People v. Reginald Snelling

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
October 6, 2022

2022COA116

No. 20CA1144, People v. Snelling — Crimes — Second Degree
Burglary — First Degree Criminal Trespass; Criminal Law —
Prosecution of Multiple Counts for Same Act — Lesser Included
Offenses

The majority of a division of the court of appeals determines

that first degree criminal trespass merges into second degree

burglary. In People v. Garcia, 940 P.2d 357 (Colo. 1997), the

supreme court, relying on the Armintrout v. People, 864 P.2d 576

(Colo. 1993) merger test, stated that the offenses did not merge

because unlawful entry into a dwelling was not a statutory element

of second degree burglary. The majority of this division concludes

the supreme court implicitly overruled this conclusion in

subsequent cases by altering the merger test and explicitly stating

that unlawful entry into a dwelling is a statutory element of second
degree burglary. The majority thus disagrees with the majority in

the recent decision of People v. Whiteaker, 2022 COA 84, ¶¶ 16-18,

__ P.3d__, __, which held that Garcia was still controlling because it

had not been explicitly overruled by the supreme court. The

majority of the division concludes that the two offenses should

merge based on the supreme court’s reformulation of the merger

test in Reyna-Abarca v. People, 2017 CO 15, ¶¶ 51-64, 390 P.3d

816, 824-26, and People v. Rock, 2017 CO 84, ¶ 20, 402 P.3d 472,

479, agreeing with Judge Kuhn’s concurring opinion in Whiteaker.

In a separate opinion, Judge Gomez determines that she

would not address the merger issue.

The division also reverses Snelling’s convictions for second

degree burglary and tampering because the trial court did not

answer the jury’s question about the effect of voluntary intoxication

on those offenses.

The judgment is affirmed in part, reversed in part, and

remanded for a new trial.
COLORADO COURT OF APPEALS 2022COA116

Court of Appeals No. 20CA1144
Boulder County District Court No. 19CR475
Honorable Bruce Langer, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Reginald Snelling,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE TAUBMAN*
Fox, J., concurs
Gomez, J., specially concurs

Announced October 6, 2022

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Assistant Solicitor
General, Denver, Colorado, for Plaintiff-Appellee

Mark G. Walta, Alternate Defense Counsel, Andrew W. Schulman, Alternate
Defense Counsel, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2022.
¶1 Defendant, Reginald Snelling, appeals his convictions for

second degree burglary, first degree criminal trespass, and second

degree criminal tampering. He contends that the trial court erred in

not providing a supplemental instruction to the jury on the effects

of voluntary intoxication, and we agree.

¶2 Additionally, Snelling and the People agree that the criminal

trespass conviction should have merged into the burglary

conviction, and we concur. In reaching this conclusion, we

determine that the supreme court’s decision in People v. Garcia, 940

P.2d 357 (Colo. 1997), has been implicitly overruled by subsequent

supreme court decisions clarifying the doctrine of merger.

¶3 Accordingly, we reverse his convictions for second degree

burglary and second degree criminal tampering and remand this

case for a new trial on those charges. However, we affirm his

trespassing conviction subject to further proceedings on the merger

issue, as we discuss below.

I. Background

¶4 In March 2019, Snelling was drinking alcohol and spending

the day with his friend, Thomas Rogers, at Rogers’s apartment.

Later that evening, some of Rogers’s friends — Mark McNellan, Kyle

1
Danley, and D.B., a seventeen-year-old girl — came to the

apartment, along with two girls whom Rogers did not know, J. and

P. Everyone present had consumed alcohol, marijuana, or both.

Rogers testified that he did not know that the girls were minors,

and no evidence was presented that Snelling knew the girls’ ages.

¶5 At one point, Snelling began behaving inappropriately toward

J. and P.; D.B. pushed Snelling, and she, Rogers, and McNellan told

Snelling to leave the apartment. Snelling left, but he returned to

the apartment shortly afterward and knocked on the door, saying

that he had lost his keys and cell phone. Danley cracked open the

door, and Snelling and Rogers talked through the opening. Rogers

said that he would look for Snelling’s keys and phone, but that

Snelling could not come inside because the guests did not feel safe

with him present.

¶6 Rogers looked for the phone and keys for several minutes but

could not find them. When Rogers told Snelling so, and refused to

let him into the apartment, Snelling became increasingly agitated,

began yelling at the people in the apartment, and tried to force his

way inside. Danley, D.B., and McNellan scuffled with Snelling while

trying to keep him out, and Rogers returned to his bedroom. As

2
Snelling tried to force his way in, he yelled, “I’m going to get that

boy” and “I’m going to mess up you boys,” and he struck D.B.

during the scuffle. Rogers called 911 and reported that Snelling

was breaking into his apartment. Eventually, Danley pushed

Snelling out of the apartment and into the common area outside.

¶7 The police arrived shortly thereafter. After the police

interviewed witnesses, they arrested Snelling and placed him in the

back of a patrol vehicle.

¶8 While the officers transported Snelling to the jail, he alternated

between calmness and screaming; he also spit on a window and on

the partition between the officers and himself.

¶9 The prosecution charged Snelling with second degree burglary

and first degree criminal trespass for breaking into the apartment,

harassment for striking D.B., and second degree criminal tampering

for spitting in the patrol car.

