People v. Isaac U. Mion

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
November 22, 2023

2023COA110

No. 21CA1230, People v. Mion — Criminal Law — Affirmative
Defenses — Involuntary Intoxication

In this direct appeal in a criminal case, the defendant

contends that the trial court erred by not instructing the jury on his

affirmative defense of involuntary intoxication. The defense was

based on the defendant’s claim that, before he committed the

crimes at issue, he smoked a joint that he thought contained only

marijuana, but which actually contained a stimulant that deprived

him of the capacity to conform his conduct to the requirements of

the law.

In an issue of first impression in Colorado, a division of the

Colorado Court of Appeals holds that the affirmative defense of

involuntary intoxication is legally cognizable when (1) a defendant

knowingly ingests what he believes to be a particular intoxicant;
(2) in so doing, he unknowingly ingests a different intoxicant; and

(3) it is the different intoxicant that deprives him of the capacity to

conform his conduct to the requirements of the law. Because that

was the essence of the defendant’s involuntary intoxication claim,

his defense was legally cognizable. The division also holds that the

defendant presented sufficient evidence — a low threshold — at trial

to entitle him to a jury instruction on involuntary intoxication.

Because the trial court refused the defendant’s requested

involuntary intoxication instruction, and because the division can’t

conclude that the error was harmless beyond a reasonable doubt, it

reverses the judgment and remands the case for a new trial.
COLORADO COURT OF APPEALS 2023COA110

Court of Appeals No. 21CA1230
City and County of Denver District Court No. 19CR6240
Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Isaac U. Mion,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE WELLING
Lipinsky and Gomez, JJ., concur

Announced November 22, 2023

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Joseph Chase, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 In this direct appeal in a criminal case, defendant, Isaac U.

Mion, contends that the trial court erred by not instructing the jury

on his affirmative defense of involuntary intoxication. The defense

was based on Mion’s claim that, before he committed the crimes at

issue, he smoked a joint that he thought contained only marijuana,

but which actually contained a stimulant that deprived him of the

capacity to conform his conduct to the requirements of the law.

¶2 Addressing an issue of first impression in Colorado, we hold

that the affirmative defense of involuntary intoxication is legally

cognizable when (1) a defendant knowingly ingests what he believes

to be a particular intoxicant; (2) in so doing, he unknowingly ingests

a different intoxicant; and (3) it is the different intoxicant that

deprives him of the capacity to conform his conduct to the

requirements of the law. Because that was the essence of Mion’s

involuntary intoxication claim, his defense was legally cognizable.

We also hold that Mion presented sufficient evidence — a low

threshold — at trial to entitle him to a jury instruction on

involuntary intoxication. Because the trial court refused Mion’s

requested involuntary intoxication instruction, and because we

1
can’t conclude that the error was harmless beyond a reasonable

doubt, we reverse the judgment and remand for a new trial.

I. Background

A. The Criminal Charges and Events Underlying Them

¶3 The prosecution charged Mion with aggravated robbery,

criminal mischief, and felony menacing based on events that

occurred on a summer night in 2019.

¶4 At around 11 p.m. that night, a security guard found Mion

sleeping on the grounds of the Denver City and County Building.

The guard told Mion that the grounds were closed to the public and

that he couldn’t sleep there. The guard returned several minutes

later, found Mion still sleeping there, and told Mion he was going to

call 911 if Mion wouldn’t leave. Mion then stood up and, while

allegedly holding a screwdriver, grabbed the guard’s phone out of

his hand (the basis for the aggravated robbery charge). At trial, the

security guard described Mion’s behavior during the encounter as

“agitated” and “erratic.”

¶5 A second security guard approached and called 911. Mion

knocked her phone out of her hand, causing the screen to crack

(the basis for the criminal mischief charge).

2
¶6 Mion eventually left the grounds of the City and County

Building but later began yelling at a third victim. When that victim

got in his truck, Mion verbally threatened him and hit the truck

with a club-like object (the basis for the felony menacing charge).

At trial, that victim described Mion’s “rage” and “erratic” behavior

during the incident.

¶7 Police officers arrested Mion after he tried to evade them by,

among other things, submerging himself in a creek. During the

arrest, Mion yelled at the officers to shoot him and that he wanted

to die. At trial, one of the officers testified that he was most

concerned about Mion’s “really loud, erratic behavior” that evening.

