26 CO 63 | Omnilex

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The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2026 CO 63
Supreme Court Case No. 24SC469
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 20CA1987
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Jeffery Sloan.
Judgment Reversed
en banc
September 14, 2026
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
William G. Kozeliski, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Teodorovic Law, P.C.
Adrienne R. Teodorovic
Windsor, Colorado

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JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE
GABRIEL, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.

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JUSTICE SAMOUR delivered the Opinion of the Court.
¶1 I err; therefore, I am. This expression, inspired by Saint Augustine—the
prolific philosopher and keen observer of human nature—reminds us that we are
all inherently fallible. This, of course, includes trial court judges. No matter how
much they strive for perfection, they cannot attain infallibility. Thus, in a criminal
jury trial, the question is not whether errors will occur; it’s what errors will occur.
¶2 Because fallibility is woven into the human condition, defendants in
criminal cases are not entitled to a perfect trial; they are entitled to a fair one. And
when a defendant fails at trial to object to an error, an appellate court reviewing
the case may only reverse if the error was plain—i.e., if (1) it was so obvious that
the trial court should have been able to steer clear of it, even without the clarion
call of an objection; and (2) it so undermined the fundamental fairness of the trial
as to cast serious doubt on the reliability of the judgment of conviction. For
instructional errors, the second prong of the analysis focuses on whether a
reasonable possibility exists that the flawed instruction nudged the verdict toward
guilt. We have made clear, however, that an erroneous jury instruction will not
ordinarily amount to plain error when the issue was uncontested at trial or when
the record contains overwhelming evidence of the defendant’s guilt.
¶3 In this vehicular eluding case in which two people died, the parties agree,
as do we, that the trial court erred in instructing the jury. Specifically, in

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presenting the sentence enhancer that elevated vehicular eluding from a class 5 to
a class 3 felony, the trial court asked the jury to determine, via an interrogatory,
whether the prosecution proved that “the accident resulted in the death of any
person.” (Emphasis added.) The jury found that the prosecution so proved. The
sentence enhancer in the vehicular eluding statute, however, required the
prosecution to prove that the “vehicular eluding . . . result[ed] in death to another
person.” § 18-9-116.5(2)(a), C.R.S. (2025) (emphasis added).
¶4 At trial, the defendant, Jeffrey Sloan, did not dispute that the vehicular
eluding resulted in death. Rather, he asserted that he wasn’t the driver of the car
that eluded two police officers and was then involved in the collision that took two
lives. And Sloan did not object to the interrogatory that incorrectly asked the jury
to determine whether the accident—as opposed to the vehicular eluding—resulted
in death.
¶5 The question for us is whether the error was plain. We answer in the
negative. Because this was an instructional error concerning an issue that was not
contested at trial, it was not plain error.1
1 Neither party has cited any authority drawing a line between an error in an
elemental instruction and one in a sentence-enhancer interrogatory for purposes
of plain-error review. And our canvass of the case law has revealed none. Indeed,
just a few months ago, we explained in a slightly different context that “sentence-
enhancing factors generally function much like elements” because, with a few
exceptions that are inapplicable here, a trial court may not impose an enhanced
sentence unless the prosecution proves the sentence-enhancing factor beyond a

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¶6 In arriving at a different conclusion in a published opinion, a division of the
court of appeals misconstrued our case law and then improperly relied on and
misapplied one of our cases. Accordingly, we reverse its judgment.
I. Facts and Procedural History2
¶7 Just after midnight one June morning, Denver Police Department Officer
James Adam spotted an occupied stolen Jeep parked in a Denver neighborhood.
Officer Adam parked his patrol car nearby and waited for backup to respond.
While he waited, the Jeep began driving down the street. Officer Adam followed
the Jeep, and a backup patrol car arrived shortly thereafter. Officer Adam
activated his overhead lights and attempted to initiate a traffic stop. Following his
lead, the backup officer likewise turned on his overhead lights. Rather than stop,
the Jeep accelerated north toward Colfax Avenue. As the two patrol cars began to
pursue, the Jeep ran a stop sign and sped through the neighborhood. Then, after
running a second stop sign, the Jeep turned left onto Colfax Avenue going
westbound.
reasonable doubt. People v. Ceus, 2026 CO 59, ¶ 49 n.8, 592 P.3d 1246, 1256 n.8. We
therefore place the error in the vehicular‑eluding interrogatory in this case under
the elemental‑error umbrella and refer simply to instructional errors throughout
this opinion.
2 Our factual recitation is premised on what the jury could reasonably have found
based on the evidence presented at trial.

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¶8 A High Activity Location Observation camera (“HALO camera”) captured
the Jeep moving at a high rate of speed at the intersection of Colfax Avenue and
Jersey Street at 1:07:23 a.m. About thirty seconds later, the officers—following
department protocol prioritizing public safety—called off the chase, deactivated
their overhead lights, and pulled into a parking lot near the intersection.
¶9 Approximately a mile away, at the intersection of Colfax Avenue and
Colorado Boulevard, the Jeep ran a red light at roughly sixty to seventy-five miles
per hour and broadsided a car entering the intersection on a green light. Another
HALO camera recorded the collision—it occurred at 1:08:18 a.m., fifty-five seconds
after the Jeep went through the Colfax Avenue/Jersey Street intersection and
about thirty seconds after the officers ended their pursuit. The Jeep did not slow
down before the collision.
¶10 The officers, who had been parked for two to three minutes, received a
report of an accident at Colfax Avenue and Colorado Boulevard. Upon arriving
at the scene, Officer Adam and the backup officer identified the Jeep as the one
they’d been following minutes earlier. The car that the Jeep collided with was
driven by Y.H., an Uber driver, who was taking M.K. home following a concert.
Both Y.H. and M.K. sustained fatal blunt force injuries. Y.H. died at the scene;
M.K. died several weeks later.

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¶11 The driver of the Jeep fled on foot before officers arrived at the scene. Inside
the Jeep, officers recovered a phone, a wallet, and an identification card (“ID”)
tucked inside a jacket, all of which connected Sloan to the Jeep. The following day,
officers located Sloan and arrested him. They noticed that he had injuries that
were consistent with airbag deployment and seatbelt use at the time of a collision.
¶12 During an interview with a detective, Sloan denied being the Jeep’s driver
at the time of the chase or the collision. But the available evidence contradicted
his statements. Specifically, Sloan’s DNA was recovered from the Jeep’s deployed
airbag and windshield, and other evidence showed that Sloan had his phone with
him in the hours leading up to the collision.
¶13 As relevant here, the prosecution charged Sloan with vehicular eluding
pursuant to section 18-9-116.5 and alleged a sentence enhancer under subsection
(2)(a). The enhancer asserted that the eluding resulted in someone’s death and
therefore elevated the charge from a class 5 to a class 3 felony. At trial, Sloan
advanced a mistaken identity defense, arguing that he wasn’t driving the Jeep
during the relevant timeframe. He acknowledged that his wallet, phone, and ID
were found in the Jeep and that his DNA was recovered from the Jeep’s airbag and
windshield. But he contended that the prosecution still could not prove beyond a
reasonable doubt that he was the driver of the Jeep when the pertinent events

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occurred. According to Sloan, the items belonging to him inside the Jeep
transferred his DNA to the airbag and windshield during the collision.
¶14 The jury rejected Sloan’s theory of defense and found him guilty of vehicular
eluding. It further concluded that the prosecution proved the related sentence
enhancer. The trial court later entered a judgment of conviction for class 3 felony
vehicular eluding and sentenced Sloan on that count to ten years in prison to run
consecutively to the sentences imposed on other counts. All told, Sloan received
a seventy-two-year prison sentence.
¶15 On appeal, Sloan argued that the trial court (1) violated his right to a public
trial and (2) incorrectly instructed the jury on the sentence-enhancing
interrogatory related to the vehicular eluding charge. Because only the second
issue is before us, we cabin our discussion accordingly.
¶16 At the court of appeals, Sloan maintained that the trial court erred by
instructing the jury—via an interrogatory—that the vehicular-eluding sentence
enhancer required proof beyond a reasonable doubt that the accident resulted in
the death of any person. Sloan argued that, under Colorado law, the prosecution
could establish the sentence enhancer only by proving beyond a reasonable doubt
that the vehicular eluding itself resulted in the death of any person. And because
the relevant verdict form—which tracked the language of the vehicular-eluding
interrogatory—reflected the jury’s finding that the “accident” resulted in the death

