23CA0473 Peo v Colter 06-12-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0473 Jefferson County District Court No. 15CR1722 Honorable Lilly W. Oeffler, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Matthew Tod Colter,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE SULLIVAN Tow and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 12, 2025
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Matthew Tod Colter, appeals the judgment of
conviction entered on a jury verdict finding him guilty of sexual
assault on a child (SAOC). We affirm.
I. Background
¶2 A jury found Colter guilty of SAOC for assaulting the three-
year-old daughter of his neighbor, B.C. The evidence presented by
the prosecution showed that Colter, while intoxicated, knocked on
B.C.’s apartment door. Colter and B.C. were friends, and he had
visited her apartment multiple times in the past. B.C. therefore
invited him in. At some point during the evening, B.C.’s child was
sitting on Colter’s lap. B.C. noticed Colter touching her child’s
abdomen both over and under her shirt, but she gave him the
benefit of the doubt and didn’t interfere. When B.C. briefly stepped
away to tend to her dogs, she heard a snapping sound similar to
elastic breaking. Turning around, she saw Colter’s hand moving in
her child’s pants while he exhibited a “pleasurable” look on his face.
She yelled at him and immediately kicked him out of her
apartment. Afterward, she told a neighbor in the hallway what had
happened.
1 ¶3 Following the incident, Colter returned to his own apartment.
A short time later, a detective responded to a reported burglary at
Colter’s apartment. The detective found that Colter had suffered
head injuries and was intoxicated.
¶4 When asked what had happened, Colter responded, “I don’t
know.” The detective eventually spoke to B.C., who reported that
Colter had “molested” her child. The detective also determined that
other individuals in the apartment complex had apparently
confronted Colter about his assault and “take[n] matters into their
own hands.”
¶5 Colter was charged with SAOC and a jury found him guilty.
¶6 Colter appeals, contending that the district court erred by (1)
instructing the jury on self-induced intoxication; (2) admitting
improper expert testimony from the detective; and (3) allowing
prosecutorial misconduct during testimony and closing arguments.
II. Self-Induced Intoxication Instruction
¶7 Colter first contends that the district court erred by
instructing the jury on self-induced intoxication because (1) Colter
didn’t present an intoxication defense; (2) the instruction was
2 overbroad; and (3) the instruction could have unduly emphasized
the evidence of his intoxication. We aren’t persuaded.
A. Standard of Review and Applicable Law
¶8 A person commits SAOC when that person knowingly subjects
another who isn’t their spouse to any sexual contact if the victim is
less than fifteen years of age and the person is at least four years
older than the victim. § 18-3-405(1), C.R.S. 2024. When the
General Assembly specifies the mental culpability requirement for
an offense as “knowingly,” as it has with SAOC, the offense is
considered a general intent crime. § 18-1-501(6), C.R.S. 2024.
Self-induced intoxication isn’t a defense against a general intent
crime. People v. Vigil, 127 P.3d 916, 930-31 (Colo. 2006).
¶9 We review de novo whether the trial court correctly instructed
the jury on matters of law. People v. Cuevas, 2024 COA 84, ¶ 36.
If the instructions correctly state the law, we review the court’s
decision to give a particular instruction for an abuse of discretion.
Id. A trial court abuses its discretion if its decision is manifestly
arbitrary, unreasonable, or unfair, or if it misconstrues or
misapplies the law. People v. Harmon, 2025 COA 38, ¶ 96.
3 ¶ 10 The parties agree that this contention is unpreserved, thus
limiting our review to plain error. Plain error is an error that is
both obvious and substantial, which means the error must “so
undermine the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”
Hoggard v. People, 2020 CO 54, ¶ 13 (quoting People v. Weinreich,
119 P.3d 1073, 1078 (Colo. 2005)).
B. Additional Background
¶ 11 B.C. testified that Colter was clearly intoxicated when he
arrived at her apartment. The detective similarly testified that
Colter showed visible signs of intoxication during his interview.
¶ 12 At the close of evidence, the court instructed the jurors on
self-induced intoxication, informing them that they couldn’t
consider Colter’s self-induced intoxication for the purpose of
deciding whether the prosecution had proved the elements of SAOC.
C. Analysis
¶ 13 For three reasons, we perceive no abuse of discretion in the
district court’s decision to instruct the jury on self-induced
intoxication.
