Peo v. Herrington

23CA1314 Peo v Herrington 06-12-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1314
El Paso County District Court No. 21CR4809
Honorable Chad Miller, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob Herrington,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE GROVE
Welling and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 12, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jacob Herrington, appeals the judgment of

conviction entered after a jury found him guilty of obstructing a

peace officer. We affirm.

I. Background

¶2 The prosecution charged Herrington based on his conduct

surrounding an August 2021 incident at an El Paso County gas

station. Following an altercation with another individual outside

the gas station, Herrington entered the establishment and began

yelling. An employee called the police, and Herrington exited the

gas station at the behest of a customer.

¶3 Officers arrived to find Herrington in the parking lot with “a

knife sheath on his side,” describing him during later testimony as

“loud,” “yelling,” “erratic,” “making a lot of nonsensical statements,”

“belligerent,” “[a]gitated, upset, yelling, cursing, just causing a

scene,” and “[e]xtremely loud.” Herrington initially complied with

officers’ directives, and they detained him. But after being

handcuffed, Herrington refused to identify himself and balled up his

fingers as officers attempted to scan them with a fingerprint reader.

Herrington indicated his desire to remain silent as he lay limply on

the ground and rolled over in response to officers’ attempts to

1
restrain him. Officers transported Herrington to jail to identify him,

where he continued to resist being restrained and allegedly spat in

an officer’s face.

¶4 Herrington went to trial on the following charges: (1) second

degree assault (based on the spitting allegation); (2) obstructing a

peace officer; and (3) disorderly conduct. A jury found Herrington

guilty of the obstruction charge only.

II. Suppression

¶5 Herrington contends that the district court reversibly erred by

not suppressing “evidence obtained after [his] arrest” on the basis

that officers lacked probable cause to arrest him for disorderly

conduct. Specifically, he argues, probable cause was absent

because no evidence established that his yelling while at the gas

station was not constitutionally protected speech. According to

Herrington, the “evidence of [his] alleged obstruction flowed directly

from his actions after he was placed under arrest without probable

cause,” and, therefore, this evidence should have been suppressed.

¶6 The parties dispute preservation of this issue. Yet even if we

assume Herrington’s argument on appeal was preserved, and even

if we assume that Herrington is correct that his arrest lacked

2
probable cause, his suppression argument is unavailing because

the evidence that Herrington obstructed a peace officer still would

have been admissible.

¶7 In People v. Doke, 171 P.3d 237 (Colo. 2007), our supreme

court explained that evidence of a defendant’s criminal conduct is

admissible even if that conduct occurred in response to an illegal

search or seizure. Specifically, a person whose Fourth Amendment

rights are violated by an officer may not respond by committing a

new crime “and then rely on the exclusionary rule to suppress

evidence pertaining to that criminal act.” Id. at 239; see also People

v. Smith, 870 P.2d 617, 619 (Colo. App. 1994) (“[I]f, following an

illegal stop or attempted stop, the detained person's response is

itself a new, distinct crime, then the police constitutionally may

arrest the person for that crime and the evidentiary fruit of that

arrest will not be suppressed.”). A new criminal act “breaks the

causal connection between the police illegality and the evidence of

the new crime so that sufficient attenuation occurs to treat evidence

of the new crime as admissible, and therefore the evidence should

not be suppressed under the derivative evidence rule.” Doke, 171

P.3d at 240. “Evidence is not necessarily excluded ‘simply because

3
it would not have come to light but for the illegal action of the

police.’” Id. (quoting People v. Lewis, 975 P.2d 160, 170 (Colo.

1999)).

¶8 Moreover, the obstruction statute itself states that “[i]t is not a

defense to a prosecution under this section that the peace officer

was acting in an illegal manner, if he or she was acting under color

of his or her official authority.” § 18-8-104(2), C.R.S. 2024.

¶9 Thus, even if Herrington’s arrest for disorderly conduct was an

illegal seizure, evidence of Herrington’s obstruction of a peace officer

following that arrest was still admissible and the district court did

not err in refusing to suppress it.1

1 In supplemental briefing that we ordered and the parties

submitted after oral argument, Herrington urges us to interpret the
rule outlined in People v. Doke, 171 P.3d 237 (Colo. 2007), as
applying only to violent offenses. We decline to do so. Nothing in
Doke suggests such a limitation on the holding in that case. See
People v. Tomaske, 2019 CO 35, ¶ 18 (holding that the exclusionary
rule does not apply where police misconduct led to the commission
of a “new crime”); see also People in Interest of K.D.W., 2020 COA
110, ¶ 29 (“[T]he search of K.D.W.’s pockets was attenuated from
the illegal seizure because K.D.W.’s independent and willful
criminal actions of trespass and obstructing a peace officer broke
the causal chain between the police officers’ misconduct and their
discovery of the evidence of K.D.W.’s criminal conduct.”).