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of any person, Sloan asserted that he should have been convicted of a class 5, not
a class 3, felony.
¶17 Because Sloan did not object to the sentence-enhancer interrogatory, a
division of the court of appeals reviewed for plain error. People v. Sloan, 2024 COA
52M, ¶ 27, 554 P.3d 527, 533. It first agreed with Sloan that this was not only an
error but an obvious one because it contravened the clear statutory language
concerning the sentence enhancer in section 18-9-116.5(2)(a). Sloan, ¶ 30, 554 P.3d
at 533. Further siding with Sloan, the division determined that the error was
substantial because it so undermined the fundamental fairness of the trial as to
cast serious doubt on the reliability of the judgment of conviction. Id. at ¶¶ 51–57,
554 P.3d at 536–37. On the latter point, the division acknowledged that the defense
did not contest at trial whether the victims died as a result of the vehicular eluding.
Id. at ¶ 37, 554 P.3d at 534. Nevertheless, the division concluded that our
jurisprudence called for “a more robust analysis than simply examining whether
the challenged instruction related to an issue contested at trial.” Id. at ¶ 50,
554 P.3d at 536. Instead, the division reasoned that our precedent also required
consideration of “whether the evidence introduced at trial overwhelmingly
supported the defendant’s conviction.” Id.
¶18 And because the division concluded that the evidence that the vehicular
eluding resulted in death was not overwhelming, it held that the instructional

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infirmity constituted plain error. Id. at ¶¶ 54–57, 554 P.3d at 536–37. Accordingly,
the division reversed Sloan’s conviction for class 3 felony vehicular eluding.3 Id.
at ¶ 57, 554 P.3d at 537.
¶19 Through a petition for certiorari review, the prosecution asked us to
examine a single question:
Whether the court of appeals misapprehended and misapplied the
test for assessing whether a jury instruction related to an undisputed
factual issue at trial amounts to plain error.
We agreed to do so.
II. Analysis
¶20 Unlike most of the cases that taxi to our certiorari gate, this one doesn’t
require us to decide whether the trial court erred—it clearly did. The dispute is
whether reversal is required. And because Sloan didn’t object to the jury
instruction at the heart of this case, our review is for plain error. The plain error
standard is therefore our point of departure.
A. Plain Error Standard
¶21 In the criminal law sphere, “[o]ur appellate courts normally won’t correct a
trial error if the defendant failed to call the court’s attention to it by uttering an
3 The division remanded the case to the trial court with instructions to correct the
mittimus on an unrelated matter. Sloan, ¶ 58, 554 P.3d at 537. We note, however,
that the remand instructions left one issue unaddressed: whether the prosecution
could elect to retry Sloan for class 3 felony vehicular eluding or accept a class 5
felony conviction (that is, a conviction without the sentence enhancer).

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objection.” People v. Crabtree, 2024 CO 40M, ¶ 41, 550 P.3d 656, 667. But this is a
general rule, not an absolute one. Crim. P. 52(b) provides a narrow escape
hatch—plain-error review. “Plain errors . . . affecting substantial rights may be
noticed [on appeal] although they were not brought to the attention of the [trial]
court.” Crim. P. 52(b). To qualify as plain error, an unobjected-to trial error must
(1) be plain and (2) affect substantial rights.4 Id.
¶22 An error is “plain” within the meaning of the first prong of Crim. P. 52(b)
when it is “obvious.” Crabtree, ¶ 42, 550 P.3d at 667 (quoting People v. Miller,
113 P.3d 743, 750 (Colo. 2005)). Under the rule’s plainness requirement, the error
must be “so clear-cut, so obvious” that a trial judge should be able to avoid it
without the lighthouse beam of an objection. Id. (quoting Romero v. People, 2017
CO 37, ¶ 6, 393 P.3d 973, 976). To be deemed plain, therefore, “an error must
contravene a clear statutory command, a well-settled legal principle, or established
Colorado case law.” Id. In this case, Sloan asserts, the prosecution agrees, and we
conclude that the instructional error was plain because it contravened a clear
statutory command—the sentence enhancer defined in section 18-9-116.5(2)(a).
The statutory sentence enhancer required the prosecution to prove that the
4 To avoid confusion between an error that is plain under the rule’s first prong and
an error that constitutes plain error because it satisfies both prongs, we refrain
from calling the former “plain error.”

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vehicular eluding resulted in someone’s death; the trial court instead informed the
jury that the prosecution had to prove that the accident resulted in someone’s death.
¶23 That is not the end of the plain-error inquiry, however. The second prong
of the analysis requires us to determine whether the trial court’s error affected
Sloan’s substantial rights. That prong is the fulcrum on which the parties’ dispute
turns and therefore the pivotal point of our discussion.
¶24 An error that is plain affects an accused’s substantial rights when “an
appellate court, after reviewing the trial record in its entirety, can say with fair
assurance that the error ‘so undermined the fundamental fairness of the trial itself
as to cast serious doubt on the reliability of the judgment of conviction.’” Crabtree,
¶ 43, 550 P.3d at 667 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)). This
standard was crafted to allow appellate courts to correct “particularly egregious
errors.” Hagos v. People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120 (quoting Wilson,
743 P.2d at 420). Indeed, the aim of the plain-error rule is “to temper the
contemporaneous-objection requirement in the interest of permitting an appellate
court to correct particularly egregious errors.” Crabtree, ¶ 43, 550 P.3d at 667
(quoting Wilson, 743 P.2d at 420). Consistent with this objective, “reversals must
be rare to maintain adequate motivation among trial participants to seek a fair and
accurate trial the first time.” Hagos, ¶ 23, 288 P.3d at 122. The upshot is that
plain-error review walks a careful line between “our need to encourage all trial

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participants to seek a fair and accurate trial” from the start and “our insistence that
obvious injustice” resulting from particularly egregious errors be addressed
without undue delay. Id. at ¶ 23, 288 P.3d at 121 (quoting United States v. Frady,
456 U.S. 152, 163 (1982)).
¶25 In the specific context of an instructional error, the substantial-rights prong
of Crim. P. 52(b) asks whether the error “prevented the jury from making a finding
that the law requires so as to affect a substantial right of [the accused’s] and
undermine the fundamental fairness of [the] trial.” Auman v. People, 109 P.3d 647,
665 (Colo. 2005). In other words, the inquiry is whether there is a reasonable
possibility that the erroneous instruction contributed to the guilty verdict such that
serious doubt is cast upon the reliability of the conviction. Id.
¶26 With these principles as our compass, we turn to whether the trial court’s
instructional error constitutes plain error and thus requires reversal. We conclude
it does not.
B. Instructional Errors Related to Uncontested Issues Do Not
Satisfy the Substantial-Rights Prong of Crim. P. 52(b)
¶27 Our plain-error jurisprudence has sketched a clear tenet that is dispositive
in this case: A trial court’s failure to properly instruct the jury does not amount to
plain error “where the subject of the error . . . is not contested at trial, or where
evidence of the defendant’s guilt is overwhelming.” Auman, 109 P.3d at 665
(quoting Bogdanov v. People, 941 P.2d 247, 255 (Colo. 1997)); see also Miller, 113 P.3d