4 ¶ 14 First, provided the evidence raises the issue of the defendant’s
self-induced intoxication, the trial court may properly instruct the
jury on self-induced intoxication even when the defendant
strategically chooses not to pursue intoxication as a defense. See
People v. Quintana, 996 P.2d 146, 148 (Colo. App. 1998) (rejecting
the defendant’s argument that the trial court’s voluntary
intoxication instruction “interfered with his tactical decision not to
pursue intoxication as a defense,” in part, because “some evidence”
showed he was intoxicated at the time of the offense). Because
Colter doesn’t dispute that at least some evidence showed that he
was intoxicated, the court didn’t abuse its discretion by instructing
the jury on the law that governs self-induced intoxication.
¶ 15 Second, although Colter argues that the court’s instruction
was overbroad because it prevented the jury from considering his
intoxication for purposes unrelated to his mens rea (such as
explaining his memory loss), he never asked for a limiting
instruction or other clarifying language along these lines. See
People v. Thomas, 2014 COA 64, ¶ 58 (“Absent a special statutory
requirement, a trial court is under no obligation to provide a
limiting instruction without a defendant’s request that it do so.”).
5 ¶ 16 Third, we disagree with Colter that the court’s instruction
unduly emphasized the evidence of his intoxication. To the
contrary, the court’s instruction on self-induced intoxication was
just one of twenty-one jury instructions that the court gave, the
instruction didn’t comment on the evidence adduced at trial, and
the language properly informed the jury what it could do with such
evidence. See People v. Garcia, 2021 COA 65, ¶ 48, aff’d, 2023 CO
41; see also People v. Bryant, 2018 COA 53, ¶ 83 (trial court must
“correctly instruct the jury on the governing law”).
¶ 17 Accordingly, we perceive no error, plain or otherwise, in the
court’s decision to instruct the jury on self-induced intoxication.
III. Improper Expert Testimony
¶ 18 Colter next contends that the district court abused its
discretion by admitting the detective’s expert testimony under the
guise of lay testimony when the detective explained the reasons a
person might not respond when questioned by police. Colter also
argues that the detective’s testimony improperly attacked his
credibility. We perceive no abuse of discretion.
6 A. Standard of Review and Applicable Law
¶ 19 “If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form of
an opinion or otherwise.” CRE 702. “[T]he critical factor in
distinguishing between lay and expert testimony is the basis for the
witness’s opinion.” Venalonzo v. People, 2017 CO 9, ¶ 22. “If the
witness provides testimony that could be expected to be based on
an ordinary person’s experiences or knowledge, then the witness is
offering lay testimony.” Id. at ¶ 23. But if the witness provides
testimony that couldn’t be offered “without specialized experiences,
knowledge, or training, then the witness is offering expert
testimony.” Id.
¶ 20 Because the distinction between lay and expert opinion
testimony “can be a difficult one” and requires the trial court to
engage in fact-specific analyses, we review the court’s decision for
an abuse of discretion. Id. at ¶ 24.
7 ¶ 21 The parties agree that defense counsel didn’t object to the
detective’s testimony on this basis at trial, so we apply the plain
error standard of reversal. See Hoggard, ¶ 13.
¶ 22 The detective testified that Colter didn’t answer any questions
about the events on the night in question. When asked by defense
counsel during cross-examination about why someone may not
remember what happened, the detective responded that there are
“myriad” reasons why people don’t want to talk to the police, such
as protecting someone or preventing retaliation. On redirect, the
prosecutor asked the detective based on his “experience” in his “line
of work” whether “people” in some situations won’t talk because
“they’ve done something wrong.” The detective answered,
“Absolutely.”
¶ 23 We disagree with Colter’s contentions that (1) the detective
gave improper expert opinion testimony under the guise of lay
opinion testimony and (2) the detective’s testimony improperly
attacked Colter’s credibility.
8 ¶ 24 A detective testifying as a lay witness doesn’t provide improper
expert testimony simply by acknowledging that a person may
decline to talk to the police “because they’ve done something
wrong.” The detective could reasonably be expected to know this
based on everyday life experiences, not solely on specialized law
enforcement training. See People v. Acosta, 2014 COA 82, ¶ 60
(explaining that jurors have “common experiences in everyday life
that would inform their understanding of the term [‘guilty-looking’],
such as the look of children when caught violating some parental
rule or a person of any age who has just been caught doing
something wrong, such as lying”). Moreover, the prosecutor’s
passing references to the detective’s experience and training during
questioning didn’t transform the detective’s lay testimony into
expert testimony. See People v. Murphy, 2021 CO 22, ¶¶ 32-33; see
also Venalonzo, ¶ 28 (interviewer’s testimony recognizing certain
behaviors in children based on her “years of experience” wasn’t
expert testimony because an ordinary person could reasonably be
expected to recognize the behaviors).
