”

and “after deliberation.”)

¶ 40 For these reasons, we hold there is no reasonable possibility

that the jury convicted Worthy without finding that he deliberated

about causing Dowst’s death. More generally, there is also no

reasonable possibility that the jury convicted Worthy of the murder

count without finding that the prosecution had proved all the

elements of the murder count beyond a reasonable doubt. Under

the circumstances, we are “able to declare a belief that [the court’s

error] was harmless beyond a reasonable doubt.” Hagos, ¶ 11, 288

16
P.3d at 119 (quoting Chapman, 386 U.S. at 24). Thus, the court’s

error in answering the question did not violate Worthy’s protection

under the Due Process Clause of the United States Constitution

“against conviction except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is

charged.” Tibbels v. People, 2022 CO 1, ¶ 23, 501 P.3d 792, 797

(quoting In re Winship, 397 U.S. 358, 364 (1970)).

¶ 41 In sum, we affirm Worthy’s conviction for the murder count

because the court’s error was harmless under the constitutional

error standard. See Griego v. People, 19 P.3d 1, 8-10 (Colo. 2001)

(holding that the court’s instructional error was harmless beyond a

reasonable doubt because “[i]t would strain credulity for [the court]

to conclude that the jury’s finding on the issue of notice [was]

attributable to [its finding] that the defendant acted with ‘an

awareness or understanding’ [that his driver’s license had been

revoked] rather than finding that he ‘was aware’” of the revocation);

cf. Leonardo, 728 P.2d at 1258 (reversing based on an erroneous

answer to a jury question because the defendant “might well have

been convicted of theft by receiving for no more than ‘having a

suspicion’ that the tools he bought were stolen” and, therefore, “[i]t

17
[was] impossible to determine whether” the court’s error “was

harmless beyond a reasonable doubt”); People v. Ridgeway, 2013

COA 17, ¶¶ 20, 34, 307 P.3d 126, 129, 131 (concluding that the

court’s instructional error was not harmless beyond a reasonable

doubt because there was a reasonable possibility that the jury

convicted the defendant for possession of burglary tools without

finding that he intended to use the tools in a burglary).

B. The Court Did Not Abuse Its Discretion by
Denying the Motion

¶ 42 Worthy contends that, for the same reason the court erred in

answering the question, it also erred by denying the motion. We

disagree.

1. Standard of Review

¶ 43 “The decision of a trial court to grant or deny a new trial is a

matter entrusted to the court’s discretion and will not be disturbed

on review absent an abuse of that discretion.” Wadle, 97 P.3d at

936.

2. Additional Facts

¶ 44 After the trial, Worthy moved for a new trial under Crim. P. 33

based, in part, on the court’s answer to the question. (Because

18
Worthy does not reassert on appeal the other argument he

presented in the motion, we do not address it.)

¶ 45 In the motion, Worthy argued that, after the jury returned its

verdict, defense counsel and the prosecutor spoke with two jurors

outside the courtroom. The jurors allegedly said that “the [c]ourt’s

response to the . . . question did not provide clarification,” and that

the jurors determined that “the element of deliberation d[id] not

apply to [elements] 5 and 6” in jury instruction fourteen. Defense

counsel supported the motion with an investigator’s affidavit that

recounted the conversation with the jurors.

¶ 46 The prosecution responded that, under CRE 606(b), the court

must disregard defense counsel’s assertions concerning the jury’s

deliberations and the investigator’s affidavit.

¶ 47 The court denied the motion and reiterated that it had

properly responded to the question.

3. The Court Properly Denied the Motion

¶ 48 Worthy contends that the trial court abused its discretion by

denying the motion. We disagree.

¶ 49 “The purpose of a Crim. P. 33 motion is to allow the trial court

an opportunity to correct its errors.” People v. Lopez, 2015 COA 45,

19
¶ 62, 399 P.3d 129, 138; see Losavio v. Dist. Ct., 512 P.2d 264, 266

(Colo. 1973). “Motions for a new trial based on newly discovered

evidence are looked on with great disfavor, and we will not overturn

denials of such motions absent clear abuse of discretion.” People v.

Hopper, 284 P.3d 87, 92 (Colo. App. 2011).

¶ 50 The “no-impeachment rule” is codified in CRE 606(b). People

v. Archuleta, 2021 COA 49, ¶ 15, 491 P.3d 1172, 1174. CRE 606(b)

says, in relevant part, that,

[u]pon an inquiry into the validity of a verdict
or indictment, a juror may not testify as to any
matter or statement occurring during the
course of the jury’s deliberations or to the
effect of anything upon that juror’s or any
other juror’s mind or emotions as influencing
the juror to assent to or dissent from the
verdict or indictment or concerning the juror’s
mental processes in connection therewith.

