v. Neckel , 2019 COA 69 ( 2019 )

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
May 9, 2019
2019COA69
No. 17CA0279, People v. Neckel — Civil Procedure — Process —
Process Servers — Execution of Public Duty; Crimes — Trespass
A division of the court of appeals considers whether “No
Trespassing” signs render a process server a trespasser the moment
he enters a property to effectuate process. Relying in part on the
reasoning in Florida v. Jardines, 569 U.S. 1, 8 (2013), the division
concludes that a sign alone does not revoke the implied license to
approach the front door of a home. Although the implied license
may be revoked, a process server’s conduct remains statutorily
privileged to the extent that it is consistent with the laws governing
the execution of legal process. Therefore, a process server’s entry
onto a property with “No Trespassing” signs does not automatically
render him a trespasser.
The division further rejects defendant’s contentions that the
trial court erroneously rejected his tendered jury instruction
concerning the duty to retreat as it applies to the affirmative
defense of defense of premises; and that the trial court should have
provided supplemental instructions to the jury defining “unlawful
trespass” in the context of the affirmative defense of defense of
premises.
Accordingly, the division affirms the judgment.
COLORADO COURT OF APPEALS 2019COA69
Court of Appeals No. 17CA0279
Larimer County District Court No. 15CR1844
Honorable Daniel J. Kaup, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Eric Alexus Neckel,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V
Opinion by JUDGE GROVE
Terry and J. Jones, JJ., concur
Announced May 9, 2019
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Alan M. Lijewski, Alternate Defense Counsel, Longmont, Colorado, for
Defendant-Appellant
¶1 Defendant, Eric Alexus Neckel, appeals his convictions for
felony menacing and second degree criminal tampering. He
contends the trial court erred by not sua sponte correcting alleged
misstatements by the victim and the prosecutor and by rejecting
defense-tendered jury instructions. We affirm.
I. Background
¶2 The People charged Neckel with felony menacing and second
degree criminal tampering after he threatened a process server with
a lead pipe and then jacked up the process server’s car, preventing
him from leaving.
¶3 Neckel lives in a rural area of Larimer County. His house is
set back approximately a quarter mile from a county road. A long
U-shaped driveway circles behind the house and meets the road at
two points. Neither driveway entrance is gated, and there is no
fencing along the road. There is, however, a small “No Trespassing”
sign nailed to a telephone pole near one entrance. Another similar
sign is on the side of a barn behind the house.
¶4 A process server (the victim) drove to Neckel’s house one
afternoon to serve Neckel with some papers. He parked in the
1
driveway and knocked on the door. Hearing no immediate
response, the victim left a note with his contact information and
turned away. As the victim was walking back toward his car,
Neckel opened the door and asked the victim if he had “ever been
killed.” The victim answered “no.” Neckel then asked the victim if
he had “ever been shot.” The victim said “not yet.”1
¶5 The victim tried to tell Neckel why he was there and asked
Neckel to confirm his identity. Rather than responding directly,
Neckel began berating the victim, telling him that he had no right to
be there and was trespassing, and demanding that the victim get off
his land. When the victim asked Neckel to identify himself so that
he could confirm service of the papers, Neckel picked up a large
metal pipe and raised it over his head. The victim said, “[I]f you do
that, it’s murder.” When Neckel said “it’s coming on three,” the
victim retreated behind his car. He then told Neckel that he was
serving him by refusal, but Neckel began circling the car with the
1 Immediately after this exchange, the victim turned on a voice
recorder. Audio of the remainder of the interaction was captured on
that device, on contemporaneous 911 recordings, or both.
2
pipe. The victim kept the car between himself and Neckel, but after
a few circuits Neckel placed a hydraulic jack under the front wheels
of the victim’s car and lifted it off the ground.
¶6 Both men called 911 in the midst of this slow-motion chase.