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at 750 (“[A]n erroneous jury instruction does not normally constitute plain error
where the issue is not contested at trial or where the record contains overwhelming
evidence of the defendant’s guilt.”). If the instructional error “concerned an
uncontested issue, . . . then [the accused’s] substantial rights were not affected, and
no reasonable possibility exists that the improper instruction contributed to [the]
conviction.” Auman, 109 P.3d at 665.
¶28 This principle is no dying ember from bygone days; we have stoked it at
least twice in the last decade. Indeed, we reaffirmed its vitality a mere six years
ago in Thompson v. People, 2020 CO 72, 471 P.3d 1045, a securities fraud case. There,
the defendant argued that the trial court improperly instructed the jury on the
definition of “security.” Id. at ¶ 53, 471 P.3d at 1057. Because he didn’t object to
the instruction at trial, we reviewed for plain error. Id. at ¶ 54, 471 P.3d at 1057.
We initially noted that the instruction tracked the relevant statutory definition
“almost verbatim.” Id. at ¶ 55, 471 P.3d at 1057. But that wasn’t the basis for our
determination that there was no plain error. No, our decision was premised on
the fact that the defendant “never disputed at trial that the [promissory] note at
issue was a security,” arguing instead that he did not engage in fraud. Id. at ¶ 56,
471 P.3d at 1057. And since the defendant “never contested” that the note was a
security, we could not say “that any error by the trial court in defining the term
‘security’ so undermined the fundamental fairness of the trial so as to cast serious

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doubt on the reliability of the judgment of conviction.” Id. at ¶ 57, 471 P.3d at
1057–58. Accordingly, we held that any error in the definitional instruction failed
to satisfy the substantial-rights prong of Crim. P. 52(b). Thompson, ¶ 57, 471 P.3d
at 1057–58.
¶29 Thompson drew strength from People v. Lozano-Ruiz, 2018 CO 86, 429 P.3d
577, a sexual assault case we had decided less than two years earlier. There, the
county court correctly instructed the jury on the elements of the offense charged,
including that the defendant inflicted “sexual intrusion or penetration on a
person.” Id. at ¶ 3, 429 P.3d at 578. But its instructions omitted the statutory
definition of “sexual penetration.” Id. Because the defendant neither objected to
the instructions nor requested the missing definitional instruction, we, like the
district court—acting as an appellate court—reviewed for plain error. Id. at ¶¶ 3,
5, 429 P.3d at 578. Unlike the district court, however, we concluded that there was
no plain error because the instructional defect concerned an issue that was
uncontested at trial:
[B]ecause the question of whether sexual penetration occurred was
not contested at trial beyond the mere fact of the defendant pleading
not guilty, failure to include the definitional instruction did not rise
to the level of plain error . . . . Lozano-Ruiz never contested the
testimony from several witnesses that he and the victim engaged in
“sex” or “sexual intercourse.” He did not cross-examine the victim as
to the veracity of her statement that he put his penis inside of her. His
sole defense at trial was mistake of age, a defense wholly unrelated to
the statutory definition of “sexual penetration.”

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Id. at ¶¶ 5–6, 429 P.3d at 578.
¶30 When the dust settles, our jurisprudence reveals that an instructional error
related to an issue that was uncontested at trial does not satisfy the
substantial-rights prong of the plain-error analysis. We turn next to why the
division faltered in arriving at a different conclusion, focusing on two aspects of
its analysis.
1. The Division Misread Our Case Law
¶31 The division concluded that, “regardless of whether the defense did or did
not contest the [pertinent] issue at trial,” a court conducting plain-error review
must “examine whether the instructional error . . . ‘so undermined the
fundamental fairness of the trial itself as to cast serious doubt on the reliability of
the judgment of conviction.’” Sloan, ¶ 48, 554 P.3d at 535 (quoting Thompson, ¶ 54,
471 P.3d at 1057). More specifically, the division reasoned that an instructional
lapse constitutes plain error unless the evidence at trial overwhelmingly supports
the defendant’s conviction. Id. at ¶¶ 48–50, 554 P.3d at 535–36. That
understanding misapprehends our jurisprudence.
¶32 The division distinguished our decision in Thompson because it read it as
resting “primarily” on our observation that the definitional instruction of
“security” tracked the statutory language. Sloan, ¶ 47, 554 P.3d at 535. But we
were clear that the reason we could not “say that any error by the trial court in

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defining the term ‘security’” met the substantial-rights prong of the plain-error
standard was “[b]ecause Thompson never contested at trial that the note at issue
was a security.” Thompson, ¶ 57, 471 P.3d at 1057–58. The remark regarding the
similarities between the instructional and statutory definitions of “security” was a
brief aside, not a building block of our rationale. Id.
¶33 After failing to capture the true thrust of Thompson, the division turned to
Thompson’s predecessor, Lozano-Ruiz. It then read Lozano-Ruiz as limiting the effect
of a defendant’s decision at trial not to contest an issue that’s later raised on appeal.
Sloan, ¶ 41, 554 P.3d at 534–35. The division suggested that what matters isn’t
whether a defendant failed to contest such an issue; it’s whether the defendant
actually conceded the issue. Id. Respectfully, we said just the opposite in Lozano-
Ruiz.
¶34 We acknowledged in Lozano-Ruiz that the defendant “did not concede that
sexual penetration occurred, in that he maintained throughout the trial that he was
not guilty of the charged offense.” ¶ 7, 429 P.3d at 578. But we hastened to add
that “he also did not contest that sexual penetration occurred, in that he never
challenged the evidence suggesting that it had.” Id. And, importantly, we
explained that “[i]t [was] the failure to contest the issue that [was] the crucial missing
ingredient.” Id. (second emphasis added). Stated differently, although the
defendant did not concede the issue of sexual penetration, we could not conclude

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that the omitted definition constituted plain error because he did not contest that
sexual penetration occurred. Id. As we summarized, “[w]ithout putting the
definition of ‘sexual penetration’ at issue in the trial, and without objecting to the
jury instructions, Lozano-Ruiz [could not] . . . claim that the trial court plainly
erred in omitting that definition from the instructions.” Id.
¶35 We turn next to the division’s interpretation of Auman—an earlier case that
sits comfortably alongside Thompson and Lozano-Ruiz. The division seemed to
treat Auman as supporting the notion that whether an instructional error amounts
to plain error requires a more rigorous analysis than merely assessing “whether
the challenged instruction related to an issue contested at trial”—the reviewing
court must also consider “whether the evidence introduced at trial
overwhelmingly supported the defendant’s conviction.” Sloan, ¶ 50, 554 P.3d at
536. But Auman gives that proposition no shelter. Although Auman discussed both
an unobjected-to instructional error concerning “an uncontested issue” and an
instructional error arising in a case where “the evidence of [the defendant’s] guilt
is overwhelming,” we separated those scenarios with the disjunctive or, not the
conjunctive and. 109 P.3d at 665. We said that “[i]f the error concerned an
uncontested issue, or if the evidence of her guilt [was] overwhelming, then
Auman’s substantial rights were not affected, and no reasonable possibility

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exist[ed] that the improper instruction contributed to her conviction.” Id.
(emphasis added).
¶36 What appears to have thrown the division off course in applying Auman is
that we articulated the same proposition in inverse form in the very next sentence,
which required us to replace the disjunctive or with the conjunctive and:
However, if the evidence of [the defendant’s] guilt is not
overwhelming, and if there existed an evidentiary dispute as to [the
subject of the instructional error], then it is likely that [the
defendant’s] substantial rights were affected, and a reasonable
possibility exists that the improper instruction contributed to [the]
conviction.
Id. (emphasis added). The division misinterpreted this sentence, overlooking that
it is simply the mirror image of the earlier one. The two sentences are entirely
consistent. They are merely different expressions of the same idea; the first
explains when plain error does not result—the subject of the error was an
uncontested issue or the evidence of guilt was overwhelming—while the
mirror-image counterpart explains when plain error does result—the subject of the
error was not uncontested and the evidence of guilt was not overwhelming.
¶37 Espinoza v. People, 712 P.2d 476 (Colo. 1985), on which the division also
relied, Sloan, ¶ 50, 554 P.3d at 536, is in lockstep with Auman. There, after noting
that a failure to properly instruct on an undisputed element generally does not
constitute plain error, we added that “[i]t is also unlikely that an erroneous
instruction will be considered plain error if the evidence of the defendant’s guilt

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was overwhelming.” Espinoza, 712 P.2d at 478. The fact that Espinoza addressed
both points—because both happened to apply in that case—does not mean that
our plain-error framework requires both conditions to be satisfied. The division
erred in reaching the opposite conclusion.
¶38 But atop its misreading of our body of law, the division stacked a misplaced
reliance on, and misapplication of, People v. Cowden, 735 P.2d 199 (Colo. 1987).
Sloan, ¶¶ 43–45, 554 P.3d at 535. As we explain next, Cowden offers no lifeline to
the division’s analysis.
2. The Division Wrongly Relied on and Misapplied Cowden
¶39 In Cowden, the elemental instruction for one of the six felony theft counts
charged failed to inform the jury that the prosecution had the burden of proving
that the value of the stolen property was $200 or more but less than $10,000.
735 P.2d at 202. Because the defendant did not object to this instruction or
otherwise alert the trial court to the omission of the value element, we reviewed
for plain error. Id. In describing the plain-error standard, we did not compose a
new melody; we replayed the same settled refrain: “Failure to instruct properly on
an element of a crime does not constitute plain error where the element is not
contested at trial, or where evidence of the defendant’s guilt is overwhelming.” Id.
Indeed, we cited Espinoza in support of this proposition.

