The Colorado Supreme Court ordered a new trial for an Aurora teenager on Monday, agreeing a defendant need not admit to committing an underlying offense to assert a defense to the more serious crime of felony murder.

Felony murder is a unique offense, in which a defendant is guilty if he participates in certain crimes, such as robbery or sexual assault, and someone dies as a result. There is also an affirmative defense to felony murder, meaning a set of factors the prosecution has to disprove beyond a reasonable doubt, in addition to proving the criminal charges themselves.

The case of Kenneth Alfonso Gallegos presented the question of whether a defendant needs to admit to committing the underlying crime before jurors can consider his affirmative defense to murder — or else risk triggering an automatic murder conviction if he denies all culpability and is convicted of the less serious crime.

No, the Supreme Court decided, the options are not all-or-nothing.

“Even though the crime of felony murder necessarily involves committing a predicate felony, its affirmative defense is just that — a defense to felony murder, which is separate,” wrote Justice Brian D. Boatright in the June 23 opinion.

Lloyd Chavez IV, a student at Cherokee Trail High School, died in May 2019 after four teenagers attempted to rob him during a meetup to purchase vaping supplies. Demarea Mitchell was the one who fatally shot Chavez, but jurors also convicted Gallegos of felony murder.

Gallegos insisted he did not plan to rob Chavez, nor was he aware the other members of the group had a gun. To that end, he asked then-Arapahoe County District Court Judge Ben L. Leutwyler to instruct jurors about Gallegos’ affirmative defense to felony murder. An affirmative defense — which would result in an acquittal if the prosecution is unable to disprove any part of it — must be given when there is “some credible evidence” supporting it.

Leutwyler rejected the request because Gallegos “is not acknowledging in any way, through any evidence that has been presented, his involvement in any part of the crime.” Jurors found Gallegos guilty of attempted aggravated robbery, felony murder and other offenses.

However, a three-judge Court of Appeals panel believed the unusual dual-crime structure of felony murder meant a person was not required to admit to the underlying criminal conduct to be eligible for the affirmative defense. Moreover, the panel agreed there was some evidence suggesting Gallegos was unaware of any plan to kill Chavez, notably the statements of other participants in the robbery attempt.

A defendant “convicted of a predicate offense does not automatically stand convicted of felony murder,” wrote Judge Lino S. Lipinsky de Orlov. The underlying offense and the felony murder “are discrete crimes with discrete elements and discrete defenses. A jury may convict a defendant of the predicate offense yet acquit on the felony murder count.”

The government appealed to the Supreme Court, insisting that a defendant’s complete denial of participation in an underlying offense necessarily bars a felony murder defense — one component of which is that the defendant “was not the only participant in the underlying crime.”

“We’re not suggesting they have to plead guilty or in any way relieve the prosecution of its burden,” said Assistant Attorney General Brenna Brackett during oral arguments. But “it starts from, ‘You are a participant.'”

To the extent that asserting an affirmative defense to felony murder — which normally involves admitting to criminal conduct — creates a logical inconsistency, Boatright raised a hypothetical example in which multiple suspects wearing ski masks commit an offense, such that the identity of a shooter is in question.

“I can see both scenarios playing out. ‘They didn’t prove my guy was there’ and, ‘If he (was), you saw the guy in the blue ski mask act in self-defense,'” Boatright said. “If there’s a legitimate question of identity, why can’t you have both defenses?”

“Of course you can,” replied defense attorney Michael P. Zwiebel, “and that’s exactly my argument.”

Ultimately, the Supreme Court agreed defendants are permitted to raise inconsistent defenses at trial, and there was evidence to support the theory that Gallegos was present for the robbery but was unaware of any plans to kill Chavez — and may have actually tried to stop the altercation. Therefore, Gallegos was entitled to pursue his affirmative defense separately from his denial of the robbery.

“Assuming sufficient evidence supports the affirmative defense to felony murder,” concluded Boatright, “it is the province of the jury to weigh the credibility of any conflicting evidence and decide both (1) whether the defendant committed the underlying crime and, if so, (2) whether the affirmative defense shields the defendant from felony murder liability.”

Assistant District Attorney Ryan Brackley said his office “will certainly analyze whether or not we would seek to appeal this to the United States Supreme Court. But short of that, it’s our office’s intention to retry Mr. Gallegos.”

Gallegos’ lawyer on appeal declined to comment.

The case is People v. Gallegos.

This story has been updated with additional comments.