4
III. Arguello Advisement

¶ 10 Herrington contends that the district court violated his right to

represent himself. Specifically, Herrington asserts structural error

due to the district court’s refusal to provide an Arguello advisement.

See People v. Arguello, 772 P.2d 87 (Colo. 1989). We disagree.

A. Additional Facts

¶ 11 After Herrington’s arrest, the court appointed a public

defender to represent him. During his arraignment, Herrington

made the first of what would become several requests to represent

himself. The court postponed discussing his request until

Herrington first had a chance to meet with his counsel to discuss

the matter. Soon afterward, Herrington began submitting pro se

motions while counsel continued to represent him. Defense counsel

then raised the issue of Herrington’s competency, and the court

delayed addressing the self-representation matter until that issue

was resolved.

¶ 12 An evaluator opined that Herrington was incompetent, and

Herrington began the process of restoration. After two months of

restoration treatment, Herrington received another evaluation; this

time the evaluator opined that Herrington was competent.

5
¶ 13 At Herrington’s next court appearance, the court, Herrington,

and defense counsel had the following colloquy:

[HERRINGTON]: I’m wanting to withdraw the
Public Defenders.

THE COURT: Okay. Well, sir, you’re not able
to do that unless there’s a conflict. Are you
suggesting there’s a conflict with the Public
Defender’s Office? Because I can hold a
Conflict Hearing if you believe that to be the
case.

[HERRINGTON]: Well, that and now that I’m
deemed competent, I should be able to exercise
my right of representing myself.

THE COURT: Okay. And, I’ve reviewed some of
the motions that you’ve filed, which indicate to
me that you’re not capable of representing
yourself. But we can have a hearing on that as
well, if you’d like. We can proceed with that
discussion, at this time . . .

[HERRINGTON]: Well, yeah.

THE COURT: . . . but I’m not going to let you
represent yourself if you’re not capable of
doing so.

[HERRINGTON]: I don’t know why I’m not able
to.

THE COURT: Well, then we can talk about
that. Let’s -- I think we have to talk about that
first. Well, either way I’m going to reset the
cases for trial and Prelim. So, I guess we can
get new dates first and then talk about . . . .

6
[DEFENSE COUNSEL]: Does the Court want to
have a Conflict Hearing first and then discuss?

[HERRINGTON]: I’ve been told by my Public
Defender, you too, that the victims of the
crime -- that they were not going to gather any
evidence whatsoever that had a double
potential of assisting me in further litigations
in civil matters.

THE COURT: Okay. Well, hang on. That
sounds like he’s raising a potential conflict
issue. Sir, we’ll hear that, but a conflict
issue’s heard outside the presence of the
District Attorney so that it can’t hurt your
case. So, I want you to hold on a second.
That sounds like a request for a Conflict
Hearing. [Prosecutor], I’m going to ask you to
leave the courtroom.

¶ 14 The court then held a conflict hearing, during which it

concluded that no conflict existed.

¶ 15 Immediately after the conflict hearing, as the court was about

to provide Herrington an Arguello advisement and assess his

request to represent himself, Herrington’s counsel again raised the

issue of competency “[b]ased on some of the things that were said in

the conflict hearing.” Noting that it “ha[d] concerns, as well” about

Herrington’s competency based on “things being said that just don’t

make sense,” the court explained that “it [was] too early for an

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Arguello advisement if the finding of competence is being

challenged” and that it “[could not] get to the issue of self-

representation today.” The court informed Herrington that he could

“re-raise that issue after we have the new evaluation resolved. Once

I have a second evaluation, if it reaches the same conclusion, Mr.

Herrington, then we can move forward with your request to

represent yourself, at that time if you are still asking to.”