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¶40 It is true that, as the division noted, we reversed the theft conviction at issue
in Cowden, even though the defendant did not contest the value element at trial.
Sloan, ¶ 45, 554 P.3d at 535; see also Cowden, 735 P.2d at 201 (indicating that the
defendant’s argument at trial was that the theft statute denied him equal
protection of the law because it allowed the prosecution to obtain a conviction by
proving that he acted either intentionally or knowingly). But we did so because
the absence of evidence that the value of the stolen property was at least $200 stuck
out like a sore thumb. Cowden, 735 P.2d at 202. In fact, the victim testified to the
contrary. Id. She said that the property’s value was not $200 or more; it was $195.
Id. Further, neither the prosecution nor the defense presented other evidence of
the property’s value. Id. Differently put, the evidence at trial indisputably showed
that the stolen property was not $200 or more. In the face of this record, we were
hard-pressed to conclude that it was not reasonably possible that the defendant
would have been acquitted on this count of theft if the jury had been properly
instructed. Id. Accordingly, we remanded the case with directions to resentence
the defendant for the lesser included offense of misdemeanor theft—an offense
requiring proof that the value of the stolen property exceeded $50 but was less
than $200. Id.
¶41 Here, unlike the situation in Cowden, the record is not barren of evidence
that the vehicular eluding resulted in someone’s death. Nor did the evidence

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introduced at trial establish the opposite. Because the record in this case is not
devoid of evidence that the vehicular eluding resulted in someone’s death—and it
certainly doesn’t indisputably establish the opposite—Cowden is off point. This is
not an outlier case like Cowden, which compels us to act sua sponte in light of a
glaring absence of evidence on an element or interrogatory, or in light of
indisputable evidence disproving the element or interrogatory.5
¶42 The division not only failed to recognize Cowden as a case that sits outside
the usual contours of the doctrinal mainstream, it also proceeded to misapply it.
Taking its bearings from that decision, the division concluded that “the
prosecution’s own evidence” contradicted the argument that the eluding resulted
in death.6 Sloan, ¶ 52, 554 P.3d at 536. It reasoned “that the officers abandoned
their pursuit of the Jeep shortly before, and about a mile from the location of, the
collision.” Id. at ¶ 53, 554 P.3d at 536. In the division’s view, once the officers
called off the chase, Sloan could no longer commit the crime of vehicular eluding.
This application of Cowden was flawed.
5 Sloan has not brought a claim challenging the sufficiency of the evidence related
to the sentence enhancer. He could have done so; he chose not to. We therefore
decline his invitation to evaluate the sufficiency of the evidence supporting the
sentence enhancer.
6 Following the division’s lead, Sloan asserts that the prosecution’s own evidence
disproved the sentence enhancer.

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¶43 The fact that the chase had ended doesn’t mean that the eluding had, too.
There was no evidence that Sloan knew the officers had called off their pursuit.
To the contrary, the evidence indisputably showed that he was continuing to travel
at a high rate of speed when he ran the red light and collided with the Uber car at
the intersection of Colfax Avenue and Colorado Boulevard.
¶44 The record shows an unbroken chain of events set in motion by Sloan’s
decision to flee: Officer Adam and the backup officer attempted to stop Sloan;
rather than stop, Sloan sped away from them recklessly; the officers eventually
called off the chase and stopped pursuing; a mere thirty seconds later, while
continuing to drive recklessly, Sloan collided with a car that had the right of way,
killing both of its occupants; and Sloan then fled on foot. This uninterrupted
sequence demonstrates that, although Sloan “kn[ew] or reasonably should [have]
know[n]” that the officers were attempting to stop him, he “elude[d] or
attempt[ed] to elude” them. § 18-9-116.5(1). More importantly, it establishes that,
at the time of the collision that resulted in two deaths, Sloan was still “elud[ing] or
attempt[ing] to elude” the officers, regardless of what they were doing. Id. The
division misapplied Cowden by conflating the officers’ pursuit with Sloan’s
eluding. In the end, although the jury found that the “accident” resulted in death,
the “accident” was inextricably intertwined with the eluding and directly resulted
from it.

24
¶45 Moreover, the division’s approach could yield absurd results. Under that
rationale, a collision that occurs even two seconds after officers call off a
chase—due to dangerous circumstances created by the defendant—would fall
outside the vehicular eluding statute. Nothing in the text or structure of section
18-9-116.5 suggests that the legislature intended such an arbitrary limitation.
¶46 In short, Cowden is not germane, and the division erred in leaning on it—and
then compounded that error by misapplying it.
¶47 Having explained where the division went astray, we now circle back to this
case. We must determine whether the trial court’s instructional misstep
constitutes plain error and thus requires reversal of Sloan’s conviction.
C. There Was No Plain Error Here Requiring Reversal
¶48 As the division acknowledged, at trial, Sloan did not contest that the eluding
resulted in death. Sloan, ¶ 37, 554 P.3d at 534. At no time—“whether during voir
dire of the potential jurors, opening statements, or closing statements—did the
defense claim” that the eluding did not result in death. People v. Fichtner, 869 P.2d
539, 544 (Colo. 1994) (concluding that the omission of the definition of “serious
bodily injury” from a menacing jury instruction did not constitute plain error
because whether the victim feared serious bodily injury was not contested at trial
and the evidence on that issue was overwhelming). Nor did Sloan argue at any
point that the prosecution failed to present sufficient evidence that the eluding

25
resulted in death. Rather, Sloan rode the mistaken-identity horse from the starting
gate all the way to the finish line. His position was that someone else was driving
the Jeep leading up to and during the collision.
¶49 We are not persuaded otherwise by defense counsel’s cross-examination,
confirming that the officers turned off their overhead lights and pulled into a
parking lot shortly before the collision. The focus of these questions was to
establish the safety-related reasons the officers ended their pursuit, not to
challenge the prosecution’s evidence that the eluding resulted in death. Counsel’s
cursory references to the decision to call off the chase fall well short of showing
that Sloan genuinely contested the vehicular-eluding interrogatory at trial. See
Cowden, 735 P.2d at 202–03 (concluding that defense counsel’s “cursory references
to the claimed value of the missing items” with respect to five of the six counts of
felony theft were not enough to consider the value element contested at trial).
¶50 Because Sloan did not contest that the eluding resulted in death, he cannot
carry his burden of establishing that a reasonable possibility exists that the
instructional error contributed to the vehicular-eluding verdict such that serious
doubt is cast upon the reliability of the conviction for that crime. Accordingly, he
cannot demonstrate there was plain error.

26
III. Conclusion
¶51 We reverse the division’s judgment. We further remand to the division with
instructions to return the case to the district court so that it may correct the
mittimus on the unrelated matter noted in the division’s opinion.

OCR transcription for search; preserved printed pages are authoritative

ADVANCE SHEET HEADNOTE
September 14, 2026

2026 CO 63

No. 24SC469, People v. Sloan-Instructional Error-Sentence-Enhancing
Interrogatory - Plain Error-Vehicular Eluding-§ 18-9-116.5(2)(a), C.R.S.
(2025).

