Unobjected-to Instructional Errors on Uncontested Issues Do Not Constitute Plain Error (and “Eluding” Need Not End When Police Call Off a Chase)

Case: People v. Jeffery Sloan, 2026 CO 63 (Colo. Sept. 14, 2026)
Court: Colorado Supreme Court (en banc)
Disposition: Judgment reversed; remanded for mittimus correction on an unrelated issue

I. Introduction

People v. Sloan arises from a fatal crash that followed a police attempt to stop a stolen Jeep. Respondent Jeffery Sloan was convicted of vehicular eluding under section 18-9-116.5, C.R.S. (2025), and the offense was elevated from a class 5 felony to a class 3 felony by a sentence enhancer requiring proof that the vehicular eluding “result[ed] in death to another person.” The trial court, however, presented the enhancer to the jury via an interrogatory asking whether “the accident resulted in the death of any person.”

Sloan did not object to the interrogatory at trial. His defense was mistaken identity: he claimed he was not the driver. He did not dispute that the crash killed two people or that the eluding conduct led to the collision. The core issue on certiorari was therefore not whether the instruction was wrong (all agreed it was), but whether the unpreserved instructional error required reversal under Colorado’s plain-error standard.

II. Summary of the Opinion

The Colorado Supreme Court held that although the interrogatory was erroneous and the error was “plain” in the sense of being obvious (it contradicted a clear statutory command), it did not constitute plain error requiring reversal because Sloan failed to satisfy the substantial-rights prong of Crim. P. 52(b).

The Court emphasized a dispositive tenet of its jurisprudence: an erroneous jury instruction will not ordinarily amount to plain error where the issue affected by the instruction was uncontested at trial (or where the record contains overwhelming evidence of guilt). Because Sloan did not contest whether the eluding resulted in death, the flawed enhancer interrogatory did not create a reasonable possibility of influencing the jury’s verdict on the enhancer.

The Court reversed the court of appeals, which had found plain error after conducting what it described as a more “robust” analysis of whether evidence supporting the enhancer was overwhelming. The Supreme Court concluded the division misread controlling precedent and wrongly relied on People v. Cowden—a case the Court characterized as an outlier driven by a glaring absence of evidence on an element.

III. Analysis

A. Precedents Cited

The Court’s decision is best understood as a reaffirmation—and clarification—of existing Colorado plain-error doctrine, anchored by several key authorities.

  • People v. Crabtree, 2024 CO 40M: The Court quoted Crabtree for the two-prong plain-error framework under Crim. P. 52(b) and for the formulation that reversal is warranted only when an obvious error “so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction.” Crabtree also provided the policy rationale: reversals must be rare to preserve incentives for contemporaneous objections.
  • People v. Miller, 113 P.3d 743 (Colo. 2005), and Romero v. People, 2017 CO 37: These cases supplied the definition of “plain” as “obvious” and reinforced that an erroneous instruction “does not normally constitute plain error where the issue is not contested at trial or where the record contains overwhelming evidence of the defendant’s guilt.”
  • Wilson v. People, 743 P.2d 415 (Colo. 1987), and Hagos v. People, 2012 CO 63: Both were used to explain the function of Crim. P. 52(b) as a narrow “escape hatch” for “particularly egregious errors,” balancing finality and fairness.
  • United States v. Frady, 456 U.S. 152 (1982): Cited for the broader principle that plain-error doctrine balances encouraging accurate trials with correcting obvious injustice.
  • Auman v. People, 109 P.3d 647 (Colo. 2005), and Bogdanov v. People, 941 P.2d 247 (Colo. 1997): Auman, quoting Bogdanov, was the Court’s doctrinal centerpiece for instructional errors: no plain error where the subject is not contested or evidence is overwhelming; the test asks whether there is a reasonable possibility the flawed instruction contributed to the verdict.
  • Thompson v. People, 2020 CO 72, and People v. Lozano-Ruiz, 2018 CO 86: These were the Court’s modern reaffirmations that unpreserved instructional defects tied to an uncontested issue do not satisfy the substantial-rights prong. In Thompson, the defendant never disputed the note was a “security.” In Lozano-Ruiz, the defendant pleaded not guilty but did not actually contest that sexual penetration occurred; his defense was mistake of age.
  • Espinoza v. People, 712 P.2d 476 (Colo. 1985): Reinforced that failure to instruct on an undisputed element generally is not plain error and also observed that overwhelming evidence can independently defeat plain error.
  • People v. Cowden, 735 P.2d 199 (Colo. 1987): The court of appeals relied on Cowden to reverse despite non-contestation. The Supreme Court distinguished Cowden as an outlier because the record lacked evidence supporting the omitted element (and included testimony affirmatively contradicting it), making acquittal reasonably possible if properly instructed.
  • People v. Fichtner, 869 P.2d 539 (Colo. 1994): Supported the proposition that when the omitted/erroneous instruction concerns a matter not contested during voir dire, opening, or closing, plain error is unlikely.
  • People v. Ceus, 2026 CO 59: Cited (in a footnote) for the proposition that sentence-enhancing factors generally function much like elements because they typically must be found beyond a reasonable doubt, justifying the Court’s treatment of the enhancer interrogatory as an “instructional error” for plain-error purposes.
  • People v. Sloan, 2024 COA 52M: The Supreme Court reversed this published division opinion, faulting its reading of Thompson, Lozano-Ruiz, and Auman, and its reliance on Cowden.