¶ 16 The following month, the court held a second conflict hearing

at the request of Herrington’s counsel, during which it found

Herrington had a conflict with his public defender and appointed

alternate defense counsel. Several weeks later, the competency

evaluator opined that Herrington was competent, and the court

subsequently found Herrington competent to proceed. Herrington

did not renew his request to represent himself, and alternate

defense counsel represented him at the trial.

B. Relevant Law and Standard of Review

¶ 17 A criminal defendant has a fundamental constitutional right to

counsel and a correlative right to self-representation. See id. at 92.

¶ 18 A trial court has a duty to ensure that any waiver by a

defendant of the right to counsel is voluntary, knowing, and

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intelligent. Id. at 94. Among other things, this duty requires the

court to ensure that the defendant is aware of the dangers and

disadvantages of self-representation. Id. at 95. To facilitate this

analysis, our supreme court has suggested a specific set of

questions that the court should ask before allowing a defendant to

waive the right to counsel. Id. at 98. Ultimately, a defendant must

validly waive the constitutional right to counsel to exercise the right

to self-representation. People v. Davis, 2015 CO 36M, ¶ 15. A

defendant validly waives the right to counsel if he (1) is competent

to waive the right, and (2) makes the waiver voluntarily, knowingly,

and intelligently. Id. Whether a defendant has waived the right to

counsel presents a mixed question of law and fact that we review de

novo. People v. Alengi, 148 P.3d 154, 159 (Colo. 2006).

¶ 19 Due process and Colorado statutes “prohibit trying or

sentencing a defendant who is incompetent to proceed.” People v.

Zimmer, 2021 COA 40, ¶ 17. A defendant is incompetent to proceed

if,

as a result of a mental disability or
developmental disability, the defendant does
not have sufficient present ability to consult
with the defendant’s lawyer with a reasonable
degree of rational understanding in order to

9
assist in the defense, or . . . , as a result of a
mental disability or developmental disability,
the defendant does not have a rational and
factual understanding of the criminal
proceedings.

§ 16-8.5-101(12), C.R.S. 2024.

¶ 20 When either party or the court raises the question of a

defendant’s competency, “the court may make a preliminary finding

of competency or incompetency to proceed, which is a final

determination unless a party to the case objects within seven days

after the court’s preliminary finding.” § 16-8.5-103(1)(a), C.R.S.

2024. “If either party objects to the court’s preliminary finding, or if

the court determines that it has insufficient information to make a

preliminary finding, the court shall order that the defendant be

evaluated for competency by the department and that the

department prepare a court-ordered report.” § 16-8.5-103(2).

Following receipt of that report, “[i]f neither party requests a hearing

or a second evaluation within the applicable time frame, the court

shall enter a final determination, based on the information then

available to the court, whether the defendant is or is not competent

to proceed.” § 16-8.5-103(5).

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C. Analysis

¶ 21 Herrington requested to represent himself several times before

trial. However, he did not make any of those requests at a time

during which he could have validly waived his right to counsel. He

made his initial request during his arraignment and prior to

discussing the matter with his counsel, leading the court to

postpone providing an Arguello advisement until after the two

conferred.2 Shortly thereafter, an evaluator opined that Herrington

was incompetent, preventing the court from considering the issue

further at that time. After restoration and a new evaluation opining

that Herrington was competent (but before the court accepted the

results of that evaluation and deemed Herrington competent),

Herrington raised both a conflict issue and made another request to

represent himself. The court addressed the conflict issue first, and

during the conflict hearing Herrington made statements that again

called his competency into question. Accordingly, the court

postponed providing an Arguello advisement, explaining to

2 Because Herrington does not contend that the district court erred

in its approach to his request during his arraignment to represent
himself, we express no opinion on the matter.

11
Herrington that they could revisit the issue if he wished once the

court deemed him competent. After the court appointed alternate

defense counsel and made a final determination that Herrington

was competent, Herrington made no further request to represent

himself.

¶ 22 Because a defendant must be competent to validly waive the

right to counsel, Davis, ¶ 15, there was no reason for the district

court to provide Herrington an Arguello advisement until his

competency was established. Put another way, Herrington had to

be competent in order to waive his right to counsel, so the district

court had no obligation to advise him further while his competency

remained in doubt. And every instance of Herrington requesting to

waive counsel that is before us occurred while his competency was

in question. Thus, without having first established Herrington’s

competency, any waiver of his right to counsel would have been

invalid irrespective of his responses to an Arguello advisement.

