Peo v. Condit

22CA1225 Peo v Condit 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1225
Jefferson County District Court No. 20CR3062
Honorable Philip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tyler Ray Condit,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 3, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Tyler Ray Condit appeals the judgment entered on a jury

verdict finding him guilty of second degree murder, tampering with

a deceased body, and tampering with evidence. He contends that

(1) the district court plainly erred by failing to instruct the jury on

non-deadly physical force self-defense as an affirmative defense to

murder; (2) the court reversibly erred by allowing the prosecution to

introduce inadmissible character evidence about the victim; and

(3) the cumulative effect of these errors deprived him of a fair trial.

We disagree with all three contentions and affirm the judgment.

I. Background

¶2 In 2020, Condit and his roommate were involved in an

altercation that led to his roommate’s death. Several days later,

Condit told his uncle that he got in a fight with the victim and

“stabbed him in the neck with a knife”; then “he cut out the carpet,

poured Clorox on the [blood] stains,” “wrapped up the body[,] and

took it up to the mountains” to dispose of it and the knife.

¶3 The police recovered the body, and a forensic pathologist

performed an autopsy. In addition to the fatal neck wound, the

pathologist was able to identify two stab wounds on the victim’s foot

and a “defensive” knife wound on the victim’s hand. The People

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charged Condit with first degree murder, tampering with a deceased

human body, and tampering with physical evidence.

¶4 At trial, Condit testified that he killed his roommate in

self-defense. He claimed that he and the victim took LSD together

and were hanging out, watching videos and listening to music.

Then, seemingly out of nowhere, the victim confronted him about

sleeping with his cousin’s girlfriend. The dispute escalated, and the

victim stood up and grabbed a knife. Condit tried to get past the

victim to escape their apartment, but the victim swung the knife at

him. Condit testified that, at that point, “I grabbed [the victim’s]

arm and we . . . wrestled a little bit. And then I . . . took him down.

I tripped him and knocked him down.” He clarified that he grabbed

the victim’s arm that was holding the knife at the wrist with one

hand, placed his other hand on the victim’s inner elbow, and then

tripped the victim backwards onto a bean bag chair, falling on top

of him. He said he never grabbed the knife, he did not stab the

victim, and he did not intend to kill the victim when he tripped him.

¶5 Condit claimed he did not see the knife slice the victim’s

throat. But after he realized the victim had been cut, he attempted

to staunch the bleeding using his shirt and a towel. His efforts

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were in vain, and the victim died from the knife wound. Condit

admitted that he covered up evidence and dumped the victim’s body

to thwart any investigation into his death because he “didn’t want

to get blamed for killing” the victim, and, in his experience, “it

doesn’t matter if you’re right or wrong, when the cops come, they

take you away.”

¶6 The jury rejected Condit’s claim of self-defense and found him

guilty of second degree murder (as a lesser included offense of first

degree murder) and both tampering charges.

II. Non-Deadly Physical Force Self-Defense

¶7 Condit first contends that the district court plainly erred by

failing to instruct the jury on non-deadly physical force self-defense

as an affirmative defense. We conclude that, assuming the court

erred, the error was not obvious and therefore was not plain.

A. Self-Defense Jury Instructions

¶8 A person is justified in using non-deadly physical force upon

another person to defend himself from what he reasonably believes

to be the use or imminent use of unlawful physical force by that

other person, and he may use a degree of force that he reasonably

believes to be necessary for that purpose. § 18-1-704(1), C.R.S.

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2024. But, as pertinent here, a person may use deadly physical

force in self-defense only when (1) he has reasonable grounds to

believe, and does believe, that he is in imminent danger of being

killed or of receiving great bodily injury; and (2) he reasonably

believes that a lesser degree of force is inadequate. § 18-1-704(2).

¶9 “Deadly physical force” is defined as “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.

2024. “Whether physical force is properly considered ‘deadly’ does

not turn on the subjective intent of the person using the force but

rather on the ‘objective likelihood that, in the absence of some

intervening circumstance, a result will occur.’” People v. Martinez,

2022 COA 111, ¶ 30 (quoting People v. Opana, 2017 CO 56, ¶ 14),

aff’d, 2024 CO 48. The question is whether the physical force used

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

Opana, ¶ 16.

