22CA1071 Peo v Cotter 12-04-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1071 Weld County District Court No. 19CR3082 Honorable Vincente G. Vigil, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Matthew Cotter,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE YUN Freyre and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 4, 2025
Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Matthew Cotter appeals the judgment of conviction entered
after a jury found him guilty of attempted first degree murder,
attempted first degree assault, and other crimes. He contends that
(1) the prosecution presented insufficient evidence to sustain three
of his attempted murder and assault convictions; (2) the court
erroneously denied his motion to suppress; and (3) the court
admitted improper evidence during trial. We disagree and affirm
the convictions.
I. Background
¶2 One evening, Cotter went on a long drive to “get away.”
During the drive, Cotter drank gin, called friends, and texted his
ex-girlfriend, A.C.
¶3 Later that evening, 911 dispatchers received three calls about
Cotter. The first call, around 8 or 9 p.m., came from A.C.’s mother,
who reported that he was harassing A.C. Cotter had driven to
A.C.’s house and was waiting outside. A friend of Cotter’s had told
A.C. that Cotter had a gun. In response to this call, police officers,
including Officer Jeremy Sagner, arrived at A.C.’s house. They were
unable to locate Cotter, but Officer Sagner left a voicemail,
informing Cotter that A.C. did not want any contact and offering his
1 own contact information if Cotter needed to talk to someone. Cotter
did not answer, but at 9:31 p.m., he texted a friend: “If the cops are
where I’m going to I guess I’m dying tonight[.]”
¶4 Around 10 or 11 p.m., A.C. and her father made the second
and third 911 calls, after Cotter returned to their house with a
loaded gun. As police responded again, A.C.’s family hid in a closet.
Upon hearing the approaching sirens and seeing the flashing police
lights, Cotter also hid, crouching behind the gated fence beside
A.C.’s house with a loaded gun.
¶5 Around 10:50 p.m., five officers arrived, turned off their sirens
to avoid an ambush, and split up to search the area. Through a
crack in the gate, Cotter saw at least three armed, uniformed
officers approaching with flashlights. The following photographs
show the front patio and gated fence:
2 The photograph on the left shows two units; the unlit entryway on
the left is A.C.’s. The photograph on the right shows the gated
fence between the two units.
¶6 One officer approached the front patio, with the gated fence on
his right, followed closely by Officer Sagner. This officer stepped off
the front patio to inspect the fence and was temporarily blocked
from Officer Sagner’s view by a corner pillar. At that moment,
Cotter, in his own words, “caught them off guard” and fired three
shots through a crack in the gate. The first shot struck the
approaching officer in the head.
¶7 Officer Sagner observed this officer fall onto his back and
instructed two others to pull him to safety. While the wounded
officer was dragged out of the line of fire, Officer Sagner caught
sight of a figure through the fence and returned fire, striking Cotter
three times. Although one of Cotter’s three shots had hit the pillar
where Officer Sagner was positioned, Officer Sagner was not
injured. The officers arrested Cotter.
¶8 Cotter received treatment for his wounds at the hospital.
While there, a detective from the police department interviewed
Cotter about the incident, during which Cotter remarked, “I know I
3 hit the first one. I don’t know if I hit him again after that.” Cotter
also said that he had “blacked out” but later recalled firing at least
three shots.
¶9 The People charged Cotter with (1) two counts of attempted
first degree murder (after deliberation); (2) two counts of attempted
first degree murder (extreme indifference); (3) first degree assault;
(4) attempted first degree assault; and (5) six crime of violence
sentence enhancers. Cotter was convicted on all counts and
received two consecutive forty-eight-year prison sentences.
¶ 10 Cotter now appeals.
II. Sufficiency of the Evidence
¶ 11 Cotter contends that his convictions for the attempted first
degree murder (after deliberation), attempted first degree murder
(extreme indifference), and attempted first degree assault (serious
bodily injury) of Officer Sagner should be vacated because the
evidence was insufficient to establish his mental culpability for each
of these offenses. After discussing the standard of review, we
address each conviction in turn.
