Peo v. Ahmed

23CA1569 Peo v Ahmed 10-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1569
City and County of Denver District Court No. 22CR603
Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Abdishakur M. Ahmed,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE GROVE
J. Jones and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 30, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Springer and Steinberg, P.C., Harvey A. Steinberg, Taylor Ivy, Denver,
Colorado, for Defendant-Appellant
¶1 Defendant, Abdishakur M. Ahmed, appeals the judgment of

conviction entered after a jury found him guilty of second degree

assault and second degree murder. We affirm.

I. Background

¶2 The trial produced the following evidence.

¶3 In January 2022, Ahmed worked at a restaurant next to a food

mart where the victim, Maurice Burgess, worked. The two

businesses had separate entrances and exits but shared

infrastructure, including a water heater located inside the food

mart. One evening, the water heater was not working so Ahmed

went to the food mart to ask Burgess to check it. The two men had

a history, and there had been a simmering conflict between them

for some time.

¶4 As Ahmed described it, his request to check the water heater

led to a verbal altercation during which Burgess threatened and

pushed him. At one point, Burgess asked Ahmed to leave the food

mart, and Ahmed refused. Burgess came around the counter

toward Ahmed and, because he felt threatened, Ahmed took out a

knife. As Burgess approached Ahmed, Ahmed pushed him, striking

him in the face with the knife. Ahmed then chased Burgess as a

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“little kind of bluff.” Burgess fell to the ground and pulled shelves

off the walls to use as weapons and to create a barrier. At this

point, Ahmed testified he left, saying, “Leave me alone,” “I’m leaving

you alone,” and “I’m out of here.”

¶5 Ahmed left the food mart but stopped just outside, where he

either pulled the door toward himself to prevent Burgess from

getting out or pushed against the door to prevent Burgess from

locking him out. After a short time, Burgess grabbed a shelf and

went outside after Ahmed.

¶6 Once outside, Ahmed and Burgess physically fought each

other for almost five minutes. Burgess hit Ahmed with the shelf,

knocking out one of his teeth. Ahmed testified that when he was

hit, he had the knife in his hand and stabbed Burgess but thought

that the knife “deflected.” Shortly thereafter, Burgess stopped

defending himself. When Ahmed realized Burgess had stopped

moving, he called 911.

¶7 Burgess died from a stab through his back into his chest that

was at least five inches deep, cut his rib, and went into his heart.

He also suffered dozens of other nonfatal wounds to his head, face,

neck, and hands.

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¶8 The People charged Ahmed with second degree assault and

first degree murder. At trial, Ahmed raised the affirmative defense

of self-defense. The trial court instructed the jury on ordinary force

self-defense for the second degree assault charge and deadly force

self-defense for the first degree murder charge. The court also

instructed the jury on the provocation and initial aggressor

exceptions to self-defense for both charges. The jury found Ahmed

guilty of second degree assault and the lesser included offense of

second degree murder.

¶9 Ahmed now appeals, arguing the trial court erroneously

(1) refused to instruct the jury on ordinary force self-defense with

respect to the first degree murder charge and (2) provided

instructions on the provocation and initial aggressor exceptions to

self-defense on both charges.

II. Self-Defense

¶ 10 Ahmed contends the trial court erred by restricting the jury’s

consideration of self-defense for the first degree murder charge to

the use of deadly physical force. We disagree.

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A. Standard of Review and Applicable Law

¶ 11 We review de novo whether sufficient evidence supports a self-

defense jury instruction. People v. Coahran, 2019 COA 6, ¶ 15. If

we find a preserved error of constitutional dimension, we must

reverse if there is a reasonable possibility that the error contributed

to the conviction. Hagos v. People, 2012 CO 63, ¶ 11; Coahran,

¶ 16 (“If a trial court refuses to give an affirmative defense self-

defense instruction in circumstances where one was appropriate,

. . . [t]his error implicates a defendant’s constitutional rights and is

reviewed for constitutional harmless error.”).

¶ 12 A trial court should instruct the jury on an affirmative defense

if “some credible evidence” supports the defense. § 18-1-407(1),

C.R.S. 2025; Pearson v. People, 2022 CO 4, ¶ 16. We consider the

evidence in the light most favorable to the defendant. People v.

Newell, 2017 COA 27, ¶ 19. Additionally, we can affirm on any

grounds supported by the record, and we are not bound to the trial

court’s reasoning. People v. Glover, 2015 COA 16, ¶ 22.

