People v. Crow.
2026 COA 53. No. 24CA1559. At-Risk Adults—Third Degree Assault—Unable to Breathe Without Mechanical Assistance—Reasonable Doubt Jury Instruction.
June 25, 2026
Crow’s then girlfriend (the victim) reported to police that Crow had hit her. When a responding officer encountered the victim, she was wearing a nasal cannula to deliver supplemental oxygen. The victim told the officer that Crow had hit her in the ribs during an argument the night before, and she was having severe pain with each breath. Doctors subsequently discovered that she had three broken ribs. Crow was charged with second degree assault of an at-risk person and the lesser included offense of third degree assault of an at-risk person. At trial, the victim denied needing supplemental oxygen on the night of the assault or the following day, explaining that her oxygen use was for her emphysema. Crow was found guilty of third degree assault, and through a special interrogatory the jury found that the victim was an “at-risk person,” which the jury instructions defined as an adult who was “unable to breathe without mechanical assistance.” The court imposed a three-year probation sentence.
On appeal, Crow contended that the trial court’s use of the 2022 model reasonable doubt instruction impermissibly lowered the prosecution’s burden of proof, undercut the presumption of innocence, and shifted the burden of proof to him. Over Crow’s objection, the court instructed the jury on reasonable doubt using the 2022 version of the model instruction rather than the prior version. While this appeal was pending, three court of appeals divisions considered similar challenges to the 2022 model reasonable doubt instruction and concluded that the 2022 model instruction doesn’t lower the prosecution’s burden of proof. The court reviewed the instructions as a whole, and the majority concluded that they properly informed the jury of the prosecution’s burden and the concept of reasonable doubt.
Crow also argued that there was insufficient evidence to support the jury’s finding that the victim was an at-risk person. He asserted that CRS § 18-6.5-102(11)(c) requires the prosecution to prove that the victim’s disability is permanent rather than intermittent or at least present at the time of the offense. CRS § 18-6.5-102(11)(c) deems an adult with a disability that renders them unable to breathe without mechanical assistance an “at-risk adult” for the purpose of crimes against at-risk persons. The court concluded that the prosecution does not have to prove that the victim’s disability is permanent but need only prove that the victim’s disability rendered them unable to breathe without mechanical assistance on the date of the offense. Here, a rational jury could infer beyond a reasonable doubt that the victim was “unable to breathe without mechanical assistance” when Crow hit her the day before because she had a nasal cannula set up so she could receive supplemental oxygen throughout her home and had a large portable oxygen tank near the door, and she needed supplemental oxygen roughly five months later at trial. Accordingly, a reasonable fact finder could have concluded that the victim was an at-risk person.
The judgment of conviction and the application of the sentence enhancer were affirmed.