IV. Batson Challenge

¶ 23 Herrington next alleges that the district court erroneously

denied his challenge pursuant to Batson v. Kentucky, 476 U.S. 79

12
(1986), to the prosecution’s peremptory strike of a Hispanic juror.

We are not persuaded.

A. Additional Facts

¶ 24 Juror 15, whose removal prompted Herrington’s Batson

challenge, was one of two individuals3 in the forty-person venire to

identify as “Hispanic” in response to a juror questionnaire prompt

that read: “I consider myself to be a member of the following

racial/ethnic/minority group.” In response to another question

from the questionnaire about whether the juror had “had a

particularly good or bad experience with law enforcement,” Juror 15

wrote: “Good, I Guess Not Particularly Negative or Positive.” Juror

15 also noted in his questionnaire that he had “had 2 cousins killed

unrightfully By Police in the Last 10 yrs,” and that he did not think

he could be fair in a case involving a police shooting. In response to

questions from the prosecution regarding these incidents, Juror 15

stated that he could be unbiased when assessing the case but that

his cousins’ deaths were “somewhat traumatizing” to him and that

3 The second individual was never called to the jury box and so was

neither struck nor empaneled.

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“the thought of someone, let alone a family member, being injured

or possibly killed by police is very troubling to [him].”

¶ 25 The prosecution used a peremptory strike to remove Juror 15.

Defense counsel objected to the strike under Batson and the

following discussion occurred:

[Defense counsel]: Your Honor, I believe the
People have used their peremptory on the only
Hispanic juror in the panel.

THE COURT: I don’t think that’s true, but go
ahead and give me your reason. Prima facie
case from defense this is based on race.

[Defense counsel]: [Juror 15] answers on
questionnaire indicated he could be fair. I
don’t see any reason.

THE COURT: Well, recent case law made it
very clear I can’t give the reason. So I will let
you all give the reason.

[Prosecutor 1]: Your Honor, the People are
excusing this juror because he talked about
two of his cousins being killed by law
enforcement. And I think that will taint his
assessment of the case.

THE COURT: So first off, for purposes of
[Batson], I don’t necessarily find that the first
prong is met just by stating that this juror is a
minority. That said, to the extent that the
Appellate Court disagrees, I find that it was
met. The People have stated a reason, a race
neutral reason, which, again, I don’t think they

14
needed to under the circumstances. So I’m
going to grant it.

[Prosecutor 2]: Just for the record, it was a bad
experience, was traumatizing to him. I wanted
to state that.

THE COURT: I agree.

¶ 26 Meanwhile, Juror 20, whom the parties describe on appeal as

having “a Spanish surname” and “a Hispanic surname,” did not

identify herself in her questionnaire as belonging to any

“racial/ethnic/minority group.” She wrote that she did not “feel like

[she] could decide[] anything for anyone,” that she was “very

bias[ed] with everything,” and that she did not “get along with some

race[s].” Juror 20 also wrote that she is “a person who doesn’t like

anything to do with crime or any type of cases” and “tend[s] to have

a lot of anxiety with situation[s] like this.” In response to

questioning from the prosecution, however, she stated that she did

not think her biases would affect her ability to serve impartially on

the jury. The prosecution also used a peremptory strike on Juror

20, to which defense counsel did not object.

¶ 27 Juror 23, whom neither party describes as having “a Spanish

surname” or “a Hispanic surname,” did not identify herself in her

15
questionnaire as belonging to any “racial/ethnic/minority group.”

She did, however, note in her questionnaire that she had a “[b]ad”

experience with law enforcement when she was 15 years of age (her

questionnaire indicated that she was 63 years of age at the time she

filled it out), which she described as an attorney leading her as a

witness in a manner that was “quite unkind.” When the

prosecution questioned Juror 23 about this event, she explained

that it occurred in traffic court when a friend faced a traffic

violation, but that she could “put that behind [her] as a — you

know, a young experience.” The prosecution did not attempt to

strike Juror 23, and she ultimately sat on the jury

B. Relevant Law and Standard of Review

¶ 28 The Equal Protection Clause of the Fourteenth Amendment

forbids a challenge to a potential juror based solely on race.

Batson, 476 U.S. at 89; see also People v. Wilson, 2015 CO 54M,

¶ 10 n.4. When a party raises a Batson challenge, the trial court

engages in a three-step analysis to assess the claim of racial

discrimination. Wilson, ¶ 10.