The supreme court reaffirms that an instructional error concerning an issue
that was uncontested at trial does not amount to plain error. In this case, a division
of the court of appeals concluded that Colorado law requires a more robust
analysis than simply examining whether the erroneous instruction related to an
uncontested issue. The division reasoned that appellate courts must also consider
whether the evidence at trial overwhelmingly supports the defendant's
conviction, and that an instructional error regarding an uncontested issue may rise
to plain error only if the evidence of guilt-or, in this case, the evidence
establishing the sentence-enhancing interrogatory - is overwhelming. Because the
division misunderstood and misapplied Colorado law, the supreme court reverses
its judgment.

# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 63

Supreme Court Case No. 24SC469
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 20CA1987

Petitioner:
The People of the State of Colorado,

V.
Respondent:
Jeffery Sloan.

Judgment Reversed
en banc
September 14, 2026

Attorneys for Petitioner:

Philip J. Weiser, Attorney General

William G. Kozeliski, Senior Assistant Attorney General

Denver, Colorado

Attorneys for Respondent:

Teodorovic Law, P.C.

Adrienne R. Teodorovic

Windsor, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court, in which CHIEF
JUSTICE MÁRQUEZ, JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE
GABRIEL, JUSTICE BERKENKOTTER, and JUSTICE BLANCO joined.

JUSTICE SAMOUR delivered the Opinion of the Court.

11 I err; therefore, I am. This expression, inspired by Saint Augustine-the
prolific philosopher and keen observer of human nature -reminds us that we are
all inherently fallible. This, of course, includes trial court judges. No matter how
much they strive for perfection, they cannot attain infallibility. Thus, in a criminal
jury trial, the question is not whether errors will occur; it's what errors will occur.

12 Because fallibility is woven into the human condition, defendants in
criminal cases are not entitled to a perfect trial; they are entitled to a fair one. And
when a defendant fails at trial to object to an error, an appellate court reviewing
the case may only reverse if the error was plain-i.e., if (1) it was so obvious that
the trial court should have been able to steer clear of it, even without the clarion
call of an objection; and (2) it so undermined the fundamental fairness of the trial
as to cast serious doubt on the reliability of the judgment of conviction. For
instructional errors, the second prong of the analysis focuses on whether a
reasonable possibility exists that the flawed instruction nudged the verdict toward
guilt. We have made clear, however, that an erroneous jury instruction will not
ordinarily amount to plain error when the issue was uncontested at trial or when
the record contains overwhelming evidence of the defendant's guilt.

13 In this vehicular eluding case in which two people died, the parties agree,
as do we, that the trial court erred in instructing the jury. Specifically, in

presenting the sentence enhancer that elevated vehicular eluding from a class 5 to
a class 3 felony, the trial court asked the jury to determine, via an interrogatory,
whether the prosecution proved that "the accident resulted in the death of any
person." (Emphasis added.) The jury found that the prosecution so proved. The
sentence enhancer in the vehicular eluding statute, however, required the
prosecution to prove that the "vehicular eluding ... result[ed] in death to another
person." § 18-9-116.5(2)(a), C.R.S. (2025) (emphasis added).

14 At trial, the defendant, Jeffrey Sloan, did not dispute that the vehicular
eluding resulted in death. Rather, he asserted that he wasn't the driver of the car
that eluded two police officers and was then involved in the collision that took two
lives. And Sloan did not object to the interrogatory that incorrectly asked the jury
to determine whether the accident - as opposed to the vehicular eluding -resulted
in death.

15 The question for us is whether the error was plain. We answer in the
negative. Because this was an instructional error concerning an issue that was not
contested at trial, it was not plain error.1

1 Neither party has cited any authority drawing a line between an error in an
elemental instruction and one in a sentence-enhancer interrogatory for purposes
of plain-error review. And our canvass of the case law has revealed none. Indeed,
just a few months ago, we explained in a slightly different context that "sentence-
enhancing factors generally function much like elements" because, with a few
exceptions that are inapplicable here, a trial court may not impose an enhanced
sentence unless the prosecution proves the sentence-enhancing factor beyond a

16
In arriving at a different conclusion in a published opinion, a division of the
court of appeals misconstrued our case law and then improperly relied on and
misapplied one of our cases. Accordingly, we reverse its judgment.

## I. Facts and Procedural History2

17
Just after midnight one June morning, Denver Police Department Officer
James Adam spotted an occupied stolen Jeep parked in a Denver neighborhood.
Officer Adam parked his patrol car nearby and waited for backup to respond.
While he waited, the Jeep began driving down the street. Officer Adam followed
the Jeep, and a backup patrol car arrived shortly thereafter. Officer Adam
activated his overhead lights and attempted to initiate a traffic stop. Following his
lead, the backup officer likewise turned on his overhead lights. Rather than stop,
the Jeep accelerated north toward Colfax Avenue. As the two patrol cars began to
pursue, the Jeep ran a stop sign and sped through the neighborhood. Then, after
running a second stop sign, the Jeep turned left onto Colfax Avenue going
westbound.

reasonable doubt. People v. Ceus, 2026 CO 59, 1 49 n.8, 592 P.3d 1246, 1256 n.8. We
therefore place the error in the vehicular-eluding interrogatory in this case under
the elemental-error umbrella and refer simply to instructional errors throughout
this opinion.

2 Our factual recitation is premised on what the jury could reasonably have found
based on the evidence presented at trial.

18 A High Activity Location Observation camera ("HALO camera") captured
the Jeep moving at a high rate of speed at the intersection of Colfax Avenue and
Jersey Street at 1:07:23 a.m. About thirty seconds later, the officers-following
department protocol prioritizing public safety -called off the chase, deactivated
their overhead lights, and pulled into a parking lot near the intersection.

19 Approximately a mile away, at the intersection of Colfax Avenue and
Colorado Boulevard, the Jeep ran a red light at roughly sixty to seventy-five miles
per hour and broadsided a car entering the intersection on a green light. Another
HALO camera recorded the collision - it occurred at 1:08:18 a.m., fifty-five seconds
after the Jeep went through the Colfax Avenue/Jersey Street intersection and
about thirty seconds after the officers ended their pursuit. The Jeep did not slow
down before the collision.

110 The officers, who had been parked for two to three minutes, received a
report of an accident at Colfax Avenue and Colorado Boulevard. Upon arriving
at the scene, Officer Adam and the backup officer identified the Jeep as the one
they'd been following minutes earlier. The car that the Jeep collided with was
driven by Y.H., an Uber driver, who was taking M.K. home following a concert.
Both Y.H. and M.K. sustained fatal blunt force injuries. Y.H. died at the scene;
M.K. died several weeks later.

111
The driver of the Jeep fled on foot before officers arrived at the scene. Inside
the Jeep, officers recovered a phone, a wallet, and an identification card ("ID")
tucked inside a jacket, all of which connected Sloan to the Jeep. The following day,
officers located Sloan and arrested him. They noticed that he had injuries that
were consistent with airbag deployment and seatbelt use at the time of a collision.
112 During an interview with a detective, Sloan denied being the Jeep's driver
at the time of the chase or the collision. But the available evidence contradicted
his statements. Specifically, Sloan's DNA was recovered from the Jeep's deployed
airbag and windshield, and other evidence showed that Sloan had his phone with
him in the hours leading up to the collision.

113 As relevant here, the prosecution charged Sloan with vehicular eluding
pursuant to section 18-9-116.5 and alleged a sentence enhancer under subsection
(2)(a). The enhancer asserted that the eluding resulted in someone's death and
therefore elevated the charge from a class 5 to a class 3 felony. At trial, Sloan
advanced a mistaken identity defense, arguing that he wasn't driving the Jeep
during the relevant timeframe. He acknowledged that his wallet, phone, and ID
were found in the Jeep and that his DNA was recovered from the Jeep's airbag and
windshield. But he contended that the prosecution still could not prove beyond a
reasonable doubt that he was the driver of the Jeep when the pertinent events

occurred. According to Sloan, the items belonging to him inside the Jeep
transferred his DNA to the airbag and windshield during the collision.