B. Mion’s Tendered Affirmative Defense of
Involuntary Intoxication

¶8 Before trial, Mion endorsed the affirmative defense of

involuntary intoxication.

¶9 Mion testified in his own defense at trial. According to Mion’s

testimony, on the evening in question, he was on his way to deliver

a bicycle to someone when he stopped to visit a friend who normally

stayed in a little doorway in downtown Denver. Mion commonly

visited that friend when he was downtown.

3
¶ 10 While visiting the friend, Mion drank a “little bit” of malt beer

but didn’t feel drunk.

¶ 11 Mion’s friend also began smoking what looked to Mion like a

joint containing marijuana. Mion assumed it was marijuana with a

low THC level, known as “dirt weed,” explaining that he “grew up in

the ’80s” and “if you got weed you got it from Civic Center” and “it

was not strong weed ever.” Mion had smoked marijuana at least a

couple hundred times, and more recently about ten times per year.

The joint Mion’s friend was smoking was very small, which seemed

odd to Mion because of the prevalence of marijuana in Denver.

¶ 12 The friend offered the joint to Mion. Although Mion was “not a

fan” of marijuana because it tended to demotivate him, Mion

accepted the joint “out of courtesy” because “it’s kind of

disrespectful if someone who doesn’t have a lot offers you

something and you don’t accept.” Mion didn’t ask his friend what

was in the joint because he wanted to “portray . . . trust . . .

breaking bread with this person out of respect.”

¶ 13 Mion took “two hits” from the joint. To Mion, the joint smelled

like marijuana and didn’t have a strange taste.

4
¶ 14 Approximately twenty minutes later, Mion began having

“tunnel vision emotionally” and feeling a scary sense of foreboding.

He remembered going to the City and County Building, and the last

thing he remembered thinking was, “This is all bad.” He had no

memory of falling asleep at the City and County Building or of any

of the events underlying the charges in this case.

¶ 15 Video surveillance presented at trial showed Mion’s behavior

that evening, which Mion described as being in a “ca[ta]tonic state.”

When Mion was asked at trial whether marijuana had ever caused

that kind of effect on him, he responded, “No. Nothing like that.”

He further explained that marijuana had never made him

“blackout” or “go nuts.” He also testified that methamphetamine

and cocaine, which he had also used in the past, had never made

him “blackout” or “go nuts.” Mion testified that if he had thought

drinking the beer and smoking two hits from the joint would affect

his plans to deliver the bicycle that evening, he wouldn’t have done

so.

¶ 16 One of the arresting police officers, who had experience

dealing with people under the influence of drugs, opined during his

direct examination at trial that Mion “appeared to be under the

5
influence of a stimulant” that evening. When asked to explain

further, the officer testified that stimulant use can cause a person

to become “agitated” and “highly animated,” and to “not speak[] in a

sensical way.”

¶ 17 On cross-examination, Mion’s counsel asked the officer

whether the joint Mion smoked could have contained a stimulant:

Q. Marijuana can be smoked in a cigarette, a
joint?

A. Yes, sir.

Q. And . . . while it appears to be marijuana, it
can be mixed with other substances, correct?

A. It’s possible.

Q. Including stimulants?

A. Yes, sir.

¶ 18 Then, Mion’s counsel focused on synthetic marijuana, or

“spice,” a type of stimulant:

Q. Are you familiar with spice?

A. Yes, sir.

Q. What is that?

A. Synthetic marijuana.

Q. . . . [C]an that also be smoked in a joint?

A. Yes, sir.

6
Q. . . . [D]o you know if . . . while they’re
smoking it they would know whether they’re
smoking marijuana or spice?

A. I don’t believe so, but I can’t say for sure.

Q. Okay. And have you seen the effects that
spice can have on individuals?

A. Yes, sir.

Q. Can it act differently than marijuana does?

A. Yes, sir.

Q. And cause a stimulant kind of effect?

A. Yes, sir.

C. The Jury Instruction Conference and Ruling at Issue

¶ 19 During the jury instruction conference, Mion’s counsel argued

that Mion was entitled to assert the affirmative defense of

involuntary intoxication based on his description of his past drug

use, his experiences regarding the effects of those drugs, and the

very different effects he experienced smoking the joint with his

friend on the summer night in 2019. Counsel highlighted the

evidence that “there can be things laced with marijuana” and

argued that the jury should be allowed to determine “if there was

something unknown in what [Mion] smoked that caused a

blackout.” Counsel likened Mion’s situation to one where an

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unknown substance is placed in a bar patron’s alcoholic drink

without the patron’s knowledge.