¶ 29 First, the opponent of the peremptory strike must allege a

prima facie case showing that the striking party excused the

16
potential juror based on race. Id. As long as the totality of the

relevant circumstances raises an inference of racial motivation, the

objecting party has satisfied the step-one burden. Batson, 476 U.S.

at 96; accord Valdez v. People, 966 P.2d 587, 589 (Colo. 1998).

¶ 30 Second, the burden shifts to the striking party to provide a

race-neutral explanation for excusing the potential juror. Wilson,

¶ 10. The striking party need only provide any race-neutral

justification for the strike, regardless of implausibility or

persuasiveness. People v. Ojeda, 2022 CO 7, ¶ 24. The opponent is

then given the opportunity to rebut the striking party’s explanation.

Wilson, ¶ 10.

¶ 31 Third, the trial court must decide the ultimate question:

whether the objecting party has established purposeful

discrimination. Ojeda, ¶ 27. In doing so, the court must assess the

striking party’s actual subjective intent and the plausibility of its

nondiscriminatory explanation. Id.; Wilson, ¶ 10.

¶ 32 The standard of review for a Batson challenge depends on

which step of the analysis is challenged on appeal. People v. Friend,

2014 COA 123M, ¶ 8, aff’d in part and rev’d in part, 2018 CO 90.

We review steps one and two de novo. People v. Rodriguez, 2015 CO

17
55, ¶ 13. The court’s ruling at step three, however, is a factual

finding to which “an appellate court should defer, reviewing only for

clear error.” Id.; see also People v. Beauvais, 2017 CO 34, ¶ 32. We

accord the trial court’s ruling “great deference and will only reverse

under ‘exceptional circumstances.’” Beauvais, ¶ 25 (quoting Snyder

v. Louisiana, 552 U.S. 472, 477 (2008)).

C. Analysis

¶ 33 Applying the principles outlined above to these facts, we

conclude that the district court did not clearly err by finding that

Herrington failed to prove that the peremptory challenge to Juror 15

was based on race.

¶ 34 The People argue that Herrington “failed to make a prima facie

showing of discriminatory purpose” at Batson step one. However,

where a trial court proceeds, as it did here, to analyze a Batson

challenge under steps two and three, the preliminary issue of

whether the defendant made a prima facie showing is moot. See

Valdez, 966 P.2d at 592; People v. Cerrone, 854 P.2d 178, 186 n.13

(Colo. 1993).

¶ 35 Herrington, meanwhile, does not challenge the court’s

conclusion that the prosecution carried its burden at step two of

18
the Batson framework by providing a facially race-neutral reason for

striking Juror 15.4

¶ 36 Turning to step three of the Batson analysis, Herrington

contends that the prosecution’s race-neutral explanation for

exercising the peremptory strike of Juror 15 was pretextual because

(1) there was a “pattern of strikes exercised against Hispanic and

Spanish-surnamed jurors,” and (2) the prosecution did not strike

Juror 23, who was “a similar but non-Hispanic juror.”

¶ 37 With respect to Herrington’s first contention, he attempts on

appeal to portray a pattern of racially motivated strikes by

discussing multiple jurors, half of whom are irrelevant to the

Batson analysis. Herrington’s opening brief focuses on two jurors

who “explicitly identified as ‘Hispanic,’” and two jurors who “had

Spanish surnames,” emphasizing that “[n]one of them served on the

4 Herrington appears to suggest that the district court did not

provide defense counsel adequate opportunity to rebut the
prosecution’s proffered race-neutral explanation, but he does not
develop this argument. In any event, defense counsel preemptively
argued to the court that Juror 15’s questionnaire answers
“indicated he could be fair” and that defense counsel did not see
any reason for the strike before the prosecution provided a race-
neutral reason. After that point, defense counsel made no effort to
rebut the prosecution’s explanation.

19
jury.” That may well be true, but Herrington ignores the fact that

only two of those jurors are at all relevant to the Batson analysis:

(1) Juror 15, who identified as “Hispanic” in his questionnaire and

was removed with a peremptory strike; and (2) Juror 20, whom

Herrington describes as having “a Spanish surname” but who did

not identify herself in her questionnaire as belonging to any

“racial/ethnic/minority group,” and who was removed with a

peremptory strike to which defense counsel did not object. Juror 7,

whom Herrington describes as “a woman with a Spanish surname,”

was struck for cause. But because Batson applies only to a

prosecutor’s peremptory strike of a potential juror, see Wilson, ¶ 10,

and not a prosecutor’s challenge for cause, Juror 7 is irrelevant to

this analysis. And Juror 36, who identified as “Hispanic/latina” in

her questionnaire, was too far down the list of potential jurors to be

seated or struck.

