Peo v. Tatom

23CA0332 Peo v Tatom 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0332
Mesa County District Court No. 21CR1831
Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Tyler Tatom,

Defendant-Appellant.

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

Division III
Opinion by JUDGE BROWN
Dunn and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 4, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jason C. Middleton, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Michael Tyler Tatom, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

burglary, second degree assault, and third degree assault. Tatom

contends that (1) the district court erred by ruling midtrial that it

would not instruct the jury on self-defense based solely on the

prosecution’s evidence; (2) the prosecutor committed misconduct in

closing argument; and (3) the court should have merged the assault

convictions into the burglary conviction. We agree with Tatom’s

merger argument, so we vacate his assault convictions and remand

for the district court to correct the mittimus accordingly. We

otherwise affirm.

I. Background

¶2 In December 2021, an exterior camera captured Tatom

walking toward and knocking on Michael Sorrell’s front door.

Before anyone answered, Tatom walked away. Sorrell testified that

he heard a “loud bang on [his] door,” so he grabbed his gun and

went outside to look around. Sorrell said that he saw Tatom across

the street yelling something at him but did not pay Tatom any

attention. Sorrell also said that he did not raise his gun. The

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exterior camera did not capture what happened after Sorrell

stepped outside.

¶3 As reflected in the interior camera footage, Sorrell calmly

walked back inside his home and shut and locked his door. He

walked across his living room and back toward the front door while

looking at his phone. Then he went into his kitchen. The exterior

camera footage shows Tatom walking back up to Sorrell’s door after

the interior camera footage shows Sorrell walking into his kitchen.

At that point, Sorrell said he heard the “front door coming in,” so he

ran to the front door and tried to shoot through the window, but his

pistol did not fire.

¶4 Twenty-six seconds after Sorrell re-entered his home, the

interior camera footage shows that Tatom broke down the door and

slammed Sorrell into a wall. Then Tatom chased Sorrell out of view

of the interior camera and into the kitchen where Sorrell said Tatom

choked him. During the struggle, Sorrell’s gun went off at least

three times, and Sorrell was shot in the hand.

¶5 Eventually, Tatom left Sorrell on the ground and said, “Fuck

you. You’re gonna die. You’re bleedin’ out anyways.” Sorrell went

outside to his neighbor’s house with the gun. Tatom followed

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Sorrell, walking slowly and then pausing on Sorrell’s front porch.

When the neighbors gathered, Tatom approached and yelled at

Sorrell to give him the gun. Tatom hit one of Sorrell’s neighbors

and then walked away.

¶6 Several police officers responded to the scene. When Deputy

Lee Pratt arrived, he saw Tatom walking in the street. Deputy Pratt

asked Tatom to stop, but he was uncooperative. The deputy tased

Tatom, had medical staff treat him, and put him in the back of a

patrol vehicle in handcuffs. Tatom later tried to leave the patrol

vehicle, and the officers had to forcibly put him back.

¶7 As captured on body camera footage, Tatom told Deputy Pratt

that Sorrell came outside waving his gun and threatening to shoot

Tatom. Tatom said that as soon as he started coming toward

Sorrell, Sorrell ran inside and tried to lock himself in his house, but

at that point, Tatom had “already bum-rushed the door” and “jarred

it open.” Tatom did not deny breaking down Sorrell’s door and

assaulting him but said he was defending himself.

¶8 The prosecution charged Tatom with first degree burglary,

second degree assault, third degree assault, criminal mischief, and

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obstructing a peace officer. A jury convicted Tatom as charged.1

The court sentenced Tatom to eight years in the custody of the

Department of Corrections for each of the burglary and second

degree assault convictions, to be served concurrently with each

other and with the other sentences.

