The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY Date, February 13, 2020

No. 15CA2076, Peo v Stone — Criminal Law — Provisions Applicable to Offenses Generally — Intoxication

Section 18-1-804(1), C.R.S. 2019, states that “[i]ntoxication of

the accused is not a defense to a criminal charge . . . .” This

opinion of a division of the court of appeals addresses, for the first

time in a published opinion in Colorado, the contention that this

statutory subsection is unconstitutional because it bars the

defendant from presenting evidence of voluntary intoxication to

contest his guilt in a trial involving only general intent crimes. COLORADO COURT OF APPEALS

Court of Appeals No. 15CA2076 Douglas County District Court No. 14CR154 Honorable Paul A. King, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ryan Cole Stone,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I Opinion by CHIEF JUDGE BERNARD Taubman and Navarro, JJ., concur

Announced February 13, 2020

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jud Lohnes, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 “Qui peccat ebrius, luat sobrius” means “[h]e who offends

while drunk suffers punishment when sober.” Ballentine’s Law

Dictionary 1043 (3d ed. 1969). This venerable Latin legal maxim is

expressed in Colorado in section 18-1-804(1), C.R.S. 2019, which

states that “[i]ntoxication of the accused is not a defense to a

criminal charge . . . .”

¶2 There is an express exception to this general rule, which is

found in section 18-1-804(3): involuntary intoxication is an

affirmative defense to a criminal charge. As an affirmative defense,

involuntary intoxication does not “simply challenge the existence of

an element of the offense, but [it] seek[s] to justify or mitigate the

entire crime, and [is] therefore [a] complete defense[].” People v.

Miller,

(Colo. 2005).

¶3 As is pertinent to our discussion, section 18-1-804(1), which

we will shorten to “subsection (1)” for the rest of this opinion, does

two other things.

¶4 First, subsection (1) states that a defendant may introduce

evidence of voluntary, self-induced intoxication to “negative the

existence” of specific intent. § 18-1-804(1). But such evidence does

not create an affirmative defense. Miller,

. Rather,

1 this evidence only challenges the existence of an element of the

crime, i.e., specific intent. See

As a result, the introduction of

such evidence establishes only a partial defense. See Brown v.

People,

(Colo. 2010). “[V]oluntary intoxication is

not a true element-negating defense because it is possible for an

intoxicated person to form specific intent.” People v. Lara,

, 394 n.4 (Colo. App. 2009), overruled on other grounds by

People v. Pickering,

(Colo. 2011).

¶5 Second, by expressing the general rule that intoxication is not

a defense to a criminal charge, subsection (1) makes clear that

voluntary intoxication is not a defense to general intent crimes.

People v. Vigil,

(Colo. 2006). To phrase this

concept differently, evidence of voluntary intoxication “is

incompetent as a defense to general intent crimes,” People v. Low,

(Colo. 1987), and “[i]t is the settled law of

[Colorado] that evidence of self-induced intoxication is not

admissible to negate the culpability element of ‘knowingly,’” People

v. Aragon,

(Colo. 1982).

¶6 The rationale for barring defendants from introducing evidence

of voluntary, self-induced intoxication to negate general intent

2 arises from a recognition that “voluntary impairment of one’s

mental faculties with knowledge that the resulting condition is a

source of potential danger to others” involves “moral

blameworthiness.” Hendershott v. People,

(Colo.

1982). Indeed, “[i]t is a matter of common knowledge that the

excessive use of liquor or drugs impairs the perceptual, judgmental

and volitional faculties of the user.”

¶7 Subsection (1)’s distinction between specific intent and general

intent crimes is not new. In fact, in 1906, our supreme court

observed that the common law “uniformly held that drunkenness is

not an excuse for crime.” Brennan v. People,

,

, 81 (1906). But, if the mental state for a crime was “willful,

deliberate, and premeditated,” evidence of intoxication was “a

material and necessary subject of consideration by the jury whether

the accused [was] in such condition of mind by reason of

drunkenness . . . to be capable of deliberation and premeditation.”

Id. at 262, 86 P. at 81.