4 A. Standard of Review
¶ 12 We review the record de novo to determine whether the
evidence was sufficient to sustain the defendant’s conviction.
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). Evidence will
sustain a conviction if the direct and circumstantial evidence,
“‘when viewed as a whole and in the light most favorable to the
prosecution, is substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty of the charge
beyond a reasonable doubt.’” Id. (citation omitted).
¶ 13 In applying this “substantial evidence” test, we must, as
relevant here, give the prosecution the benefit of every reasonable
inference that can be fairly drawn from the evidence and refrain
from acting as a thirteenth juror. People v. Gonzales, 666 P.2d 123,
128 (Colo. 1983). Because direct proof of the defendant’s state of
mind is rarely available, a defendant’s mental culpability “can, and
often must, be proved by circumstantial evidence.” People v.
Johnson, 2024 CO 32, ¶ 36 (quoting People in Interest of J.O., 2022
COA 65M, ¶ 20).
5 B. Attempted First Degree Murder (After Deliberation)
¶ 14 Cotter contends that his conviction for attempted first degree
murder (after deliberation) of Officer Sagner should be vacated
because the prosecution failed to prove deliberation or intent.
Specifically, he argues that the jury could not reasonably infer
deliberation or intent because the “evidence established that
Mr. Cotter only shot toward [the approaching officer] and was
unaware that Sagner was behind the pillar.”
1. Applicable Law
¶ 15 For criminal attempt, the prosecution must prove that the
defendant took “a substantial step toward the commission of the
offense” and possessed “the kind of culpability” required for the
underlying offense. § 18-2-101(1), C.R.S. 2025.
¶ 16 A person commits first degree murder (after deliberation) if,
“[a]fter deliberation and with the intent to cause the death of a
person other than himself, he causes the death of that person or of
another person.” § 18-3-102(1)(a), C.R.S. 2025. The phrase “after
deliberation” means “the decision to commit the act has been made
after the exercise of reflection and judgment concerning the act. An
act committed after deliberation is never one which has been
6 committed in a hasty or impulsive manner.” § 18-3-101(3), C.R.S.
2025. However, “while deliberation requires that a design to kill
precede the killing, the length of time required for deliberation need
not be long.” People v. Bartowsheski, 661 P.2d 235, 242 (Colo.
1983). The term “intent” means the defendant’s “conscious
objective is to cause the specific result proscribed by the statute
defining the offense.” § 18-1-501(5), C.R.S. 2025.
¶ 17 Evidence that can be considered in determining whether a
defendant acted intentionally and after deliberation in committing
murder includes, but is not limited to,
• the circumstances surrounding the killing, Bartowsheski,
661 P.2d at 242;
• the use of a deadly weapon, id. at 241-42;
• the retrieval and preparation of the deadly weapon,
People v. McBride, 228 P.3d 216, 226-27 (Colo. App. 2009);
• the manner in which the deadly weapon was used,
Bartowsheski, 661 P.2d at 242; and
• the location of the wounds, People v. Sanchez, 253 P.3d
1260, 1262 (Colo. App. 2010).
7 2. Discussion
¶ 18 The prosecution presented ample evidence from which a
reasonable jury could find that Cotter acted with deliberation and
intent toward Officer Sanger.
¶ 19 The circumstances surrounding the shooting support the
jury’s inference of deliberation and intent. After the police became
involved, Cotter texted a friend, “If the cops are where I’m going to I
guess I’m dying tonight[.]” Nevertheless, he returned to A.C.’s
house, disregarding police instructions to stay away. When he
heard police sirens and saw flashing lights, Cotter retrieved his gun
from the glovebox, loaded and racked it, and then hid behind a
fence where he “[didn’t] think they saw [him]” and where he could
“[catch] them off guard.” As in McBride, the evidence is sufficient to
support deliberation and intent because Cotter was “brooding the
day of the shooting,” had sufficient time to reflect on his actions in
the minutes before the shooting, and “had to aim and apply
pressure to shoot” three times at the officers. 228 P.3d at 226-27.