B. Legal Reasoning

The Court organized its reasoning around the two prongs of plain-error review under Crim. P. 52(b): (1) obviousness (“plainness”) and (2) effect on substantial rights.

1. Prong One (Obvious Error) was satisfied.
All parties agreed the interrogatory was wrong: the statute requires proof that the vehicular eluding resulted in death, but the jury was asked whether “the accident” resulted in death. Because this contradicted the clear language of section 18-9-116.5(2)(a), the error was “plain” in the first-prong sense.

2. Prong Two (Substantial Rights) was not satisfied because the issue was uncontested.
The controlling inquiry for instructional errors is whether there is a “reasonable possibility” that the flawed instruction contributed to the guilty verdict in a way that undermines the reliability of the conviction. Applying Auman, Thompson, and Lozano-Ruiz, the Court treated non-contestation as dispositive: when the subject of the instructional defect is not actually disputed at trial, the defendant cannot show a reasonable possibility the jury was “nudged” toward guilt by the error.

On this record, Sloan’s trial strategy was single-minded: he argued he was not the driver. He did not claim the crash did not occur, did not argue the victims did not die, and did not argue that the eluding conduct did not cause the deaths. The Court also rejected the notion that defense cross-examination about officers calling off the chase transformed causation into a genuinely contested issue; those were “cursory references” aimed at officer conduct and safety protocol, not a developed dispute over whether eluding resulted in death.

3. Clarification of doctrine: “uncontested issue” and “overwhelming evidence” are disjunctive off-ramps.
The Court held the court of appeals misread Auman and related cases as requiring a “more robust analysis” beyond non-contestation—namely, an additional assessment of whether evidence was overwhelming. The Supreme Court corrected the doctrinal point: the rule is framed in the disjunctive (“not contested” or “overwhelming evidence”). Either circumstance generally defeats plain error from an instructional defect.

4. Cowden is not a general license to reverse despite non-contestation.
The Court explained Cowden as a special case driven by a glaring evidentiary problem: the trial record not only lacked evidence of the missing value element but contained affirmative testimony placing the value below the felony threshold. That type of record creates a concrete likelihood the jury would have acquitted if correctly instructed. By contrast, in Sloan’s case, the record was not barren of evidence linking the ongoing flight to the fatal collision, and it certainly did not “indisputably establish the opposite.”