¶8 In the course of appealing a judgment of conviction,

defendant, Ryan Cole Stone, submits that subsection (1) is

unconstitutional. He says that it violates his due process rights

3 because it is “an evidentiary rule” that prohibited him “from

presenting reliable and relevant evidence to contest his guilt,” and

that it is unconstitutional as applied because it “preclude[d]” him

from introducing evidence of voluntary intoxication where general

intent crimes are charged.” He adds that the trial court should not

have instructed the jury that voluntary intoxication was not a

defense to these general intent crimes. We disagree with both

contentions, so we affirm. (In a separate appeal, we address

defendant’s contentions concerning a restitution order. See People

v. Stone,

.)

I. Background

¶9 A group of firefighters found defendant wandering the streets

and agreed to give him a ride. He asked them to drop him off at a

“warming” station. They instead let him out at a gas station.

¶ 10 Outside the gas station, he found a parked car. Its engine was

running, and a four-year-old boy was in the back seat.

¶ 11 Defendant got in the car and drove it away. Police officers

located the stolen car, and they followed it. After leading them on a

high-speed chase, defendant abandoned the car. He

commandeered a second car, and the chase continued.

4 ¶ 12 The officers deployed “stop sticks” — sticks with spikes on

them designed to puncture a car’s tires to disable it — but

defendant swerved around them, driving onto the shoulder of the

road. In doing so, he hit an officer with the car, causing him

serious injuries.

¶ 13 Defendant continued driving, eventually abandoning the

second car and hijacking a third one. His subsequent attempt to

steal a fourth car was thwarted, so he ran off. The officers finally

caught up with him, and they arrested him.

¶ 14 The prosecution charged him with several general intent

crimes. See § 18-1-501(6), C.R.S. 2019 (stating that offenses using

“knowingly” are “general intent crimes”). The prosecution also

charged him with theft, which contained an element of specific

intent. § 18-1-501(5) (stating that offenses using “intentionally”

and “with intent” are “specific intent offenses”).

¶ 15 Before trial, defendant raised the defense of “voluntary

intoxication,” and he said that he would present the testimony of

two expert witnesses. The prosecution asked the trial court to bar

defendant from raising the voluntary intoxication defense.

5 ¶ 16 At a motions hearing, defendant contended that he should be

allowed to present “any information that tends to negate an element

of the crime,” including evidence of voluntary intoxication. The

prosecutor asserted that subsection (1) prohibited him from using

voluntary intoxication as a defense to a general intent crime.

¶ 17 The trial court agreed with the prosecutor. It concluded that,

“[i]f there are no specific intent crimes listed, then the defense is not

entitled to present any evidence as it relates to intoxication because

it’s simply not relevant.” After this ruling, the prosecutor asked the

court to dismiss a count of theft, the only specific intent crime that

the prosecution had charged. The court granted the request.

¶ 18 Defendant asked the court to reconsider its ruling barring him

from introducing evidence that he was intoxicated at the time of the

crimes. He argued that the ruling violated his due process rights

for reasons that we describe in more detail below. The court denied

this request.

¶ 19 The jury convicted defendant of attempted manslaughter, first

degree assault, vehicular eluding, criminal mischief, six counts of

leaving the scene of an accident, two counts of robbery, two counts

of child abuse, and three counts of aggravated motor vehicle theft.

6 II. Constitutionality of the Voluntary Intoxication Statute

¶ 20 Defendant contends that subsection (1) is unconstitutional

because it (1) lightens the prosecution’s burden to prove every

element of a crime beyond a reasonable doubt; and (2) prevents a

defendant from presenting a complete defense. We disagree.

A. Standard of Review and General Legal Principles

¶ 21 Defendant’s contention requires us to interpret section 18-1-

804. Our review is de novo. People v. Jenkins,

.

¶ 22 When we interpret a statute, we must determine and

effectuate the legislature’s intent. Colo. Dep’t of Revenue v. Creager

Mercantile Co.,

. “We construe the entire

statutory scheme to give consistent, harmonious, and sensible

effect to all [of its] parts,” and “[w]e give effect to words and phrases

according to their plain and ordinary meaning[s].” Denver Post

Corp. v. Ritter,

(Colo. 2011). If a statute’s

language is clear, we apply it as written.

¶ 23 We also review de novo the constitutionality of a statute. Dean

v. People,

, ¶ 8. Because we presume a statute to be

constitutional, the challenging party must prove that it is

unconstitutional beyond a reasonable doubt. Id.