The victim reported that Neckel had threatened him with “a three
foot piece of pipe” and had put a jack under his car, thus
preventing him from leaving the property. Neckel called 911 four
times. During the first call he and the 911 operator had the
following exchange:
Neckel: He’s on private property and I’m going
to neutralize the threat right now.
911 Operator: No, you can’t do that.
Neckel: Would you like me to ahh, render him
incompetent? Would you like me to shoot
him?
911 Operator: No, I want you to go inside and
shut and lock the door and wait for a deputy.
Neckel: That I won’t do. He’s in front of my
house —
911 Operator: OK —
Neckel: — and he has no business.
3
911 Operator: OK. Are you behind on any
payments? Why is he there?
Neckel: It matters not. . . .
The 911 operator repeatedly told Neckel to go inside, although it is
not clear from the record whether he did so before the victim left.
Nonetheless, at some point during the 911 calls, the victim’s vehicle
was released from the jack and he left the area to meet the police.
¶7 Neckel was charged with one count of felony menacing for
threatening the victim with the metal pipe and one count of second
degree criminal tampering for using the jack to prevent the victim
from leaving in his car. A jury found Neckel guilty of both counts.
II. Analysis
¶8 Neckel raises three contentions on appeal. First, he argues
that the trial court committed plain error when it failed to sua
sponte correct four alleged misstatements by the victim and the
prosecutor regarding the law of trespass. Second, he contends that
the trial court erroneously rejected his tendered jury instruction
concerning the duty to retreat as it applies to the affirmative
defense of defense of premises. And last, he asserts that the trial
court erroneously refused his supplemental instructions defining
4
“unlawful trespass” in the context of the affirmative defense of
defense of premises. We address and reject each argument in turn.
A. The Trial Court Did Not Err by Failing to Sua Sponte Correct
Alleged Misstatements of Law by the Victim and the Prosecutor
¶9 Neckel asserts that the trial court committed plain error when
it failed to correct what he contends were a total of “four
misstatements regarding the law of trespass” made by the victim
while testifying and the prosecutor during closing arguments. We
discern no error at all, much less plain error.
1. Standard of Review and Preservation
¶ 10 The legal accuracy of the challenged statements is a question
of law that we review de novo. See People v. Lopez, 2018 COA 119,
¶ 21.
¶ 11 Neckel says that he did not preserve this issue and, as a
result, asserts that the plain error standard should apply. We only
partially agree with his concession. Indeed, our review of the record
reveals that defense counsel did object to the first alleged
misstatement of law made by the victim, thereby preserving that
statement for our review. We review any error in allowing that
statement for harmless error — meaning we will reverse only if
5
there is a reasonable possibility that it contributed to the
conviction. Pernell v. People, 2018 CO 13, ¶ 22.
¶ 12 On the other hand, the second alleged misstatement was made
by defense counsel during his cross-examination of the victim —
who merely agreed with the proposition that defense counsel posed.
Any error associated with the victim’s answer to that question
would be invited, see People v. Wittrein, 221 P.3d 1076, 1082 (Colo.
2009), and is therefore unreviewable. People v. Foster, 2013 COA
85, ¶ 36.
¶ 13 The prosecutor made the third and fourth alleged
misstatements during closing argument. Because defense counsel
did not object to them, we review those statements only for plain
error. Plain error is obvious and substantial error that so
undermined the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.
Hagos v. People, 2012 CO 63, ¶ 14. In the context of unpreserved
prosecutorial misconduct claims, to rise to the level of plain error
the misconduct must be “flagrant or glaringly or tremendously
improper.” People v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App.
6
2005) (citation omitted). “[A]n improper statement by a prosecutor
in closing argument rarely constitutes plain error requiring
reversal.” People v. Douglas, 2012 COA 57, ¶ 64.
2. The Victim’s and the Prosecutor’s Statements
¶ 14 The victim’s first alleged misstatement occurred during his
direct examination when the following exchange occurred:
Q. While you’re driving up Neckel’s driveway,
do you see a no-trespass sign?
