Background
This is the companion case to People v. Cooper, 2026 COA 44, both arising from the 2019 death of Elijah McClain. Peter Cichuniec was the Aurora Fire Rescue lieutenant and paramedic supervisor on scene. He and paramedic Jeremy Cooper together assessed Mr. McClain, diagnosed him with “excited delirium,” and jointly decided to administer 500 mg of ketamine — calibrated to an estimated weight about 77 pounds higher than Mr. McClain’s actual weight. Cooper physically injected the drug. Following Mr. McClain’s death, a grand jury convened by the Attorney General (at Governor Polis’s direction) indicted both men on reckless manslaughter, criminally negligent homicide, and multiple counts of second degree assault.
At trial, the same jury that heard both defendants acquitted Cooper of second degree assault but convicted him of criminally negligent homicide. As for Cichuniec — who did not physically inject the drug — the jury convicted him as a complicitor of criminally negligent homicide and of one count of second degree assault (unlawful administration of a drug). Cichuniec appealed, raising: the AG’s authority to prosecute, the sufficiency of the evidence, the standard-of-care instruction, and — most distinctively — the argument that as a complicitor, he was entitled to the benefit of Cooper’s “special relationship” affirmative defense, and that the inconsistent verdicts (Cooper convicted of homicide but acquitted of assault; Cichuniec convicted of both) were legally impermissible.
The court reversed Cichuniec’s criminally negligent homicide conviction on the same standard-of-care grounds as Cooper (and ordered a new trial), but affirmed the second degree assault conviction, resolving several novel questions about complicity doctrine along the way.
The Court’s Holding
The court adopted the Cooper division’s analysis on the AG’s prosecution authority and on the standard-of-care jury instruction, reversing the criminally negligent homicide conviction and remanding for a new trial. On the assault conviction, however, the court found the evidence sufficient and rejected Cichuniec’s complicity arguments. Two holdings are particularly significant for Colorado criminal practice.
Complicitors do not inherit the principal’s affirmative defenses. Cichuniec argued that, because the complicity instruction required the jury to find that Cooper (the principal) “committed the crime,” the prosecution was also required to disprove Cooper’s “special relationship” justification defense beyond a reasonable doubt before Cichuniec could be convicted as a complicitor. The court squarely rejected this. An affirmative defense “admits the defendant’s commission of the elements of the charged act but seeks to justify, excuse, or mitigate” it. Whether the principal could assert a defense is irrelevant to the complicitor’s liability; the complicity statute focuses on whether the principal committed the statutory elements of the offense. The principal’s potential defenses are not elements.
Acquittal of the principal does not require acquittal of the complicitor. Cooper was acquitted of second degree assault (the jury apparently credited his special-relationship defense as to himself), yet the same jury convicted Cichuniec of the same charge as a complicitor. Cichuniec argued that was legally inconsistent. The court disagreed, relying on section 18-1-605, C.R.S. 2025, which expressly provides that it is no defense to complicitor liability that the other person “has not been prosecuted for or convicted of any offense based upon the behavior in question.” If the statute insulates a complicitor from the principal’s failure to be prosecuted or convicted, it necessarily insulates a complicitor from an acquittal as well. Alternatively, the jury could have acquitted Cooper based on his individual affirmative defense while still finding that Cooper completed all statutory elements of the assault — satisfying the foundational requirement for complicitor culpability.
Key Takeaways
- Under Colorado complicity doctrine, the prosecution proves that the principal “committed the offense” by establishing the statutory elements — it need not also negate any affirmative defense the principal might assert.
- Section 18-1-605 means that a complicitor’s conviction is not defeated by the principal’s acquittal; the verdicts may differ because the principal and complicitor have separate defenses and states of mind.
- The professional standard-of-care rule from Cooper applies equally to complicitors: Cichuniec, tried on the same theory of paramedic negligence, also gets a new trial on the homicide count with a corrected instruction.
- Professionals acting as supervisors in emergency medical situations face complicitor liability for subordinates’ treatment decisions if the supervisor directed or had shared knowledge of the departure from the standard of care.
Why It Matters
The complicity doctrine holdings in this case extend well beyond the McClain facts. Any time Colorado prosecutors charge a supervisor, co-actor, or organizer as a complicitor alongside a primary actor, they now have clear authority for the proposition that the complicitor’s case does not rise or fall with the principal’s: different defenses, different verdicts are entirely lawful. Defense attorneys representing complicitors, conversely, must ensure their clients have independent defenses rather than relying on the principal’s vindication.
For the EMS and first-responder community, the reversal of the criminally negligent homicide conviction confirms that both cases will be retried under the correct professional standard articulated in Cooper. Whether the ultimate outcome will change is a question for the new jury; what is settled is the legal framework — in Colorado, the negligence of a medical professional in a criminal case is measured against what a reasonable professional in that same field would have done in the same circumstances, not what a layperson would have done.