¶ 10 Turning to the relevant instruction in this case, the district

court only instructed the jury on self-defense using deadly physical

force as an affirmative defense to first and second degree murder.

Condit’s attorney never requested, and consequently, the court did

4
not give, an instruction on the use of non-deadly physical force in

self-defense.

B. Applicable Law and Standard of Review

¶ 11 A district court must instruct the jury on all matters of law

applicable to the case. Riley v. People, 266 P.3d 1089, 1092 (Colo.

2011). The court must give an instruction embodying a defendant’s

theory of the case if the record contains any evidence to support it.

People v. Omwanda, 2014 COA 128, ¶ 40.

¶ 12 We review jury instructions de novo to determine whether the

instructions, as a whole, accurately inform the jury of the governing

law. People v. Theus-Roberts, 2015 COA 32, ¶ 18. If they do, the

district court has substantial discretion in formulating the

instructions and deciding whether additional instructions are

required. Id. A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair or is based on a

misapplication of the law. People v. Maloy, 2020 COA 71, ¶ 54.

¶ 13 Because Condit’s attorney did not request a non-deadly

physical force self-defense instruction, we will reverse only if there

was plain error. See Martinez, 2022 COA 111, ¶ 32. Plain error is

an error that is both obvious and substantial. Hagos v. People,

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2012 CO 63, ¶ 14. An error is “obvious” if it is so clear cut that the

judge should have been able to avoid it without the benefit of an

objection. Scott v. People, 2017 CO 16, ¶ 16, abrogated on other

grounds by Whiteaker v. People, 2024 CO 25, ¶ 25. “For an error to

be this obvious, the action challenged on appeal ordinarily ‘must

contravene (1) a clear statutory command; (2) a well-settled legal

principle; or (3) Colorado case law.’” Id. (quoting People v. Pollard,

2013 COA 31M, ¶ 40). An error is “substantial” if it so undermined

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

reliability of the judgment of conviction. Hagos, ¶ 14.

C. Analysis

¶ 14 Assuming, without deciding, that the district court erred by

failing to give an instruction on self-defense using non-deadly

physical force as an affirmative defense, we conclude that the error

was not obvious for two reasons.

¶ 15 First, it was not obvious that there was a dispute about

whether Condit employed deadly or non-deadly physical force. See

People v. Vasquez, 148 P.3d 326, 330 (Colo. App. 2006);

COLJI-Crim. H:12 cmt. 4 (“In a case where the victim dies and there

is a factual dispute concerning whether the defendant used ordinary

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physical force or deadly physical force . . . , the jury should also be

allowed to consider the applicability of self-defense principles

relating to the use of ordinary physical force.”) (emphasis added). It

was undisputed at trial that the victim died from a knife wound to

his throat and that Condit caused this wound. The forensic

pathologist testified that this type of wound, if it hits major blood

vessels, will typically cause a quick death. Therefore, there is no

question that the knife slicing the victim’s neck was a “force, the

intended, natural, and probable consequence of which [wa]s to

produce death, and which d[id], in fact, produce death” and thus

constituted deadly physical force. § 18-1-901(3)(d).

¶ 16 On appeal, Condit characterizes the physical force in this case

as “[g]rabbing and tripping,” not causing the victim to slice his own

throat. But it was not obvious that this was the correct

characterization of the force because Condit’s subjective intent as to

the force he employed does not dictate whether that force was

deadly. See Martinez, 2022 COA 111, ¶ 30; Opana, ¶ 17 (“The

physical force actually inflicted by the defendant upon the victim

could not reasonably be characterized as anything other than force,

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the intended, natural, and probable consequence of which was to

produce death . . . .”) (emphasis added).

¶ 17 Moreover, Condit’s counsel did not present this

characterization to the district court, did not tender a non-deadly

physical force jury instruction, and did not raise the issue at the

jury instruction conference. The district court “is not an advocate

and need not serve as counsel for either party,” Hansen v. State

Farm Mut. Auto. Ins. Co., 957 P.2d 1380, 1384 (Colo. 1998), and “[a]

court’s general duty to instruct does not extend to crafting theory of

the case instructions when defense counsel fails to do so,” People v.