A. I don’t recall.
Q. Okay. If you had seen it, would that have
stopped you from approaching his home?
A. No.
Q. Why is that?
A. Because it’s not trespass. It’s not
considered trespass. As long as you’re
attempting to serve somebody and you’re there
for a legitimate reason, then you’re not
trespassing.
DEFENSE COUNSEL: I object to that, Judge.
That’s a misstatement of the law.
THE COURT: Based on his training and
experience, that’s his testimony. You’ll have a
chance later to ask him questions. Overruled.
7
¶ 15 Defense counsel elicited the second alleged misstatement
during his cross-examination of the victim. While asking questions
about guidance created by the Process Servers Association of
Colorado, defense counsel and the victim had the following
colloquy:
Q: Okay. So let me ask you about some of the
tenets of that organization. They publish to
their members that we have a right to
approach a residence. That right ends the
moment a resident tells us to leave their
property; correct?
A: That’s how I understand the law as well, yes.
¶ 16 The last two alleged misstatements occurred during the
prosecutor’s closing argument. The first of these occurred while the
prosecutor was addressing Neckel’s claim that he reasonably
believed that the victim was trespassing:
Now, defense of premise, I have to disprove
that he was in possession or control of any
building, realty or premise. Clearly it’s Mr.
Neckel’s farm. He lives there. I can’t disprove
that. Right? But number two is did he use
reasonable and appropriate physical force
when and to the extent it was reasonably
necessary to prevent or terminate what he
reasonably believed was the commission or
8
attempted commission of an unlawful
trespass. Right?
Now we’re back to the trespass thing. Was it
reasonable for Mr. Neckel to believe that [the
victim] was trespassing? Possibly. There is a
no-trespass sign at the end of the driveway. If
someone is to go up that driveway, that doesn’t
mean they’re illegally trespassing
automatically.
It’s just a sign. It’s not the law. But did Mr.
Neckel reasonably believe that [the victim] was
trespassing? Possibly. But it also requires a
reasonable and appropriate use of physical
force to keep that person from trespassing.
¶ 17 The second statement occurred near the end of the
prosecutor’s closing argument, when he said,
Would it be reasonable for Mr. Neckel to
come out wielding a pipe if there was a Girl
Scout selling cookies on his property? That
would be a trespass in his world. What if it
was a high school kid trying to make money
for the track team? Would that be reasonable?
¶ 18 Neckel maintains that these statements, taken individually
and together, suggested to the jury “that the process server could
not, by law, suffer liability as a trespasser, and thus the jury could
not therefore find Mr. Neckel’s attempts to eject him reasonable.”
9
We reject this argument because both statements accurately
reflected that the victim’s initial entry onto the property was lawful.
3. Neither the Victim Nor the Prosecutor Misstated the Law
Because the Victim’s Entry Onto Neckel’s Property Was Not a
Trespass
¶ 19 Neckel contends that, because there were “No Trespassing”
signs posted near one of the driveway entrances and on an
outbuilding near his house, the victim became a trespasser the
moment that he drove onto Neckel’s property. He argues, however,
that the testimony and statements described above could have
misled the jury into believing that the victim was privileged to enter
and remain on the property by virtue of his status as a process
server. And indeed, that is precisely what the People argue in this
court. They assert that under section 18-1-701, C.R.S. 2018, the
victim was essentially immune from trespass laws so long as he was
working to serve Neckel with papers as contemplated by the Rules
of Civil Procedure. Although the license established by section 18-
1-701 is not unlimited, we agree with the People that the
statements in question accurately described the victim’s privileges
and obligations under the circumstances of this case.
10
¶ 20 We first address Neckel’s claim that his “No Trespassing”
signage closed his property to legal visitation absent an express
invitation. Courts have universally acknowledged, based on “the
habits of the country,” McKee v. Gratz, 260 U.S. 127, 136 (1922), an
“implicit license [that] typically permits the visitor to approach the
home by the front path, knock promptly, wait briefly to be received,
and then (absent invitation to linger longer) leave.” Florida v.
