Members of the Colorado Supreme Court appeared willing to uphold a defendant’s vehicular eluding conviction on Tuesday, suggesting that an incorrectly worded jury instruction was not an obvious and harmful error in light of the defense’s choice not to dispute the evidence.

A Denver jury convicted Jeffery Sloan of killing Yasir Hasan and Mark Karla by running a red light and colliding with his victims on Colfax Ave. in 2019. Karla was the son-in-law of then-Colorado Springs Mayor John Suthers. Sloan received a 72-year prison sentence.

One of Sloan’s charges, vehicular eluding of police, is normally a class 5 felony. It turns into a more severe class 3 felony if a jury finds the vehicular eluding results in a person’s death. Sloan’s jury convicted him of the more serious offense.

However, the instructions did not ask jurors whether “the vehicular eluding” resulted in the victims’ deaths, but whether “the accident” resulted in their deaths. Although Sloan’s lawyers did not object at the time, he argued on appeal that the police officers who were initially pursuing him had disengaged by the time he crashed into his victims’ vehicle. 

A three-judge Court of Appeals panel agreed with Sloan, noting the instruction focused on the “ramifications of the accident” rather than the alleged eluding. Judge Lino S. Lipinsky de Orlov acknowledged Sloan only contested at trial whether he was the driver, and not whether vehicular eluding occurred.

But the instruction “erroneously permitted the jurors to convict and the court to sentence Sloan for vehicular eluding resulting in death based on the accident, rather than vehicular eluding,” he wrote. “By shifting the jury’s focus from whether the victims’ deaths resulted from the vehicular eluding to whether their deaths resulted from the accident, the enhancer instruction tasked the jury with answering a question that could not enhance vehicular eluding from a class 5 felony to a class 3 felony.”

The panel reversed the eluding conviction, prompting the prosecution to appeal. During oral arguments to the Supreme Court, multiple justices signaled the faulty wording did not rise to the level of an obvious error requiring reversal.

“The whole theory of Mr. Sloan’s defense was, ‘It wasn’t me. I wasn’t driving.’ And so we have an instruction that, yeah, clearly wrong,” said Justice Richard L. Gabriel. “But if no one is challenging that the eluding resulted in death … how do we say that was obvious and substantial?”

Defense attorney Adrienne Teodorovic argued that, under the prosecution’s own evidence, police disengaged from chasing Sloan at least 32 seconds and one mile before the collision. While Sloan may have been guilty of reckless driving by continuing to speed down Colfax, he was not still eluding the police.

“Your logic is, eluding means ‘is being pursued,’ active pursuit. And if the active pursuit has ended,” said Chief Justice Monica M. Márquez, “there cannot be a (death resulting from the eluding) because that component has stopped.”

“The incentive for law enforcement is, don’t stop the chasing,” added Justice Carlos A. Samour Jr. “Regardless of safety reasons, keep chasing because otherwise the eluding crime goes away.”

“You have vehicular homicide” as an alternative charge, responded Teodorovic. “We have to remember that in this case, we have a man serving 10 years on a conviction that the jury never found. … He was convicted on some other, made-up crime.”

Gabriel said that he was having difficulty concluding that the evidence at trial failed to establish Sloan’s guilt, notwithstanding the flawed jury instruction.

“How does that death not result from vehicular eluding? There was eluding. The defendant knew they were being chased, etc. And they’re speeding away,” he said. “Just the fact that the police stopped the pursuit doesn’t stop the fact that there was eluding, and the eluding is what caused the death.”

Gabriel added that it would be “absurd” to find a defendant not liable for vehicular eluding resulting in death if someone caused a crash mere seconds after police disengaged.

“Just because the police stopped, it doesn’t mean the defendant isn’t still racing away. ‘I think they pulled off, let me get out of Dodge,'” he said.

Gabriel suggested that the Supreme Court could hold that an undisputed issue at trial cannot, by itself, constitute obvious error warranting reversal on appeal, so long as sufficient evidence supports the conviction.

Senior Assistant Attorney General William G. Kozeliski agreed with that proposal.

Justice Brian D. Boatright did not attend the arguments. Gabriel said Boatright “is, I think, listening, but he’s not here.”

The case is People v. Sloan.