¶ 20 Cotter insists that this evidence is insufficient as to Officer
Sagner because he was “unaware that other officers were in the
area behind [the officer he shot]” and “there was no evidence he
8 could see or aimed at Sagner.” But a reasonable jury could
disagree for three reasons. First, Cotter’s own account suggests he
was aware of multiple officers. Cotter noted “three police officers
pulled up,” recalled seeing “their flashlights looking around,” and
admitted his shot “hit the first one,” after which he fired two more
shots. Second, while Cotter conceded he aimed at and “hit the first
one,” circumstantial evidence is sufficient to show he intended to
hit the second officer, Sagner. The prosecution showed that Cotter
fired three shots at the approaching officers, striking the pillar
where Officer Sagner was positioned. Third, insofar as Cotter
contends that he intended to shoot only the first officer, the jury
was not required to accept his version of events. See Gonzales,
666 P.2d at 128. And we will not act as a “thirteenth juror” by
crediting his version on appeal. Id. “It does not matter that, were
we the trier of fact, we might have reached a different conclusion.”
Clark, 232 P.3d at 1291.
¶ 21 Thus, we conclude that the evidence in this case, when viewed
in the light most favorable to the prosecution, is sufficient to
sustain the conviction for attempted first degree murder (after
deliberation) of Officer Sagner.
9 C. Attempted First Degree Murder (Extreme Indifference)
¶ 22 Cotter contends that his conviction for attempted first degree
murder (extreme indifference) of Officer Sagner should be vacated
because the prosecution failed to prove he knowingly created a
grave risk to Officer Sagner or manifested extreme indifference to
human life generally. Cotter insists that he was unaware of other
officers nearby and directed all three shots toward the first officer.
¶ 23 To sustain a conviction for attempted extreme indifference
murder, there must be evidence from which the jury “can find that
the actor was aware he was engaging in conduct strongly
corroborative of the firmness of his purpose to complete the
commission of the crime of extreme indifference murder.”
Montoya v. People, 2017 CO 40, ¶ 17.
¶ 24 A person commits first degree murder (extreme indifference) if,
“[u]nder circumstances evidencing an attitude of universal malice
manifesting extreme indifference to the value of human life
generally, he knowingly engages in conduct which creates a grave
risk of death to a person, or persons, other than himself, and
thereby causes the death of another.” § 18-3-102(1)(d). Extreme
10 indifference murder encompasses both “‘acts putting at risk a single
victim, without knowing or caring who that may be,’ as well as
those acts ‘put[ting] at grave risk a number of individuals not
targeted by the defendant.” People v. Anderson, 2019 CO 34, ¶ 14
(quoting Candelaria v. People, 148 P.3d 178, 182-83 (Colo. 2006)).
¶ 25 The statutory language “universal malice” requires the
prosecution to prove that the defendant’s conduct objectively
demonstrated “a willingness to take human life indiscriminately,
without knowing or caring who the victim may be or without having
an understandable motive or provocation.” Garcia v. People, 2023
CO 30, ¶ 16 (quoting Candelaria, 148 P.3d at 181). Our supreme
court has clarified that “the question for the trier of fact is whether
the act by which death is knowingly caused, by its very nature or
the surrounding circumstances of its commission, objectively
evidences such a willingness [to take human life indiscriminately]”
and not “[w]hether the conduct in question actually endangers more
than a single targeted person, or even whether the actor subjectively
intends to or is aware that his conduct may ultimately take life
indiscriminately.” Anderson, ¶ 15 (emphases added).
11 ¶ 26 Colorado courts have upheld convictions for attempted or
completed extreme indifference murder not only when the
defendant misses his intended victim to hit an unintended
bystander, Candelaria, 148 P.3d at 180, but also when the
defendant
• fires a lethal firearm indiscriminately in the general
direction of a visible crowd, Montoya, ¶ 20;
• fires at the doors of a house full of people, People v. Ellis,
30 P.3d 774, 779 (Colo. App. 2001);
• fires at intended targets with nontargets nearby, People v.