II. Self-Defense Instruction

¶9 Tatom contends that the district court erred when it ruled

midtrial that a self-defense instruction was not warranted based on

the prosecution’s evidence alone. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 10 For a defendant to be entitled to an instruction on an

affirmative defense, there must be “some credible evidence” to

support it. Pearson v. People, 2022 CO 4, ¶ 16 (quoting

§ 18-1-407(1), C.R.S. 2025). We review de novo whether there was

sufficient evidence to support a self-defense jury instruction.

1 The prosecution also charged Tatom with third degree assault for

hitting the neighbor. At the close of the prosecution’s case, the
district court granted Tatom’s motion for judgment of acquittal on
that charge based on the neighbor’s testimony that he was not
harmed. Tatom does not appeal his convictions or sentences for
criminal mischief or obstructing a peace officer.

4
People v. Newell, 2017 COA 27, ¶ 19. And in doing so, “we consider

the evidence in the light most favorable to the defendant.” Id.

¶ 11 “The small quantum of evidence that must appear in the

record in order to warrant an instruction on an affirmative defense

may come from any source, even from the prosecution.” Id. at ¶ 21;

see also § 18-1-407(1) (“‘Affirmative defense’ means that unless the

state’s evidence raises the issue involving the alleged defense, the

defendant, to raise the issue, shall present some credible evidence

on that issue.”). But “whether there is credible evidence to support

each element of an affirmative defense is a question for the court

rather than the jury.” People v. Speer, 255 P.3d 1115, 1119 (Colo.

2011); see also People v. Hill, 934 P.2d 821, 826 (Colo. 1997) (“If a

trial court determines as an issue of law[] that no evidence exists in

the record to support an affirmative defense, there is no issue of

fact for the jury to resolve.”).

¶ 12 Under Colorado law,

a person is justified in using physical force
upon another person in order to defend
himself or a third person 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

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which he reasonably believes to be necessary
for that purpose.

§ 18-1-704(1), C.R.S. 2025. The “touchstone of self-defense” is a

“[r]easonable belief that one is defending against the use of unlawful

force,” and “there must be evidence from which the jury could

determine that the defendant held such a reasonable belief.” People

v. Suazo, 867 P.2d 161, 169 (Colo. App. 1993). Under these

circumstances, a reasonable person “means an objectively

reasonable individual.” People v. Luna, 2020 COA 123M, ¶ 26.

¶ 13 A person is not justified in using force in self-defense if they

are the initial aggressor — the one who initiated the physical

conflict — unless they first retreat and the non-aggressor continues

or threatens the use of unlawful physical force. § 18-1-704(3)(b);

see Castillo v. People, 2018 CO 62, ¶ 41; People v. Toler, 9 P.3d 341,

351-52 (Colo. 2000). On the other hand, a non-aggressor has “no

duty to retreat” before using force in self-defense. Toler, 9 P.3d at

351-52. But if the initial aggressor withdraws from the encounter

and effectively communicates that withdrawal, then “the original

non-aggressor becomes the aggressor when the original

non-aggressor ‘continues or threatens the use of unlawful physical

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force.’” Castillo, ¶ 43 (quoting § 18-1-704(3)(b)). When the original

non-aggressor becomes the aggressor, they are “no longer entitled

to act in self-defense.” People v. Goedecke, 730 P.2d 900, 901 (Colo.

App. 1986); see also People v. Sepeda, 581 P.2d 723, 730-31 (Colo.

1978) (Although a defendant “need not retreat to the wall before

defending himself, [and] may stand his ground and even, in some

circumstances, pursue his assailant until the assailant has been

disarmed or otherwise deterred from his violent purpose,” the

defendant may not rely on that rule “when he is no longer under

attack, but has himself become the assailant.” (citing Almond v.

People, 135 P. 783, 784 (Colo. 1913))).

B. Additional Background

¶ 14 When the prosecution rested, defense counsel asked the

district court to instruct the jury on self-defense based on the

prosecution’s evidence. Counsel argued that Tatom “made

statements to the police officers that he went after Mr. Sorrell”

because “Sorrell pointed a gun at him [and] threatened him” and

that Tatom “broke down the door in an attempt to disarm Mr.