See People v. Newman, 2020 COA 108, ¶ 11, 471 P.3d 1243, 1250.

(Worthy does not argue that one of the three exceptions to CRE

606(b) applies.)

¶ 51 Under the no-impeachment rule, a court “strongly disfavors

any juror testimony impeaching a verdict, even on grounds such as

mistake, misunderstanding of the law or facts, failure to follow

instructions, lack of unanimity, or application of the wrong legal

20
standard.” People v. Harlan, 109 P.3d 616, 624 (Colo. 2005). The

rule has “three fundamental purposes: to promote finality of

verdicts, shield verdicts from impeachment, and protect jurors from

harassment and coercion.” Stewart v. Rice, 47 P.3d 316, 322 (Colo.

2002); see Harlan, 109 P.3d at 624. Further, it “protects the jurors

in performing their public service and their post-verdict privacy,”

“acts to restrain disappointed litigants,” and “presumes that jurors

have followed the court’s instructions and have discharged their

duties faithfully.” Stewart, 47 P.3d at 322.

¶ 52 We agree with the People that, under CRE 606(b), the court

could not set aside the verdict based on the jurors’ statements or

the investigator’s affidavit. See Archuleta, ¶ 15, 491 P.3d at 1174

(“Courts have long been hesitant to peek behind a jury verdict by

inquiring into a jury’s deliberations or its thought processes in

reaching the verdict.”). The motion necessarily failed without these

supporting allegations. (Although the court did not deny the motion

under CRE 606(b), we “may affirm a lower court’s decision on any

ground supported by the record, whether relied upon or even

considered by the trial court.” People v. Dyer, 2019 COA 161, ¶ 39,

457 P.3d 783, 792.)

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¶ 53 Thus, we hold that the court did not abuse its discretion by

denying the motion.

C. The Trial Court’s Use of the 2022 Model Jury Instruction on
Reasonable Doubt Did Not Violate
Worthy’s Constitutional Rights

¶ 54 Worthy contends that the court’s instruction

unconstitutionally lowered and shifted the burden of proof and

undermined the presumption of innocence, and that the court

further erred by rejecting the proposed supplemental instruction.

We disagree.

1. Standard of Review

¶ 55 “We review de novo whether the jury instructions adequately

informed the jury of the governing law.” People v. Salazar, 2023

COA 102, ¶ 9, 542 P.3d 1209, 1213. “The district court has

substantial discretion in formulating the jury instructions, so long

as they are correct statements of the law and fairly and adequately

cover the issues presented.” Nerud, ¶ 35, 360 P.3d at 207 (quoting

People v. Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009)). “An

instruction that lowers the prosecution’s burden of proof below

reasonable doubt constitutes structural error and requires

22
automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8, 436 P.3d

529, 531.

2. Additional Facts

¶ 56 The court’s instruction was patterned on the 2022 model jury

instructions regarding the presumption of innocence, the burden of

proof, and reasonable doubt (the 2022 model instruction). Defense

counsel objected because the 2022 model instruction was allegedly

“new and experimental.” In place of the court’s instruction, defense

counsel asked the court to provide the jury with the “trusted and

relied-upon and thoroughly tested definition” of reasonable doubt

found in the 2021 model instructions.

¶ 57 The court denied defense counsel’s request because the 2022

model instruction “ha[d] been approved,” was “appropriate,” was

“changed because of problems with the old instruction,” and was

“quite frankly . . . much better” than the previous version.

¶ 58 The court’s instruction said:

Every person charged with a crime is
presumed innocent. This presumption of
innocence remains with the defendant
throughout the trial and should be given effect
by you unless, after considering all the
evidence, you are convinced that the defendant
is guilty beyond a reasonable doubt.

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The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
than proof that something is highly probable,
but it does not require proof with absolute
certainty.

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty,
then the prosecution has failed to prove the
crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide
the prosecution has proven each of the
elements of a crime charged beyond a
reasonable doubt, you should find the
defendant guilty of that crime.

After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements of a crime charged
beyond a reasonable doubt, you should find
the defendant not guilty of that crime.

See COLJI-Crim. E:03 (2022).