Wade, 2024 COA 13, ¶ 11. “In the absence of any objection or a

tendered alternative instruction, the court could reasonably have

concluded that there was no serious dispute that [Condit’s] conduct

was objectively likely to produce death.” Martinez, 2022 COA 111,

¶ 33; see Scott, ¶ 16.

¶ 18 Second, People v. Pickering, 276 P.3d 553, 555 (Colo. 2011), on

which Condit primarily relies, does not support his argument that

the district court plainly erred by failing to give the non-deadly

physical force self-defense instruction as an affirmative defense.

“Self-defense can be either an affirmative defense or a traverse.”

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Martinez, 2022 COA 111, ¶ 17. “An affirmative defense admits the

defendant’s commission of the charged offense but seeks to justify

or excuse the conduct.” Id.; see also People v. Huckleberry,

768 P.2d 1235, 1239 (Colo. 1989) (“[T]he essence of an affirmative

defense is the admission of the conduct giving rise to the charged

offense.”). “A traverse, on the other hand, refutes the possibility

that the defendant committed the charged offense by negating one

or more elements of the offense.” Martinez, 2022 COA 111, ¶ 17.

¶ 19 A person commits murder in the second degree if, as relevant

here, he “knowingly causes the death of a person.”

§ 18-3-103(1)(a), C.R.S. 2024. “A person acts ‘knowingly’ or

‘willfully’, with respect to a result of his conduct, when he is aware

that his conduct is practically certain to cause the result.”

§ 18-1-501(6), C.R.S. 2024. Put together, to commit second degree

murder, a person must be “aware that his conduct is practically

certain to cause” the death of a person. Id.; § 18-3-103(1)(a); see

Moore v. People, 925 P.2d 264, 267 n.6 (Colo. 1996) (“To sustain a

conviction of second degree murder the evidence must establish

that the defendant acted knowingly with respect to a result of his

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conduct, while aware that his conduct was practically certain to

cause death.”).

¶ 20 On appeal, Condit asserts that he was entitled to a non-deadly

physical force instruction because “[g]rabbing and tripping

someone . . . is not the level of force that would normally be

expected to cause death.” And at trial, Condit testified that he did

not try to kill the victim:

Q When you grabbed [the victim’s] wrist,
did you think that the knife would, then, go
into his body?

A That thought didn’t cross my mind. My
focus was, like I said, on getting him to the
ground so I could try to make a move for the
door.

....

Q Did you believe, as you tripped [the
victim] and struggled with him over the knife,
that . . . that struggle would result in his
death?

A I didn’t believe that at all. That thought
didn’t even cross my mind.

....

Q Did you want [the victim] to die that day?

A No. No.

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¶ 21 Condit’s characterization of the force he used, along with his

testimony, does not fit the definition of an affirmative defense

because it does not admit to the commission of second degree

murder while seeking to justify or excuse the conduct. See

Martinez, 2022 COA 111, ¶ 17. Instead, it suggests that Condit did

not commit second degree murder at all because he was not “aware

that his conduct [was] practically certain to cause” the death of the

victim. § 18-1-501(6); see § 18-3-103(1)(a).

¶ 22 Still, Condit relies on Pickering, 276 P.3d at 555, to argue that

self-defense is always considered an affirmative defense to second

degree murder and cites Vasquez, 148 P.3d at 330, and Opana,

¶ 16, to contend that this extends to the use of non-deadly physical

force in self-defense. We are not persuaded. Those cases did not

analyze whether non-deadly physical force self-defense is an

affirmative defense to murder, and they did not set a clear standard

for when a district court is required to give an instruction on

non-deadly physical force self-defense as an affirmative defense or

11
as a traverse.1 See People v. Stroud, 2014 COA 58, ¶ 33 (“[W]here

an alleged error is unclear under present law, the [district] court

does not commit plain error.”).