Jardines, 569 U.S. 1, 8 (2013). And most jurisdictions — although
not all — have held that revocation of this implied license, while
possible, requires more than one or two out-of-the-way “No
Trespassing” signs. See State v. Christensen, 517 S.W.3d 60, 72
(Tenn. 2017) (acknowledging split of authority). Courts adopting
the majority view have consistently acknowledged the importance of
context, concluding that “No Trespassing” signs may mean different
things to different people depending on where and how they are
posted. As the Idaho Court of Appeals has put it,
[while] [p]osting “No Trespassing” signs may
indicate a desire to restrict unwanted visitors
and announce one’s expectations of privacy[,]
. . . such signs cannot reasonably be
interpreted to exclude normal, legitimate
11
inquiries or visits by mail carriers, newspaper
deliverers, census takers, neighbors, friends,
utility workers and others who restrict their
movements to the areas of one’s property
normally used to approach the home.
State v. Rigoulot, 846 P.2d 918, 923 (Idaho Ct. App. 1992). On
rural property in particular, signs like Neckel’s are likely to be
construed by a casual visitor not as a bar to any entry whatsoever,
but rather as a deterrent to those “who might be tempted to leave
the highway and use the [owner’s] driveway as an access route for
their own purposes (e.g., hunting, camping, hiking, or the like).”
Michel v. State, 961 P.2d 436, 438 (Alaska Ct. App. 1998). Because
they are not talismans, “No Trespassing” signs are “not alone
sufficient to convey to an objective officer, or member of the public,
that he cannot go to the front door and knock.” United States v.
Carloss, 818 F.3d 988, 995 (10th Cir. 2016).
¶ 21 We agree with those courts that hold that a sign alone does
not provide the “clear demonstration[]” necessary to revoke “[t]he
implicit license enjoyed by law enforcement and citizens alike to
approach the front doors of homes.” State v. Grice, 767 S.E.2d 312,
319 (N.C. 2015). More is needed to convey to the public that the
12
owner wants to maintain complete privacy. But Neckel employs no
such measures on his property. While a fence line separates his
land from at least one neighbor, there is no fence along the road,
and no gates or other barriers block either end of the driveway. Nor
are the two “No Trespassing” signs prominently placed. In fact, a
visitor entering the northern driveway entrance would not see any
sign at all before reaching the house. Given these facts, we cannot
agree with Neckel’s assertion that the victim and the prosecutor
misstated the law by denying that the victim was trespassing from
the moment that he drove onto the property.
¶ 22 This is not to say, however, that, under section 18-1-701, the
victim’s status as a process server rendered him immune from
trespass laws.2 Section 18-1-701(1) provides that “conduct which
would otherwise constitute an offense is justifiable and not criminal
when it is required or authorized by a provision of law or a judicial
decree binding in Colorado.” “Laws governing the execution of legal
2 Because he raised it for the first time at oral argument, we decline
to address Neckel’s assertion that section 18-1-701, C.R.S. 2018,
establishes only an affirmative defense rather than substantive law.
People v. Becker, 2014 COA 36, ¶ 23.
13
process” are covered by this exemption. § 18-1-701(2)(c). But the
privilege that the statute confers is not without limits. At common
law, for example, a process server’s authority to enter private
property to serve legal papers ends at the door to the recipient’s
home. See, e.g., Vanden Bogert v. May, 55 N.W.2d 115, 117-18
(Mich. 1952); cf. People v. Lutz, 762 P.2d 715, 717 (Colo. App. 1988)
(holding that the defendant was entitled to a defense of premises
instruction where a police officer unlawfully forced his way into the
defendant’s house). For much the same reason, courts commonly
recognize that if a process server is prevented from approaching the
front door, “the outer bounds of the actual dwelling place must be
deemed to extend to the location at which the process server’s
progress is arrested.” F. I. duPont, Glore Forgan & Co. v. Chen, 364
N.E.2d 1115, 1117 (N.Y. 1977); see also Fine Homebuilders, Inc. v.
