People v. Sloan (2026 CO 63): Instructional Errors on Uncontested Issues Do Not Satisfy Plain-Error “Substantial Rights” Review

I. Introduction

In People v. Sloan, 2026 CO 63, the Colorado Supreme Court reversed a published court of appeals decision that had set aside Jeffery Sloan’s class 3 felony vehicular eluding conviction based on an unpreserved jury-instruction defect in a sentence-enhancer interrogatory. The case arises from a late-night police pursuit of a stolen Jeep that ended shortly before the Jeep ran a red light and caused a collision killing two people. The central factual dispute at trial was identity: Sloan claimed he was not the driver.

The legal issue on certiorari was narrow: whether the court of appeals “misapprehended and misapplied the test” for determining when an unobjected-to instructional error on an undisputed issue amounts to plain error under Crim. P. 52(b).

II. Summary of the Opinion

The Supreme Court agreed that the trial court erred and that the error was “plain” in the sense that it was obvious: the verdict form/interrogatory asked whether “the accident resulted in the death of any person,” while the vehicular eluding enhancer required proof that “vehicular eluding . . . result[ed] in death to another person,” § 18-9-116.5(2)(a), C.R.S. (2025).

But the Court held the error was not plain error warranting reversal because Sloan did not contest at trial whether the eluding resulted in death; he contested only whether he was the driver. Under Colorado plain-error doctrine, an instructional error about an uncontested issue does not satisfy the “substantial rights” prong. The Court further explained that the court of appeals misread precedent and wrongly relied on and misapplied People v. Cowden.

III. Analysis

A. Precedents Cited

1. The Structure of Plain-Error Review

  • People v. Crabtree, 2024 CO 40M: Reaffirms the two-prong Crim. P. 52(b) framework—(1) the error must be “plain” (obvious), and (2) it must affect “substantial rights” by undermining fundamental fairness and casting serious doubt on the reliability of the conviction. Sloan uses Crabtree to anchor both prongs and to reiterate that appellate correction without an objection is “narrow.”
  • People v. Miller, 113 P.3d 743 (Colo. 2005) and Romero v. People, 2017 CO 37: Define “plain” as “obvious” and describe the kind of legal clarity required (clear statutory command, well-settled legal principle, established case law). These cases support the Court’s conclusion that the interrogatory’s statutory mismatch was obvious.
  • Wilson v. People, 743 P.2d 415 (Colo. 1987) and Hagos v. People, 2012 CO 63: Explain the purpose of plain-error review—correcting “particularly egregious errors” while preserving incentives for contemporaneous objection.
  • United States v. Frady, 456 U.S. 152 (1982): Cited (via Hagos) for the policy balance between encouraging accuracy at trial and correcting manifest injustice.

2. Instructional Error and the “Uncontested Issue” Rule

  • Auman v. People, 109 P.3d 647 (Colo. 2005): Central to Sloan. It frames the “substantial rights” question for instructional errors as whether a reasonable possibility exists that the error contributed to the guilty verdict. Critically, it states an erroneous instruction does not amount to plain error “where the subject of the error . . . is not contested at trial, or where evidence of the defendant’s guilt is overwhelming.” Sloan reads this disjunctive “or” as dispositive: either condition independently defeats plain error.
  • Bogdanov v. People, 941 P.2d 247 (Colo. 1997): Quoted through Auman for the same disjunctive formulation. It supplies doctrinal pedigree for the uncontested-issue principle.
  • Thompson v. People, 2020 CO 72: The Court relies heavily on Thompson to reaffirm that an instructional error on an issue “never disputed at trial” cannot satisfy the substantial-rights prong. The court of appeals, the Supreme Court held, mistakenly treated Thompson as turning “primarily” on the instruction tracking statutory language.
  • People v. Lozano-Ruiz, 2018 CO 86: Reinforces that a defendant need not “concede” an issue for it to be “uncontested.” The key is whether the defendant actually put the matter in dispute through evidence, cross-examination, theory, and argument—not merely by pleading not guilty. Sloan uses Lozano-Ruiz to correct the court of appeals’ “concession” gloss.
  • Espinoza v. People, 712 P.2d 476 (Colo. 1985): Consistent with Auman, it recognizes that instructional errors generally are not plain error when the element is undisputed, and it separately notes it is also unlikely to be plain error when guilt evidence is overwhelming. Sloan uses Espinoza to show the court of appeals wrongly converted two alternative reasons into a cumulative requirement.
  • People v. Fichtner, 869 P.2d 539 (Colo. 1994): Illustrates application: omission of a definition did not constitute plain error where the issue was not contested (and evidence was overwhelming). Sloan uses it to analogize how courts assess what was genuinely disputed at trial.

3. The “Outlier” Case: People v. Cowden

  • People v. Cowden, 735 P.2d 199 (Colo. 1987): The court of appeals used Cowden to justify plain-error relief despite a lack of contest at trial. The Supreme Court sharply limited that move: Cowden involved a missing value element where the record was effectively conclusive against the felony element (the victim testified the value was $195, and there was no contrary evidence). In that circumstance, the absence of an element in the instruction created an acute risk the jury convicted without any evidentiary basis for the required threshold—an exceptional scenario.

Sloan characterizes Cowden as outside the “usual contours” of the doctrine and rejects using it to expand plain error where the record is neither devoid of supporting evidence nor affirmatively disproves the enhancer fact.