¶ 59 At the jury instruction conference, defense counsel tendered

the proposed supplemental instruction:

One reason for the high burden of proof of
beyond a reasonable doubt in criminal cases,

24
is to protect people against the risk of wrongful
conviction. Another is to promote public
confidence in our justice system. Individuals
going about their ordinary affairs should be
confident that the state cannot convict them of
a crime unless it proves their guilt with utmost
certainty. Therefore, you must not convict
[Worthy] unless, in your deliberations, you
become fully satisfied or firmly convinced of
his guilt beyond a reasonable doubt.

¶ 60 The prosecutor objected to the proposed supplemental

instruction and argued that the court’s instruction “already

adequately instruct[ed] the jury” and that “calling more attention to

[the court’s instruction] and trying to insert words like ‘utmost

certainty’ raise[d] [the prosecution’s] burden functionally.”

¶ 61 The court agreed with the prosecution and found that “giving

additional instructions” on reasonable doubt would be “more

confusing than helpful to the jury.”

3. The Court Did Not Err by Providing
the Court’s Instruction

¶ 62 Worthy contends that the court’s instruction

unconstitutionally lowered and shifted the burden of proof and

undermined the presumption of innocence because it failed to

inform the jury that it could find a reasonable doubt based on the

“lack of evidence” presented, incorrectly defined “reasonable doubt”

25
as a “real possibility” that Worthy was not guilty, and omitted

language from the 2021 model jury instructions that Worthy argues

must appear in a reasonable doubt instruction. We disagree.

¶ 63 A trial court must “properly instruct the jury on — and, as the

fact finder, the jury must apply — the reasonable doubt

standard.” Tibbels, ¶ 25, 501 P.3d at 797. “While the standard’s

application is universally mandated, courts retain some flexibility in

defining what constitutes a reasonable doubt.” Johnson, ¶ 10, 436

P.3d at 532.

¶ 64 A division of this court recently held that the 2022 model

instruction did not “unconstitutionally lower the prosecution’s

burden of proof, violate the presumption of innocence, or shift the

burden of proof to the defendant.” People v. Schlehuber, 2025 COA

50, ¶ 2, 572 P.3d 641, 646; see People v. Melara, 2025 COA 48,

¶ 32, 572 P.3d 619, 628 (rejecting the defendant’s contention that

the “trial court denied his due process rights or otherwise reversibly

erred by failing to include the ‘lack of evidence’ language in its

reasonable doubt instruction”).

¶ 65 We disagree with Worthy’s argument that the removal of “lack

of evidence” from the 2022 model instruction lowered or shifted the

26
burden of proof or undermined the presumption of innocence. The

Schlehuber division expressly held — and we agree — that a court

does not err by not including “lack of evidence” in a reasonable

doubt instruction. Schlehuber, ¶ 20, 572 P.3d at 648; see Melara,

¶ 24, 572 P.3d at 627 (concluding that a trial court should “inform

the jury, as part of the reasonable doubt instruction, that it may

consider the lack of evidence in the case” but holding that the

“omission of the phrase did not impermissibly lower the

prosecution’s burden of proof”).

¶ 66 In addition, as explained in Schlehuber, the language of the

2022 model instruction does not preclude the jury’s consideration

of the prosecution’s lack of evidence. This concept was subsumed

within the court’s instruction, which informed the jury that “the

prosecution bears the burden of proof” and that Worthy is

“presumed innocent unless the prosecution meets its

burden.” Schlehuber, ¶ 22, 572 P.3d at 649. Moreover, the last

paragraph of the court’s instruction told the jury that it must

consider “all the evidence” when determining whether the

prosecution met its burden of proof: “After considering all the

evidence, if you decide the prosecution has failed to prove any one

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or more of the elements of a crime charged beyond a reasonable

doubt, you should find the defendant not guilty of that crime.” See

id. The “fail[ure] to prove” language unambiguously instructed the

jury that it could not convict Worthy unless the prosecution proved

every element of the murder count beyond a reasonable doubt and

that a material gap in the prosecution’s proof required the jury to

return a not guilty verdict.

¶ 67 Accordingly, the court’s instruction clearly informed the jury

that, “if the prosecution fails to present sufficient evidence of guilt,

it will not have met its burden.” Id. (citing United States v. Petty,

856 F.3d 1306, 1311 (10th Cir. 2017)); see also Rault v. Louisiana,

772 F.2d 117, 137 (5th Cir. 1985) (“These instructions necessarily

conveyed the concept that a reasonable doubt would arise in the

absence of evidence sufficient to show guilt beyond a reasonable

doubt.”).

