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        CRS 18-1-704 does not limit the actor's right to use deadly force to those situations in which the aggressor is committing or is about to commit a crime upon on someone other than the actor. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 (Colo. 2001).

        Right to kill in defense of another. Where a known felony is attempted upon a person, the party assaulted may repel force by force, and any other person present may interpose for preventing mischief, and if death ensues the party so interposing will be justified. The right thus to assist applies with peculiar force where a relationship exists, such as father, son, brother, or husband. Bush v. People, 10 Colo. 566, 16 P. 290 (1887).

        See self defense above.

        Defense of property is an affirmative defense to certain crimes or their lesser included offenses - that the defendant:
        1. used reasonable and appropriate physical force upon another person;
        2. when to the extent that reasonably believed it was necessary to prevent;
        3. what reasonably believed to be an attempt by the other person to commit theft, criminal mischief or criminal tampering involving property.
SOURCE: COLJI 7:21

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        Defense of property is an affirmative defense to certain crimes or their lesser included offenses - that the defendant:
        1. was in possession or control of any building, real estate, or other premises, or was licensed or privileged to be thereon, and
        2. used reasonable and appropriate physical force upon another person;
        3. to prevent or terminate what he reasonably believed to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, real estate, or premises.
SOURCE: COLJI 7:19, CRS 18-1-705

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        The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used.  CRS 18-1-709

        Entrapment is a statutorily recognized affirmative defense of justification or exemption.  CRS 18-1-710.

        Where deception practiced by law enforcement which simply furnishes defendants with an opportunity to engage in illegal drug sales and defendants knowingly and willingly take advantage of this opportunity does not constitute entrapment. There is no entrapment if the defendant was predisposed to commit the crime. The trier of fact must find beyond a reasonable doubt that the offenses committed by the defendant was not procured by duress or unconstitutional police conduct. Bailey v. People, 630 P.2d 1062, 1065 (Colo. 1981).

There are two tests for entrapment - the subjective test and the objective test.
        a.  OBJECTIVE TEST of entrapment grounds the defense on the methods used by government agents to induce the defendant to commit the act as set forth in by minority opinions of the United States Supreme Court. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113(1976); United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); and Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).
        b.  SUBJECTIVE TEST of entrapment grounds the defense on defendant was not predisposed to commit the act alleged as set forth in the above majority opinions.

        Since the defense of entrapment is not of constitutional stature, states are free to define it as they choose. Most states have adopted the subjective approach. On the other hand, commentators generally favor the objective test. The commentators have likened the entrapment controversy to the debate over the exclusionary rule: if both the government and the citizen break the rules, whose behavior should be punished? Under the objective theory, the defendant is excused because of the misconduct of the government; the subjective approach sanctions police conduct without question as long as the police actions are directed to persons predisposed to commit the offense charged.

        In addition to statutory entrapment defense, a defendant may move to suppress evidence on the basis of 14th Amendment grounds: that the conduct of the law enforcement agents was so outrageous and egregious that it deprived him / her of due process of law under the federal and state constitutions. As with entrapment affirmative defense, outrageous conduct and denial of due process of law defense will turn upon the facts of the case.

        The trier of fact must find beyond a reasonable doubt that the offenses committed by the defendant was not procured by duress or unconstitutional police conduct. Bailey v. People, 630 P.2d 1062, 1065 (Colo. 1981).

        In regard to such a claim, an asserted denial of due process must be tested by an appraisal of the totality of facts in a given case. People v. Vega, 870 P.2d 549 (Colo. App. 1993). Government officers can employ appropriate artifice and deception to ferret out illegal activities. People in Interest of M.N., 761 P.2d 1124 (Colo. 1988).

        Where:
        a. The investigation was initiated and conducted without any actual knowledge or belief that the respondent was involved in prostitution-related activities.
        b. A law enforcement agent told the respondent that he was from the east coast and was a member of an organization that was attempting to establish a prostitution service in Denver to serve wealthy travelers from the New York area
        c. The law enforcement agent offered respondent a financial interest in the proposed venture.
        d. The record fails to demonstrate that the conduct of the undercover agents was violative of due process of law and was not outrageous conduct.
        People v. Morley, 725 P.2d 510 (Colo. 1986). (soliciting for prostitution); e.g., United States v. Kelly, 707 F.2d 1460 (D.C. Cir. 1983); United States v. Jannotti, 673 F.2d 578 (3d Cir. 1982), cert. denied, 457 U.S. 1106 (1982).