¶ 13 Self-defense may be raised as an affirmative defense to first

and second degree murder. See § 18-1-704(1)-(2)(a), C.R.S. 2025.

When properly raised, the prosecution must disprove the affirmative

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defense of self-defense beyond a reasonable doubt. People v.

Pickering, 276 P.3d 553, 556 (Colo. 2011). Thus, the affirmative

defense of self-defense effectively becomes an additional element of

the charged crime. Id. at 555.

¶ 14 Self-defense may justify the use of ordinary force or deadly

force. A person is justified in using ordinary force “to defend

himself or a third person from what he reasonably believes to be the

use or imminent use of unlawful physical force by . . . [an]other

person.” § 18-1-704(1). A person may use deadly force only if he

“reasonably believes a lesser degree of force is inadequate and . . .

has reasonable ground to believe, and does believe, that he . . . is in

imminent danger of being killed or of receiving great bodily injury.”

§ 18-1-704(2)(a).

¶ 15 Deadly physical force is “force, the intended, natural, and

probable consequence of which is to produce death, and which

does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2025. A

defendant intends to produce death when he uses force that would

normally be expected to, and does, produce death. People v. Opana,

2017 CO 56, ¶ 16. This is an objective inquiry into the degree and

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nature of the force actually used, not an inquiry into the

defendant’s subjective intent. Id. at ¶¶ 9, 14, 16.

B. Analysis

¶ 16 Like the trial court, we conclude that there was insufficient

evidence to warrant an ordinary physical force instruction on the

first degree murder charge.1 Even considering the evidence in the

light most favorable to Ahmed, Opana compels the conclusion that

Ahmed’s actions were the kind for which the intended, natural, and

probable consequence was to produce death.

¶ 17 In Opana, a jury convicted the defendant of second degree

murder after he shot his housemate in the chest with a handgun at

close range. Id. at ¶¶ 3-4. At trial, the defendant testified to the

circumstances surrounding the murder, claimed that he only drew

his gun to dissuade the victim from attacking him, and denied that

he intended to pull the trigger. Id. at ¶ 4. In rejecting the

defendant’s contention that he was entitled to an ordinary force

1 The People invite us to decide whether ordinary physical force is

available as an affirmative defense to second degree murder as a
matter of law. We need not reach this argument because we
conclude that there was insufficient evidence to warrant an
ordinary physical force instruction.

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self-defense instruction, the supreme court did not consider the

broader context of the shooting or the defendant’s expressed intent;

rather, the court focused solely on the physical force the defendant

actually inflicted. Id. at ¶ 17. Because the defendant shot the

victim at close range in the chest, “the credible evidence permit[ted]

no other finding than that the physical force used by the defendant

would normally be expected to, and in fact did, produce death.” Id.

at ¶ 16.

¶ 18 As in Opana, ¶ 17, the circumstances surrounding the

homicide and Ahmed’s subjective intent have no bearing on the

question whether the force he used could amount to anything less

than deadly force. Thus, to determine whether the trial court

should have given the jury an ordinary force instruction for the

murder charge, we consider the physical force Ahmed actually used

and Burgess’s resulting injuries.

¶ 19 The parties disagree about the scope of Burgess’s injuries.

The People maintain that Ahmed stabbed Burgess twenty-four

times in the chest, back, face, and head, citing testimony from

Detective Sisneros, the primary investigator on the case. Ahmed

disagrees, pointing out Detective Sisneros’s subsequent admission

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that she did not know the extent to which some of Burgess’s

wounds could have been caused by something other than the knife.

At the same time though, Ahmed also asserts that “the physical

force he used [was] stabbing blindly during the fight.” Regardless,

Ahmed maintains that Burgess sustained only three knife wounds:

one fatal “stab” wound and two nonfatal “incised” wounds.

¶ 20 Even when we view this evidence in the light most favorable to

Ahmed, however, it still establishes that Ahmed struck Burgess

with the knife at least three times in areas near vital organs — his

chest, head, and back. The strike to the back punctured Burgess’s

heart, a type of wound logically understood as one naturally and

likely to cause death. Indeed, the medical examiner testified that

Burgess could only have been expected to live for “seconds to a few

minutes” after suffering the fatal wound.

¶ 21 As there is no evidence supporting the conclusion that

Ahmed’s use of force was anything other than deadly, the trial court

did not err by refusing to instruct the jury on ordinary self-defense.