7 B. Montana v. Egelhoff

¶ 24 Relying on Montana v. Egelhoff,

(1996), defendant

asserts that subsection (1) is unconstitutional because it

constitutes an evidentiary rule that prohibits a defendant from

presenting relevant and exculpatory evidence. In Egelhoff, the

prosecution charged the defendant with “deliberate homicide, a

crime defined by Montana law as ‘purposely’ or ‘knowingly’ causing

the death of another human being.”

(opinion of Scalia,

J.)(quoting

(1995)). Montana’s

intoxication statute provides that “an intoxicated condition is not a

defense to any offense and may not be taken into consideration in

determining the existence of a mental state that is an element of the

offense.”

(West 2019). The court at

the defendant’s trial allowed him to present evidence of his

intoxication, but it instructed the jury on Montana’s intoxication

statute. Egelhoff,

(opinion of Scalia, J.). The jury

convicted the defendant of deliberate homicide.

¶ 25 The Montana Supreme Court reversed the conviction. State v.

Egelhoff,

(Mont. 1995), rev’d,

. It

8 concluded that Montana’s statutorily required instruction violated

the due process clause because

• the instruction lessened the burden of proof by

precluding the defendant from “presenting arguments

concerning the prosecution’s ‘failure of proof’ of the

subjective mental state element required for conviction of

a crime which includes the mental state of acting

‘knowingly’ or ‘purposely[,]’” id. at 266; and

• “the defendant had a due process right to present and

have considered by the jury all relevant evidence to rebut

the State’s evidence on all elements of the offense

charged[,]” id.

¶ 26 The United States Supreme Court reversed the Montana

Supreme Court in a fractured opinion. For the purposes of our

discussion, we focus on the four-justice plurality written by Justice

Scalia, the opinion concurring in the judgment written by Justice

Ginsburg, and a four-justice dissent.

¶ 27 Justice Ginsburg stood astride the rift zone between the

plurality and the dissent, and she described their disagreement.

She wrote that Montana’s statute was, according to the plurality, a

9 “redefinition of the mental-state element of the offense,” Egelhoff,

(Ginsburg, J., concurring in the judgment), or,

according to the dissent, a rule that “removed from the jury’s

consideration a category of evidence relevant to determination of

mental state where that mental state [was] an essential element of

the offense that must be proved beyond a reasonable doubt[,]”

(O’Connor, J., dissenting).

¶ 28 The resolution of this disagreement, Justice Ginsburg thought,

depended on the answer to this fundamental question: “Can a

State, without offense to the Federal Constitution, make the

judgment that two people are equally culpable where one commits

an act stone cold sober, and the other engages in the same conduct

after his voluntary intoxication has reduced his capacity for

self-control?”

(Ginsburg, J., concurring in the judgment).

In the course of answering this question “yes,” Justice Ginsburg

decided that Montana’s statute was, as the plurality had

characterized it, a redefinition of the mental-state element of a

crime.

¶ 29 Rejecting the dissent’s position, Justice Ginsburg first decided

that Montana’s statute was not an evidentiary rule.

It did not

10 appear among the statutes listing evidentiary rules, but among the

statutes addressing general principles of criminal liability, such as

duress and entrapment. Such placement “embodie[d] a legislative

judgment regarding the circumstances under which individuals

may be held criminally responsible for their actions.”

¶ 30 She next concluded that Montana’s statute removed the issue

of voluntary intoxication from the analysis of a defendant’s mental

state, “thereby rendering evidence of voluntary intoxication logically

irrelevant to proof of the requisite mental state.”

. As a

result, the statute did not lighten the prosecution’s burden of proof

because “[t]he applicability of the reasonable-doubt standard . . .

has always been dependent on how a State defines the offense that

is charged.”

(quoting Patterson v. New York,

, 211

n.12 (1977)).

¶ 31 Third, statutory redefinitions of mental states in criminal

cases “encounter[] no constitutional shoal” because “States enjoy

wide latitude in defining the elements of criminal offenses,

particularly when determining ‘the extent to which moral culpability

should be a prerequisite to conviction of a crime.’”

(citations

omitted)(quoting Powell v. Texas,

(1968)(Black,

11 J., concurring)). Indeed, defining the culpable mental state “to

eliminate the exculpatory value of voluntary intoxication does not

offend a ‘fundamental principle of justice,’ given the lengthy

common-law tradition, and the adherence of a significant minority

of the States to that position today.” Id. at 59 (Ginsburg, J.,

concurring in the judgment)(quoting id. at 43 (opinion of Scalia, J.)).