¶ 10 Snelling took his case to a jury trial and was acquitted of

harassment but convicted of second degree burglary, first degree

criminal trespass, and second degree criminal tampering. He was

sentenced to concurrent sentences of two years of probation and

eighty-eight days in jail. This appeal followed.

3
II. Jury Instruction

¶ 11 Snelling argues that the court erroneously declined to answer

the jury’s question on the legal effect of voluntary intoxication as it

pertains to his two specific intent charges — second degree burglary

and second degree criminal tampering. The People concede that the

trial court erred but maintain that the error was harmless. We

agree that the trial court erred but conclude that the error was

reversible.1

A. Additional Facts

¶ 12 Snelling endorsed voluntary intoxication as a defense before

trial, and the evidence presented at trial suggested Snelling was

intoxicated during the incident. However, he did not request a

voluntary intoxication instruction.

¶ 13 After the jury began deliberations, it asked the court, “Can you

be so inebriated that you are unable to form intent?” The

prosecution argued that the defense had not tendered an

intoxication defense instruction, so the court could not answer the

1Snelling also contends that the court plainly erred by not
providing the jury with a modified unanimity instruction. Because
we reverse due to the error in response to the jury’s question, we
need not consider that contention.

4
question. Defense counsel argued that because voluntary

intoxication is a defense to specific intent crimes, the court should

instruct the jury that voluntary intoxication could negate the mens

rea requirements of burglary and tampering. The court responded

by telling the jurors that they “must consider the instructions as

given.”

B. Standard of Review and Law

¶ 14 When the jury indicates that it does not understand a matter

central to the guilt or innocence of the accused — such as the

ability to form specific intent — the trial court must clarify the

matter for the jury. Leonardo v. People, 728 P.2d 1252, 1256 (Colo.

1986). Additionally, “[w]here the evidence supports an intoxication

defense, it is appropriate for a trial court to instruct on that

defense.” Brown v. People, 239 P.3d 764, 769 (Colo. 2010) (quoting

People v. Mattas, 645 P.2d 254, 259 (Colo. 1982)). Voluntary

intoxication may negate specific intent, and both burglary and

tampering are specific intent crimes. See § 18-1-804(1), C.R.S.

2021; Palmer v. People, 964 P.2d 524, 526 (Colo. 1998) (“[A]ll

offenses in the criminal code in which the mental culpability

requirement is expressed as ‘intentionally’ or ‘with intent’ are

5
specific intent offenses.”); § 18-4-203(1), C.R.S. 2021 (a second

degree burglary conviction requires a finding that the defendant

acted “with intent to commit therein a crime against another person

or property”); § 18-4-506, C.R.S. 2021 (tampering requires an

offender to act “with intent to cause injury, inconvenience, or

annoyance to that person or to another”).

¶ 15 A trial court’s not providing “a jury instruction after a

defendant requests such instruction will be reviewed under the

harmless error standard.” Brown, 239 P.3d at 767. Under this

standard, reversal is warranted only if the error affected the

defendant’s substantial rights; otherwise, it must be disregarded as

harmless unless there is a reasonable probability that the error

contributed to the defendant’s conviction. Id.

C. Analysis

¶ 16 There is no dispute that the trial evidence could support a jury

finding that Snelling was intoxicated at the time of the burglary and

tampering. There is also no dispute that the jury was confused

about the application of voluntary intoxication as a defense in this

case. Further, there is no dispute that the trial court did not

provide a voluntary intoxication instruction at trial in response to

6
the jury’s question. Settled law makes two things clear: (1)

voluntary intoxication could have negated Snelling’s ability to form

specific intent regarding the burglary and tampering offenses; and

(2) the trial court had an obligation to clarify the voluntary

intoxication issue for the jury. See § 18-1-804(1); Leonardo, 728

P.2d at 1256. Thus, we conclude — and both parties agree — that

the trial court erred when it did not give the jurors a voluntary

intoxication explanation in answer to their question. See Brown,

239 P.3d at 769.

¶ 17 Regarding Snelling’s trespassing charge, we conclude the error

was harmless because trespassing is not a specific intent crime.

See § 18-4-502(1)(a), C.R.S. 2021. However, we further conclude

the error was not harmless in connection with Snelling’s burglary

and tampering charges because a reasonable probability exists that

the error contributed to his convictions, and we find Leonardo

instructive.

¶ 18 In that case, after the jury began deliberations, it sent a note

to the court asking, “Is Knowing or Believing in instruction Number

6 The Same as Having a Suspicion of?” Leonardo, 728 P.2d at

1254. The court, without consulting counsel for either side or

7
informing the defendant, responded, “Ladies and Gentlemen: You

must reach your verdict applying the words as you find them in the

instructions.” Id. The jury made no further inquiries and returned

guilty verdicts shortly afterward. Id. The defendant appealed based

on the court’s handling of the jury question, and a division of this

court upheld his convictions because it found the original

instructions were adequate. Id. The supreme court reversed,

holding that the central issue was not the adequacy of the

instructions, but the jury’s demonstrated misunderstanding of

them. Id. at 1255. The supreme court explained that when a jury

affirmatively indicates that it has a fundamental misunderstanding

of an instruction, the basis for presuming that the jury understood

and heeded the instruction disappears. Id.