III. Self-Defense Exceptions

¶ 22 Ahmed contends that there was insufficient evidence to

instruct the jury on the provocation and initial aggressor exceptions

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to self-defense, in part, because the second degree assault charge

and the first degree murder charge arose from two separate

incidents. We disagree with Ahmed because the evidence supports

a conclusion that the charges arose from a single incident, and we

conclude some evidence supported instructing the jury on both

exceptions.

A. Standard of Review

¶ 23 Again, we review whether sufficient evidence supports jury

instructions de novo. Coahran, ¶ 15. If a trial court errs by

instructing the jury about an exception to self-defense, we reverse if

the error substantially influenced the verdict or affected the fairness

of the trial. Hagos, ¶ 12; see also Castillo v. People, 2018 CO 62,

¶¶ 55-56 (reviewing an initial aggressor jury instruction for

nonconstitutional harmless error).

¶ 24 When instructing the jury on the affirmative defense of self-

defense, a trial court should also provide instructions on the

exceptions to self-defense if some evidence supports them. Galvan

v. People, 2020 CO 82, ¶ 25. We consider the evidence in the light

most favorable to giving the instruction, id. ¶ 33, and we can affirm

on any grounds supported by the record, Glover, ¶ 22.

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B. Same Incident Underlying Both Charges

¶ 25 Central to Ahmed’s argument is his assertion that the events

underlying the second degree assault charge and the first degree

murder charge were separate incidents. Specifically, Ahmed claims

that his interaction with Burgess inside the food mart, including his

act of stabbing Burgess in the face, could not be the “provoking act”

or the “initial aggressor act” to the first degree murder charge

because, immediately afterwards, he left the food mart — thereby

ending the encounter — and Burgess chose to follow him outside.

¶ 26 For crimes of violence, the “same incident” is “an occurrence

considered to be a single, rather than more than one, happening or

unit of experience.” Marquez v. People, 2013 CO 58, ¶¶ 7, 9; see

also Castillo, ¶ 48 (finding the Marquez definition of “same incident”

instructive when deciding whether the events underlying a charge

constituted “one happening or one unit of experience” for purposes

of evaluating the propriety of initial aggressor exception to a self-

defense instruction). To determine whether events underlying

multiple charges are the same incident, a court considers such

factors as time, place, circumstance, and schematic wholeness.

People v. Knapp, 2020 COA 107, ¶ 27.

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¶ 27 The events inside the food mart underlying the second degree

assault charge and the events outside underlying the first degree

murder charge were not separate incidents. From start to finish,

the entire episode lasted less than fifteen minutes and took place in

a single location — inside and out front of the food mart. There was

no clear break in the action when Ahmed left the food mart and

Burgess followed him outside. To the contrary, when Ahmed went

outside, he was either pulling on or pushing against the door, and,

very soon after, Burgess went outside after him. As the events

underlying both charges were part of a single, ongoing incident, we

look at the entire episode to determine whether there was some

evidence supporting the provocation and initial aggressor

exceptions. See Castillo, ¶¶ 47-49 (assessing whether the

defendant was the initial aggressor to the “entire episode” because

the events underlying the charges could not be broken into separate

incidents).

C. Provocation Exception

¶ 28 A defendant forfeits self-defense as an affirmative defense if he

provokes the victim into attacking him with the intent to injure or

kill the victim. See § 18-1-704(3)(a). The trial court should instruct

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the jury on the provocation exception if (1) the victim used unlawful

physical force against the defendant; (2) the defendant provoked the

victim’s use of force; and (3) the defendant intended to goad the

victim into attacking him as a pretext to injure or kill the victim.

Galvan, ¶ 19. Considering these three requirements, we conclude

that some evidence supports the provocation instruction here.

¶ 29 First, Ahmed testified that Burgess pushed him.

¶ 30 Second, Ahmed went to the food mart uninvited, armed with a

knife, and argued with Burgess. Burgess then asked Ahmed to

leave, and Ahmed refused, leading Burgess to come around the

counter. Some evidence supports the conclusion that Ahmed’s

refusal to leave provoked Burgess into this physical escalation of

the confrontation.