In Morley, respondent eagerly offered for sale his counsel and assistance in the formation of an illegal enterprise. The respondent's decision to engage in this conduct was made freely and knowingly, out of an obvious predisposition to do so, and not as the result of some overbearing inducement by the federal agents. See Hampton v. United States, 425 U.S. 484 (1976); Evans v. People, 706 P.2d 795 (Colo. 1985); Bailey v. People, 630 P.2d 1062 (Colo. 1981).  Further, there was no evidence that the undercover agents were pursuing a course of harassment or engaging in gross improprieties during their contacts with the respondent. See People v. Ressin, 620 P.2d 717 (Colo. 1980)

        If the governmental officials acted outrageously or in bad faith in obtaining the challenged evidence, then due process of law requires the exclusion of such evidence or perhaps the even more drastic remedy of dismissal. There is no "bright line" or "per se" rule in this area of the law, and each case must be decided on the basis of its own peculiar facts. People v. Harfmann, 638 P.2d 745, 748 (Colo. 1981); see Emslie v. State Board of California, 11 Cal.3d 210, 520 P.2d 991, 113 Cal. Rptr. 175 (1974).

        While the undercover operation may have itself been built on deceit, governmental activity in the pursuit of crime "is not confined to behavior suitable for the drawing room." United States v. Murphy, 768 F.2d 1518, 1529 (7th Cir. 1985); see United States v. Qaoud, 777 F.2d 1105 (6th Cir. 1985), cert. denied, 106 S. Ct. 1499 (1986).

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        When a defendant is charged with sale of narcotic or other illicit drugs, procuring agent has previously been an affirmative defense.  The defense is that the defendant acts as an exclusive agent for a buyer - the law enforcement officials who bought the drugs. As such, the defendant becomes a principal or conspirator in the purchase rather than the sale of the narcotics and, therefore, cannot be convicted of sale or conspiracy to sell narcotic drugs under CRS 12-22-302. People v. Smith, 623 P.2d 404 (Colo. 1981); People v. Fenninger, 191 Colo. 334, 552 P.2d 1018 (1976). In Fenninger and Smith, the defendants never handled either the money or the drugs, although they were present at some drug transactions.  People v. Palmer, 652 P.2d 1092 (Colo. App. 1982), People v. McGhee, 677 P.2d 419 (Colo. App. 1983)

        If defendant is contacted by law enforcement agents and asked if he / she could obtain narcotics, and
        defendant does locate and purchase narcotics from his / her sources, and
        defendant delivers the narcotics to law enforcement agents, and
        defendant receives payment from law enforcement agents, then
        the procuring agent defense does not apply where the defendant sells narcotic drugs to the law enforcement agents.
        Bailey v. People, 630 P.2d 1062, 1069 (Colo. 1981).

        There appears to be no case in this jurisdiction which has held the procuring agent theory of defense applicable to a charge of mere possession of narcotic drugs.  People v. Dodd, 195 Colo. 408, 409 (Colo. 1978).  It is established law that the crime of possession is complete when the defendant has knowingly acquired dominion and control over the contraband substance. People v. Dodd, supra at 410.  See, e.g., People v. Eades, 187 Colo. 74, 528 P.2d 382 (1974); People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973); People v. Chaves, 182 Colo. 216, 511 P.2d 883 (1973); and Duran v. People, 145 Colo. 563, 360 P.2d 132 (1961).  We, therefore, rule that the procuring agent defense should not be extended to mere possession cases.  People v. Dodd, supra at 410.

        Subsequent to the Colorado Supreme Court's decisions in People v. Dinkel, 189 Colo. 404, 541 P.2d 898 (1975) and People v. Fenninger, supra, the General Assembly enacted comprehensive changes in the laws related to controlled substances.  Accordingly, where the information charges defendant with "sale and distribution" of a controlled substance, refusal to instruct on the procuring agent defense may not be error.  People v. Farris, 812 P.2d 654 (Colo. App. 1991)  Put another way, the procuring agent defense may not be available.

CRS 18-1-708. Duress.
        A person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof. The choice of evils defense, provided in CRS 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application.

CRS 18-1-702. Choice of evils. 
        (1) Unless inconsistent with other provisions of sections 18-1-703 to 18-1-707, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
        (2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

        Before a choice of evils defense may be presented to the jury, the trial court must make an initial determination of whether the allegations of facts by the defendant, if proven, would constitute legal justification for the prohibited conduct. Andrews v. People, 800 P.2d 607 (Colo. 1990); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).