Perrone, 911 A.2d 1149, 1153-54 (Conn. App. Ct. 2006).
¶ 23 We thus reject Neckel’s claim that comments by the victim and
the prosecutor inaccurately suggested that the victim was not a
trespasser. Based on both the implied license and section 18-1-
701, the victim’s entry onto Neckel’s land to effect service was legal.
14
And while Neckel quickly revoked the implied license once he began
interacting with the victim, we agree with the People that — to the
extent the victim’s conduct was consistent with the laws governing
the execution of legal process — it remained statutorily privileged
even after Neckel revoked the implied license.3
B. Rejection of Defense-Tendered Jury Instructions
¶ 24 Neckel contends that the trial court reversibly erred by
refusing jury instructions that he tendered on two issues. The first
stated that Neckel had no duty to retreat before defending his
premises. The second, which actually encompassed two separate
instructions, ostensibly defined “unlawful trespass.” We conclude
that the trial court appropriately exercised its discretion by rejecting
these instructions.
1. Standard of Review and Preservation
¶ 25 The parties agree that Neckel preserved this issue by tendering
the instructions in question to the trial court.
3 We acknowledge that the protections of section 18-1-701(1) cease
to apply once service is complete. But the victim can hardly be
blamed for not immediately vacating the property while Neckel was
chasing him with a lead pipe and rendering his vehicle inoperable.
15
¶ 26 We apply a two-tier standard of review to jury instructions.
People v. Stellabotte, 2016 COA 106, ¶ 18, aff’d, 2018 CO 66. First,
“[w]e review jury instructions de novo to determine whether the
instructions as a whole accurately informed the jury of the
governing law.” People v. Jones, 2018 COA 112, ¶ 24. Second, “we
review a trial court’s decision concerning a proposed jury
instruction for an abuse of discretion and will not disturb the ruling
unless it is manifestly arbitrary, unreasonable, or unfair.” People v.
Trujillo, 2018 COA 12, ¶ 11.
¶ 27 “A trial court’s failure to provide a jury instruction after a
defendant requests such instruction will be reviewed under the
harmless error standard.” Brown v. People, 239 P.3d 764, 767
(Colo. 2010). Under this standard, reversal is warranted only if the
error affected the defendant’s substantial rights. Crim. P. 52(a).
We will thus affirm “if there is no reasonable possibility that [the
instructional error] contributed to the defendant’s conviction.”
Pernell, ¶ 22. But see Mata-Medina v. People, 71 P.3d 973, 980
(Colo. 2003) (holding that reversal is not required unless there is “a
16
reasonable probability that [the instructional error] contributed to
the defendant’s conviction”).
2. The Trial Court Appropriately Declined the Tendered
Instructions
a. “No Retreat” Instruction
¶ 28 At the jury instruction conference, Neckel’s attorney asked the
trial court to instruct the jury on the affirmative defenses of defense
of premises and defense of person. Relying on the pattern
instructions for those affirmative defenses, the trial court granted
that request.
¶ 29 The pattern instruction for the affirmative defense of defense
of person provides in part that “[t]he defendant was legally
authorized to use physical force upon another person without first
retreating” if certain conditions are met. COLJI-Crim. H:11 (2018).
The pattern instruction for physical force in defense of premises
does not include similar “no retreat” language. COLJI-Crim. H:16
(2018). However, consistent with the pattern instruction, the
defense of premises instruction did state in pertinent part that
[t]he defendant was legally authorized to use
physical force upon another person if:
17
1. He was in possession or control of any
building, realty, or other premises, and
2. He used reasonable and appropriate
physical force, when and to the extent it was
reasonably necessary to prevent or
terminate what he reasonably believed was
the commission or attempted commission of
an unlawful trespass by the other person in
or upon the building, realty, or premises.