¶ 68 Because “there is no reasonable likelihood [that] the jury

understood” the court’s instruction as “unconstitutionally lower[ing]

the prosecution’s burden of proof below the reasonable doubt

standard,” the court did not err by not referring to “lack of evidence”

in the court’s instruction. Schlehuber, ¶ 25, 572 P.3d at 649; see

28
Melara, ¶ 32, 572 P.3d at 628. (The reappearance of “lack of

evidence” in the 2023 model reasonable doubt jury instruction does

not mean that the omission of such language from the 2022 model

instruction “unconstitutionally lower[ed] the prosecution’s burden

of proof below the reasonable doubt standard.” Schlehuber, ¶¶ 18

n.2, 25, 572 P.3d at 648 n.2, 649. Indeed, there is no “legal

deficiency in an instruction” without the “lack of evidence”

language. Id. at ¶ 20, 572 P.3d at 648.)

¶ 69 Worthy also contends that the reference in the court’s

instruction to a “real possibility” that the defendant was not guilty

lowered and shifted the burden of proof and undermined the

presumption of innocence. We disagree. See id. at ¶ 34, 572 P.3d

at 651.

¶ 70 The court’s instruction said that “reasonable doubt” is a “real

possibility that [Worthy] is not guilty” and that it “requires more

than proof that something is highly probable.” This definition of

reasonable doubt “has been consistently approved by federal courts

as an accurate expression of the reasonable doubt standard.” Id. at

¶ 30, 572 P.3d at 650; see, e.g., Victor v. Nebraska, 511 U.S. 1, 24-

27 (1994) (Ginsburg, J., concurring in part and concurring in the

29
judgment) (concluding that a similar definition of reasonable doubt

“surpasse[d] others . . . in stating the reasonable doubt standard

succinctly and comprehensibly”).

¶ 71 Indeed, the “phrase ‘real possibility’ correctly directs the jury

not to acquit the defendant simply because it can conceive of some

fanciful possibility that the defendant is not guilty.” Schlehuber,

¶ 31, 572 P.3d at 650. Thus, the “‘real possibility’ language simply

explain[s] the threshold [that] the prosecution must overcome” to

prove each element of the offense beyond a reasonable doubt. Id. at

¶ 34, 572 P.3d at 651.

¶ 72 In addition, the court’s instruction correctly informed the jury

that it had to presume Worthy’s innocence, the burden of proof was

“upon the prosecution,” and the “prosecution must prove to the

satisfaction of the jury beyond a reasonable doubt the existence of

each and every element necessary to constitute the crime

charged.” And, as noted above, the instruction said that, “[a]fter

considering all the evidence, if [the jury] decide[s] the prosecution

has failed to prove any one or more of the elements of a crime

charged beyond a reasonable doubt, [the jury] should find the

defendant not guilty of that crime.” Thus, “equating reasonable

30
doubt with a ‘real possibility’” does not “shift the burden to the

defendant to establish that real possibility.” Id.

¶ 73 Finally, Worthy contends that the court lowered and shifted

the burden of proof and undermined the presumption of innocence

by omitting from the court’s instruction the “hesitate to act”

language that appeared in the 2021 model instructions. We

disagree.

¶ 74 As the division explained in Schlehuber, although courts have

upheld jury instructions that defined reasonable doubt as a doubt

that would cause a reasonable person to “hesitate to act,” jurists

such as the late Justice Ginsburg criticized that formulation of

reasonable doubt. Id. at ¶ 27, 572 P.3d at 649 (citing Victor, 511

U.S. at 24-25 (Ginsburg, J., concurring in part and concurring in

the judgment)).

¶ 75 Like the Schlehuber division, “we do not see why” it would be

error not to include “hesitate to act” in a reasonable doubt

instruction, “so long as the instruction otherwise correctly defines

the reasonable doubt standard.” Id. at ¶ 28, 572 P.3d at 650.

“[J]ust because a proposed instruction is a correct statement of the

law does not mean the instruction must be given or that it is

31
the only correct way to articulate the applicable law.” Id.

Accordingly, the court did not err by omitting “hesitate to act” from

the court’s instruction.

¶ 76 For these reasons, we hold that the court’s instruction did not

lower or shift the burden of proof or undermine Worthy’s

presumption of innocence.

¶ 77 We also conclude that the court properly rejected the proposed

supplemental instruction. The proposed supplemental instruction

said the prosecution bore the burden of proving Worthy’s guilt “with

utmost certainty.” Such language does not accurately reflect the

applicable burden of proof. Because the proposed supplemental

instruction erroneously characterized the prosecution’s burden of

proof, the court did not err by rejecting it.

III. Disposition

¶ 78 The judgment is affirmed.

JUDGE PAWAR and JUDGE LUM concur.

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