¶ 23 Under the facts of this case, and without any clear case law

guiding the district court, we cannot conclude that it was obvious

that the court should have sua sponte given an instruction on

non-deadly physical force self-defense as an affirmative defense.

Accordingly, any error was not plain and does not warrant reversal.

See Hagos, ¶ 14.

1 For the first time in the reply brief, Condit argues that if the non-

deadly force self-defense is not an affirmative defense, the district
court plainly erred by failing to instruct on the defense as a
traverse. However, “[w]e do not consider arguments raised for the
first time in a reply brief.” In Interest of L.B., 2017 COA 5, ¶ 48.
But even if we were to consider the argument, Colorado courts have
only recognized self-defense as an element-negating traverse with
respect to the crimes requiring proof of criminal negligence, extreme
indifference, or recklessness. See People v. Pickering, 276 P.3d 553,
556 (Colo. 2011); § 18-1-704(4), C.R.S. 2024 (“In a case in which
the defendant is not entitled to a jury instruction regarding self-
defense as an affirmative defense, . . . [t]he court shall instruct the
jury that it may consider the evidence of self-defense in determining
whether the defendant acted recklessly, with extreme indifference, or
in a criminally negligent manner.”) (emphasis added).

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III. Character Evidence

¶ 24 Condit next contends that the court reversibly erred by

allowing the prosecution to introduce inadmissible character

evidence about the victim. Specifically, he contends that (1) some of

the testimony about the victim’s character went beyond evidence of

a peaceful disposition; and (2) the prosecutor introduced evidence of

a specific instance of conduct regarding the victim’s character

during direct examination, even though such evidence is only

admissible during cross-examination. We discern no reversible

error.

A. The Challenged Testimony

¶ 25 During her opening statement, defense counsel told the jury

that the victim “would do lots of drugs,” including LSD. Then, after

noting that there was nothing “that suggest[ed] there was any bad

blood between [the victim] and . . . Condit,” defense counsel asked

to the jury to consider

how utterly terrifying it must have been to be
in a situation where . . . your friend, who you
were just having drugs with and having fun
with, turned on you, picked up a knife, came
at you, and in a moment you had to decide to
defend yourself.

13
¶ 26 To rebut the contention that the victim was the initial

aggressor, the prosecutor introduced evidence that the victim had a

character trait of peacefulness. See CRE 404(a)(2). Three of the

victim’s good friends said the following about the victim during their

testimony at trial:

• “He was very caring, responsible, organized, thoughtful,

and had a small amount of very good friends.”

• “He was the kindest person that you could have ever met.

And all he ever wanted to do was help everyone.”

• “He was loving, caring. He had the biggest heart. He was

amazing.”

Condit’s counsel objected to each of these statements but was

overruled by the district court.

¶ 27 Later, the prosecutor asked two different female witnesses

about an incident that occurred at the victim’s apartment three

days before the victim’s death where the victim, while on LSD,

confronted somebody for sexually harassing the women. Condit

was not involved in this incident, but he was at the apartment when

it happened.

14
¶ 28 The first witness testified that, before the harassment

occurred, the victim had taken LSD and “was very calm, happy,

warm and kind.” Then, after witnessing the sexual harassment, the

victim “was upset, but not in an angry way. He was more just

worried for us, because we were uncomfortable; just concerned.”

The victim “spoke to [the harasser] calmly” and at no point became

angry or violent.

¶ 29 The second witness testified that, after taking the LSD, the

victim “seemed fine. He just seemed like it wasn’t even affecting

him that much. He just seemed a bit, like, happier than usual. He

was already a really happy guy, so he seemed more happier. But he

wasn’t off in any way.” And, even after the harassment, the victim

did not get angry or aggressive, and his demeanor was “the same as

his typical demeanor.”

¶ 30 Condit’s attorney objected to much of this testimony as

irrelevant, cumulative, or unrelated to character evidence of

peacefulness. But she never objected that the statements were

inadmissible because they were evidence of specific instances of

conduct improperly solicited during direct examination.