5. Substantive gloss on “eluding”: the defendant’s eluding can continue after officers stop pursuing.
In rejecting the court of appeals’ suggestion that the enhancer was undermined by evidence officers called off the chase, the Court drew an important practical distinction: police pursuit and defendant eluding are not the same thing. The Court emphasized there was no evidence Sloan knew police had stopped pursuing, and the timeline supported an “unbroken chain of events” set in motion by Sloan’s decision to flee and continued reckless driving culminating in the collision. The Court also warned that the court of appeals’ approach could yield “absurd results,” such as immunizing a death-causing collision occurring seconds after police disengage for safety reasons.

C. Impact

1. Plain-error review of instructions: a firmer, more rule-like application.
The opinion strengthens the practical force of the “uncontested issue” principle. Appellate litigants will find it harder to obtain reversal for unobjected-to instructional mistakes when trial strategy did not genuinely contest the affected element/enhancer fact—even if the instruction materially misstates statutory language.

2. Correction to appellate methodology: disjunctive means disjunctive.
By characterizing the court of appeals’ approach as a misreading, the Court discourages divisions from layering an “overwhelming evidence” analysis on top of non-contestation as an additional required step. Future opinions will likely treat non-contestation alone as sufficient to defeat prong two, reserving “overwhelming evidence” for cases where the issue was contested or where the court chooses to address both grounds.

3. Narrowing the reach of Cowden.
The Court effectively cabins Cowden to cases of extraordinary evidentiary failure (no support—or affirmative contradiction—for an element). That limits defendants’ ability to argue that Cowden authorizes reversal whenever an instruction omits/misstates an element, even if trial counsel did not contest it.

4. Vehicular eluding litigation: causation and timing disputes after disengagement.
Although the case is framed as plain error, the Court’s discussion of the “unbroken chain” and its rejection of a pursuit-equals-eluding theory will likely influence how parties frame causation and temporal proximity in future vehicular eluding cases—especially where officers disengage shortly before harm occurs. Prosecutors may cite Sloan to argue that disengagement does not automatically sever eluding-related causation, while defendants may need to develop record evidence that they knew the pursuit ended or that the later harm was meaningfully disconnected from the attempt to elude.

IV. Complex Concepts Simplified

  • Plain-error review (Crim. P. 52(b)): A limited appellate safety valve for unpreserved mistakes. The defendant must show (1) an obvious error and (2) that the error likely undermined the fairness and reliability of the verdict.
  • “Affecting substantial rights”: Not every obvious mistake warrants reversal. The question is whether the mistake realistically could have mattered to the jury’s decision—i.e., whether it casts serious doubt on the conviction’s reliability.
  • Instructional error: A mistake in what the judge tells the jury the law requires. In Sloan, the interrogatory used “accident resulted in death” rather than “vehicular eluding resulted in death.”
  • Sentence enhancer: A fact that increases the severity level (and punishment range) of an offense. Here, death resulting from vehicular eluding elevated the crime from a class 5 to a class 3 felony.
  • Interrogatory (special finding): A specific question on the verdict form requiring the jury to make an additional factual finding (often for an enhancer).
  • “Uncontested issue”: An issue that the defense does not actually dispute through argument, cross-examination aimed at negating the point, or presentation of contrary evidence—beyond simply pleading not guilty.
  • Mittimus: The written document reflecting the judgment of conviction and sentence; courts sometimes remand to correct clerical or recording errors in it.

V. Conclusion

People v. Sloan reverses a court of appeals finding of plain error and reinforces a central limitation on unpreserved instructional claims: when the instructional defect concerns an issue the defendant did not contest at trial, the defendant ordinarily cannot show the error affected substantial rights. The Court also clarifies that the “uncontested issue” principle and the “overwhelming evidence” principle operate as alternative, independent reasons to reject plain error—not cumulative requirements.

Beyond plain-error doctrine, the opinion signals skepticism toward arguments that a defendant’s “eluding” necessarily ends the moment police disengage. In vehicular eluding cases—especially those involving injury or death—Sloan will likely be cited to maintain enhancer findings where harm occurs shortly after disengagement, so long as the record supports an uninterrupted sequence of flight-related conduct and the issue was not genuinely contested at trial.