¶ 19 Here, when the jury asked the trial court about the role of

voluntary intoxication, it “demonstrate[d] that the jury had

considered the relevant instruction” but did not know if its concern

was encompassed in that instruction. Id. Therefore, “[r]eferring the

jury back to the same instruction that created the doubt in their

minds could serve no useful purpose.” Id. The trial court had an

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

8
unambiguous manner and could have done so directly and

concisely. Id. at 1256. In sum, because the jury’s confusion

related to a central element of the crimes, the court committed

prejudicial error by not answering the jury’s question.

¶ 20 The People urge us to conclude that the error was harmless

because “the court’s response referring the jury back to the original

instructions did not preclude the jury from considering Snelling’s

intoxication as to the burglary and tampering counts.” Their

argument fails for three reasons.

¶ 21 First, contrary to the People’s assertion, the original

instructions precluded the jury from considering Snelling’s

intoxication. The instructions told jurors that it was the court’s job

“to decide what rules of law apply to the case” and jurors had to

follow the instructions given by the court even if they “disagree[d]

with or [did] not understand the reasons” for them. Further, jurors

could not conduct any external research using any source to decide

the case. Thus, jurors were explicitly precluded from considering

any interpretation of the law not provided by the trial court.

Notably absent from the instructions was any mention of how to

apply voluntary intoxication to specific intent crimes.

9
¶ 22 Second, absent evidence to the contrary, we presume that

jurors follow a court’s instructions. See Galvan v. People, 2020 CO

82, ¶ 29, 476 P.3d 746, 755. Therefore, since the jurors could not

receive legal guidance about or conduct legal research on voluntary

intoxication — and were explicitly told not to deviate from the

court’s instructions — the jurors were not only precluded from

considering Snelling’s intoxication, but they also had no idea how to

do so. Moreover, nothing in the record suggests that they tried to

deviate from the court’s instructions, so we presume that they did

not.

¶ 23 Finally, the trial court was required to respond to the jury’s

question even though Snelling did not request a jury instruction on

the effect of voluntary intoxication, as we previously noted. See

Leonardo, 728 P.2d at 1256; Brown, 239 P.3d at 769.

¶ 24 Accordingly, we reverse Snelling’s convictions for burglary and

tampering and remand for a new trial.

III. Evidentiary Issues

¶ 25 Although we have reversed his burglary and tampering

convictions, Snelling makes two evidentiary contentions that apply

to his trespassing conviction, so we address them. First, he

10
contends that the trial court erroneously allowed the jury to hear an

inadmissible portion of a 911 call, and the resulting prejudice to his

defense requires reversal. Second, he asserts that the admission of

certain statements and evidence by the prosecutor allowed the jury

to convict him for improper reasons — namely, the historical biases

associated with policing the sexual behavior of Black men toward

white women. We are unpersuaded by either contention.

A. Additional Facts

¶ 26 Snelling filed two motions in limine before trial. One motion

requested that the court preclude references to Snelling’s sexual

behavior before he was asked to leave the apartment, stating that

“evidence of inappropriate sexual behavior is clearly unfairly

prejudicial to Mr. Snelling in this ‘me too’ era.” The other requested

that the court preclude the introduction of evidence that Snelling

yelled at police officers, commented on his distrust of white people,

and insulted the officers; it claimed that evidence of Snelling’s

“angry and arguably racist behavior” was irrelevant to the crimes

charged and unfairly prejudicial. The prosecutor made an oral

motion in limine requesting that Snelling not be allowed to argue

11
that the apartment’s occupants wanted him to leave because they

were racist.

¶ 27 The trial court ruled that Snelling’s behavior toward J. and P.

could be described as inappropriate and harassing, but not sexual,

and that neither party could discuss race. At trial, Snelling made

various objections to the prosecutor’s evidence and statements —

on grounds of hearsay, relevance, bolstering, and violations of the

court’s orders regarding sexual conduct — some of which were

sustained and some overruled. Neither Snelling’s motions in limine

nor his objections during trial were based on the prejudicial effects

of any racial stereotypes or tropes.

¶ 28 Additionally, the prosecution entered a three-minute, fourteen-

second 911 call into evidence. At three minutes and thirteen

seconds, defense counsel objected on grounds of double hearsay

and requested that if a copy of the call went back to the jury, that

copy should not include “the currently excised section.” The court

overruled the objection, finding that what was said did not violate

its rulings. The record reveals that the statement at issue was: “He

was jumping onto one of my friends. She was a female and he was

drunk.” Regarding that statement, the following colloquy occurred:

12
DEFENSE COUNSEL: Your Honor, we do have
an issue with respect to the 911 call the People
are seeking to give the Court a copy of. As the
Court may remember, I objected in the middle
of the call and I believe the call goes “at that
point he was jumping,” and I objected at that
point and then there was an attempt to stop it.

THE COURT: Right.

DEFENSE COUNSEL: What it goes on to say
and what -- the version that the People have
accessed, how it finishes is, “He was jumping
onto one of my friends. She was a female and
he was drunk.” And it’s my position that this
gets into the sexual misconduct issue that we
were talking about, so it needs to be stopped
before that particular passage.

THE COURT: [Prosecutors?]