Stovall, 2012 COA 7M, ¶ 40;
• sprays gunfire at an empty car but wounds nearby
neighbors inside their homes, People v. Rubio, 222 P.3d
355, 359 (Colo. App. 2009); and
• repeatedly shoots at his intended target when bystanders
could have been within shooting range, Anderson, ¶ 20.
¶ 27 Our supreme court’s holding in Anderson is instructive.
There, the defendant exited his car to fire thirteen times at the
officer who pulled him over. Id. at ¶¶ 6-7. The evidence did not
show anyone else was “in the vicinity during the shooting” — the
12 shooting took place beside a highway around 2 a.m. and the officer
was patrolling alone. Id. at ¶¶ 5, 8. Still, the court concluded that
reasonable jurors could interpret the defendant’s “flurry of gunfire
aimed in [the officer’s] direction,” id. at ¶ 17, as demonstrating a
willingness to take life indiscriminately “because it objectively
evidenced a willingness to kill as many as thirteen bystanders
within range of the defendant’s indiscriminate shooting, or simply
because it evidenced a willingness to kill whoever was pursuing
him.” Id. at ¶ 20.
2. Discussion
¶ 28 The prosecution presented ample evidence from which a
reasonable jury could find Cotter guilty of attempted first degree
murder (extreme indifference).
¶ 29 The circumstances of the shooting, along with Cotter’s
interview statements, support the jury’s findings that he
demonstrated a willingness to take life indiscriminately and was
aware that his actions posed a grave risk to others. Beyond the
evidence discussed above, the prosecution introduced testimony
about loud footsteps on ice-packed snow and the officers’ flashlights
repeatedly shining on Cotter’s hiding place. Viewing the evidence in
13 the light most favorable to the prosecution, a reasonable jury could
infer “universal malice” because, when Cotter fired three shots after
hearing and seeing multiple officers nearby, he “objectively
evidenced a willingness to kill as many as [three officers] within
range of [his] indiscriminate shooting.” Id. at ¶ 20. A reasonable
jury could also infer Cotter acted knowingly because, after he “hit
the first one,” knocking him to the ground, he still fired two more
shots.
¶ 30 We are not persuaded by Cotter’s arguments that he lacked
awareness of Officer Sagner because he directed all three shots at
the first officer. The jury was not required to credit his statement
that he did not see or target Officer Sagner. But even if we were to
credit Cotter’s claim that he was unaware of Officer Sagner,
Colorado courts have upheld convictions for attempted or
completed extreme indifference murder in analogous situations —
for example, when a defendant sprays gunfire at an empty car but
wounds nearby neighbors inside their homes, Rubio, 222 P.3d at
358-59, or when a defendant repeatedly shoots at an intended
target when bystanders could have been within shooting range,
Anderson, ¶ 20.
14 ¶ 31 Viewing the evidence in the light most favorable to the
prosecution, a reasonable jury could find beyond a reasonable
doubt that Cotter knowingly created a grave risk to Officer Sagner,
under circumstances evincing a willingness to take human life
indiscriminately. Thus, sufficient evidence supports the jury’s
verdict.
D. Attempted First Degree Assault (Serious Bodily Injury)
¶ 32 Cotter contends that his conviction for attempted first degree
assault (serious bodily injury) of Officer Sagner should be vacated
because the prosecution failed to prove intent or deliberation.
Again, we disagree.
¶ 33 A person commits attempted first degree assault (serious
bodily injury) if, “[w]ith intent to cause serious bodily injury to
another person, he causes serious bodily injury to any person by
means of a deadly weapon.” § 18-3-202(1)(a), C.R.S. 2025. A
defendant can possess intent to cause serious bodily injury and
death at the same time. Sanchez, 253 P.3d at 1264.
