## Facts

- Jesus Bernardo Fontes was charged with forgery (class 5 felony), criminal impersonation (class 6 felony), and misdemeanor theft.
- Fontes had three young children described as having serious health problems and being malnourished; on the day in question they allegedly had not eaten for more than 24 hours.
- After unsuccessfully seeking help from several food banks, Fontes went to a convenience store, presented false identification, and attempted to cash a forged payroll check for $454.75.
- The prosecution called Fontes’s wife, who testified that Fontes intended to use the money to buy food for their children.
- The trial court later ruled the wife’s testimony was protected by the marital privilege statute and struck it, instructing the jury to disregard it.
- Fontes requested a jury instruction on the affirmative defense of “choice of evils” (statutory necessity) and sought to present evidence that concern for his children compelled his conduct; the trial court refused.
- Fontes presented no affirmative evidence and argued lack of the required criminal intent.
- A jury convicted Fontes on all counts; the trial court denied his motion for a new trial.

## Issues

1. Whether the trial court erred by refusing to instruct the jury on the affirmative defense of “choice of evils” under § 18-1-702 and by refusing to permit Fontes to present that theory as a general defense.
2. Whether the trial court erred by striking the wife’s testimony under the marital privilege statute, § 13-90-107(1)(a).

## Decision

- The Colorado Court of Appeals affirmed the convictions.
- The court held Fontes was not entitled to a “choice of evils” instruction because the evidence did not support essential statutory elements, including a sudden emergency, imminent injury, and lack of reasonable legal alternatives.
- The court did not reverse based on the trial court’s decision to strike the wife’s testimony under the marital privilege statute.

## Legal Principles

- A defendant is entitled to an affirmative-defense instruction only if there is some evidence supporting each element of the defense.
- Colorado’s “choice of evils” defense (§ 18-1-702) justifies otherwise criminal conduct only when it is necessary as an emergency measure to avoid an imminent injury arising through no conduct of the actor, and the threatened harm is sufficiently grave to outweigh the criminal conduct.
- The defense requires proof of a sudden and unforeseen situation requiring immediate action to prevent an imminent injury.
- The defense is unavailable when the defendant has a reasonable legal alternative to committing the crime.
- An affirmative defense generally admits the charged act but seeks legal justification that, if proved, avoids criminal liability.

## Conclusion

The court affirmed Fontes’s forgery, criminal impersonation, and theft convictions because the record did not support the statutory necessity (“choice of evils”) elements of sudden emergency, imminent injury, and no reasonable legal alternatives, and no reversible error was shown from striking the spouse’s testimony under marital privilege.


People v. Fontes, 89 P.3d 484 (Colo. App. 2003)