¶ 32 The reference to a “fundamental principle of justice” was a nod

to the plurality opinion, which observed that the defendant’s

burden for establishing a due process violation was heavy. Id. at 43

(opinion of Scalia, J.). Because it is normally within a State’s power

to establish the procedures for enforcing its laws, the plurality

wrote, statutes such as Montana’s are “not subject to proscription

under the Due Process Clause” unless they “offend[] some principle

of justice so rooted in the traditions and conscience of our people as

to be ranked as fundamental.’” Id. at 43 (quoting Patterson,

).

¶ 33 Continuing its analysis, the plurality described the relevant

traditions in England and in the United States, concluding that a

“stern rejection of inebriation as a defense” had become fixed in

American jurisprudence. Id. at 44. The plurality also recognized

12 the emergence of the exception in some states allowing juries to

consider whether a defendant’s inebriation negated specific intent.

Id. at 46. But it nonetheless concluded that this trend was “of too

recent vintage, and has not received sufficiently uniform and

permanent allegiance, to qualify as fundamental, especially since it

displaces a lengthy common-law tradition which remains supported

by valid justifications today.” Id. at 51.

¶ 34 And the plurality noted that the Due Process Clause does not

give defendants an “unfettered right” to introduce relevant evidence.

Id. at 42 (quoting Taylor v. Illinois,

(1988)). For

just two examples, procedural and evidentiary rules “authorize the

exclusion of relevant evidence.”

¶ 35 Returning to Justice Ginsburg’s opinion, she next pointed out

that other states had upheld statutes like Montana’s, “not simply as

evidentiary rules, but as legislative redefinitions of the mental-state

element.” Id. at 59 (Ginsburg, J., concurring in the judgment).

Circling back to the fundamental question that she raised at the

beginning, Justice Ginsburg reasoned that, if it was within the

power of Montana’s legislature “to instruct courts to treat a sober

person and a voluntarily intoxicated person as equally responsible

13 for conduct — to place a voluntarily intoxicated person on a level

with a sober person” — then Montana’s statute was “no less tenable

under the Federal Constitution” than the laws upheld by these

other states. Id. at 59-60.

¶ 36 Last, Justice Ginsburg concluded that the mistake made by

the Montana Supreme Court was that it had not “undertake[n] an

analysis in line with the principle that legislative enactments plainly

capable of a constitutional construction ordinarily should be given

that construction.” Id. at 60.

C. Discussion

¶ 37 Defendant asserts that Justice Ginsburg’s concurrence in

Egelhoff controls this case because our supreme court once

characterized subsection (1) as “a rule concerning the admissibility

of evidence of intoxication by the defendant to counter the

prosecution’s evidence that the defendant had the requisite specific

intent of the charged offense.” People v. Harlan,

(Colo. 2000), overruled on other grounds by Miller,

. If

it is such an evidentiary rule instead of a redefinition of the mental

state element of a crime, defendant continues, Justice Ginsburg’s

opinion concurring in the judgment, when combined with the

14 opinion of the four dissenters, renders subsection (1)

unconstitutional. See Verigan v. People,

(When

the United States Supreme Court “issues a fractured opinion

providing no clear holding, the holding ‘may be viewed as that

position taken by those [Justices] who concurred in the judgments

on the narrowest grounds.’” (ultimately quoting Marks v. United

States,

(1977))). We disagree for the following

reasons.

¶ 38 First, we recognize that the Montana statute in Egelhoff differs

from subsection (1) in a meaningful way. Subsection (1) contains

an exception for specific intent crimes; the Montana statute

categorically prohibited the use of voluntary intoxication as a

defense in all cases. But the categorical exclusion in the Montana

statute, which the United States Supreme Court found to be

constitutional, is, for the purposes of this case, the same as the

general rule of subsection (1) that “[i]ntoxication of the accused is

not a defense to a criminal charge[,]” section 18-1-804(1), because

Montana’s statute and subsection (1) both bar the use of voluntary

intoxication as a defense to general intent crimes.