114 The jury rejected Sloan's theory of defense and found him guilty of vehicular
eluding. It further concluded that the prosecution proved the related sentence
enhancer. The trial court later entered a judgment of conviction for class 3 felony
vehicular eluding and sentenced Sloan on that count to ten years in prison to run
consecutively to the sentences imposed on other counts. All told, Sloan received
a seventy-two-year prison sentence.

115 On appeal, Sloan argued that the trial court (1) violated his right to a public
trial and (2) incorrectly instructed the jury on the sentence-enhancing
interrogatory related to the vehicular eluding charge. Because only the second
issue is before us, we cabin our discussion accordingly.

116 At the court of appeals, Sloan maintained that the trial court erred by
instructing the jury -via an interrogatory-that the vehicular-eluding sentence
enhancer required proof beyond a reasonable doubt that the accident resulted in
the death of any person. Sloan argued that, under Colorado law, the prosecution
could establish the sentence enhancer only by proving beyond a reasonable doubt
that the vehicular eluding itself resulted in the death of any person. And because
the relevant verdict form-which tracked the language of the vehicular-eluding
interrogatory - reflected the jury's finding that the "accident" resulted in the death

of any person, Sloan asserted that he should have been convicted of a class 5, not
a class 3, felony.

117 Because Sloan did not object to the sentence-enhancer interrogatory, a
division of the court of appeals reviewed for plain error. People v. Sloan, 2024 COA
52M, 1 27, 554 P.3d 527, 533. It first agreed with Sloan that this was not only an
error but an obvious one because it contravened the clear statutory language
concerning the sentence enhancer in section 18-9-116.5(2)(a). Sloan, 1 30, 554 P.3d
at 533. Further siding with Sloan, the division determined that the error was
substantial because it so undermined the fundamental fairness of the trial as to
cast serious doubt on the reliability of the judgment of conviction. Id. at [1 51-57,
554 P.3d at 536-37. On the latter point, the division acknowledged that the defense
did not contest at trial whether the victims died as a result of the vehicular eluding.
Id. at 1 37, 554 P.3d at 534. Nevertheless, the division concluded that our
jurisprudence called for "a more robust analysis than simply examining whether
the challenged instruction related to an issue contested at trial." Id. at 1 50,
554 P.3d at 536. Instead, the division reasoned that our precedent also required
consideration of "whether the evidence introduced at trial overwhelmingly
supported the defendant's conviction." Id.

118 And because the division concluded that the evidence that the vehicular
eluding resulted in death was not overwhelming, it held that the instructional

infirmity constituted plain error. Id. at [1 54-57, 554 P.3d at 536-37. Accordingly,
the division reversed Sloan's conviction for class 3 felony vehicular eluding.3 Id.
at 1 57, 554 P.3d at 537.

119 Through a petition for certiorari review, the prosecution asked us to
examine a single question:

Whether the court of appeals misapprehended and misapplied the
test for assessing whether a jury instruction related to an undisputed
factual issue at trial amounts to plain error.

We agreed to do so.

## II. Analysis

120 Unlike most of the cases that taxi to our certiorari gate, this one doesn't
require us to decide whether the trial court erred-it clearly did. The dispute is
whether reversal is required. And because Sloan didn't object to the jury
instruction at the heart of this case, our review is for plain error. The plain error
standard is therefore our point of departure.

## A. Plain Error Standard

121 In the criminal law sphere, "[o]ur appellate courts normally won't correct a
trial error if the defendant failed to call the court's attention to it by uttering an

3 The division remanded the case to the trial court with instructions to correct the
mittimus on an unrelated matter. Sloan, 1 58, 554 P.3d at 537. We note, however,
that the remand instructions left one issue unaddressed: whether the prosecution
could elect to retry Sloan for class 3 felony vehicular eluding or accept a class 5
felony conviction (that is, a conviction without the sentence enhancer).

objection." People v. Crabtree, 2024 CO 40M, 1 41, 550 P.3d 656, 667. But this is a
general rule, not an absolute one. Crim. P. 52(b) provides a narrow escape
hatch-plain-error review. "Plain errors ... affecting substantial rights may be
noticed [on appeal] although they were not brought to the attention of the [trial]
court." Crim. P. 52(b). To qualify as plain error, an unobjected-to trial error must
(1) be plain and (2) affect substantial rights.4 Id.

122 An error is "plain" within the meaning of the first prong of Crim. P. 52(b)
when it is "obvious." Crabtree, 1 42, 550 P.3d at 667 (quoting People v. Miller,
113 P.3d 743, 750 (Colo. 2005)). Under the rule's plainness requirement, the error
must be "so clear-cut, so obvious" that a trial judge should be able to avoid it
without the lighthouse beam of an objection. Id. (quoting Romero v. People, 2017
CO 37, 1 6, 393 P.3d 973, 976). To be deemed plain, therefore, "an error must
contravene a clear statutory command, a well-settled legal principle, or established
Colorado case law." Id. In this case, Sloan asserts, the prosecution agrees, and we
conclude that the instructional error was plain because it contravened a clear
statutory command - the sentence enhancer defined in section 18-9-116.5(2)(a).
The statutory sentence enhancer required the prosecution to prove that the

4 To avoid confusion between an error that is plain under the rule's first prong and
an error that constitutes plain error because it satisfies both prongs, we refrain
from calling the former "plain error."

vehicular eluding resulted in someone's death; the trial court instead informed the
jury that the prosecution had to prove that the accident resulted in someone's death.

123 That is not the end of the plain-error inquiry, however. The second prong
of the analysis requires us to determine whether the trial court's error affected
Sloan's substantial rights. That prong is the fulcrum on which the parties' dispute
turns and therefore the pivotal point of our discussion.

T24 An error that is plain affects an accused's substantial rights when "an
appellate court, after reviewing the trial record in its entirety, can say with fair
assurance that the error 'so undermined the fundamental fairness of the trial itself
as to cast serious doubt on the reliability of the judgment of conviction."" Crabtree,
1 43, 550 P.3d at 667 (quoting Wilson v. People, 743 P.2d 415, 420 (Colo. 1987). This
standard was crafted to allow appellate courts to correct "particularly egregious
errors." Hagos v. People, 2012 CO 63, 1 14, 288 P.3d 116, 120 (quoting Wilson,
743 P.2d at 420). Indeed, the aim of the plain-error rule is "to temper the
contemporaneous-objection requirement in the interest of permitting an appellate
court to correct particularly egregious errors." Crabtree, 1 43, 550 P.3d at 667
(quoting Wilson, 743 P.2d at 420). Consistent with this objective, "reversals must
be rare to maintain adequate motivation among trial participants to seek a fair and
accurate trial the first time." Hagos, T 23, 288 P.3d at 122. The upshot is that
plain-error review walks a careful line between "our need to encourage all trial

participants to seek a fair and accurate trial" from the start and "our insistence that
obvious injustice" resulting from particularly egregious errors be addressed
without undue delay. Id. at 1 23, 288 P.3d at 121 (quoting United States v. Frady,
456 U.S. 152, 163 (1982)).

125 In the specific context of an instructional error, the substantial-rights prong
of Crim. P. 52(b) asks whether the error "prevented the jury from making a finding
that the law requires so as to affect a substantial right of [the accused's] and
undermine the fundamental fairness of [the] trial." Auman v. People, 109 P.3d 647,
665 (Colo. 2005). In other words, the inquiry is whether there is a reasonable
possibility that the erroneous instruction contributed to the guilty verdict such that
serious doubt is cast upon the reliability of the conviction. Id.

126 With these principles as our compass, we turn to whether the trial court's
instructional error constitutes plain error and thus requires reversal. We conclude
it does not.