Sorrell.” The prosecutor responded that Tatom’s version of events

was “so improbable,” emphasizing that it was unclear when the

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alleged threat occurred based on Tatom’s statements in the

bodycam footage and that there was “a break in time.”

¶ 15 The court noted that the last witness the prosecution

presented was an investigator who said that Tatom told him that

Sorrell “didn’t have time to lock that door because I was on his ass.”

The court reasoned that the investigator’s testimony “indicated that

[Tatom] was literally chasing [Sorrell] as he’s going into the house.

Chasing him because he had threatened him with a gun.” But the

prosecutor responded that “[t]he threat component [Tatom’s] talking

about [is] minutes, and I mean minutes before that.”

¶ 16 The court reviewed the interior and exterior camera footage

again and determined that the footage showed Sorrell “calmly”

walking into his home, turning around, and deadbolting the door.

Then, after “[twenty-six] full seconds, almost half a minute between

whatever happened outside and Mr. Sorrell going back inside his

home, closing the door and dead bolting it,” Tatom broke down the

door. The court ruled,

Under these circumstances, there can be no
reasonable belief on the part of anyone,
including [Tatom], that he needed to act in
self-defense from any imminent use of
unlawful force upon him by Mr. Sorrell, period.

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That is far too long of a break in time for there
to be a justification for [the] affirmative defense
to be used, particularly under the
circumstances here where [Tatom] is breaking
into someone’s home.

¶ 17 Tatom testified in his defense. At the conclusion of the

evidence, Tatom renewed his request for a self-defense instruction,

the prosecutor did not object, and the court agreed to instruct the

jury on self-defense.

C. The District Court Did Not Err by Ruling that Tatom Was Not
Entitled to a Self-Defense Instruction Based on the
Prosecution’s Evidence

¶ 18 Tatom contends that the district court erred by concluding

that there was insufficient evidence at the close of the prosecution’s

case to support a self-defense instruction. As an initial matter, the

parties dispute whether Tatom was entitled to an advisory midtrial

ruling and whether we should review his contention at all since he

elected not to stand on his motion but to present additional

evidence. But because we conclude that the court did not err, we

need not resolve these disputes.

¶ 19 Tatom was charged with burglary and two counts of assault

for breaking down Sorrell’s door, choking him, and causing Sorrell

to be shot in the hand. Tatom’s version of events — told through

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Deputy Pratt’s bodycam footage introduced during the prosecution’s

case — was that Sorrell waved his gun and threatened Tatom

outside, so Tatom chased Sorrell into his own home to disarm him.

Crediting Tatom’s story, Sorrell was the initial aggressor, and Tatom

was the original non-aggressor. Under these circumstances, Tatom

may have been legally justified in initially advancing at and

disarming Sorrell to defend himself. See Sepeda, 581 P.2d at

730-31.

¶ 20 But even according to Tatom, after Sorrell made the initial

threat, he ran back inside his own home and at least tried to lock

the door. Once Sorrell fled as Tatom described, any reasonable

belief Tatom had that Sorrell would use unlawful physical force

against him dissipated. See § 18-1-704(1); see also § 18-1-705,

C.R.S. 2025 (authorizing use of reasonable and appropriate

physical force to prevent unlawful trespass upon a premises). And

once Sorrell withdrew from the encounter and effectively

communicated that withdrawal by running back inside his home,

Tatom became the aggressor by continuing to pursue Sorrell,

breaking down his door, and physically attacking him. See

10
§ 18-1-704(3)(b); Castillo, ¶ 43. When Tatom became the aggressor,

he lost the right to claim self-defense. Goedecke, 730 P.2d at 901.