¶ 20 In response, the prosecutor, noting the lack of published

Colorado case on point, argued that a defendant who ingests an

intoxicating substance that causes an unexpected effect must

present additional evidence of his “due diligence” to assert the

affirmative defense of involuntary intoxication. In doing so, the

prosecutor emphasized that Mion didn’t ask his friend what was in

the joint.

¶ 21 The court denied Mion’s request for a jury instruction on

involuntary intoxication, explaining that

[Mion] admitted to using marijuana. In other
words, he admitted to using an intoxicant, and
that use was voluntary. The question is
whether or not there was [an]other type of drug
. . . that he was unaware of [that made his
intoxication involuntary].

There’s absolutely no credible evidence that
there was an intoxicant that . . . raised the
issue of involuntary intoxication. The only
thing in the evidence is that [Mion] used
marijuana [and] he felt different . . . .

[Mion] also testified that . . . modern-day
marijuana . . . has different strengths now.
And . . . he doesn’t use it as much as he did
before . . . . [Arguing that] there must have

8
been something else in the marijuana . . . is
pure speculation . . . .

[Mion] was aware. He was taking an
intoxicant. There was a result. There is no
evidence that it was anything other than
marijuana other than he felt differently.

D. The Result of the Trial

¶ 22 The jury found Mion guilty of robbery, criminal mischief, and

misdemeanor menacing (while rejecting the People’s contention that

he used or threatened the use of a deadly weapon). The trial court

sentenced Mion to forty months in community corrections.

II. Standard of Review

¶ 23 This appeal requires us to interpret the Colorado statute

governing the affirmative defense of involuntary intoxication,

section 18-1-804, C.R.S. 2023. We review questions of statutory

interpretation de novo. Orellana-Leon v. People, 2023 CO 34, ¶ 9.

We also review de novo whether a defendant presented sufficient

evidence entitling him to present an affirmative defense to the jury.

Pearson v. People, 2022 CO 4, ¶ 16.

9
III. Analysis

A. The General Law in Colorado Governing the
Affirmative Defense of Involuntary Intoxication

¶ 24 The statutory affirmative defense of involuntary intoxication

provides that “[a] person is not criminally responsible for his

conduct if, by reason of intoxication that is not self-induced at the

time he acts, he lacks capacity to conform his conduct to the

requirements of the law.” § 18-1-804(3). “Intoxication” means “a

disturbance of mental or physical capacities resulting from the

introduction of any substance into the body.” § 18-1-804(4).

“Self-induced intoxication” means

intoxication caused by substances which the
defendant knows or ought to know have the
tendency to cause intoxication and which he
knowingly introduced or allowed to be
introduced into his body, unless they were
introduced pursuant to medical advice or
under circumstances that would afford a
defense to a charge of crime.

§ 18-1-804(5).

¶ 25 Based on our supreme court’s interpretation of section

18-1-804, a defendant claiming involuntary intoxication must

introduce some credible evidence that

10
(1) a substance was introduced into his or her
body; (2) the substance was not known to be
an intoxicant or was taken pursuant to
medical advice, or the defendant did not know
the substance could act as an intoxicant;
(3) the substance caused a disturbance of
mental or physical capacities; and (4) the
introduction of the substance resulted in the
defendant’s lack of capacity to conform his or
her conduct to the requirements of law.

People v. Voth, 2013 CO 61, ¶ 19 (citing People v. Garcia, 113 P.3d

775, 783 (Colo. 2005)). We will refer to this as the Voth test.

B. There Are No Published Colorado Cases with Similar Facts

¶ 26 Before analyzing the language in section 18-1-804 as it applies

to Mion’s proffered defense, we note that there are no published

Colorado cases with similar facts to those presented in this case —

namely, where a defendant ingests something he knows to be an

intoxicant but asserts that a different intoxicant that he didn’t know

was present caused his inability to conform his conduct to the law.

Both parties compare and contrast this case to People v. Low, 732

P.2d 622 (Colo. 1987), and Mion also relies on People v. Turner, 680

P.2d 1290 (Colo. App. 1983). But neither of those cases is

particularly instructive here.

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¶ 27 In Low, the defendant consumed a large quantity of

over-the-counter cough drops during a lengthy car trip in his

continuing efforts to quit using tobacco. 732 P.2d at 625. The

cough drops contained dextromethorphan hydrobromide, which, in

such excessive quantities, caused the defendant’s psychotic and

delusional behavior, leading him to commit the charged offenses.