        Test for sufficiency of offer of proof. A sufficient offer of proof must establish that: 
        (1) All other potentially viable and reasonable alternative actions were pursued or shown to be futile;
        (2) the action taken had a direct causal connection with the harm sought to be prevented and would bring about the abatement of the harm; and 
        (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur.
        Andrews v. People, 800 P.2d 607 (Colo. 1990).  

        Offer of proof is insufficient if the defendant fails to show that his / her criminal actions, rather than legal actions taken by themselves and others, brought about the abatement of the harm or if the offer merely alleges that other persons have attempted to pursue reasonable alternatives or that the criminal action taken was a more effective alternative. Andrews v. People, 800 P.2d 607 (Colo. 1990).

        For this defense to be available, it must first be shown that defendant's conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative other than the violation of the law for which he stands charged. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975); People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979); People v. Strock, 623 P.2d 42 (Colo. 1981); Andrews v. People, 800 P.2d 607 (Colo. 1990).  The threat to defendant's person must be so definite, specific, and imminent as to rise beyond mere speculation. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975); People v. Handy, 198 Colo. 556, 603 P.2d 941 (1979).

        Once some credible evidence is presented by defendant to raise the choice of evils defense, the burden of proof shifts to prosecution to disprove the defense beyond a reasonable doubt as to that issue as well as all other elements of the offense. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 (Colo. 1981).

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INTOXICATION

Voluntary or Self Induced Intoxication

Voluntary or self-induced Intoxication is an affirmative defense to certain crimes or their lesser included offenses - that, at the time of the alleged offense(s), because of intoxication, the defendant did not have the capacity to form the specific intent required by that offense. SOURCE: COLJI 7:13, COLJI 6(12), CRS 18-1-801(1)                 People v. White, 191 Colo. 353, 553 P.2d 68 (1976)         Certain words or phrases have a particular meaning. The following are definitions of these words or phrases. SOURCE: COLJI 5:01         INTOXICATION: means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. SOURCE: COLJI 7:68 § 7(2), CRS 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. SOURCE: COLJI 7:68 § 7(5), CRS 18-1-804(5)         Intoxication does not negate culpability element of "knowingly". Evidence of self-induced intoxication is not admissible to negate the culpability element of "knowingly". People v. Aragon, 653 P.2d 715 (Colo. 1982); People v. Breland, 728 P.2d 763 (Colo. App. 1986).         Consumption of heroin by an addict causes self-induced, not involuntary, intoxication. Tacorante v. People, 624 P.2d 1324 (Colo. 1981).         Voluntary intoxication is sufficient to support general intent for crime. One who voluntarily drinks himself into unconsciousness intends whatever the foreseeable consequences or inevitable results of such intoxication are, and that intent is sufficient to supply general intent for second degree murder. Watkins v. People, 158 Colo. 485, 408 P.2d 425 (1965).

Involuntary or Self Induced Intoxication

Voluntary or self-induced Intoxication is an affirmative defense to certain crimes or their lesser included offenses - that, at the time of the alleged offense(s), lacked the capacity to conform his conduct to the requirements of the law because of intoxication that was not self-induced.         Intoxication of the accused is not a defense to a criminal charge, except that a person is not criminally responsible for his conduct if intoxication was not self-induced and was intoxicated to a degree that was unable to formulate the requisite specific intent or to act knowingly or recklessly with respect to the circumstance. SOURCE: COLJI 7:14, COLJI 6(12), CRS 18-1-801§§(1),(3)                 People v. White, 191 Colo. 353, 553 P.2d 68 (1976)                 Involuntary intoxication, in contrast, is without moral culpability and, for this reason, is a complete defense to all crimes. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed.2d 466 (1983); People v. Turner, 680 P.2d 1290 (Colo. App. 1983).         Involuntary intoxication as an affirmative defense. Where the defendant presented evidence that he was unaware of the effect of ingesting excessive doses of a prescribed drug, it is reversible error not to submit that issue to the jury. People v. Turner, 680 P.2d 1290 (Colo. App. 1983).         Certain words or phrases have a particular meaning. The following are definitions of these words or phrases. SOURCE: COLJI 5:01         INTOXICATION: means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body. SOURCE: COLJI 7:68 § 7(2), CRS 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. SOURCE: COLJI 7:68 § 7(5), CRS 18-1-804(5)

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