4. Sentence Enhancers as Element-Like (Footnote Guidance)

  • People v. Ceus, 2026 CO 59: Cited to support treating sentence-enhancing factors as functioning “much like elements” because they must typically be proved beyond a reasonable doubt. Sloan then treats the enhancer interrogatory error under the “elemental error umbrella,” signaling that the same plain-error framework applies to unpreserved errors in enhancer interrogatories as to elements.

B. Legal Reasoning

1. The Court Separates “Obvious Error” from “Plain Error”

The Court emphasizes a frequent confusion: an error can be “plain” (obvious) yet still not warrant reversal unless it also affected substantial rights. Here, the statutory mismatch made the defect obvious, satisfying prong one, but Sloan lost on prong two.

2. The Substantial-Rights Prong Turns on Whether the Issue Was Actually Litigated

For instructional errors, Sloan applies the “reasonable possibility” test from Auman v. People—whether the flawed instruction could have nudged the verdict toward guilt and cast serious doubt on reliability. When the challenged instruction relates to a factual/legal issue that was not contested at trial, the Court deems it impossible for the defendant to show that the error meaningfully contributed to the verdict. The opinion thus operationalizes “contest” in practical trial terms:

  • Sloan’s defense from “start to finish” was mistaken identity (not the driver).
  • He did not argue that the eluding did not result in death, and did not argue evidentiary insufficiency on the enhancer.
  • Cross-examination about officers calling off the chase was treated as safety/protocol questioning, not a genuine attempt to contest causation between eluding and the deaths.

3. Correcting the Court of Appeals’ Doctrinal Misstep

The Supreme Court identifies two errors by the division:

  1. Misreading the disjunctive rule: The division treated the “uncontested issue” point as insufficient by itself and demanded an additional finding that evidence “overwhelmingly” supported conviction. Sloan holds this contradicts Auman v. People, Espinoza v. People, and the line of cases using “or.”
  2. Overextending People v. Cowden: The division analogized to Cowden and asserted the prosecution’s evidence undermined the enhancer by showing the chase was called off before the crash. The Supreme Court rejects the premise that the end of pursuit equals the end of eluding, noting there was no evidence Sloan knew police had stopped chasing him and the record showed an “unbroken chain of events” beginning with flight and ending in the fatal collision.

4. Text-and-Policy Backdrop: Avoiding Absurd Results

The Court also offers a pragmatic statutory reading: if “eluding” ended the instant police discontinued pursuit, then crashes occurring seconds later—triggered by the defendant’s dangerous flight—would fall outside the enhancer. The Court finds no basis in § 18-9-116.5 for such an arbitrary cutoff, and it labels the division’s approach “absurd” in application.

C. Impact

1. Appellate Review: A Sharper Constraint on Unpreserved Instructional Claims

People v. Sloan strengthens a bright-line feature of Colorado plain-error jurisprudence: when an instructional error concerns a point not actually contested at trial, the defendant will ordinarily be unable to show the error affected substantial rights—regardless of how “robust” a reviewing court wishes to be. This curbs appellate courts’ ability to reverse based on instruction defects that did not matter to the adversarial presentation of the case.

2. Trial Strategy and Preservation

The decision increases the practical importance of contemporaneous objections and of clearly litigating (or not litigating) particular elements/enhancers. Defendants who foresee a legal dispute about an element or enhancer must do more than plead not guilty; they must make the issue real at trial (through theory, argument, and evidentiary challenge) to preserve a meaningful chance of reversal under plain-error review.

3. Limiting Cowden to Its Exceptional Facts

By framing People v. Cowden as an “outlier” driven by a glaring absence of evidence or affirmative disproof of an element, Sloan discourages reliance on Cowden to obtain plain-error reversals in ordinary instructional-error cases.

4. Sentence Enhancers Treated Like Elements for Plain-Error Purposes

Although in a footnote, Sloan reinforces (with People v. Ceus) that sentence-enhancing factors generally function like elements—supporting a unified approach to plain-error review for enhancer interrogatories and element instructions.

IV. Complex Concepts Simplified

Plain error (Crim. P. 52(b))
A narrow appellate safety valve for unobjected-to mistakes. The defendant must show (1) an obvious legal error and (2) that the error likely mattered in a way that makes the conviction unreliable.
“Substantial rights” (the second prong)
Not every obvious mistake counts. The question is whether the error undermined the fairness of the trial so much that the conviction’s reliability is in serious doubt—often framed as whether there is a “reasonable possibility” the error contributed to the guilty verdict.
Uncontested issue
An issue is “uncontested” when the parties do not genuinely litigate it at trial. A defendant can maintain a general not-guilty stance while still not contesting particular elements or enhancer facts (as in People v. Lozano-Ruiz).
Sentence enhancer interrogatory
A special jury question that, if found beyond a reasonable doubt, increases the severity level (and thus the sentencing range) of the offense. In Sloan, the enhancer elevated vehicular eluding from a class 5 to a class 3 felony.

V. Conclusion

People v. Sloan reasserts and clarifies a controlling rule of Colorado plain-error review: an unobjected-to instructional error does not satisfy the “substantial rights” prong when it concerns a matter that was not contested at trial. The Court corrects the court of appeals’ attempt to require an additional “overwhelming evidence” showing, and it confines People v. Cowden to exceptional situations where the record is devoid of evidence (or affirmatively disproves) an omitted or misstated element-like fact.

The decision’s broader significance is institutional: it preserves the contemporaneous-objection norm, aligns enhancer interrogatories with element-instruction doctrine, and limits appellate reversal to truly trial-distorting errors rather than post hoc technical defects disconnected from how the case was actually tried.