## B. Instructional Errors Related to Uncontested Issues Do Not Satisfy the Substantial-Rights Prong of Crim. P. 52(b)

127 Our plain-error jurisprudence has sketched a clear tenet that is dispositive
in this case: A trial court's failure to properly instruct the jury does not amount to
plain error "where the subject of the error . .. is not contested at trial, or where
evidence of the defendant's guilt is overwhelming." Auman, 109 P.3d at 665
(quoting Bogdanov v. People, 941 P.2d 247, 255 (Colo. 1997)); see also Miller, 113 P.3d

at 750 ("[A]n erroneous jury instruction does not normally constitute plain error
where the issue is not contested at trial or where the record contains overwhelming
evidence of the defendant's guilt."). If the instructional error "concerned an
uncontested issue, ... then [the accused's] substantial rights were not affected, and
no reasonable possibility exists that the improper instruction contributed to [the]
conviction." Auman, 109 P.3d at 665.

128 This principle is no dying ember from bygone days; we have stoked it at
least twice in the last decade. Indeed, we reaffirmed its vitality a mere six years
ago in Thompson v. People, 2020 CO 72, 471 P.3d 1045, a securities fraud case. There,
the defendant argued that the trial court improperly instructed the jury on the
definition of "security." Id. at | 53, 471 P.3d at 1057. Because he didn't object to
the instruction at trial, we reviewed for plain error. Id. at 1 54, 471 P.3d at 1057.
We initially noted that the instruction tracked the relevant statutory definition
"almost verbatim." Id. at | 55, 471 P.3d at 1057. But that wasn't the basis for our
determination that there was no plain error. No, our decision was premised on
the fact that the defendant "never disputed at trial that the [promissory] note at
issue was a security," arguing instead that he did not engage in fraud. Id. at "[ 56,
471 P.3d at 1057. And since the defendant "never contested" that the note was a
security, we could not say "that any error by the trial court in defining the term
'security' so undermined the fundamental fairness of the trial so as to cast serious

doubt on the reliability of the judgment of conviction." Id. at | 57, 471 P.3d at
1057-58. Accordingly, we held that any error in the definitional instruction failed
to satisfy the substantial-rights prong of Crim. P. 52(b). Thompson, 1 57, 471 P.3d
at 1057-58.

129 Thompson drew strength from People v. Lozano-Ruiz, 2018 CO 86, 429 P.3d
577, a sexual assault case we had decided less than two years earlier. There, the
county court correctly instructed the jury on the elements of the offense charged,
including that the defendant inflicted "sexual intrusion or penetration on a
person." Id. at [ 3, 429 P.3d at 578. But its instructions omitted the statutory
definition of "sexual penetration." Id. Because the defendant neither objected to
the instructions nor requested the missing definitional instruction, we, like the
district court- acting as an appellate court -reviewed for plain error. Id. at 113,
5, 429 P.3d at 578. Unlike the district court, however, we concluded that there was
no plain error because the instructional defect concerned an issue that was
uncontested at trial:

[B]ecause the question of whether sexual penetration occurred was
not contested at trial beyond the mere fact of the defendant pleading
not guilty, failure to include the definitional instruction did not rise
to the level of plain error .... Lozano-Ruiz never contested the
testimony from several witnesses that he and the victim engaged in
"sex" or "sexual intercourse." He did not cross-examine the victim as
to the veracity of her statement that he put his penis inside of her. His
sole defense at trial was mistake of age, a defense wholly unrelated to
the statutory definition of "sexual penetration."

Id. at TT 5-6, 429 P.3d at 578.

130 When the dust settles, our jurisprudence reveals that an instructional error
related to an issue that was uncontested at trial does not satisfy the
substantial-rights prong of the plain-error analysis. We turn next to why the
division faltered in arriving at a different conclusion, focusing on two aspects of
its analysis.

## 1. The Division Misread Our Case Law

[31 The division concluded that, "regardless of whether the defense did or did
not contest the [pertinent] issue at trial," a court conducting plain-error review
must "examine whether the instructional error
'so undermined the
fundamental fairness of the trial itself as to cast serious doubt on the reliability of
the judgment of conviction." Sloan, 1 48, 554 P.3d at 535 (quoting Thompson, 1 54,
471 P.3d at 1057). More specifically, the division reasoned that an instructional
lapse constitutes plain error unless the evidence at trial overwhelmingly supports
the defendant's conviction. Id. at TT 48-50, 554 P.3d at 535-36. That
understanding misapprehends our jurisprudence.

132 The division distinguished our decision in Thompson because it read it as
resting "primarily" on our observation that the definitional instruction of
"security" tracked the statutory language. Sloan, 1 47, 554 P.3d at 535. But we
were clear that the reason we could not "say that any error by the trial court in

defining the term 'security'" met the substantial-rights prong of the plain-error
standard was "[b]ecause Thompson never contested at trial that the note at issue
was a security." Thompson, 1 57, 471 P.3d at 1057-58. The remark regarding the
similarities between the instructional and statutory definitions of "security" was a
brief aside, not a building block of our rationale. Id.

133 After failing to capture the true thrust of Thompson, the division turned to
Thompson's predecessor, Lozano-Ruiz. It then read Lozano-Ruiz as limiting the effect
of a defendant's decision at trial not to contest an issue that's later raised on appeal.
Sloan, 1 41, 554 P.3d at 534-35. The division suggested that what matters isn't
whether a defendant failed to contest such an issue; it's whether the defendant
actually conceded the issue. Id. Respectfully, we said just the opposite in Lozano-
Ruiz.

134 We acknowledged in Lozano-Ruiz that the defendant "did not concede that
sexual penetration occurred, in that he maintained throughout the trial that he was
not guilty of the charged offense." 17, 429 P.3d at 578. But we hastened to add
that "he also did not contest that sexual penetration occurred, in that he never
challenged the evidence suggesting that it had." Id. And, importantly, we
explained that "[i]t [was] the failure to contest the issue that [was] the crucial missing
ingredient." Id. (second emphasis added). Stated differently, although the
defendant did not concede the issue of sexual penetration, we could not conclude

that the omitted definition constituted plain error because he did not contest that
sexual penetration occurred. Id. As we summarized, "[w]ithout putting the
definition of 'sexual penetration' at issue in the trial, and without objecting to the
jury instructions, Lozano-Ruiz [could not] ... claim that the trial court plainly
erred in omitting that definition from the instructions." Id.

135 We turn next to the division's interpretation of Auman - an earlier case that
sits comfortably alongside Thompson and Lozano-Ruiz. The division seemed to
treat Auman as supporting the notion that whether an instructional error amounts
to plain error requires a more rigorous analysis than merely assessing "whether
the challenged instruction related to an issue contested at trial" -the reviewing
court must also consider "whether the evidence introduced at trial
overwhelmingly supported the defendant's conviction." Sloan, 1 50, 554 P.3d at
536. But Auman gives that proposition no shelter. Although Auman discussed both
an unobjected-to instructional error concerning "an uncontested issue" and an
instructional error arising in a case where "the evidence of [the defendant's] guilt
is overwhelming," we separated those scenarios with the disjunctive or, not the
conjunctive and. 109 P.3d at 665. We said that "[i]f the error concerned an
uncontested issue, or if the evidence of her guilt [was] overwhelming, then
Auman's substantial rights were not affected, and no reasonable possibility

exist[ed] that the improper instruction contributed to her conviction." Id.
(emphasis added).

136 What appears to have thrown the division off course in applying Auman is
that we articulated the same proposition in inverse form in the very next sentence,
which required us to replace the disjunctive or with the conjunctive and:

However, if the evidence of [the defendant's] guilt is not
overwhelming, and if there existed an evidentiary dispute as to [the
subject of the instructional error], then it is likely that [the
defendant's] substantial rights were affected, and a reasonable
possibility exists that the improper instruction contributed to [the]
conviction.

Id. (emphasis added). The division misinterpreted this sentence, overlooking that
it is simply the mirror image of the earlier one. The two sentences are entirely
consistent. They are merely different expressions of the same idea; the first
explains when plain error does not result-the subject of the error was an
uncontested issue or the evidence of guilt was overwhelming-while the
mirror-image counterpart explains when plain error does result - the subject of the
error was not uncontested and the evidence of guilt was not overwhelming.