PROSECUTOR: Yes, Your Honor. We clipped it
from minute mark zero to minute mark three
minutes [thirteen] seconds as we discussed at
the bench. That entire portion has already
been admitted and published. There was a
[real-time] objection raised to jumping on this
female. The Court overruled that and then we
proceeded, and we ceased at three minutes,
[thirteen] seconds. We already decided this
issue. We do have it presently. We can play it
again, but it’s our position that there was a
simultaneous objection. It was overruled and
we clipped it to three minutes, [thirteen]
seconds as I reflected to the Court when we
stopped playing it.

THE COURT: I don’t remember hearing

13
anything past “jumping on.” Did we play it
past that point?

PROSECUTOR: Yes.

DEFENSE COUNSEL: And, Your Honor, my
recollection is that while we were -- as the
objection was going, there was an attempt to
pause it.

THE COURT: Right.

DEFENSE COUNSEL: So, in essence, what the
Court would be doing would be allowing the
prosecution to introduce this evidence that
violates Mr. Snelling’s due process rights,
violates [CRE] 403 because of an inability to
pause in a timely fashion. I don’t think that’s
appropriate.

THE COURT: Okay. So when I overruled that
objection, I hadn’t heard and wasn’t aware
that it went on to say after the words “jumping
on” my friend and she was female. I think that
that does -- certainly could produce an
inference in the jurors’ minds that it is of a
sexual nature, so I am going to ask that it be
clipped.

PROSECUTION: Can the court just listen?
Does the court mind listening to it briefly?

THE COURT: Sure. I’m going to order that it
be clipped after “he was jumping on a friend of
mine.” That’s what I thought I was doing at
the time that I ruled. I agree with [defense
counsel] that I think she was female and he
was drunk certainly can create the impression

14
that it was sexual misconduct which I already
ruled is not admissible.

B. Standard of Review and Law

¶ 29 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401.

¶ 30 Even if relevant, “evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” CRE 403. But the

rule “strongly favors the admission of evidence.” Masters v. People,

58 P.3d 979, 1001 (Colo. 2002) (quoting People v. Dist. Ct., 869 P.2d

1281, 1286 (Colo. 1994)). Trial courts “are given broad discretion in

balancing the probative value of the evidence against the danger of

unfair prejudice.” People v. Gibbens, 905 P.2d 604, 607 (Colo.

1995) (citing People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993)).

¶ 31 A court errs in an evidentiary ruling if it abuses its discretion

— when its decision is manifestly arbitrary, unreasonable, or unfair

or is based on an erroneous understanding or application of the

15
law. People v. McFee, 2016 COA 97, ¶ 17, 412 P.3d 848, 855;

People v. Clark, 2015 COA 44, ¶ 14, 370 P.3d 197, 204.

¶ 32 “The standard of reversal for preserved evidentiary claims is

harmless error.” People v. Daley, 2021 COA 85, ¶ 95, 496 P.3d 458,

473. An error is harmless if there is no reasonable possibility that

it contributed to the conviction. Pernell v. People, 2018 CO 13,

¶ 22, 411 P.3d 669, 673. Under this standard, we will not reverse

unless the error “substantially influenced the verdict or affected the

fairness of the trial proceedings.” Hagos v. People, 2012 CO 63,

¶ 12, 288 P.3d 116, 119 (quoting Tevlin v. People, 715 P.2d 338,

342 (Colo. 1986)).

¶ 33 We review unpreserved evidentiary claims for plain error.

People v. Lovato, 2014 COA 113, ¶ 58, 357 P.3d 212, 226. Under

the plain error standard, even assuming the court erred, we reverse

only if the error was obvious, substantial, and “so undermined the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” People v. Rector, 248

P.3d 1196, 1203 (Colo. 2011).

¶ 34 Defense counsel contemporaneously objected to the 911 call,

so we review that claim for harmless error. However, we conclude

16
that the claim regarding the prosecutor’s statements was not

preserved because the argument Snelling raises on appeal — that

evidence of his sexual behavior toward two girls was prejudicial

because it played on the racial trope of a Black man sexually

harassing white women — differs from the objections defense

counsel made at trial — among many others, that evidence of

Snelling’s inappropriate sexual behavior was “unfairly prejudicial

. . . in [the] ‘me too’ era.” See People v. Tallent, 2021 CO 68, ¶ 12,

495 P.3d 944, 948 (“When a party presents a new argument or

alters the grounds for an objection on appeal, the issue is forfeited

and reviewable only for plain error.”). Accordingly, we review that

contention for plain error.

C. Analysis

¶ 35 Snelling contends that reversible error occurred because the

jury heard one second of the 911 audio — “She was a female and he

was drunk” — that was inadmissible because it referenced his

alleged sexual behavior in violation of the court’s order, and that

the audio preyed on racist tropes involving predatory sexual

behavior between Black men and white women. He also contends

that reversible error occurred because the prosecutor repeatedly

17
introduced evidence that played on the aforementioned racial trope

and repeatedly referred to J.’s and P.’s status as minors.

¶ 36 We decline to discuss his contentions regarding J.’s and P.’s

minor status because defense counsel invited any error; jurors first

learned that J. and P. were under eighteen during defense counsel’s

cross-examination of the apartment owner. See Montoya v. People,

2017 CO 40, ¶ 33, 394 P.3d 676, 689 (a party may not complain on

appeal of an error that he or she has invited or injected into the

case). Regarding Snelling’s racial trope argument, at its heart are

two faulty assumptions — each belied by the record, the verdict, or

both — that we must address before analyzing his claims.

