People v. Berumen

Summary

The Colorado Court of Appeals affirmed Ever Ulises Berumen’s convictions for three counts of sexual exploitation of a child and misdemeanor invasion of privacy. The court held that Colorado’s 2022 model reasonable-doubt instruction accurately stated the law, did not lower the prosecution’s burden of proof, and that omitting language concerning the lack of evidence did not require reversal. The court also rejected Berumen’s challenge to the refusal to give a choice-of-evils instruction.

Holdings

1. The 2022 Colorado model instruction was an accurate statement of the law and did not lower the prosecution's burden of proof. The phrases "firmly convinced" and "real possibility" were constitutionally permissible when read in context, and the omission of an express reference to lack of evidence did not require reversal.
2. The trial court properly refused to give the choice-of-evils instruction because Berumen had a viable and reasonable legal alternative: he could have alerted law enforcement to the videos and had law enforcement retrieve and retain them rather than illegally redownloading them himself.
3. Even assuming the trial court erred, any error was harmless beyond a reasonable doubt.

Questions Presented

1. Whether the trial court committed structural constitutional error by using the 2022 Colorado model jury instruction defining presumption of innocence, burden of proof, and reasonable doubt, including the phrases "firmly convinced" and "real possibility," and omitting an express reference to lack of evidence.
2. Whether the trial court erred by refusing to instruct the jury on the choice-of-evils affirmative defense for the possession-of-a-video charge.
3. If refusal of the choice-of-evils instruction was error, whether the error was harmless beyond a reasonable doubt.

Disposition

affirmed