¶ 21 Under these circumstances, Tatom was not entitled to a

self-defense instruction. See Sepeda, 581 P.2d at 731 (concluding

that a self-defense instruction was “totally irrelevant” when it was

undisputed that a “fight ended no later than when [the] defendant

fired into the crowd,” yet the defendant “continued to fire at his

unarmed and apparently helpless foe”); State v. Knotts, 421 S.E.2d

917, 924 (W. Va. 1992) (the defendant became “the physical

aggressor and lost any privilege of self-defense” when the initial

aggressor victim retreated to his truck and then into the woods, and

the defendant followed the victim and killed him); People v.

Huddleston, 530 N.E.2d 1015, 1025-26 (Ill. App. Ct. 1988) (the

defendant was not entitled to claim self-defense when the victim

was the initial aggressor, the defendant shot the victim in the leg,

the victim tried to leave, and the defendant followed the victim to

the door, hit him on the head with a gun, and shot him again); cf.

Suazo, 867 P.2d at 169 (affirming the district court’s denial of a

defense of others instruction because no evidence supported “a

claim that [the defendant] reasonably believed that further violence

11
towards his mother was, under any definition, imminent” when the

victim, who had hit the defendant’s mother, was seeking medical

treatment after the “fracas that had taken place a few minutes

earlier”).

¶ 22 Moreover, Tatom’s claim that he was right behind Sorrell as

Sorrell entered his home, such that he was able to rush through the

door before Sorrell could close and lock it, was flatly contradicted by

the interior camera footage. That footage showed that Sorrell had

walked into his home, completely shut the door, locked it, and then

walked further inside the house before Tatom broke down the door.

Because the video evidence indisputably contradicted Tatom’s

timeline, the district court could conclude that such evidence was

not “credible evidence” supporting a self-defense instruction.

§ 18-1-407(1); see Speer, 255 P.3d at 1119; Hill, 934 P.2d at 826;

cf. People v. Liebler, 2022 COA 21, ¶¶ 21-25 (when considering the

sufficiency of the evidence for a conviction, the appellate court does

not have to accept as sufficient inaccurate testimony that is

indisputably contradicted by video evidence).

¶ 23 We are also not persuaded by Tatom’s argument that the court

“ignored evidence” that Sorrell pointed the gun at Tatom through

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the window in the door “for several seconds” before Tatom entered

the home. The interior camera footage shows the door of Sorrell’s

home being shoved open before Sorrell drew the gun. Sorrell’s

actions at that point — after Tatom started to break down his door

— cannot belatedly justify Tatom’s conduct as self-defense. See

§§ 18-1-704(1), -705; Goedecke, 730 P.2d at 901.

¶ 24 Even viewing the evidence in the light most favorable to

Tatom, see Newell, ¶ 19, we cannot conclude that any credible

evidence from the prosecution’s case supported a self-defense

instruction, see Pearson, ¶ 16.2

III. Prosecutorial Misconduct

¶ 25 Tatom contends that the district court plainly erred by

allowing the prosecutor to commit misconduct during closing

argument. Although some of the prosecutor’s remarks may have

been improper, we conclude that they do not amount to reversible

misconduct.

2 We express no opinion on whether the district court correctly

instructed the jury on self-defense at the close of all the evidence.
Tatom prevailed on his ultimate request for such an instruction, the
prosecution did not oppose it, and the People did not cross-appeal
the issue as a matter of law.

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A. Standard of Review

¶ 26 We engage in a two-step analysis when reviewing claims for

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, we decide whether such actions warrant reversal under the

proper standard. Id.

¶ 27 While prosecutors can use every legitimate means to bring

about a just conviction, they have a duty to avoid using improper

methods designed to obtain an unjust result. Domingo-Gomez v.

People, 125 P.3d 1043, 1048 (Colo. 2005). We evaluate claims of

improper argument in the context of the argument as a whole and

in light of the evidence before the jury. People v. McMinn, 2013 COA

94, ¶ 60.