137 Espinoza v. People, 712 P.2d 476 (Colo. 1985), on which the division also
relied, Sloan, 1 50, 554 P.3d at 536, is in lockstep with Auman. There, after noting
that a failure to properly instruct on an undisputed element generally does not
constitute plain error, we added that "[i]t is also unlikely that an erroneous
instruction will be considered plain error if the evidence of the defendant's guilt

was overwhelming." Espinoza, 712 P.2d at 478. The fact that Espinoza addressed
both points- because both happened to apply in that case-does not mean that
our plain-error framework requires both conditions to be satisfied. The division
erred in reaching the opposite conclusion.

138 But atop its misreading of our body of law, the division stacked a misplaced
reliance on, and misapplication of, People v. Cowden, 735 P.2d 199 (Colo. 1987).
Sloan, TT 43-45, 554 P.3d at 535. As we explain next, Cowden offers no lifeline to
the division's analysis.

## 2. The Division Wrongly Relied on and Misapplied Cowden

139 In Cowden, the elemental instruction for one of the six felony theft counts
charged failed to inform the jury that the prosecution had the burden of proving
that the value of the stolen property was $200 or more but less than $10,000.
735 P.2d at 202. Because the defendant did not object to this instruction or
otherwise alert the trial court to the omission of the value element, we reviewed
for plain error. Id. In describing the plain-error standard, we did not compose a
new melody; we replayed the same settled refrain: "Failure to instruct properly on
an element of a crime does not constitute plain error where the element is not
contested at trial, or where evidence of the defendant's guilt is overwhelming." Id.
Indeed, we cited Espinoza in support of this proposition.

140 It is true that, as the division noted, we reversed the theft conviction at issue
in Cowden, even though the defendant did not contest the value element at trial.
Sloan, 1 45, 554 P.3d at 535; see also Cowden, 735 P.2d at 201 (indicating that the
defendant's argument at trial was that the theft statute denied him equal
protection of the law because it allowed the prosecution to obtain a conviction by
proving that he acted either intentionally or knowingly). But we did so because
the absence of evidence that the value of the stolen property was at least $200 stuck
out like a sore thumb. Cowden, 735 P.2d at 202. In fact, the victim testified to the
contrary. Id. She said that the property's value was not $200 or more; it was $195.
Id. Further, neither the prosecution nor the defense presented other evidence of
the property's value. Id. Differently put, the evidence at trial indisputably showed
that the stolen property was not $200 or more. In the face of this record, we were
hard-pressed to conclude that it was not reasonably possible that the defendant
would have been acquitted on this count of theft if the jury had been properly
instructed. Id. Accordingly, we remanded the case with directions to resentence
the defendant for the lesser included offense of misdemeanor theft -an offense
requiring proof that the value of the stolen property exceeded $50 but was less
than $200. Id.

141 Here, unlike the situation in Cowden, the record is not barren of evidence
that the vehicular eluding resulted in someone's death. Nor did the evidence

introduced at trial establish the opposite. Because the record in this case is not
devoid of evidence that the vehicular eluding resulted in someone's death - and it
certainly doesn't indisputably establish the opposite - Cowden is off point. This is
not an outlier case like Cowden, which compels us to act sua sponte in light of a
glaring absence of evidence on an element or interrogatory, or in light of
indisputable evidence disproving the element or interrogatory.5

142 The division not only failed to recognize Cowden as a case that sits outside
the usual contours of the doctrinal mainstream, it also proceeded to misapply it.
Taking its bearings from that decision, the division concluded that "the
prosecution's own evidence" contradicted the argument that the eluding resulted
in death.6 Sloan, 1 52, 554 P.3d at 536. It reasoned "that the officers abandoned
their pursuit of the Jeep shortly before, and about a mile from the location of, the
collision." Id. at 1 53, 554 P.3d at 536. In the division's view, once the officers
called off the chase, Sloan could no longer commit the crime of vehicular eluding.
This application of Cowden was flawed.

5 Sloan has not brought a claim challenging the sufficiency of the evidence related
to the sentence enhancer. He could have done so; he chose not to. We therefore
decline his invitation to evaluate the sufficiency of the evidence supporting the
sentence enhancer.

6 Following the division's lead, Sloan asserts that the prosecution's own evidence
disproved the sentence enhancer.

143 The fact that the chase had ended doesn't mean that the eluding had, too.
There was no evidence that Sloan knew the officers had called off their pursuit.
To the contrary, the evidence indisputably showed that he was continuing to travel
at a high rate of speed when he ran the red light and collided with the Uber car at
the intersection of Colfax Avenue and Colorado Boulevard.

144 The record shows an unbroken chain of events set in motion by Sloan's
decision to flee: Officer Adam and the backup officer attempted to stop Sloan;
rather than stop, Sloan sped away from them recklessly; the officers eventually
called off the chase and stopped pursuing; a mere thirty seconds later, while
continuing to drive recklessly, Sloan collided with a car that had the right of way,
killing both of its occupants; and Sloan then fled on foot. This uninterrupted
sequence demonstrates that, although Sloan "kn[ew] or reasonably should [have]
know[n]" that the officers were attempting to stop him, he "elude[d] or
attempt[ed] to elude" them. § 18-9-116.5(1). More importantly, it establishes that,
at the time of the collision that resulted in two deaths, Sloan was still "elud[ing] or
attempt[ing] to elude" the officers, regardless of what they were doing. Id. The
division misapplied Cowden by conflating the officers' pursuit with Sloan's
eluding. In the end, although the jury found that the "accident" resulted in death,
the "accident" was inextricably intertwined with the eluding and directly resulted
from it.

145
Moreover, the division's approach could yield absurd results. Under that
rationale, a collision that occurs even two seconds after officers call off a
chase-due to dangerous circumstances created by the defendant -would fall
outside the vehicular eluding statute. Nothing in the text or structure of section
18-9-116.5 suggests that the legislature intended such an arbitrary limitation.

146 In short, Cowden is not germane, and the division erred in leaning on it - and
then compounded that error by misapplying it.

147 Having explained where the division went astray, we now circle back to this
case. We must determine whether the trial court's instructional misstep
constitutes plain error and thus requires reversal of Sloan's conviction.

## C. There Was No Plain Error Here Requiring Reversal

148
As the division acknowledged, at trial, Sloan did not contest that the eluding
resulted in death. Sloan, 1 37, 554 P.3d at 534. At no time-"whether during voir
dire of the potential jurors, opening statements, or closing statements -did the
defense claim" that the eluding did not result in death. People v. Fichtner, 869 P.2d
539, 544 (Colo. 1994) (concluding that the omission of the definition of "serious
bodily injury" from a menacing jury instruction did not constitute plain error
because whether the victim feared serious bodily injury was not contested at trial
and the evidence on that issue was overwhelming). Nor did Sloan argue at any
point that the prosecution failed to present sufficient evidence that the eluding

resulted in death. Rather, Sloan rode the mistaken-identity horse from the starting
gate all the way to the finish line. His position was that someone else was driving
the Jeep leading up to and during the collision.

149 We are not persuaded otherwise by defense counsel's cross-examination,
confirming that the officers turned off their overhead lights and pulled into a
parking lot shortly before the collision. The focus of these questions was to
establish the safety-related reasons the officers ended their pursuit, not to
challenge the prosecution's evidence that the eluding resulted in death. Counsel's
cursory references to the decision to call off the chase fall well short of showing
that Sloan genuinely contested the vehicular-eluding interrogatory at trial. See
Cowden, 735 P.2d at 202-03 (concluding that defense counsel's "cursory references
to the claimed value of the missing items" with respect to five of the six counts of
felony theft were not enough to consider the value element contested at trial).

150 Because Sloan did not contest that the eluding resulted in death, he cannot
carry his burden of establishing that a reasonable possibility exists that the
instructional error contributed to the vehicular-eluding verdict such that serious
doubt is cast upon the reliability of the conviction for that crime. Accordingly, he
cannot demonstrate there was plain error.

## III. Conclusion

151 We reverse the division's judgment. We further remand to the division with
instructions to return the case to the district court so that it may correct the
mittimus on the unrelated matter noted in the division's opinion.

26 CO 63, 24SC469 People v. Jeffery Sloan

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