Peo v. Wilson

23CA0608 Peo v Wilson 09-25-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0608
City and County of Denver District Court No. 22CR3036
Honorable Darryl F. Shockley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Donavon B. Wilson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Grove, J., concurs
Schutz, J., specially concurs

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 25, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Donavon B. Wilson, appeals the district court’s

judgment of conviction entered on a jury’s verdict finding him guilty

of first degree trespass of an inhabited dwelling. The only

contention he raises on appeal is that the court erred by giving the

jury a reasonable doubt instruction that, in his view, lowered the

prosecution’s burden of proof and diminished the presumption of

innocence. That error, he says, amounted to structural error

requiring reversal of his conviction. We reject Wilson’s contention

and therefore affirm.

I. Background

¶2 Wilson’s trial took place in early 2023. At the jury instruction

conference, the court said it intended to use the model reasonable

doubt instruction “just released Friday by the [Colorado Supreme

Court’s Model Criminal Jury Instructions] Committee.” Defense

counsel objected, arguing that the revised model instruction’s

language was problematic for several reasons. Defense counsel

urged the court to instead use the model instruction that had

previously been used for decades or, in the alternative, to modify

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the language of the new model instruction. The court chose to use

the 2022 modified version of the instruction.1

II. Analysis

¶3 Before 2022, the relevant Colorado model jury instruction

defined reasonable doubt as follows:

Reasonable doubt means a doubt based upon
reason and common sense which arises from a
fair and rational consideration of all of the
evidence, or the lack of evidence, in the case.
It is a doubt which is not a vague, speculative
or imaginary doubt, but such a doubt as
would cause reasonable people to hesitate to
act in matters of importance to themselves.

COLJI-Crim. E:03 (2021). But in 2022, the instruction was

substantially revised. It became part of a combined instruction on

the presumption of innocence, the prosecution’s burden of proof,

and the meaning of reasonable doubt. And the language defining

reasonable doubt differs in several respects from that in the

1 In his reply brief, Wilson says the court intended to use the 2023

modified version of the instruction rather than the 2022 modified
version. But the record belies that assertion. The 2023 version
merely reincorporated language (in one sentence) from the pre-2022
instruction that had been omitted from the 2022 version. The court
and counsel discussed the version omitting that language — the
2022 version. And it was the 2022 version that the court gave the
jury.

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previous model instruction. The 2022 modified version reads as

follows:

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

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

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

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

After considering all the evidence, if you decide
the prosecution has failed to prove any one or

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more of the elements of a crime charged
beyond a reasonable doubt, you should find
the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022).

¶4 The district court in this case gave this 2022 version to the

jury verbatim.

¶5 Wilson contends that this instruction was constitutionally

defective in two ways. First, by failing to include language that a

reasonable doubt can be based on the lack of evidence presented,

the instruction could have led the jurors to believe they couldn’t

consider the lack of evidence, thereby lowering the prosecution’s

burden of proof. Second, the “real possibility” language was

unclear and could have led jurors to apply differing levels of the

required proof to support a conviction.

¶6 In People v. Schlehuber, 2025 COA 50, a division of this court

thoroughly considered materially identical arguments and held that

the 2022 modified version of the reasonable doubt instruction

doesn’t lower the prosecution’s burden of proof or undermine the

presumption of innocence. See also People v. Melara, 2025 COA 48,

¶¶ 24-32 (holding that the court should include “lack of evidence”

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language in the instruction but that the failure to do so isn’t

structural error).2

¶7 Though Wilson urges us not to follow Schlehuber, we conclude

that it is well reasoned and therefore follow it.

III. Disposition

The judgment of conviction is affirmed.

JUDGE GROVE concurs.

JUDGE SCHUTZ specially concurs.

2 Wilson argues only that the defects he asserts render the court’s

giving of the instruction structural error. He doesn’t make any
argument in the alternative that these supposed defects amount to
any lesser form of error.

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JUDGE SCHUTZ, specially concurring.

¶8 I concur with my colleagues’ conclusion that the trial court’s

combined burden of proof/presumption of innocence instruction

(disputed instruction) did not lower the prosecution’s burden of

proof or undermine the presumption of innocence. I write

separately, however, to emphasize a few points.

I. Lack of Evidence

¶9 As the majority notes, the disputed instruction tracked the

2022 combined reasonable doubt/presumption of innocence

instruction (2022 model instruction), rather than the 2023

combined reasonable doubt/presumption of innocence instruction

(2023 model instruction). Even though this case was tried in

February of 2023, the issues presented in the appeal do not require

us to decide whether a trial court would err by giving the 2022

model instruction after the publication of the 2023 model

instruction.