15
B. Applicable Law and Standard of Review

¶ 31 In general, all relevant evidence is admissible. CRE 402. But,

subject to certain exceptions, “[e]vidence of a person’s character or

a trait of that person’s character is not admissible for the purpose

of proving that the person acted in conformity therewith on a

particular occasion.” CRE 404(a). One such exception allows

“evidence of a character trait of peacefulness of the alleged victim

offered by the prosecution in a homicide case to rebut evidence that

the alleged victim was the first aggressor.” CRE 404(a)(2). Even

then, proof of character is restricted to “testimony as to reputation

or by testimony in the form of an opinion.” CRE 405(a). Specific

instances of conduct to prove a victim’s character for peacefulness

are only permissible in two circumstances: on cross-examination or

when the character trait is an essential element of a charge, claim,

or defense. See CRE 404(a)(2); CRE 405.

¶ 32 District courts are afforded considerable discretion in deciding

evidentiary issues, so we will not disturb such decisions absent a

showing of an abuse of that discretion. People v. Segovia, 196 P.3d

1126, 1129 (Colo. 2008). As mentioned, a court abuses its

16
discretion if its decision is manifestly arbitrary, unreasonable, or

unfair. People v. Acosta, 2014 COA 82, ¶ 27.

¶ 33 We review nonconstitutional trial errors that were preserved by

objection for harmless error. Hagos, ¶ 12. Under this standard, we

reverse only if the error affects the substantial rights of the

parties — that is, if the error “substantially influenced the verdict or

affected the fairness of the trial proceedings.” Id. (quoting Tevlin v.

People, 715 P.2d 338, 342 (Colo. 1986)).

¶ 34 We review evidentiary issues that were not preserved by

objection for plain error. See Hagos, ¶ 14. Once more, plain error

is error that is obvious and substantial, and we reverse only if the

error so undermined the fundamental fairness of the trial as to cast

serious doubt on the reliability of the judgment of conviction. Id.

C. Character Trait of Peacefulness

¶ 35 Condit contends that the district court reversibly erred by

admitting testimony about the victim’s character that went beyond

the trait of peacefulness. We are not persuaded.

¶ 36 “[P]eaceful” is defined as “peaceable” and “untroubled by

conflict, agitation, or commotion.” Merriam-Webster Dictionary,

https://perma.cc/A3DH-9VC4. A person who is “peaceable” is “not

17
contentious or quarrelsome,” is “quietly behaved,” or is “free from

strife or disorder.” Merriam-Webster Dictionary,

https://perma.cc/Y4LQ-MZFR. The statements that the victim

“was the kindest person that you could have ever met”; “was loving,

caring”; and “had the biggest heart” and that “all [the victim] ever

wanted to do was help everyone” all have a logical connection to the

character trait of peacefulness because a person who is “kind” or

“caring” is typically “not contentious or quarrelsome.” Cf. People v.

Jones, 743 P.2d 44, 46 (Colo. App. 1987) (“[T]here is little, if any,

logical connection between being a good worker and having a

peaceful character.”). True, the witnesses did not use the term

“peaceful” in their descriptions of the victim, but that is not the way

people speak in everyday language. The district court did not abuse

its discretion by allowing this testimony.2

¶ 37 We acknowledge that the statement describing the victim as

“responsible, organized, thoughtful, and [having] a small amount of

2 Condit also mentions that two of the witnesses said that the victim

was “like a brother” to them. But these statements are not
character evidence, and Condit does not explain why they should
not have been admitted. See People v. Liggett, 2021 COA 51, ¶ 53
(appellate courts do not consider undeveloped arguments), aff’d,
2023 CO 22.

18
very good friends” included traits that were not related to

peacefulness. But Condit himself testified that the victim “was a

good person,” and we cannot reasonably conclude that a single

statement referencing undisputed character traits made during a

two-week trial with dozens of witnesses could have “substantially

influenced the verdict or affected the fairness of the trial

proceedings.” Hagos, ¶ 12 (quoting Tevlin, 715 P.2d at 342).