¶ 25 Colter nonetheless argues that the detective’s remarks on
redirect improperly touched on his credibility. See, e.g., Liggett v.
9 People, 135 P.3d 725, 732 (Colo. 2006) (“Credibility determinations
are to be made by the fact-finder, not by the prosecutor or a
testifying witness.”). But the prosecutor framed her questions to
the detective in general terms, asking about the reasons “someone”
would prefer to not talk to the police and whether “people” decline
to talk to the police when they have done something wrong. These
questions weren’t specific to Colter.
¶ 26 Even if the jury might have interpreted the detective’s
testimony on redirect as referring specifically to Colter, we conclude
that defense counsel opened the door to this line of questioning
during cross-examination. See Golob v. People, 180 P.3d 1006,
1012 (Colo. 2008) (“The concept of ‘opening the door’ represents an
effort by courts to prevent one party in a criminal trial from gaining
and maintaining an unfair advantage by the selective presentation
of facts that, without being elaborated or placed in context, create
an incorrect or misleading impression.”).
¶ 27 During cross-examination, defense counsel asked the detective
about possible reasons why a person might be unable or unwilling
to talk to the police. Through leading questions, defense counsel
gave two specific examples: (1) lack of memory due to brain trauma
10 and (2) trying to protect a witness from retaliation. The detective
agreed those are possible reasons but also explained that “myriad”
other reasons may also exist. Defense counsel didn’t allow the
detective to elaborate. Given this line of questioning, the door was
opened for the prosecutor to follow up on redirect by asking the
detective about other reasons a person may be unable or unwilling
to talk to the police. See Venalonzo, ¶ 44.
¶ 28 Accordingly, the court didn’t err, plainly or otherwise, by
admitting the detective’s testimony on redirect.
IV. Prosecutorial Misconduct
¶ 29 Colter next contends that the district court erred by allowing
the prosecutor to make comments during testimony and closing
arguments that were calculated to appeal to the jury’s sympathy.
Specifically, he contends that the prosecutor committed misconduct
by (1) referring to the child’s “little pink sweatpants” and (2) saying
that Colter “shattered” and “broke” B.C.’s trust. We disagree.
A. Additional Background
¶ 30 B.C. testified that her child was wearing “pink sweatpants and
a little sweatshirt” during the assault. In addition, the child’s
11 sweatpants — which were indeed pink and little — were admitted
into evidence.
¶ 31 B.C. also testified regarding the nature of her relationship with
Colter before the assault, describing it as “friendly and trusting.”
B.C. said Colter “broke” that trust and she expressed distress at the
thought that people she trusted could harm her child.
¶ 32 Colter says that the prosecutor twice referred to the child’s
“little pink sweatpants” or “little sweatpants,” once while
questioning a DNA analyst and once during closing argument. The
prosecutor also referred to B.C.’s “broken” or “shattered” trust at
four different points, once while questioning B.C. on redirect and
three times during closing arguments. Defense counsel objected
based on relevance during B.C.’s questioning but otherwise didn’t
object to the prosecutor’s comments.
B. Standard of Review and Applicable Law
¶ 33 “Whether a prosecutor’s statements constitute misconduct
is generally a matter left to the trial court’s discretion.” Domingo-
Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We won’t
disturb the court’s rulings regarding such statements absent an
12 abuse of that discretion. People v. Strock, 252 P.3d 1148, 1152
(Colo. App. 2010).
¶ 34 When reviewing claims of prosecutorial misconduct, we
conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
Second, if the comments were improper, we evaluate whether they
warrant reversal under the proper standard of reversal. See id.
¶ 35 Some of Colter’s contentions of prosecutorial misconduct
involve the prosecutor’s closing argument. When evaluating a
prosecutorial misconduct claim related to closing argument, we look
to the context of the argument as a whole and in light of the
evidence before the jury. People v. Samson, 2012 COA 167, ¶ 30. A
prosecutor is permitted to comment on the admitted evidence and
the reasonable inferences that can be drawn from the evidence,
employ rhetorical devices, and engage in oratorical embellishment
and metaphorical nuance. Id. at ¶ 31. No “bright line” rule
separates permissible oratorical embellishment from impermissible
oratorical excess. Harris v. People, 888 P.2d 259, 265 (Colo. 1995).