¶ 37 First, his argument assumes that the jurors knew that J. and

P. were white. But the trial court explicitly banned the mention of

race in the trial at the behest of both parties, and nothing in the

record reveals the race of J. or P. Neither girl testified at trial, and

there is no record of photographs or videos of the girls being

introduced at trial. The jurors heard the girls’ first names during

testimony but could not have drawn any conclusions about their

race from that information. Therefore, neither the jurors, nor this

court, could know whether J. and P. are white. Without that

18
information, Snelling’s assertion that the jurors punished him for

his sexual behavior toward white women is not supported by the

record.

¶ 38 Second, Snelling’s argument assumes that the jurors were

biased based on the girls’ race and acted on that bias. However,

Snelling was convicted of all his charges except harassment, the

only charge claiming that he physically touched a white girl, D.B.

D.B. testified in front of the jurors, and they could see that her race

and Snelling’s differed. Thus, if the jurors intended to punish him

based on racist tropes, they would have done so there; the acquittal

is telling. See Daley, ¶ 97, 496 P.3d at 474 (a split verdict

demonstrates that jury was not substantially influenced by

improper testimony). In short, the record does not support the

assumptions inherent in Snelling’s racial trope assertions, and

under the applicable standards of review, his arguments are

unavailing.

1. 911 Call

¶ 39 The record is not clear on whether the jury heard the

contested portion of the 911 call audio over defense counsel’s

contemporaneous objection. In fact, the trial court itself did not

19
hear the complete audio for that very reason. However, even if we

assume that the jurors heard it, any error was harmless; the jury’s

split verdict indicates that the audio did not substantially influence

the verdict or affect the fairness of the trial. See People v. Reed,

2013 COA 113, ¶ 43, 338 P.3d 364, 372; see also Daley, ¶ 97, 496

P.3d at 474. Snelling’s acquittal on the only charge alleging that he

had physical contact with a white female, D.B., indicates that the

jury rejected any possible insinuations based on racial tropes, and

shows “that the jurors heeded the court’s instruction not to allow

bias or prejudice to influence their decisions.” People v. Robinson,

2019 CO 102, ¶ 33, 459 P.3d 229, 235. Moreover, Snelling did not

request a curative instruction regarding the 911 call, and the court

was not obligated to issue a curative instruction sua sponte. See

People v. Mersman, 148 P.3d 199, 204 (Colo. App. 2006).

¶ 40 Snelling argues — contradicting established case law — that

the split verdict indicates that the jury likely convicted based on

improper information because his burglary was predicated on intent

to harass someone, and the improper evidence implied that J. and

P. were the likely targets of the alleged harassment. However, the

record belies that assertion as well. Instead, it shows that the

20
harassment underlying the burglary was based on Snelling’s intent

to fight someone in the apartment.

¶ 41 The jury instructions said that Snelling could only be guilty of

burglary if jurors found that he had the intent to commit the crime

of harassment at the time of entry. The jury’s harassment

instructions stated that harassment occurs when the defendant

strikes, shoves, kicks, or subjects a person to physical contact with

the intent to harass, annoy, or alarm another person. In its

opening statement, the prosecution told jurors that when Snelling

was trying to force his way into the apartment, he said, “I’m going to

beat your ass” to someone inside of the apartment, and it supported

that assertion through witness testimony. In its closing argument,

the prosecution told jurors that as Snelling forced his way into the

apartment, the owner called the police because he was afraid

Snelling would try to hurt him. Nothing in the record indicated that

Snelling was trying to force his way back into the apartment with

the intent to harass, sexually or otherwise, J. and P. Instead, all

the evidence showed that the harassment underlying the burglary

charge was based on Snelling’s intent to strike someone in the

apartment. We presume that juries follow a court’s instructions

21
absent evidence to the contrary. See Galvan, ¶ 29, 476 P.3d at 755.

We have no reason to doubt the jurors here.

¶ 42 Accordingly, we discern no error or cause for reversal.

2. Prosecutorial Statements and Evidence Regarding J. and P.

¶ 43 We review the prosecutor’s statements and evidence elicited

about J. and P. for plain error. As with the 911 call, Snelling

asserts the court erred because the prosecutor elicited testimony

that was irrelevant and played into prejudicial racial stereotypes

about sexual behavior between Black men and white women. He

alleges prosecutorial misconduct for the same reasons. See People

v. Rodriguez, 2021 COA 38M, ¶ 31, 491 P.3d 547, 553 (a prosecutor

can commit misconduct by eliciting prejudicial evidence that is

irrelevant to the charged offenses). Snelling claims that the

prejudicial effect of the language was cumulative, rather than based

on any individual statement. As examples, Snelling refers us to a

witness’s testimony that he was “flirting” with a girl before he was

asked to leave, and the prosecution’s multiple uses of the terms

“uncomfortable,” “inappropriate,” and “freaked out” in reference to

Snelling’s interactions with J. and P., rather than “harassing.”