Id. at 625-26, 628. The supreme court indicated that the defendant

had a potentially viable claim of involuntary intoxication because

neither the packaging on the cough drops nor the defendant’s prior

use of them put him on notice that using them in excessive

quantities could cause intoxication. See id. In other words, the

defendant wasn’t aware that the substance he was knowingly

ingesting would intoxicate him.

¶ 28 Similarly, Turner involved the defendant’s use of migraine

medication in quantities that exceeded the prescribed dosage. 680

P.2d at 1291-92. When the defendant had previously used the

medication in excess of the prescribed dosage, it had simply made

him drowsy. Id. But on the day in question, it caused him to lack

any memory of where he was or what he was doing at the time he

committed his crimes. Id. A division of this court concluded that

12
the defendant was entitled to raise the affirmative defense of

involuntary intoxication based on his testimony that he hadn’t been

warned of the consequences of exceeding the prescribed dosage,

and his past experiences exceeding the prescribed dosage had

caused only drowsiness. Id. at 1293.

¶ 29 In both of those cases, the defendants knew what substances

they were ingesting but didn’t know or have reason to know that the

substances could cause intoxication. That scenario clearly falls

within the involuntary intoxication statute and satisfies the Voth

test. See § 18-1-804(5) (involuntary intoxication doesn’t apply

where the intoxication was caused by substances that “the

defendant knows or ought to know have the tendency to cause

intoxication”); Voth, ¶ 19 (involuntary intoxication includes, among

other scenarios, the situation where a defendant knowingly ingested

a substance but “did not know the substance could act as an

intoxicant”).

¶ 30 That’s not the situation here. Mion claimed that the joint he

smoked must have contained a stimulant, but that he didn’t know

or have reason to know that it contained a stimulant. The People,

on the other hand, argue that there’s insufficient evidence that

13
Mion ingested anything other than beer and marijuana, and it was

the marijuana’s potency that caused the full degree of his

intoxication. At first glance, that appears to be a disputed issue of

fact for a jury to resolve (and in Part III.D below, we address

whether Mion presented sufficient evidence entitling him to have

the jury resolve that disputed issue of fact). See City of Fountain v.

Gast, 904 P.2d 478, 482 (Colo. 1995) (“It is the sole province of the

jury to resolve disputed issues of fact and to determine credibility of

witnesses, weight to be accorded testimony, and inferences to be

drawn from evidence.”).

¶ 31 The central factual dispute here is what substance caused the

intoxication that allegedly deprived Mion of the capacity to conform

his conduct to the requirements of the law. That’s different than

Low and Turner, where the substances at issue were undisputed.

¶ 32 Low and Turner certainly don’t comprehensively cover every

permutation of potentially cognizable involuntary intoxication

claims. In terms of case law from other jurisdictions, the Minnesota

Supreme Court, for example, has recognized four different kinds of

involuntary intoxication: unexpected intoxication resulting from the

ingestion of a medically prescribed drug, pathological intoxication,

14
coerced intoxication, and intoxication by innocent mistake. City of

Minneapolis v. Altimus, 238 N.W.2d 851, 856 (Minn. 1976).

¶ 33 Could Mion’s claim properly fall within the category of

involuntary intoxication by innocent mistake? See Hendershott v.

People, 653 P.2d 385, 396 n.10 (Colo. 1982) (“Involuntary

intoxication . . . is without moral culpability and, for this reason, is a

complete defense to all crimes.”) (emphasis added). Along these

lines, Mion argues that his claim is akin to that of a bar patron who

(1) knowingly drinks alcohol (which, like marijuana, is an

intoxicant); but (2) in so doing, unknowingly ingests a different drug

that causes more intense and severe intoxication (such as a “date

rape” drug). See People v. Miller, 113 P.3d 743, 746-47, 746 n.6

(Colo. 2005) (explaining that the trial court had instructed the jury

on involuntary intoxication in response to the defendant’s claim

that the victim slipped a “date rape” drug into the defendant’s

alcoholic drink).1

1 Although People v. Miller, 113 P.3d 743 (Colo. 2005), involved a

defendant who claimed that he was “slipped a mickey,” the opinion
doesn’t help resolve the issue presented here because, in that case,
there was “no dispute concerning the instructions addressing the
involuntary intoxication.” Id. at 750. Instead, the instructional

15
¶ 34 Given the lack of Colorado case law on point, we turn to the

language of the involuntary intoxication statute to determine

whether Mion’s claim — which essentially alleges involuntary

intoxication by innocent mistake — is legally cognizable under

Colorado’s involuntary intoxication statute.