¶ 10 The 2022 model instruction was prepared by the Model

Criminal Jury Instructions Committee of the Colorado Supreme

Court (committee). It is located and archived electronically in a

publication titled “Colorado Jury Instructions Criminal 2022.” See

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COLJI-Crim. (2022). This version of the combined reasonable

doubt/presumption of innocence instruction is often referred to as

the “2022 model instruction,” “2022 modified version,” or

something similar. See supra ¶ 2; People v. Schlehuber, 2025 COA

50, ¶ 18; People v. Melara, 2025 COA 48, ¶ 30.

¶ 11 The committee modified the 2022 model instruction again in

the 2023 edition by adding the following sentence at the end of the

first paragraph: “A reasonable doubt can be based on the evidence

presented or the lack of evidence presented.” COLJI-Crim. E:03

(2023). Although the committee did not provide an explanation for

this addition, it was apparently intended to address the immediate

and frequent challenges to the committee’s unexplained omission of

the “lack of evidence” language from the 2022 model instruction.

¶ 12 Given this complicated procedural history, and the associated

naming conventions, it is easy to assume that the 2022 model

instruction was publicly available in 2022, and that the 2023 model

instruction was publicly available in January of 2023. Reflecting

these uncertainties in his reply brief, Wilson argues that the “trial

court clearly intended to utilize the 2023 model . . . instruction[].”

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¶ 13 But that is not possible. The 2022 model instruction was not

published until January 27, 2023, three days prior to the start of

the trial in this case. See Colo. Jud. Branch, Colorado Supreme

Court Model Criminal Jury Instructions Committee Revises

“Reasonable Doubt” Instruction in Annual Update (Jan. 27, 2023),

https://perma.cc/2CQL-T6M4. And, the committee did not

approve the 2023 model instruction until October 27, 2023, well

after this trial. See Colo. Jud. Branch, Model Crim. Jury

Instructions Comm., Meeting Minutes of: Friday, October 27, 2023,

https://perma.cc/J67Z-G86M.

¶ 14 Thus, despite Wilson’s contention, the trial court did not

intend to apply the 2023 model instruction and, instead, provided

the disputed instruction in accordance with the 2022 model

instruction then in place. For these reasons, neither the majority

nor I need to address whether it would be structural error, or some

other form of error, for a trial court to omit the “lack of evidence”

language at a trial held after the 2023 model instruction was

published.

¶ 15 Turning to Wilson’s substantive argument, for the reasons

explained in Melara, ¶¶ 24-32, I agree with the majority that the

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disputed instruction did not lower the prosecution’s burden of proof

or undermine the presumption of innocence when considered in the

context of the jury instructions as a whole. See Riley v. People, 266

P.3d 1089, 1092 (Colo. 2011) (we review de novo a trial court’s jury

instructions as a whole to determine whether the court met this

obligation). This conclusion is amplified by the trial court’s rulings

and the arguments presented by Wilson’s counsel.

¶ 16 While rejecting the request to include the “lack of evidence”

language in the disputed instruction, the trial court made clear that

it would permit Wilson’s counsel to argue the lack of evidence in

closing argument. And Wilson’s counsel did just that, repeatedly

emphasizing the perceived lack of evidence in this case. True,

closing argument is not a substitute for accurate jury instructions.

People v. Jones, 2018 COA 112, ¶ 64 (“‘[A]rguments by counsel

cannot substitute for instructions by the court.’ It is the duty of the

trial court — not counsel — to ‘correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving instructions.’” (first quoting Taylor v. Kentucky, 436 U.S. 478,

488-89 (1978); and then quoting People v. Jacobson, 2017 COA 92,

¶ 10)). But the fact that Wilson’s counsel was permitted to tell the

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jury, “[I]f the prosecution and police officers don’t present evidence,

you get to use that against them,” reflects that the instructions, as

a whole, did not preclude him from arguing the asserted “serious

lack of evidence in the case.”

II. Real Possibility

¶ 17 I share the majority’s conclusion that, for the reasons stated in

Schlehuber, the trial court did not err by instructing the jury that,

“if you think there is a real possibility that the defendant is not

guilty, then the prosecution has failed to prove the crime charged

beyond a reasonable doubt.” Schlehuber, ¶¶ 9, 32 (quoting COLJI-

Crim. E:03 (2022)).