22
¶ 44 We are unpersuaded for several reasons. First, as mentioned,

J. and P.’s race was never introduced at trial. Because nothing in

the record showed that the girls are white, Snelling’s assertion that

jurors punished him because he was a Black man being sexually

aggressive toward white women is unsupported.

¶ 45 Second, even in the context of this case, the language that the

prosecution used was not sexually charged, implicitly or otherwise.

The trial court explicitly stated that the prosecution could introduce

evidence of Snelling’s actions — making people uncomfortable,

bumping into them, or being in their personal space — so long as it

did not portray the acts as sexual misconduct. As the trial court

noted, a person can make other people uncomfortable without the

discomfort being based on sex. Moreover, none of the crimes of

which Snelling was convicted revolved around sexual behavior, and

again, none of the evidence suggested that Snelling committed

burglary with the intent to sexually harass J. and P.

¶ 46 Finally, Snelling’s making the girls uncomfortable was relevant

because it was the reason that his invitation was revoked, and a

predicate to establishing why the burglary occurred. It provided

23
context to the jurors and thus was relevant and not inappropriate.

See CRE 401, 402.

¶ 47 Accordingly, we discern no evidentiary error here, plain or

otherwise. For the same reasons, we also reject his claims of

prosecutorial misconduct.

IV. Merger

¶ 48 Snelling contends and the People concede that his first degree

trespassing and second degree burglary convictions should merge.

Though we have reversed Snelling’s burglary and tampering

charges, we also address his merger claim because it will

necessarily arise on remand for two reasons. First, the prosecutor

must decide whether to retry Snelling on the burglary charge,

leaving the trespass conviction in place if there is no retrial. See

§ 18-1-408(1)(a), C.R.S. 2021 (a defendant may be prosecuted for,

though not convicted of, multiple offenses if one is included in the

other); Reyna-Abarca v. People, 2017 CO 15, ¶ 51, 390 P.3d 816,

824 (same). Second, if the prosecutor charges Snelling with

burglary again and he is again convicted of that offense, the trial

court will need to determine whether the trespassing and burglary

convictions would merge. Currently, the trial court would be bound

24
by People v. Whiteaker, 2022 COA 84, ¶¶ 16-18, ___ P.3d ___, ___, in

which the majority recently held that second degree burglary and

first degree trespass do not merge. Therefore, the trial court would

be required to conclude that the burglary and trespassing

convictions do not merge. However, because we disagree with the

majority’s decision in Whiteaker, the trial court would be required to

follow our decision and conclude that convictions for second degree

burglary and first degree trespass must merge.2 Further,

addressing the merger issue now makes sense, given the People’s

concession that those two offenses must merge.

¶ 49 We agree with the parties that because first degree criminal

trespass is a lesser included offense of second degree burglary,

those convictions must merge.3 However, neither the jury

instruction issue nor the evidentiary issues require reversing the

2 One division of this court is not bound by the decision of another
division, and under the mandate rule, our conclusions become the
law of the case which must be followed on remand. See People v.
Smoots, 2013 COA 152, ¶ 20, 395 P.3d 53, 57, aff’d sub nom.
Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816; Super Valu
Stores, Inc. v. District Court in and For Weld County, 906 P.2d 72, 79
(Colo. 1995).
3 We rely on our own interpretation of the law and are not bound by

the concessions of the parties. People v. Backus, 952 P.2d 846, 850
(Colo. App. 1998).

25
trespassing conviction. Accordingly, we affirm the trespass

conviction subject to further proceedings on remand.

A. Standard of Review and Law

¶ 50 We review de novo whether merger applies to criminal

offenses. People v. Zweygardt, 2012 COA 119, ¶ 40, 298 P.3d 1018,

1026. A defendant may not be punished twice for the same offense.

Id. at ¶ 39, 298 P.3d at 1026; see U.S. Const. amend. V; Colo.

Const. art. II, § 18. Accordingly, a defendant may not be convicted

of two offenses based on the same conduct if one offense is a lesser

included offense of the other. Page v. People, 2017 CO 88, ¶ 9, 402

P.3d 468, 470. If a defendant is found guilty of a greater offense

and a lesser included offense, the trial court must merge the lesser

included offense into the greater. Id.

¶ 51 Under section 18-1-408(5)(a), an offense is a lesser included

offense of an offense charged if it “is established by proof of the

same or less than all the facts required to establish the commission

of the offense charged.” The supreme court has clarified that an

“offense is a lesser included offense of another offense if the

elements of the lesser offense are a subset of the elements of the

greater offense, such that the lesser offense contains only elements

26
that are also included in the elements of the greater offense.”

Reyna-Abarca, ¶¶ 51-64, 390 P.3d at 824-26. Thus, “one offense is

not a lesser included offense of another if the lesser offense requires

an element not required for the greater offense.” Id. at ¶ 60, 390

P.3d at 826 (citing Schmuck v. United States, 489 U.S. 705, 716

(1989)). Additionally, the supreme court has held that second

degree criminal trespass is a lesser included offense of second

degree burglary because its elements — including unlawfully

entering the premises of another — are “a subset of the statutory

elements of second degree burglary.” People v. Rock, 2017 CO 84,

¶ 20, 402 P.3d 472, 479.

