Publication status: NOT PUBLISHED PURSUANT TO C.A.R. 35(e).
Background
Eric Alan Serrott appealed his judgment of conviction on a jury verdict finding him guilty of attempted first degree murder and first degree assault. The trial evidence would have permitted the jury to find that, in June 2020, Jeffrey Pittman and friends were unhoused and camping near a creek in Boulder. Serrott, whom Pittman did not know, was drinking nearby with Jesus Magallan. After Pittman’s group fell asleep and Magallan moved away to urinate, Serrott attacked Pittman with a knife. Pittman awoke to pain and bleeding and shouted for Serrott to stop. Magallan saw the stabbing, jumped on Serrott, and knocked the knife from his hand. Serrott fled but was later arrested. Pittman sustained six stab wounds to his neck, chest, and shoulder area.
The prosecution charged two counts of attempted first degree murder, two counts of first degree assault, and several crime-of-violence sentence enhancers. The jury convicted Serrott as charged, and the district court sentenced him to thirty years in the Department of Corrections. At sentencing, the court merged the two attempted-murder counts into a single generic attempted first degree murder conviction and merged the two assault counts into a single generic first degree assault conviction.
The Court’s Holding
The Court of Appeals affirmed. It first rejected Serrott’s preserved challenge to the reasonable doubt instruction, stating, “We discern no error.” Reviewing de novo whether the instructions improperly lowered the prosecution’s burden, the court applied the inquiry from Tibbels v. People, 2022 CO 1: whether there was a reasonable likelihood that the jury understood the statements, in the context of the instructions as a whole and the trial record, to permit conviction on a standard lower than beyond a reasonable doubt. Instructions that lower that burden constitute structural error requiring automatic reversal.
Over Serrott’s objection, the district court used COLJI-Crim. E:03 (2022), the model instruction in effect at his April 2023 trial. It described proof beyond a reasonable doubt as proof leaving the jury “firmly convinced” of guilt and explained that a “real possibility” of innocence meant the prosecution had failed to meet its burden. Unlike the 2021 and 2023 versions, the 2022 instruction did not expressly say that reasonable doubt could arise from a lack of evidence. Following People v. Schlehuber, 2025 COA 50, and People v. Melara, 2025 COA 48, and agreeing with their reasoning, this division concluded that the district court did not err by using the 2022 instruction without that express language. The court separately rejected the “firmly convinced” and “real possibility” arguments because the Colorado Supreme Court had rejected them in Teran Sanchez v. People, 2026 CO 60, and the panel was bound by that decision.
The court did not decide whether the evidence was sufficient to support attempted first degree murder after deliberation or first degree assault with a deadly weapon. Instead, reviewing mootness de novo, it agreed with the People that Serrott’s voluntary-intoxication-based sufficiency challenge was moot. Those were specific intent crimes, but the merged generic convictions were independently supported by the jury’s findings on attempted first degree murder and first degree assault under extreme-indifference theories, which were general intent crimes to which voluntary intoxication was not a defense. Serrott did not challenge the sufficiency of the evidence on those general intent convictions, his instructional challenge had failed, and he identified no collateral consequences from the challenged specific intent convictions. Vacating them therefore would provide no practical relief. Finally, because the court found no errors, it held that the cumulative-error doctrine did not apply.
Key Takeaways
- In this case, Division VII followed Schlehuber and Melara and found no error in the district court’s use of the 2022 reasonable doubt instruction without express “lack of evidence” language.
- The panel rejected the “firmly convinced” and “real possibility” challenges because it was bound by the Colorado Supreme Court’s decision in Teran Sanchez.
- The sufficiency claim was dismissed as moot, not resolved on the evidentiary merits, because the merged generic convictions would remain supported by unchallenged general intent findings.
Why It Matters
The decision adds another division’s agreement with Schlehuber and Melara concerning the 2022 instruction, but its holding is tied to that instruction and the authorities followed here; it does not announce that omission of “lack of evidence” language can never affect the burden of proof in every instructional context. The opinion also illustrates how merged generic convictions and unchallenged alternative findings can make a theory-specific sufficiency challenge moot when reversal would leave the actual convictions and sentence undisturbed.