15 ¶ 39 Second, Harlan specifically and clearly limited its statement

that subsection (1) was an evidentiary rule to specific intent

offenses. The opinion states that, after introducing intoxication

evidence to counter the prosecution’s evidence that the defendant

acted with specific intent, a defendant “nonetheless remains liable

for a lesser included general intent offense . . . .”

. In

other words, while subsection (1) might create an evidentiary rule

for specific intent offenses, our supreme court expressly made clear

that it did not apply to general intent offenses.

¶ 40 Third, Harlan’s statement that subsection (1) is an evidentiary

rule was not accompanied by a citation to Egelhoff, which had been

decided about four years before Harlan was released, or to any

other authority. As a result, we cannot read Harlan as even a tacit

incorporation of the dissenters’ reasoning in Egelhoff.

¶ 41 Fourth, our supreme court has pulled back from its statement

in Harlan characterizing subsection (1) as an “evidentiary rule.” In

Brown,

, the court did not describe subsection (1)

as an evidentiary rule; it instead described it as a “partial defense.”

¶ 42 Fifth, it was important to Justice Ginsburg that the Montana

statute appeared among the statutes addressing general principles

16 of criminal liability, and not among statutes setting forth

evidentiary rules. Subsection (1) does not appear in Title 13, Article

25 of Colorado’s Revised Statutes containing evidentiary rules or in

the Colorado Rules of Evidence, “the expected placement of a

provision regulating solely the admissibility of evidence at trial.”

Egelhoff,

(Ginsburg, J, concurring in the judgment).

Rather, its home is among the statutes that discuss general

criminal liability. We find it in Article 1 of Title 18, which includes

“Provisions Applicable to Offenses Generally.” Part 8 of that article

includes provisions that deal with “[r]esponsibility.” As Justice

Ginsburg observed, such placement reflects a legislative choice

“regarding the circumstances under which individuals may be held

criminally responsible for their actions.” Egelhoff,

(Ginsburg, J., concurring in the judgment).

¶ 43 Sixth, subsection (1) does not lighten the prosecution’s burden

to prove the culpable mental state beyond a reasonable doubt. The

prosecution still has to prove beyond a reasonable doubt that a

defendant acted “knowingly,” and “[t]he applicability of the

reasonable-doubt standard . . . has always been dependent on how

17 a State defines the offense that is charged.”

at 58 (quoting

Patterson v. New York,

n.12).

¶ 44 Seventh, the legislature has “wide latitude” to redefine

elements of criminal conduct, especially when determining “the

extent to which moral culpability should be a prerequisite to

conviction of a crime.”

(quoting Powell,

(1968)(Black, J., concurring)). In Colorado, our legislature has

determined that “[s]elf-induced intoxication . . . by its very nature

involves a degree of moral culpability” and has therefore limited a

defendant’s ability to use it as a defense to general intent crimes.

Hendershott,

. By doing so, the legislature

instructed courts trying cases involving general intent crimes “to

treat a sober person and a voluntarily intoxicated person as equally

responsible for conduct,” thus “plac[ing] a voluntarily intoxicated

person on a level with a sober person.” Egelhoff,

(Ginsburg, J., concurring in the judgment). Subsection (1) is

therefore “no less tenable under the Federal Constitution” than the

Montana statute that the Supreme Court upheld in Egelhoff.

.

18 ¶ 45 Eighth, because our legislature has exercised its authority to

define criminal conduct, “we inquire only whether the law ‘offends

some principle of justice so rooted in the traditions and conscience

of our people as to be ranked as fundamental.’”

at 58 (quoting

Patterson,

). As the Egelhoff plurality pointed out,

there is a “lengthy common-law tradition” of barring defendants

from using voluntary intoxication as an excuse to a crime. Id. at

44-51 (opinion of Scalia, J.).

¶ 46 Last, if we were to declare subsection (1) unconstitutional for

the reasons that defendant presses upon us, we would make the

same mistake that Justice Ginsburg attributed to the Montana

Supreme Court: not “undertak[ing] an analysis in line with the

principle that legislative enactments plainly capable of a

constitutional construction ordinarily should be given that

construction.” Id. at 60 (Ginsburg, J., concurring in the judgment).

III. As-Applied Challenge to the Voluntary Intoxication Statute

¶ 47 We now turn to the question of whether subsection (1) is

unconstitutional as applied to defendant’s case. We conclude that

he did not preserve this issue in the trial court, so we will not

address it.