¶ 28 Because Tatom did not object to the prosecutor’s remarks at

trial, we review for plain error. People v. Garner, 2015 COA 175,

¶ 34, aff’d, 2019 CO 19. For an error to be plain, it must be both

obvious and substantial. Hagos v. People, 2012 CO 63, ¶ 14. “To

constitute plain error, prosecutorial misconduct must be flagrant or

glaringly or tremendously improper, and it must so undermine the

14
fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction.” McMinn, ¶ 58.

“Prosecutorial misconduct in closing argument rarely constitutes

plain error.” People v. Smalley, 2015 COA 140, ¶ 37.

B. The Prosecutor’s Remarks Did Not Amount to
Reversible Misconduct

¶ 29 Tatom contends that the prosecutor improperly argued that he

could not claim self-defense because he did not retreat or call 911.

Even if the prosecutor’s remarks stretched the boundary of proper

argument, we conclude that the district court did not plainly err by

not sua sponte correcting those remarks.

¶ 30 In Colorado, “a non-aggressor may assert self-defense without

(1) considering whether a reasonable person would retreat to safety

rather than resorting to physical force, or (2) actually retreating

from an attack even if [they] could safely do so.” People v. Monroe,

2020 CO 67, ¶ 19. But an initial aggressor must retreat before

using force in self-defense. Id. Accordingly, a prosecutor may

argue about a defendant’s “decision to enter the fray” and whether

such a decision makes him the initial aggressor. Id. at ¶ 28. But a

prosecutor may not argue that a defendant’s failure to retreat

15
“undermines the reasonableness” of a claim of self-defense because

such an argument “would cripple the no-duty-to-retreat rule.” Id.

at ¶ 30.

¶ 31 During closing argument, while discussing the

“reasonableness” of Tatom’s belief that he needed to defend himself

from Sorrell, the prosecutor referenced Tatom’s testimony that “he

did not have enough time to call 911.” The prosecutor argued,

A question was posed well, why didn’t Mr.
Tatom call 911? And Mr. Tatom’s response
was . . . I didn’t have time. So, the first knock
I submit to you, again less of a knock and
more of a bang. And three minutes later,
Mr. Tatom is coming through . . . Mr. Sorrell’s
door. So, three minutes and you didn’t have
time to call 911? Turning back to
reasonableness, a person in his shoes, how
would they reasonably react? I submit [to] you
a reasonable person who has minutes would
call 911. Especially thinking that this person
has a gun, especially if he was so threatened
and had minutes.

The prosecutor then argued that there were twenty seconds

between when Sorrell “stepped outside” and when Tatom “bum

rushed” the door, which was “[e]nough time to call 911.”

¶ 32 The prosecutor also discussed comments made during voir

dire regarding reasonableness and self-defense. The prosecutor

16
noted that one prospective juror had wondered why a person would

put themself “in harm’s way” and that another had said that “the

best choice is to get away.” The prosecutor said those “statements

are the statements and questions of a reasonable person.”

¶ 33 Tatom contends that the prosecutor’s remarks improperly

encouraged the jurors to reject his self-defense theory by

insinuating he should have retreated, contrary to Colorado law. To

be sure, the prosecutor did not expressly argue that Tatom was

obligated to retreat and failed to do so. Read in context, the

prosecutor’s remarks appear designed to encourage the jury to

question Tatom’s credibility based on his testimony that, despite

evidence to the contrary, he did not have enough time to call 911.

But by arguing that a reasonable person would have believed they

had enough time to call 911, the prosecutor implied that “retreat

was possible but not pursued.” Monroe, ¶ 30. And the prosecutor’s

recall of the voir dire comments also suggested that retreating was

the reasonable response. These remarks at least toed the line of

impropriety, if they did not cross it. Nevertheless, for three reasons

we conclude that the error was not “flagrant or glaringly or

tremendously improper” and did not “so undermine the

17
fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction.” McMinn, ¶ 58.