D. The Previous LSD Incident

¶ 38 Condit also contends that the district court erred by allowing

testimony about when the victim was on LSD three days before his

death. Condit’s counsel objected to much of the challenged

testimony on the grounds that it was irrelevant, cumulative, or

unrelated to the character trait of peacefulness. However, she never

objected on the basis that the testimony was inadmissible under

CRE 405(a) because it was evidence of specific instances of conduct

presented during direct examination. “Accordingly, because

[Condit] did not object on the grounds he now asserts on appeal,

our review is governed by the plain error standard.” People v.

Deroulet, 22 P.3d 939, 944 (Colo. App. 2000) (citing People v.

Hampton, 746 P.2d 947, 953 n.11 (Colo. 1987)), rev’d on other

19
grounds, 48 P.3d 520 (Colo. 2002). Assuming that it was error to

admit this testimony on direct examination, we conclude that the

error was not plain because it was not substantial. See Hagos,

¶ 14.

¶ 39 First, the testimony regarding the earlier LSD incident was not

central to Condit’s theory of self-defense. Condit testified that he

had never seen the victim angry before and that the victim’s

behavior on the day of the killing was abnormal. Condit never

directly tied the victim’s behavior to the effects of LSD. He did not

call an expert to testify that LSD could lead to sudden and drastic

changes in behavior. Indeed, the People’s expert witness testified

that reports of people exhibiting violent behavior after taking LSD

are “pretty rare,” and, with those reports, it “is often difficult to

know if it was the drug or a predisposition because of a psychiatric

disorder or something else.” Under these circumstances, the

testimony about the LSD incident was unlikely to have

meaningfully affected the jury’s consideration of Condit’s

self-defense claim.

¶ 40 Second, the testimony was not a central part of the

prosecution’s case against Condit. During the two-week jury trial,

20
the prosecution called thirty-four witnesses to testify. The

testimony of the two witnesses who spoke about the LSD incident

was brief and constituted only a minute portion of the prosecution’s

case-in-chief. And any prejudice from this testimony was

substantially mitigated because the prosecution had already

properly elicited opinion testimony demonstrating that the victim

had a generally peaceful character and expert testimony

establishing that LSD typically does not make users aggressive or

violent. Cf. People v. Ayala, 919 P.2d 830, 833 (Colo. App. 1995)

(“The impact of the reputation testimony was minimized

because . . . the trial court did not err in permitting the police

officer to testify regarding his opinion of the informant’s general

character for truthfulness.”).

¶ 41 Thus, we conclude that this assumed error did not so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction. See Hagos,

¶ 14.

IV. Cumulative Error

¶ 42 Finally, Condit contends that the cumulative effect of the

alleged errors in his trial mandates reversal. We disagree.

21
¶ 43 “The doctrine of cumulative error requires that numerous

errors be committed, not merely alleged.” People v. Conyac, 2014

COA 8M, ¶ 152. Under the doctrine, although an individual error,

when viewed in isolation, may be harmless, reversal is required

when the cumulative effect of multiple errors and defects

substantially affected the fairness of the trial or the integrity of the

factfinding process. Howard-Walker v. People, 2019 CO 69, ¶ 24.

¶ 44 We have assumed that the district court erred by failing to sua

sponte instruct the jury on non-deadly physical force self-defense

as an affirmative defense and by allowing testimony about the

previous LSD incident, and we concluded that the errors were not

plain. Additionally, we concluded that it was harmless error for the

court to admit the statement that referenced character traits other

than peacefulness.

¶ 45 Condit’s claim of self-defense hinged almost entirely on the

credibility of his testimony, and Condit’s credibility was severely

diminished because he

• admitted to attempting to cover up the killing by cleaning

up the evidence in the apartment, dumping the victim’s

body in the mountains, and lying to the police;

22
• told his uncle that he killed the victim during a dispute

but did not mention that he did so in self-defense; and

• did not explain the additional knife wounds to the

victim’s hand and foot in his testimony about

self-defense.

For these reasons, as well as the reasons that none of the errors

individually mandated reversal, we conclude that the cumulative

effect of the two assumed errors and the single improper statement

did not substantially impact the fairness of the trial or the integrity

of the factfinding process. See id.

V. Disposition

¶ 46 The judgment is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.

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