But “‘arguments and rhetorical flourishes must stay within the
13 ethical boundaries’ that our supreme court has drawn.” People v.
Herold, 2024 COA 53, ¶ 68 (quoting Domingo-Gomez, 125 P.3d at
1048).
¶ 36 Because arguments delivered in the heat of trial aren’t always
perfectly scripted, we give the prosecutor the benefit of the doubt
when their remarks are ambiguous or simply inartful. Samson,
¶ 30. However, a prosecutor can’t use closing arguments to mislead
or unduly influence the jury. Domingo-Gomez, 125 P.3d at 1049. A
prosecutor may not, for example, intentionally misstate the
evidence or attempt to inflame the jurors’ passions. See id.
¶ 37 With one exception, the parties agree that defense counsel
didn’t preserve Colter’s challenges to the prosecutor’s comments,
limiting our review to plain error. “Only prosecutorial misconduct
that is ‘flagrantly, glaringly, or tremendously improper’ warrants
reversal under the plain error test.” People v. Duncan, 2023 COA
122, ¶ 33 (quoting Hagos v. People, 2012 CO 63, ¶ 14).
¶ 38 The parties disagree, however, over whether defense counsel’s
relevance objection during B.C.’s testimony preserved Colter’s
argument that the prosecutor committed misconduct when asking
about B.C.’s “broken” trust. We need not resolve this question,
14 however, because we perceive no basis to reverse under either the
plain error standard of reversal or the nonconstitutional harmless
error standard. See Hagos, ¶¶ 12, 14.
¶ 39 Turning first to the prosecutor’s “little pink sweatpants”
comments, we discern no prosecutorial misconduct when the
remarks are considered in context. B.C. had previously described
her child’s sweatpants as pink and her clothes as little. The
sweatpants themselves were also admitted into evidence. The
prosecutor’s description was therefore accurate and didn’t misstate
the evidence. See Domingo-Gomez, 125 P.3d at 1049. Moreover,
the prosecutor was permitted to comment on the admitted evidence,
including B.C.’s description, if for no other reason than to help jog
the jury’s memory regarding B.C.’s earlier testimony. See Samson,
¶ 31.
¶ 40 True, some might have viewed the prosecutor’s comments as
portraying the child as vulnerable or sympathetic. But we give
prosecutors the benefit of the doubt when their comments are
ambiguous. Id. at ¶ 30. And importantly, the prosecutor didn’t
pair her references to the little pink sweatpants with a request that
15 the jury “do justice” for a vulnerable or sympathetic victim. People
v. McBride, 228 P.3d 216, 223 (Colo. App. 2009).
¶ 41 We also disagree with Colter that the prosecutor’s references
to B.C.’s “shattered” and “broken” trust were somehow improper.
Once again, the prosecutor’s comments accurately described the
admitted evidence — B.C. testified that Colter had “broken” her
trust. The prosecutor was permitted to summarize B.C.’s testimony
through rhetorical devices and oratorical embellishment. Samson,
¶ 31. The prosecutor’s use of “shattered” trust did just that.
¶ 42 Colter nevertheless argues that he wasn’t charged with SAOC
by one in a position of trust, § 18-3-405.3, C.R.S. 2024, rendering
his trusting relationship with B.C. “immaterial.” But the prosecutor
was permitted to discuss the admitted evidence to help
contextualize the relationship between B.C., her child, and Colter.
B.C. testified, for example, that she briefly left Colter alone with her
child despite observing Colter touching her child’s abdomen both
over and under her shirt. Without the context of their trusting
relationship, a juror may have reasonably questioned why B.C.
didn’t immediately remove her child from Colter’s lap. Their
trusting relationship also helped explain why B.C. allowed Colter
16 into her apartment when he was visibly intoxicated. See Domingo-
Gomez, 125 P.3d at 1048 (“[C]losing argument allows advocates to
point to different pieces of evidence and explain their significance
within the case.”).
¶ 43 Accordingly, the district court didn’t abuse its discretion by
not correcting the prosecutor’s challenged comments.
V. Disposition
¶ 44 We affirm the judgment.
JUDGE TOW and JUDGE YUN concur.