III. Future Clarity

¶ 18 Finally, I encourage the supreme court to address the

uncertainties currently associated with the model reasonable doubt

instruction, which have created significant concerns among the

criminal bar, vexed our trial courts, led to a multitude of appeals

with varying results, and created ongoing uncertainty.

¶ 19 By way of illustration of these uncertainties, the committee

stated that the 2022 model instruction “in no ways casts aspersions

on the validity of the prior version of this instruction.” COLJI-Crim.

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E:03 (2022) cmt. 1. And the supreme court and divisions of this

court have repeatedly approved the pre-2022 version of the model

reasonable doubt instruction, including the lack of evidence

language. See, e.g., People v. Vanrees, 125 P.3d 403, 410 (Colo.

2005) (approving instruction that allowed the jury to consider the

evidence or lack of evidence presented in the case); People v. Rubio,

222 P.3d 355, 363 (Colo. App. 2009) (“The instruction that

reasonable doubt can arise not just from the evidence but also from

‘lack of evidence’ strengthens rather than undercuts the

presumption of innocence.”). So presumably that instruction

remains valid.

¶ 20 At least two divisions of this court have also concluded in

published opinions that the 2022 modified instruction did not lower

the prosecution’s burden of proof and therefore did not amount to

structural error. See Schlehuber, ¶ 19; Melara, ¶ 32. But cf.

Melara, ¶119 (Welling, J., specially concurring) (concluding that

“the trial court’s denial of [the defendant’s] request to include the ‘or

lack of evidence’ language, though understandable based on the

then-recent change to the [2022] model instruction, nevertheless

lacked a rational basis” and was therefore an abuse of discretion).

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But in both Melara and Schlehuber, the divisions also concluded

that it is better for trial courts to include the “lack of evidence

language.” See Melara, ¶ 28 (“[G]oing forward (and absent contrary

direction from the supreme court), we conclude that trial courts

should include a statement within the reasonable doubt instruction

that the jury may consider the lack of evidence in a case when

determining whether the prosecution has met its burden.”);

Schlehuber, ¶ 20. The lack of evidence language is now embodied in

the 2023 model instruction, which has likely been used in some —

and probably the majority — of cases tried after the model 2023

instruction became publicly available.

¶ 21 As it stands, then, we have three varying reasonable doubt

instructions that have been utilized in our trial courts and approved

by our appellate courts within the last three years. So how are trial

courts to decide which instruction to use going forward? I

appreciate the oft-repeated adage that trial courts have wide

discretion in fashioning the content of a particular instruction, so

long as the instructions as a whole adequately inform the jury of

the applicable law. See People v. Manyik, 2016 COA 42, ¶ 65;

Tibbels v. People, 2022 CO 1, ¶ 25 (“[T]rial courts retain some

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flexibility in defining for the jury what constitutes a reasonable

doubt.”). But we have provided trial courts no meaningful guidance

on what factors they should consider in exercising their discretion

in the context of the various reasonable doubt instructions

currently on the menu. Does it depend on the particular facts of a

case, the persuasiveness of the arguments made in an individual

case, the judicial officer’s subjective preference, or some other

factor? On an issue as fundamental and essential to our criminal

justice system as reasonable doubt, I respectfully suggest that the

public, litigants, and courts would greatly benefit from having a

single, approved burden of proof instruction (whether combined

with a presumption of innocence instruction or otherwise).

¶ 22 Such an outcome would promote efficiency and confidence in

the criminal justice system. Currently, the debate over which of the

three reasonable doubt instructions that the court should give in a

particular case has fallen on either side of a predictable fault line.

Prosecutors urge the use of the 2022 model instruction, while

defendants argue for some version of the pre-2022 model

instruction or, at a minimum, the 2023 model instruction. That

fault line, the multiple options currently available to trial courts,

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and the nebulous nature of a trial court’s discretion in this context

are not desirable. They create subjectivity, uncertainty, and

perceived inconsistencies in the application of a foundational

principle of our criminal justice system. See Tibbels, ¶ 24 (“The

[reasonable doubt] standard provides concrete substance for the

presumption of innocence — that bedrock ‘axiomatic and

elementary’ principle whose ‘enforcement lies at the foundation of

the administration of our criminal law.’” (quoting In re Winship, 397

U.S. 358, 363 (1970))).

¶ 23 For these reasons, I respectfully encourage the supreme court

to intervene and adopt a uniform definition of reasonable doubt that

will permit Colorado’s courts to speak with a clear and unified voice

on this fundamental issue.

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