People v. Berumen.
2025 COA 93. No. 23CA1435. Affirmative Defenses—Model Jury Instructions—Presumption of Innocence—Burden of Proof—Reasonable Doubt—Choice of Evils.
December 12, 2025
Berumen met 17-year-old K.D. through Snapchat. Berumen, K.D., and one of Berumen’s friends drank a few nights later at Berumen’s apartment, with K.D. consuming about 10 shots over a couple of hours. Berumen and K.D. began having sex while K.D. drifted in and out of consciousness. Berumen then video recorded both him and his friend having sex with K.D. until two or three in the morning, when Berumen arranged a ride home for K.D. Berumen downloaded the video from Snapchat to his phone, texted it to a group chat, and then deleted the video from his phone. K.D. reported to police that Berumen had sexually assaulted her and recorded the incident on his phone. Detective Hiatt interviewed Berumen and told him that K.D. was 17 and had accused him of sexual assault. Berumen denied that he knew K.D.’s age and that he had sex with her. Berumen gave his phone to police during the interview and was released. Shortly thereafter, Berumen bought a new phone onto which he re-downloaded the videos of him and his friend having sex with K.D. He stored the phone in his car and didn’t use it again. Berumen was arrested on two charges of sexual assault and two charges of sexual exploitation of a child. While he was in jail, Berumen had his parents get the phone from his car. Berumen’s attorney gave the phone to the police about six months later. Berumen consented to a phone search during which police found videos of K.D. having sex with Berumen and Berumen’s friend. The prosecution then moved to dismiss the sexual assault charges and add one charge of sexual exploitation of a child. The three sexual exploitation of a child counts included charges related to possession of the video, and knowledge of K.D.’s age was an element of all three charges. Berumen maintained that he didn’t know K.D. was 17, and he presented a mistake of age defense. A few months before Berumen’s trial, a new 2022 model jury instruction on reasonable doubt was promulgated. However, Berumen asked the trial court to give the prior COLJI-Crim. E:03 (2021) instruction on reasonable doubt. The court denied the request and gave the 2022 model instruction to the jury. Berumen’s counsel also requested a jury instruction on a choice of evils defense as to the possession of a video charge, asserting that Berumen re-downloaded and kept the video only to avoid the greater harm of being falsely accused of and charged with sexual assault. The court declined to give the instruction, and Berumen was convicted of three counts of sexual exploitation of a child and one count of invasion of privacy.
On appeal, Berumen contended that the trial court structurally erred by not giving the 2021 reasonable doubt instruction and instead giving the 2022 instruction on reasonable doubt, because the 2022 instruction lowered the prosecution’s burden of proof. He specifically challenged the “firmly convinced” and “real possibility” language based on criticism from other jurisdictions, as well as the omission of an instruction for the jury to consider the lack of evidence. As an initial matter, the court of appeals concluded that though some language in the 2022 model instruction has been criticized in some jurisdictions, it has been accepted by the court of appeals with support from federal courts, and the instruction accurately states the law. Further, the reasons that other jurisdictions reject the “firmly convinced” and “real possibility” language don’t exist in Colorado, where the burden of proof is defined differently, so that language does not lower the prosecution’s burden of proof. And the 2022 model instruction’s omission of language directing the jury to consider the lack of evidence also does not lower the prosecution’s burden of proof. Therefore, reversal was not warranted.
Berumen also argued that the trial court improperly refused to instruct the jury on a choice of evils affirmative defense for the possession of a video charge. However, the trial court properly determined that Berumen could not assert this defense because the evidence didn’t show that a sudden and unforeseen situation arose requiring Berumen to possess the videos to prevent an imminently impending injury. Further, based on the entire verdict for all the sexual exploitation of a child charges, the jury clearly rejected, beyond a reasonable doubt, that Berumen operated under a mistake of age when he made the videos and up until Detective Hiatt told him K.D.’s age. Thus, even assuming that Berumen could have been entitled to the choice of evils instruction for the time after Detective Hiatt told him K.D.’s age, the court’s failure to give that instruction couldn’t have contributed to his conviction on the possession of a video charge. Accordingly, regardless of whether the court erred, such error was harmless beyond a reasonable doubt.
The judgment of conviction was affirmed.