¶ 52 As relevant here, a person commits second degree burglary if

“the person knowingly breaks an entrance into, enters unlawfully

in, or remains unlawfully after a lawful or unlawful entry in a

building or occupied structure with intent to commit therein a

crime against another person or property.” § 18-4-203(1). A person

commits first degree criminal trespass if the person “[k]nowingly

and unlawfully enters or remains in a dwelling of another.” § 18-4-

502(1)(a).

27
B. Analysis

¶ 53 As noted, Snelling was convicted of second degree burglary

and first degree criminal trespass for the single act of entering the

apartment. The supreme court first addressed whether these

offenses should merge in Garcia, 940 P.2d 357, but the court has

since altered both its method for evaluating merger and how it

views the elements of these two offenses.

¶ 54 In Garcia, the supreme court, relying on its earlier

interpretation of the strict elements test, see Armintrout v. People,

864 P.2d 576, 579-80 (Colo. 1993), held that first degree criminal

trespass was not a lesser included offense of second degree burglary

because the “dwelling” factor in second degree burglary was a

sentence enhancer, rather than an element of the offense, and thus

not considered for the purposes of merger. 940 P.2d at 363. We

note that in Whiteaker, a division of this court held that Garcia is

still applicable because it has not been expressly overruled by the

supreme court. See Whiteaker, ¶¶ 3-4, ___ P.3d at ___.

Nevertheless, Judge Kuhn, in a thorough special concurrence, said

that in his view, Garcia was no longer applicable based on the

supreme court’s modification of the test for merger, as set forth in

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Reyna-Abarca and Rock. Id. at ¶ 49, ___ P.3d at ___ (Kuhn, J.,

specially concurring).

¶ 55 We agree with Judge Kuhn for two reasons. First, we agree

with his analysis that Reyna-Abarca is the controlling standard for

evaluating lesser included crimes. Second, we conclude that Garcia

has been implicitly overruled based on Reyna-Abarca, Rock, and the

decision of another division of this court — People v. Gillis, 2020

COA 68, ¶ 34, 471 P.3d 1197, 1204. Cf. West v. People, 2015 CO 5,

¶ 29, 341 P.3d 520, 528 (concluding that a supreme court opinion

implicitly overruled an earlier opinion, making the current case’s

overruling explicit); Elrick v. Merrill, 10 P.3d 689, 698 (Colo. App.

2000) (concluding that the supreme court implicitly overruled a

previous decision regarding attorney fees in light of more current

cases); People v. Hasadinratana, 2021 COA 66, ¶ 3, 493 P.3d 925,

926 (holding that the supreme court implicitly overruled a previous

court of appeals opinion); People v. Hoang, 13 P.3d 819, 821 (Colo.

App. 2000) (same).

¶ 56 Additionally, our case is distinguishable from Whiteaker.

There, Judge Kuhn concluded that no plain error had occurred

because there was no controlling published opinion supporting his

29
view. Whiteaker, ¶ 62, ___ P.3d at ___ (Kuhn, J., specially

concurring). In contrast, here the People concede that the trial

court plainly erred under Reyna-Abarca, Rock, and Gillis.

Furthermore, Whiteaker did not address Gillis.

¶ 57 Judge Kuhn noted that one crucial distinction between Rock

and Garcia is their different applications of the controlling elements

test; Garcia relied on the Armintrout strict elements test, which was

replaced by the clarified elements test in Reyna-Abarca that

governed Rock. Whiteaker, ¶ 55, ___ P.3d at ___ (Kuhn, J., specially

concurring); see also Armintrout, 864 P.2d at 579-81. Further, he

noted that the supreme court’s recent language indicates that

Reyna-Abarca is the current controlling standard, and its

application may yield different results from Armintrout. Whiteaker,

¶¶ 56-58, ___ P.3d at ___ (Kuhn, J., specially concurring); see also

Page, ¶ 9, 402 P.3d at 470 (“We apply Reyna-Abarca’s statutory

elements test to determine whether an offense is a lesser included

offense of another.”). Comparing Garcia’s and Rock’s respective

interpretations of the elements of second degree burglary supports

his conclusion and ours. As we previously noted, under the

Armintrout test in Garcia, the supreme court determined that

30
unlawfully entering a dwelling was a sentence enhancer, rather

than a statutory element of second degree burglary. 940 P.2d at

363. However, under the Reyna-Abarca test as applied in Rock, the

supreme court explicitly stated that unlawfully entering the

dwelling of another is “a subset of the statutory elements of second

degree burglary,” not merely a sentence enhancer. Rock, ¶ 20, 402

P.3d at 479 (emphasis added).

¶ 58 The Gillis division — considering whether first degree criminal

trespass should merge into first degree burglary — reached a

conclusion similar to ours and that of Judge Kuhn. It noted that

“[t]he Colorado Supreme Court specified the test for determining

whether an offense is a lesser included offense in Reyna-Abarca and

clarified the relationship between criminal trespass and burglary in

Rock.” Gillis, ¶ 34, 471 P.3d at 1204; see also Reyna-Abarca, ¶ 59,

390 P.3d at 825-26 (stating that “prior articulations of the strict

elements test have not provided . . . clear and consistent guidance,”

requiring the adoption of a new standard for determining lesser

included offenses); Rock, ¶ 20, 402 P.3d at 479 (second degree

criminal trespass is a lesser included offense of second degree

burglary). The division concluded that similar to “the second degree

31
criminal trespass offense discussed in Rock, the elements of first

degree criminal trespass are knowingly and unlawfully entering or

remaining in the dwelling of another.” Gillis, ¶ 37, 471 P.3d at

1205. Thus, it concluded that first degree trespass is a lesser

included offense of first degree burglary, and the two offenses

should merge. Id.