¶ 30 Neckel’s counsel, asserting that the “no retreat” doctrine
applies not only to the affirmative defense of self-defense, but also
to the affirmative defense of defense of premises, tendered an
additional instruction: “[i]n evaluating whether the affirmative
defenses in this case have been disproven beyond a reasonable
doubt, you are instructed that there is no duty to retreat before one
is allowed to employ force in the defense of a person or premises.”
Defense counsel argued that the need for the instruction was
particularly acute because “the 911 operator kept telling Mr.
Neckel, just go back in your house and lock your door.” This
direction, counsel argued, left the jury with the “impression . . . that
there’s some kind of requirement and you should go back in your
house before you’re allowed to defend your premises.” The trial
18
court declined the instruction, explaining that, because the concept
of retreat is fundamentally incompatible with defense of premises,
there was no risk that the jury would incorrectly assume that
Neckel had a duty to retreat before taking reasonable measures to
defend his premises against what he reasonably believed to be an
unlawful trespass.
¶ 31 We agree with the trial court. The concept of defense of
premises is at odds with the duty to retreat, and the pattern jury
instruction (which the court provided), accompanied by
straightforward logic, makes that abundantly clear. In particular,
the instruction states that one in possession or control of a piece of
property may use physical force to defend it “when and to the
extent it was reasonably necessary to prevent or terminate what he
reasonably believed was the commission or attempted commission
of an unlawful trespass.” (Emphasis added.) But the occupant of a
property cannot use physical force to prevent or terminate a
trespass while at the same time retreating. To the contrary, in
order to prevent or terminate a trespass by using physical force, the
occupant need not retreat at all, so long he uses force “when and to
19
the extent [that] it [is] reasonably necessary” to eject the trespasser.
In short, because “no retreat” is inherent in both the concept of
defense of premises and in the pattern instruction that was
provided to the jury, the trial court did not abuse its discretion in
rejecting the additional “no retreat” instruction that Neckel’s
counsel tendered. See People v. Tweedy, 126 P.3d 303, 307 (Colo.
App. 2005) (holding that a court may refuse an instruction that
states principles already encompassed elsewhere in the court’s
instructions).
b. Rejection of the Instruction Defining “Unlawful Trespass”
¶ 32 Last, Neckel argues that the trial court erroneously rejected
his tendered instructions concerning the definition of “unlawful
trespass.” We are not persuaded.
¶ 33 The additional instructions that Neckel’s attorney asked the
trial court to give said, “[a] person is a trespasser if they knowingly
and unlawfully enter or remain in or upon the premises of another,”
and,
[a] person “enters unlawfully” or “remains
unlawfully” in or upon a premises when the
person is not licensed, invited, or otherwise
privileged to do so. A person who, regardless
20
of his intent, enters or remains in or upon
premises that are at the time open to the
public does so with license and privilege
unless the person defies a lawful order not to
enter or remain, personally communicated to
him by the owner of the premises or some
other authorized person. A license or privilege
to enter or remain in a building that is only
partly open to the public is not a license to
enter or remain in that part of the building
that is not open to the public.
¶ 34 Neckel argues that these instructions were necessary to clarify
the defense of premises instruction, which applies only where the
defendant has acted “to prevent or terminate what he reasonably
believed was the commission or attempted commission of an
unlawful trespass.” The additional definitions in the tendered
instructions, Neckel contends, were needed to correct the four
alleged misstatements of law about the legality of the victim’s entry
onto the property that we discuss above. But as we have already
determined, all of the statements that Neckel identifies were
accurate. Thus, because Neckel relies on the victim’s testimony
and the prosecutor’s argument as the basis for defining “unlawful
trespass” for the jury, we conclude that the trial court appropriately
declined to provide any additional definition.
21
III. Conclusion
¶ 35 We affirm the judgment.
JUDGE TERRY and JUDGE J. JONES concur.
22