19 ¶ 48 Defendant asserts that he made the same claim in the trial

court that he makes on appeal: Subsection (1) “could not be used to

deprive him of his constitutional right to present a defense and to

require the prosecution to prove, beyond a reasonable [doubt], all

elements of the charged offense.” True, defendant made this claim

in the trial court, but it is the claim that we already addressed in

Part II.

¶ 49 Defendant makes a different as-applied claim on appeal:

subsection (1) is unconstitutional as applied because it allowed the

prosecution to present evidence of his voluntary intoxication to

prove his guilt, but it prohibited him from offering the same

evidence to prove his innocence. We do not consider as-applied

challenges that are not presented to the trial court, People v.

Thompson,

, because “it is imperative that the

trial court make some factual record that indicates what causes the

statute to be unconstitutional as applied,” People v. Veren,

(Colo. App. 2005).

20 IV. Voluntary Intoxication Instruction

¶ 50 Defendant contends that the trial court erred when it

instructed the jury that voluntary intoxication was not a defense to

any of the charged general intent crimes. We disagree.

A. Additional Facts

¶ 51 The prosecutor asked the trial court to instruct the jury that

“intoxication is not a defense to any of the charges in this case”

because the evidence had “raised the specter of intoxication in the

jury’s mind.” Defendant asserted that the instruction was

inappropriate because he had not presented any evidence of

intoxication and did not intend to argue intoxication in closing

argument.

¶ 52 The prosecutor pointed to two pieces of evidence concerning

defendant’s intoxication that the jury had heard. First, defense

counsel had asked a witness about a “baggie,” which, unbeknownst

to the jury, contained methamphetamine residue. Second, during

cross-examination, a police officer testified that he had thought that

defendant, at the time of his arrest, might have been “on

something,” so the officer asked the defendant whether he was “on

something.”

21 ¶ 53 The trial court then instructed the jury that “[s]elf-induced

intoxication is not a defense to any of the charges in this case.”

B. Standard of Review

¶ 54 Trial courts have a duty to correctly instruct the jury on the

applicable law. People v. Garcia,

(Colo. 2001). We

review de novo whether jury instructions accurately reflect the law.

Riley v. People,

(Colo. 2011).

¶ 55 We also review de novo whether sufficient evidence supports a

requested jury instruction. People v. Rios,

. “We

view the evidence in the light most favorable to the giving of the

instruction.”

C. Evidence for the Voluntary Intoxication Instruction

¶ 56 Defendant asserts that the voluntary intoxication instruction

was not supported by sufficient evidence. We disagree.

¶ 57 We conclude that the following evidence supported an

instruction that defendant’s voluntary intoxication was not a

defense to any of the charged crimes:

• One of the firefighters who picked defendant up on the

morning of the crime stated that defendant was “very

talkative, seemed like he had a lot of energy for [six]

22 o’clock in the morning . . . [and he was] moving kind of a

lot.”

• A police officer testified that he found a “baggie” on the

ground outside of a vehicle defendant had stolen.

• One of the arresting officers testified that defendant was

“hyperventilating,” that his “[e]yes were rolled back in his

head,” and that he was “incoherent.”

• The same officer later testified that someone asked

defendant, “What are you on?” The officer clarified that

the question was intended to determine “what type of

narcotics [were] in [defendant’s] system.” The officer said

that defendant’s response to the question was “fear.”

¶ 58 We are not otherwise persuaded by Brown,

-

70; People v. Montez,

,

(1979); People v. Lucero,

(Colo. App. 1980); and

People v. Brionez,

,

(1979), on which defendant relies. These cases are distinguishable

for the following reasons:

• In all four cases, the defendant requested the instruction,

and the respective trial courts refused to give it.

23 • In Brown,

, the supreme court concluded

that there had been “insufficient evidence for a voluntary

intoxication instruction to issue.” Likewise, in Lucero,

, the trial court refused to give the

instruction because there was no evidence that the

defendant was intoxicated during the commission of

crime.

• Montez,

,

, and Brionez,

,

, involved a

defendant’s request for an affirmative defense instruction

because voluntary intoxication was considered an

affirmative defense at that time.