C. Mion’s Proffered Defense Is Legally Cognizable
Under the Involuntary Intoxication Statute

¶ 35 Under section 18-1-804(3), “[a] person is not criminally

responsible for his conduct if, by reason of intoxication that is not

self-induced at the time he acts, he lacks capacity to conform his

conduct to the requirements of the law.” (Emphasis added.) In

other words, the defendant’s inability to control his conduct must

be caused by intoxication that isn’t self-induced. Thus, involuntary

intoxication is defined in terms of what it isn’t — “self-induced” —

not what it is.

¶ 36 “Self-induced intoxication” is intoxication caused by

substances (1) “which the defendant knows or ought to know have

the tendency to cause intoxication” and (2) “which he knowingly

issue related to the voluntary intoxication instruction the court
gave. Id. at 745 n.2, 750-51.

16
introduced or allowed to be introduced into his body” (unless they

were introduced pursuant to medical advice or “under

circumstances that would afford a defense to a charge of crime”).

§ 18-1-804(5).

¶ 37 The statute doesn’t squarely address the scenario advanced by

Mion involving the ingestion of multiple intoxicants, some of which

are ingested knowingly and some of which are ingested

unknowingly. But based on our interpretation of the statute, we

conclude that courts must focus on the particular intoxicant that

allegedly deprived the defendant of the capacity to conform his

conduct to the requirements of the law. To rule otherwise would

mean that anytime a person knowingly ingests an intoxicant — no

matter how mild — the person will be criminally responsible for any

resulting behavior, even if what was ingested contained,

unbeknownst to the defendant, a different intoxicant — no matter

how potent and mind-altering.

¶ 38 Under section 18-1-804(5), intoxication that deprives a person

of the capacity to conform his conduct to the requirements of the

law is “self-induced” only where that debilitating intoxication is

caused by substances that the defendant “knowingly introduced or

17
allowed to be introduced into his body.” And using Mion’s example,

if a bar patron becomes incapacitated because someone slipped a

“date rape” drug into the patron’s alcoholic drink, the patron didn’t

“knowingly” ingest the “date rape” drug.

¶ 39 Further, under that scenario, we conclude that the bar patron

also didn’t “knowingly . . . allow[] [the “date rape” drug] to be

introduced into his body.” § 18-1-804(5) (emphasis added).

Instead, we conclude that the “allowed to be introduced” language

in section 18-1-804(5) refers to the situation where someone else

introduces an intoxicant into the defendant’s body with the

defendant’s knowledge — for example, where a defendant

voluntarily allows someone else to inject him with a hypodermic

needle containing what he knows to be an intoxicant.

¶ 40 Having said that, we also conclude that the Voth test doesn’t

capture all the scenarios that could constitute involuntary

intoxication under section 18-1-804. As a reminder, the second

prong of the Voth test requires the defendant to show that (a) the

ingested substance “was not known to be an intoxicant”; (b) the

ingested substance “was taken pursuant to medical advice”; or

(c) “the defendant did not know the substance could act as an

18
intoxicant.” Voth, ¶ 19. That test simply does not account for the

scenario where a person unknowingly ingests a substance that is

widely known to be an intoxicant. But that scenario does fall

squarely within the language of the involuntary intoxication statute.

See § 18-1-804(3), (5) (Intoxication that deprives a person of the

“capacity to conform his conduct to the requirements of the law” is

self-induced only where that debilitating intoxication is caused by

substances that the defendant “knowingly introduced or allowed to

be introduced into his body.”).

¶ 41 It can certainly be argued, perhaps persuasively, that Mion’s

conduct here was more reckless than that of a bar patron who

assumes that their alcoholic drink is unadulterated. Indeed, the

joint Mion smoked wasn’t sold to him directly from a regulated

marijuana dispensary, and Mion didn’t ask his friend what was in

the joint. We conclude, however, that those facts don’t transform

this case into one where we can conclude as a matter of law that

Mion can’t claim involuntary intoxication. Indeed, nothing in the

involuntary intoxication statute refers to the concept of

recklessness or, as the People characterize it, assuming the risk.