¶ 59 Because second degree trespass merges into second degree

burglary and first degree trespass merges into first degree burglary

— based on a defendant’s unlawful entry into a dwelling — it

logically follows that, under the Reyna-Abarca test, first degree

trespass should merge into second degree burglary. See Rock, ¶ 20,

402 P.3d at 479; Gillis, ¶¶ 33-37, 471 P.3d at 1204-05. Both first

degree criminal trespass and second degree burglary are committed

by knowingly and unlawfully entering a dwelling; second degree

burglary differs only because it requires the intent to commit a

crime upon entry. See §§ 18-4-203(1), 18-4-502(1)(a). Thus, we

follow and extend Reyna-Abarca, Rock, and Gillis to their logical

conclusions, and hold that first degree criminal trespass should

merge into second degree burglary. See Reyna-Abarca, ¶¶ 51-64,

32
390 P.3d at 824-26; Rock, ¶ 20, 402 P.3d at 479; Gillis, ¶¶ 33-37,

471 P.3d at 1204-05.

¶ 60 Accordingly, we conclude that if Snelling is retried and again

convicted of burglary, his trespass conviction should merge into his

burglary conviction.

V. Conclusion

¶ 61 Snelling’s convictions for second degree burglary and criminal

tampering are reversed and remanded for a new trial. His

trespassing conviction is affirmed subject to merger if he is again

tried and convicted of second degree burglary.

JUDGE FOX concurs.

JUDGE GOMEZ specially concurs.

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JUDGE GOMEZ, specially concurring.

¶ 62 I agree with my colleagues on the instructional and evidentiary

issues presented in this appeal and, therefore, join Parts II and III of

the opinion. But I part ways with respect to Part IV because I don’t

believe we should reach the issue of merger.

¶ 63 When divisions of this court decide an issue that requires a

reversal and remand, we typically reach additional issues only to

the extent that they are likely to arise again on remand. See, e.g.,

Herrera v. Lerma, 2018 COA 141, ¶ 12 (addressing issues

concerning the exclusion of evidence and limitations on voir dire, as

they “will likely arise on remand in the event of retrial”); People v.

Becker, 2014 COA 36, ¶ 29 (declining to address issues that

“involve facts specific to how the trial unfolded,” as “we cannot

predict that those facts will occur again or are even likely to occur

again”); People v. Harmon, 284 P.3d 124, 129-31 (Colo. App. 2011)

(reaching an issue concerning limitations on opening argument that

“is likely to arise again on remand,” while declining to reach an

issue involving a potential waiver at trial that “we cannot say . . . is

likely to arise again on remand”). See generally People v. Stewart,

2017 COA 99, ¶ 64 (J. Jones, J., concurring in part and dissenting

34
in part) (“[O]ur common practice is to address contentions that

pertain to issues likely to arise on remand.”).

¶ 64 The decision of what additional issues to reach in a particular

case involves competing considerations of judicial efficiency, see

People v. Buckner, 2022 COA 14, ¶ 56, and judicial restraint,

including avoiding the issuance of advisory opinions, see Becker,

¶ 29; see also Winston v. Polis, 2021 COA 90, ¶ 26 (“[T]his court

does not render advisory opinions in cases based on ‘speculative,

hypothetical, or contingent set[s] of facts.’” (quoting Robertson v.

Westminster Mall Co., 43 P.3d 622, 628 (Colo. App. 2001)).

¶ 65 In this case, I think restraint is warranted. We are reversing

one of the two convictions that would potentially have to merge —

second degree burglary — and I think it is speculative to assume

that Snelling is likely to be retried, much less reconvicted of, that

same offense on remand.

¶ 66 Thus, I don’t believe we can say that the issue of merger is

likely to arise on remand. The majority concludes that it is because

(1) the prosecutor must decide whether to retry Snelling on the

burglary charge; and (2) if Snelling is again tried and convicted of

burglary, then the trial court will need to determine whether that

35
conviction must merge with the earlier trespassing conviction. I’m

not persuaded. As to the prosecutor’s decision on what charges, if

any, to pursue on remand, a prosecutor may choose to prosecute a

defendant for multiple offenses, even if the defendant cannot be

convicted of more than one of the offenses due to issues such as

merger. See § 18-1-408(1), C.R.S. 2021; Reyna-Abarca v. People,

2017 CO 15, ¶¶ 41, 51. And, as to the trial court’s need to resolve

the issue of merger in the event of Snelling’s retrial and

reconviction, I don’t believe we can say at this point that the

prosecutor will likely try Snelling again for burglary and that a jury

will likely convict Snelling again of that offense.

¶ 67 Indeed, counsel for both sides agreed at oral argument that if

we were to reverse the burglary conviction due to the instructional

error — as we are doing — then the issue of merger would be moot

and wouldn’t need to be resolved in this appeal.

¶ 68 For these reasons, I wouldn’t reach the issue of merger.

36