¶ 31 Third, the simmering argument between Burgess and Ahmed

is some evidence Ahmed intended to provoke Burgess into

assaulting him by persisting in his demand that Burgess check the

water heater. Further, the fact that Ahmed went to the food mart

armed with a knife, produced the knife during a verbal altercation,

and chased Burgess with the knife as a “little kind of bluff” provided

additional evidence of Ahmed’s intent to provoke Burgess as a

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pretext to injuring or killing him. See id. ¶ 33 (evidence of

threateningly approaching the victim permitted the jury to infer the

defendant intended “to egg on” the victim, so he would have

justification to injure her).

¶ 32 Therefore, regardless of the trial court’s reasoning, some

evidence supported giving the provocation instruction, and the

court did not err by giving the instruction on both charges.

D. Initial Aggressor Exception

¶ 33 Ahmed also contends there was insufficient evidence to

support an initial aggressor instruction. Again, we disagree.

¶ 34 A defendant forfeits self-defense as an affirmative defense if he

is the initial aggressor. See § 18-1-704(3)(b). An initial aggressor

may justifiably use force in self-defense only “if he or she withdraws

from the encounter and effectively communicates to the other

person his or her intent to do so, but the latter nevertheless

continues or threatens the use of unlawful physical force.”2 Id. A

2 Ahmed also asserts that he withdrew from the encounter and

communicated his withdrawal. As a result, he argues, he was
entitled to act in self-defense if Burgess retaliated. Whether Ahmed
withdrew and communicated his withdrawal was a factual question
for the jury.

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trial court should provide instructions on the initial aggressor

exception if there is any evidence that the defendant initiated the

conflict by using or threatening imminent use of unlawful physical

force. Castillo, ¶¶ 41, 43.

¶ 35 In People v. Roberts-Bicking, 2021 COA 12, ¶ 34, the defendant

pointed his pistol at the victims and threatened them. The division

concluded that “merely producing the pistol during an argument

was sufficient to warrant instructing the jury on initial aggressor

principles.” Id. at ¶ 36. Here, similar to Roberts-Bicking, Ahmed

produced his knife during the argument with Burgess. That act

was sufficient to support the trial court’s decision to provide an

initial aggressor instruction.

E. Mutual Exclusivity

¶ 36 Ahmed contends that even if some evidence supported giving

instructions on the provocation and initial aggressor exceptions, the

instructions should have informed the jury that the exceptions are

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mutually exclusive.3 He argues that the provocation exception only

applies where the victim initiated the attack on the defendant and

the initial aggressor exception only applies where the defendant

initiated the attack on the victim. However, in Galvan, the supreme

court held that provocation is not limited to situations where the

victim initiates the attack. Galvan, ¶ 19 n.4 (“[S]ection 18-1-

704(3)(a) does not limit the exception to a situation in which the

victim attacks first. Nor have we ever engrafted such a restriction

onto the exception.”). Therefore, the provocation and initial

aggressor exceptions are not inherently mutually exclusive. See

Roberts-Bicking, ¶¶ 41, 45-46 (rejecting the defendant’s assertion

that the trial court must instruct the jury that the provocation and

initial aggressor exceptions are mutually exclusive and concluding

that an act of aggression, if taken with the intent to provoke the

3 Ahmed also asserts, without development or legal support, that

the instructions should have “contained guidance for the jury in
determining who acted as an aggressor and who was a victim under
the circumstances.” We decline to address this argument because
it is not sufficiently developed for appellate review. See People v.
Hicks, 262 P.3d 916, 920 (Colo. App. 2011) (declining to review a
contention because the defendant “neither articulated a cogent
argument for review nor provided supporting legal authority”).

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victim to attack, can establish both that the defendant is the initial

aggressor and that the defendant provoked the victim).

¶ 37 Further, the provocation and initial aggressor exceptions are

not mutually exclusive in this case. By finding Ahmed guilty of

second degree assault and second degree murder, the jury

necessarily found that the prosecution disproved self-defense

beyond a reasonable doubt. As the jury unanimously agreed that

Ahmed did not act in self-defense, the jury did not need to agree on

the specific theory for why self-defense was unjustified — whether

Ahmed provoked Burgess, whether Ahmed was the initial aggressor,

or whether Ahmed was not acting in self-defense at all. See People

v. Mosely, 2021 CO 41, ¶ 21.

¶ 38 Ultimately, because the provocation and initial aggressor

exceptions are not inherently mutually exclusive, and because the

exceptions are not mutually exclusive in this case, the trial court

did not err.

IV. Disposition

¶ 39 The judgment is affirmed.

JUDGE J. JONES and JUDGE SCHUTZ concur.

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