19
¶ 42 Because we conclude that the type of involuntary intoxication

claim that Mion raised is legally cognizable under the involuntary

intoxication statute, we proceed to evaluate whether Mion presented

sufficient evidence entitling him to a jury instruction on involuntary

intoxication.

D. Mion Presented Sufficient Evidence to Warrant an Involuntary
Intoxication Instruction

¶ 43 A defendant is entitled to a jury instruction on an affirmative

defense if he presents “some credible evidence” supporting the

defense. § 18-1-407(1), C.R.S. 2023. Colorado appellate courts

have understood the phrase “some credible evidence” to be

interchangeable with “some evidence,” “any credible [even if highly

improbable] evidence,” “a scintilla of evidence,” a “small quantum of

evidence,” and “any evidence.” Galvan v. People, 2020 CO 82, ¶ 24.

As those phrases indicate, the evidentiary threshold to be entitled to

have a jury instructed on an affirmative defense is low. People v.

Opana, 2017 CO 56, ¶ 17.

¶ 44 The only way Mion could have conclusively demonstrated that

the joint he smoked contained a stimulant far different than beer or

marijuana would have been for Mion’s counsel to track down the

20
joint that Mion smoked (assuming any of it still existed) and have

chemical tests performed on it. That, of course, didn’t happen.

¶ 45 However, we conclude that the following circumstantial

evidence, taken together, was sufficient to cross the low threshold

entitling Mion to a jury instruction on involuntary intoxication:

 Mion testified that he assumed the joint contained

marijuana, it smelled like marijuana, and it didn’t have a

strange taste.

 A police officer testified that he didn’t think someone

smoking a joint would be able to tell the difference

between marijuana and spice.

 The officer testified that spice can have a different effect

than marijuana — that of a stimulant.

 Stimulant use typically causes a person to become

“agitated” and “highly animated,” and to “not speak[] in a

sensical way.”

 Mion was behaving in an “agitated” and “erratic” manner

on the evening in question.

 The officer opined that Mion was under the influence of a

stimulant on that evening.

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 Mion had smoked marijuana on hundreds of occasions,

including around ten times per year in recent years.

 Mion testified that marijuana had never caused him to

act in the way he acted on the evening in question —

behavior evidenced by surveillance footage of his offenses

and his arrest.

¶ 46 The People suggest that Mion wasn’t entitled to assert

involuntary intoxication based solely on his “self-proclaimed

unexpected symptoms of intoxication.” But the law is clear that a

defendant is entitled to assert an affirmative defense “even if the

only supporting evidence is ‘highly improbable’ testimony from the

defendant.” Pearson, ¶ 23 (quoting People v. DeGreat, 2018 CO 83,

¶ 22).

¶ 47 The People also cite a Tenth Circuit case for the proposition

that “it is common knowledge that unlawful street drugs do not

come with warranties of purity or quality associated with lawfully

acquired drugs such as alcohol.” United States v. Bindley, 157 F.3d

1235, 1242 (10th Cir. 1998) (quoting People v. Velez, 221 Cal. Rptr.

631, 637 (Ct. App. 1985)). The Tenth Circuit in Bindley further

quoted Velez for the propositions that “unlawful street drugs are

22
frequently not the substance they purport to be or are

contaminated with other substances not apparent to the naked eye”

and “marijuana is frequently contaminated with PCP or other

psychoactive drugs.” Id. (quoting Velez, 221 Cal. Rptr. at 637-38).

¶ 48 Notably, though, the holdings in Bindley and Velez rested in

large part on the fact that marijuana possession and consumption

was illegal in those jurisdictions at that time. But the use of

marijuana is, of course, legal under Colorado law and was at the

time of Mion’s offenses, so marijuana use doesn’t have the same

moral culpability as it once did. See Hendershott, 653 P.2d at 396

n.10 (stating that involuntary intoxication “is without moral

culpability” and is therefore a complete defense to all crimes); cf.

Wells-Yates v. People, 2019 CO 90M, ¶ 58 (“The General Assembly

treats most drug felonies as substantially less grave or serious

today than it has in the past, and this adjustment is the best

evidence of the views held by our maturing society, as expressed

through its representatives in the legislature.”). We offer no opinion

with respect to whether Mion’s consumption was legal; nor do we

perceive that it matters under the statute, just as it wouldn’t matter

to the availability of an involuntary intoxication instruction if the

23
bar patron whose drink was unknowingly spiked was underage at

the time they consumed the spiked drink.