¶ 38 The pattern of racially motivated strikes that Herrington

alleges thus amounts to the peremptory strikes against Juror 15

and Juror 20. These two peremptory strikes alone fail to

demonstrate the pattern Herrington alleges. Evidence of that

pattern is even weaker given that Juror 20 did not identify as

20
belonging to any “racial/ethnic/minority group” and defense

counsel did not object to her peremptory strike at trial. Moreover,

after defense counsel challenged Juror 15’s removal, the

prosecution explained its concerns that Juror 15’s cousins’ deaths

at the hands of law enforcement were “a bad experience” that “was

traumatizing to him” and would “taint his assessment of the case.”

These reasons were race-neutral on their face. When deferring

substantially, as we must, to the court’s findings of fact, we agree

that there was sufficient record evidence to conclude that defense

counsel failed to establish purposeful discrimination in light of the

prosecution’s proffered race-neutral explanation.

¶ 39 We are likewise unpersuaded by Herrington’s related

contention that the prosecution’s decision not to use a peremptory

strike against Juror 23, who he describes as “a similar but non-

Hispanic juror,” revealed purposeful discrimination against

Juror 15. Herrington argues that because Juror 15 and Juror 23

both “described bad experiences with law enforcement” that

“happened a substantial time ago,” and both indicated that they

could put those experiences aside and be fair jurors, the

prosecution’s decision to strike Juror 15 but permit Juror 23 to sit

21
on the panel revealed racial discrimination. Herrington’s

comparison of these jurors on appeal, however, ignores important

differences among the experiences that they described. Juror 15

discussed the killing of two of his cousins during the previous ten

years at the hands of police, which he described as “somewhat

traumatizing.” He stated that “the thought of someone, let alone a

family member, being injured or possibly killed by police is very

troubling to [him].” Juror 23, meanwhile, discussed an unpleasant

experience she had answering “unkind” questions from an attorney

when she appeared as a witness in traffic court forty-eight years

beforehand. The experiences of these two jurors are meaningfully

different not only in type but also in temporal proximity.

¶ 40 Our supreme court has instructed that “an appellate court

conducting a clear error review should defer to a trial court’s

ultimate Batson ruling so long as the record reflects that the trial

court weighed all of the pertinent circumstances and supports the

court’s conclusion as to whether the objecting party proved

purposeful discrimination by a preponderance of the evidence.”

Beauvais, ¶ 63. Here, the prosecution provided a race-neutral

reason for exercising the peremptory strike against Juror 15, and

22
the court found, based on its firsthand observation of the entire voir

dire (including the information provided by other members of the

venire), that the strike was not the result of purposeful

discrimination. Because the court’s findings are supported by the

record and are based on its consideration of all the pertinent

circumstances, we discern no error.

V. Jury Instructions

¶ 41 Lastly, Herrington contends that the jury instruction reciting

the elements of obstructing a peace officer under section 18-8-

104(1)(a), amounted to plain error because it did not include

language from another subsection of the same statute. We are not

persuaded.

A. Relevant Law and Standard of Review

¶ 42 Trial courts have a duty to correctly instruct juries on all

matters of law. Castillo v. People, 2018 CO 62, ¶ 34. We review

jury instructions de novo to determine whether they accurately

informed the jury of the law. People v. Trujillo, 2018 COA 12, ¶ 11.

¶ 43 Where, as here, the defendant did not object to the challenged

instruction, we review for plain error. See Hagos v. People, 2012

CO 63, ¶ 14. Plain error exists where an error is (1) obvious and

23
(2) substantial. Id. An error is obvious when it “contravene[s] a

clear statutory command, a well-settled legal principle, or

established Colorado case law.” People v. Crabtree, 2024 CO 40M,

¶ 42. An error is substantial when it “so undermine[s] the

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

the reliability of the judgment of conviction.” Hoggard v. People,

2020 CO 54, ¶ 13 (quoting People v. Weinreich, 119 P.3d 1073,

1078 (Colo. 2005)). “[W]ith respect to jury instructions, reversal

under a plain error standard requires a defendant to ‘demonstrate

not only that the instruction affected a substantial right, but also

that the record reveals a reasonable possibility that the error

contributed to his conviction.’” People v. Garcia, 28 P.3d 340, 344

(Colo. 2001) (citation omitted).

