Background
In December 2022, police officers patrolling near a former Department of Veterans Affairs building in Denver entered through an unlocked door and discovered Oscar W. Allison in a crawl space. Allison was wearing a headlamp and workers’ gloves and holding pliers, with cut copper pipe lying on the ground beside him. He told officers he had heard “people were scrapping.” The building, owned by a development company, was fenced on three sides, equipped with security cameras, and posted with “No Trespassing” signs, according to testimony from Benjamin Gearhart, a partner in the development company.
The prosecution charged Allison with second-degree burglary predicated on theft. Allison testified that he believed the building and its contents were abandoned, that he entered through the main entrance without encountering a fence, and that he went in “to see if there was an opportunity to scrap legally” with no intention to take anything. He denied ownership of the pliers, claiming he found them on the ground. A jury convicted Allison of second-degree burglary, and the district court sentenced him to eighteen months of unsupervised probation.
The Court’s Holding
The Colorado Court of Appeals affirmed the conviction, rejecting Allison’s two primary challenges. First, the court held that the district court did not err in declining to give Allison’s second proposed mistake-of-fact jury instruction. While a defendant is entitled to an instruction on a defense supported by “some credible evidence,” the court found that the instruction actually given—Instruction No. 10—accurately tracked the mistake-of-fact statute, § 18-1-504(1)(a), C.R.S. 2026, and the model jury instruction. The court explained that the second-degree burglary instruction already required the prosecution to prove the “knowingly” mental state for the predicate theft, and Instruction No. 10 adequately informed the jury that Allison’s conduct was legally authorized if a mistaken belief negated that mental state. Giving a second, more specific instruction on the same point would have been “unnecessarily duplicative.”
The court also rejected Allison’s argument that the second instruction was required as a theory-of-defense instruction. The court noted that defense counsel never offered it as such, instead presenting it as an affirmative defense instruction. In any event, the district court worked with counsel to craft an appropriate, nonargumentative instruction that adequately conveyed Allison’s theory, satisfying the requirements of People v. Nunez, 841 P.2d 261 (Colo. 1992).
Second, the court addressed Allison’s claims of prosecutorial misconduct during rebuttal closing argument. Allison argued the prosecutor misstated the law by suggesting his mistaken belief had to be reasonable. The court disagreed, holding that when viewed in context, the prosecutor’s comments—asking whether Allison’s belief “sound[ed] reasonable”—were not an explanation of the legal standard but rather a challenge to Allison’s credibility and a response to defense counsel’s call for jurors to use their common sense. The court found the comments “inartful” but not improper, and held the trial court did not grossly abuse its discretion in overruling the objection.
However, the court agreed that a separate prosecutorial comment—that Allison’s defense “might be retitled” as “blame the victim”—was improper because it mischaracterized the defense theory and was untethered to the evidence. Because defense counsel objected on different grounds at trial (misstatement of law rather than denigration), the court reviewed for plain error. It concluded the single brief remark did not undermine the fundamental fairness of the trial, particularly given the “robust evidence” of guilt, and therefore did not warrant reversal.
Key Takeaways
- A trial court does not abuse its discretion by declining to give a duplicative mistake-of-fact instruction when the instructions as a whole adequately inform the jury that a mistaken belief negates the requisite mens rea.
- Prosecutorial comments questioning the “reasonableness” of a defendant’s claimed belief may be permissible credibility challenges rather than misstatements of the subjective legal standard, depending on context.
- An improper prosecutorial remark denigrating the defense does not constitute plain error if it is isolated, the trial court reminds the jury that argument is not evidence, and the evidence of guilt is strong.
- Arguments raised for the first time in a reply brief will not be considered on appeal.
Why It Matters
This decision reinforces the substantial discretion trial courts have in formulating jury instructions, particularly when a proposed instruction merely restates a principle already covered by the elements and a general mistake-of-fact instruction. It also illustrates the distinction between improper prosecutorial argument and permissible, if inartful, commentary on witness credibility. For practitioners, the case underscores the importance of preserving specific objections at trial—an objection on one ground (misstatement of law) does not preserve another (denigration)—and the high bar for plain-error reversal based on isolated prosecutorial remarks.