¶ 49 No evidence in the record indicates that, in Denver, marijuana

is “frequently” contaminated with stimulants, such as spice or PCP.

And there is no evidence that Mion knew, or even should have

known, that the marijuana in the joint might be laced with a

stimulant. See Turner, 680 P.2d at 1293 (“To deny defendant the

chance to go to the jury on the issue of whether his intoxication was

involuntary . . . is to give more weight to what might be assumed to

be common knowledge of the effects of ingesting an excessive dose

of a drug, than the specific evidence elicited on the subject.”). The

facts that the joint Mion smoked wasn’t sold to him directly by a

regulated marijuana dispensary and that Mion didn’t ask his friend

what was in the joint can be argued to the jury at his retrial, but

they don’t render his defense invalid or unavailable as a matter of

law.

¶ 50 As the People argue, Mion may have simply been under the

influence of potent marijuana that evening. We, however, must

view the evidence in the light most favorable to Mion in determining

whether he was entitled to an involuntary intoxication instruction.

24
See People v. Gallegos, 2023 COA 47, ¶ 48. We can’t conclude that

Mion’s theory of involuntary intoxication was so unreasonable as to

render it invalid as a matter of law. See O’Shaughnessy v. People,

2012 CO 9, ¶ 13 (If a court “determines as a matter of law that no

evidence exists in the record to support an affirmative defense, then

the instruction need not be presented to the jury because there is

no issue of fact for the jury to resolve.”).

E. Reversal is Required

¶ 51 The parties disagree on the appropriate standard for

determining whether the identified error warrants reversal.

¶ 52 Mion relies on Garcia for the proposition that a trial court’s

error in not allowing a defendant to raise an affirmative defense at

trial warrants automatic reversal. There, the supreme court held,

“If the trial court errs in disallowing an affirmative defense, then it

improperly lowers the prosecution’s burden of proof. Because a

defendant’s constitutional right to due process is violated by an

improper lessening of the prosecution’s burden of proof, such error

cannot be deemed harmless.” Garcia, 113 P.3d at 784 (citation

omitted).

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¶ 53 But the People, relying on Hagos v. People, 2012 CO 63, ¶ 11,

argue that we should review for constitutional harmless error.

Although Hagos didn’t involve an alleged failure to instruct the jury

on an affirmative defense, the supreme court has more recently

held that an error in failing to instruct the jury on an affirmative

defense “is subject to constitutional harmless error review.”

Pearson, ¶ 16; see also Griego v. People, 19 P.3d 1, 8 (Colo. 2001)

(holding that “when a trial court misinstructs the jury on an

element of an offense, either by omitting or misdescribing that

element, that error is subject to constitutional harmless” error

review).

¶ 54 We will assume, without deciding, that we should review for

constitutional harmless error. And reversal is warranted under that

standard. Under constitutional harmless error review, we must

reverse unless the error was harmless beyond a reasonable doubt.

Id. Under that test, we must reverse if “there is a reasonable

possibility that the [error] might have contributed to the conviction.”

Hagos, ¶ 11 (quoting Chapman v. California, 386 U.S. 18, 24

(1967)). The People bear the burden of showing that the error was

harmless beyond a reasonable doubt. Id.

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¶ 55 On appeal, the People have presented no specific argument

that any error by the trial court was harmless beyond a reasonable

doubt. Instead, they contend that the court properly declined to

give the requested instruction. And on this record, we can’t

conclude that the trial court’s error was harmless beyond a

reasonable doubt. Depending on how the jury assessed Mion’s

credibility and weighed the evidence, it could’ve reasonably

concluded that the prosecution didn’t disprove the affirmative

defense of involuntary intoxication beyond a reasonable doubt. See

§ 18-1-407(2) (“If the issue involved in an affirmative defense is

raised, then the guilt of the defendant must be established beyond a

reasonable doubt as to that issue as well as all other elements of

the offense.”). As an appellate court, we can’t weigh the evidence,

and we have no insight into the credibility of Mion’s testimony at

trial. See People v. Mejia-Mendoza, 965 P.2d 777, 780 (Colo. 1998)

(“Appellate courts are not the appropriate forum to resolve factual

discrepancies or to determine the credibility of witnesses.”).

IV. Disposition

¶ 56 The judgment is reversed, and the case is remanded for a new

trial.

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JUDGE LIPINSKY and JUDGE GOMEZ concur.

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