¶ 44 Instructions that track the language of applicable statutes and

pattern instructions are generally sufficient. People v. Jackson,

2018 COA 79, ¶ 64, aff’d, 2020 CO 75; see also Weinreich, 119 P.3d

at 1076 (“A jury instruction should substantially track the language

of the statute describing the crime . . . .”). And “an erroneous jury

instruction does not normally constitute plain error where the issue

is not contested at trial or where the record contains overwhelming

24
evidence of the defendant’s guilt.” People v. Miller, 113 P.3d 743,

750 (Colo. 2005).

¶ 45 The obstruction statute under which Herrington was charged

states in relevant part that

[a] person commits obstructing a peace
officer . . . when, by using or threatening to
use violence, force, physical interference, or an
obstacle, such person knowingly obstructs,
impairs, or hinders the enforcement of the
penal law or the preservation of the peace by a
peace officer, acting under color of his or her
official authority . . . .

§ 18-8-104(1)(a).

¶ 46 The language from the subsection that Herrington argues

should have been included in the jury instructions states that “[a]

person shall not be charged with the offense described in

subsection (1) of this section because the person remained silent or

because the person stated a verbal opposition to an order by a

government official.” § 18-8-104(1.5).

B. Analysis

¶ 47 The elemental instruction for the obstruction charge tracked

both the obstruction statute and the pattern jury instructions. See

§ 18-8-104(1)(a); COLJI-Crim. 8-1:05 (2024). Nonetheless,

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Herrington contends that police testimony and argument by the

prosecution suggested to the jury that Herrington was charged with

obstruction because he refused to identify himself and because he

yelled. These bases, he argues, would be insufficient to convict him

under the obstruction statute, so the district court should have also

instructed the jury that an individual cannot be charged with

obstructing a peace officer for remaining silent or verbally opposing

an order by a government official. The absence of that additional

instruction, according to Herrington, “allowed [him] to be convicted

on an insufficient legal theory.”

¶ 48 An error is obvious when it “contravene[s] a clear statutory

command, a well-settled legal principle, or established Colorado

case law.” Crabtree, ¶ 42. As evidence of the obviousness of the

error he alleges, Herrington points only to the statutory language of

section 18-8-104(1.5) that prohibits charging an individual with

obstruction for remaining silent or verbally opposing an order by a

government official. However, the mere existence of a statute

clarifying that an individual may not be charged under the

obstruction statute for that specific conduct is insufficient to show

that the court’s instructions violated “a clear statutory command.”

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Crabtree, ¶ 42. This is especially so when those instructions

specified that the prosecution had to prove each element of

obstruction beyond a reasonable doubt, including that Herrington

“us[ed] or threaten[ed] to use violence, force, physical interference,

or an obstacle.” In light of those instructions, informing the jury

that Herrington could not have been charged at the outset with

obstruction simply for remaining silent or verbally opposing an

order by a government official would have added nothing to the

jury’s understanding of what the prosecution was required to prove

in order to secure a conviction.

¶ 49 For the same reason, the court’s jury instructions could not

have created a substantial error that “so undermine[d] the

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

the reliability of the judgment of conviction,” Hoggard, ¶ 13, or that

“reveal[ed] a reasonable possibility that the error contributed to

[Herrington’s] conviction,” Garcia, 28 P.3d at 344.

¶ 50 Moreover, the record contains overwhelming evidence that

Herrington used force in his encounter with the police. For

example, the officers who arrested Herrington testified that, after

Herrington refused to identify himself and officers resorted to

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attempting to learn his identity through the use of a fingerprint

reader, Herrington “balled up his fists” and “refused to un-ball his

fingers so that [officers] could not get a print from his fingers.”

Those same officers also testified that Herrington physically resisted

efforts to restrain and transport him, both in the gas station

parking lot and at the jail.

¶ 51 Accordingly, we conclude that the district court’s omission of

section 18-8-104(1.5)’s language from the jury instructions on the

elements of the charge for obstructing a peace officer was not plain

error.

VI. Disposition

¶ 52 The judgment is affirmed.

JUDGE WELLING and JUDGE JOHNSON concur.

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