¶ 34 First, during rebuttal closing, the prosecutor argued, “[I]t is

not reasonable to believe you’re inside your house behind a locked

door and someone bum rushes your door, and they’re going to

claim self-defense. Makes absolutely no sense. You should find

Mr. Tatom guilty because he had aggression. He was the initial

aggressor. He started this.” The prosecutor thus reframed her

argument in rebuttal and made it about Tatom’s status as the

initial aggressor — his decision to enter the fray — rather than

focusing on the reasonableness of his decision not to retreat. See

Monroe, ¶ 28; see also Domingo-Gomez, 125 P.3d at 1052 (“Rebuttal

closing is the last thing a juror hears from counsel before

deliberating, and it is therefore foremost in their thoughts.”).

¶ 35 Second, Monroe is distinguishable. In that case, the

prosecutor commented directly on the defendant’s failure to retreat

five times, and “each statement directed the jury to consider [the

defendant’s] failure to retreat as relevant to whether [the defendant]

reasonably believed that [they] needed to act in self-defense.”

Monroe, ¶ 36. Here, the prosecutor’s comments were fleeting, and

18
she never directly referenced “retreat.” See People v. Walters, 148

P.3d 331, 335 (Colo. App. 2006) (“whether the misconduct was

repeated” is a relevant factor to determine if reversal is warranted).

¶ 36 Third, the court correctly instructed the jury that Tatom was

“legally authorized to use physical force upon another person

without first retreating” if certain conditions were met. (Emphasis

added.) See COLJI-Crim. H:11 (2021). We presume that the jurors

followed this instruction. People v. McKeel, 246 P.3d 638, 641

(Colo. 2010).

¶ 37 For these reasons, and viewing the prosecutor’s statements in

context, McMinn, ¶ 60, we conclude that any prosecutorial

misconduct was not plain, Hagos, ¶ 14.

IV. Merger

¶ 38 Tatom contends that his second and third degree assault

convictions should merge into his burglary conviction. The People

do not dispute that merger is required. We agree.

¶ 39 “Whether convictions for different offenses merge is a question

of law that we review de novo.” People v. Sims, 2020 COA 78, ¶ 37

(citing Page v. People, 2017 CO 88, ¶ 6). “[I]f one offense is included

in another offense, a defendant may not be convicted of both

19
offenses.” Friend v. People, 2018 CO 90, ¶ 32; see § 18-1-408(1),

C.R.S. 2025. An offense is a lesser included one if it “is established

by proof of the same or less than all the facts required to establish

the commission of the offense charged.” § 18-1-408(5)(a).

¶ 40 Here, the second and third degree assault charges are lesser

included offenses of the first degree burglary charge because the

burglary was predicated on the assaults. People v. Delci, 109 P.3d

1035, 1037 (Colo. App. 2004) (“Because the predicate offense

charged here was assault, proof of the elements of burglary requires

proof of the elements of assault. Thus, assault is a lesser included

offense of first degree burglary, and the two counts merge.”); see

§§ 18-3-203(1)(i), 18-3-204(1)(a), 18-4-202(1), C.R.S. 2025.

Accordingly, we conclude that the assault convictions must merge

into the burglary conviction. See People v. Procasky, 2019 COA

181, ¶¶ 34, 36 (“The merger doctrine precludes conviction of both a

greater and lesser included offense”; in such a case, “the lesser

offense merges into the greater.”); People v. Torrez, 2024 COA 11,

¶¶ 52-57 (noting that the lesser included offenses should have

merged into one conviction and thus vacating the lesser included

convictions).

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V. Disposition

¶ 41 We vacate the second and third degree assault convictions and

remand for the district court to merge those convictions into the

burglary conviction and to correct the mittimus accordingly. We

otherwise affirm the judgment of conviction.

JUDGE DUNN and JUDGE SCHOCK concur.

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