¶ 59 People v. Quintana,

(Colo. App. 1998),

disapproved of on other grounds by Harlan,

, also

supports our analysis. In Quintana, the defendant, who had been

charged with both general and specific intent crimes, did not raise

voluntary intoxication as a defense, but, based on evidence that the

defendant had elicited, the trial court instructed the jury that

intoxication was not a defense to general intent crimes. The

defendant asserted that the court’s instruction “interfered with his

24 tactical decision” to argue to the jury that he had not committed the

acts with which he had been charged and that the instruction

“misled” the jury into thinking that he had committed the acts.

The division concluded that the defendant’s evidence had “created

circumstances allowing the jury to infer that he was so intoxicated

. . . [that] he lacked the ability to form specific intent . . . .”

As a

result, “[t]he instruction . . . properly advised the jury regarding the

legal effect of intoxication on the element of intent.”

¶ 60 Defendant unsuccessfully tries to distinguish Quintana,

contending that “there was evidence of both consumption and

intoxication” in that case, while there was no evidence of either in

this case. We conclude, as we have pointed out above, that there

was such evidence and that, viewing the instruction in the light

most favorable to giving it, the evidence was sufficient. See Rios, ¶

42.

D. Impermissible Presumption of Guilt

We now turn to defendant’s assertion that the instruction

created an impermissible presumption that he possessed the

requisite mental state. We disagree.

25 ¶ 61 At the outset, defendant maintains that the instruction was

erroneous because it did not appear in Colorado’s Model Criminal

Jury Instructions. COLJI-Crim. H:34 (2018) applies to “Intoxication

(Voluntary).” The final sentence of the instruction reads, in part,

that “you may not consider evidence of self-induced intoxication for

purposes of deciding whether the prosecution has proved the

elements of [insert name(s) of general intent offense(s)].”

Comment 8 states that the above sentence “curtails a jury’s

consideration of evidence of defendant’s intoxication where the

defendant is also charged with general intent crimes.”

at cmt. 8.

¶ 62 Although the wording of Instruction H:34 and the instruction

that the trial court read to the jury in this case differ, they mean

much the same. Telling the jury that it could not consider evidence

of voluntary intoxication for purposes of deciding whether the

prosecution had proved the elements of the general intent offenses

is much the same as telling the jury that voluntary intoxication is

not a defense to such crimes.

¶ 63 And a trial court is not required to adhere to the pattern

instructions for us to conclude that the court appropriately

instructed the jury. See People v. Flockhart,

(“The

26 pattern instructions are not law, not authoritative, and not binding

on this court . . . .”). In this case, the instruction on voluntary

intoxication essentially tracked the language of subsection (1),

People v. Galvan,

(cert. granted Jan. 13, 2020),

and it was therefore a correct statement of the law, Rios, ¶ 46.

¶ 64 But, relying on a Missouri Supreme Court case, State v. Erwin,

(Mo. 1993), defendant maintains that the

instruction created an impermissible presumption that he

possessed the requisite mental state. In other words, defendant

argues that the instruction told the jury that, if he were intoxicated,

it should presume that the prosecution had proved that he had

acted with the requisite culpable mental state. We are not

persuaded.

¶ 65 The instruction told the jury that it could not consider

evidence of intoxication as a defense. Indeed, the instruction made

no reference to the mental state element at all. The court

instructed the jury on the culpable mental states of “knowingly”

and “recklessly,” and it told the jury that the prosecution had the

burden to prove the mental state elements beyond a reasonable

doubt. In each of the elemental instructions, the jury was again

27 told that the prosecution had the burden of proving every element

of the charged crime, including the culpable mental state, beyond a

reasonable doubt. When we consider the jury instructions as a

whole, we conclude that the court properly instructed the jury on

the prosecution’s burden to prove all the elements beyond a

reasonable doubt. See Kaufman v. People,

(Colo.

2009).

¶ 66 Defendant also submits that the instruction given by the trial

court was “a far cry from the instruction approved” in People v.

Vanrees,

(Colo. 2005). But Vanrees did not deal with

voluntary intoxication; it dealt with whether a jury could consider

evidence of the defendant’s “mental slowness” when deciding

whether he had acted with general intent.

. The issue in

that case was whether an instruction allowed the jury to consider

such evidence. The supreme court did not address the issue of

whether the instruction was proper as far as voluntary intoxication

was concerned. We therefore conclude that Vanrees does not apply

to our analysis.

¶ 67 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE NAVARRO concur.

28