15 2. Discussion
¶ 34 Our earlier analysis of intent for attempted first degree murder
(after deliberation) applies with equal force here. The intent to
commit attempted first degree murder necessarily includes the
intent to cause serious bodily harm. Therefore, as discussed above,
the evidence in this case, when viewed in the light most favorable to
the prosecution, is sufficient to sustain the conviction for attempted
first degree assault (serious bodily injury).
III. Motion To Suppress
¶ 35 Cotter contends that his convictions should be reversed
because the court admitted his involuntary statements, which
contributed to the guilty verdicts. He argues that his statements
during the hospital interview were involuntary because the detective
“deliberately exploited his mental and physical weakness” since he
had blacked out the night before, undergone surgery, received
fentanyl, changed his mind about the interview, expressed suicidal
thoughts, and generally lacked experience with law enforcement.
We disagree.
16 A. Additional Facts
¶ 36 At approximately 6:40 a.m. on the morning after the shooting,
a detective went to interview Cotter at the hospital. A nurse told the
detective that Cotter had been given fentanyl but that its effects
“should have worn off by then.” But Cotter told the detective he
would “answer [his] questions with an attorney present.” So the
detective ended the interview and left the hospital.
¶ 37 Around 9:30 a.m., after receiving a text from another officer
saying that Cotter now wanted to talk, the detective returned to the
hospital to interview Cotter. At the start of the recorded interview,
the detective confirmed why he had returned: “I received a text
message that said you had approached the officers and said you do
want to make a statement to me. Is that correct, and do you want
to do that without an attorney present?” Cotter replied, “Yes.”
When the detective asked who initiated contact, Cotter said, “I had
the nurse do it . . . . I saw [the officers] out the window so I had the
nurse grab them.” The detective double-checked, “No one told you
‘You have to do this’ or anything like that?” Cotter confirmed, “Just
me.” The detective then asked, “Did anyone coerce you, threaten
17 you, intimidate you, or tell you that you have to give a statement to
me?” Cotter answered, “No.”
¶ 38 The detective then read Cotter his Miranda rights, showing
him a written copy to follow along. Cotter said he understood each
right and signed the waiver form.
B. Standard of Review
¶ 39 The district court’s suppression order “presents a mixed
question of fact and law” on review. People v. Thompson, 2021 CO
15, ¶ 15. Accordingly, we review the court’s factual findings for
clear error, accepting them if they are “supported by competent
evidence, but we assess the legal significance of the facts de novo.”
Id. (citation omitted). Additionally, when, as here, the challenged
interview is video recorded and there are no relevant disputed facts
outside of the recording, “we are in essentially the same position as
the trial court to determine the question of suppression.” People v.
Taylor, 2018 CO 35, ¶ 7. Thus, we may conduct an independent
review of the detective’s recorded interview to determine whether
Cotter’s statements should have been suppressed under controlling
law. See id.
18 C. Applicable Law
¶ 40 Under the Due Process Clauses of the United States and
Colorado Constitutions, a defendant’s statements must be
voluntary to be admitted into evidence. U.S. Const. amends. V,
XIV; Colo. Const. art. II, § 25; Effland v. People, 240 P.3d 868, 878
(Colo. 2010). The prosecution bears the burden of proving, by a
preponderance of the evidence, that the defendant’s statements
were voluntary. Effland, 240 P.3d at 878.
¶ 41 When a defendant challenges the voluntariness of his
statements, the critical question on appeal is whether, under the
totality of the circumstances, the interviewing officer “actually
overbore the defendant’s will.” People v. McIntyre, 2014 CO 39,
¶ 19. To answer this, we follow a two-step inquiry. People v.
Ramadon, 2013 CO 68, ¶ 20. First, the court must determine
whether the totality of the circumstances shows that the police
conduct was coercive. Id. “[C]oercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary.’” Id. at
¶ 19 (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).
Second, if police conduct was coercive, the court must determine
19 whether that conduct played a significant role in inducing the
statement. Id.
¶ 42 Both steps of the voluntariness inquiry require that we weigh
the following nonexhaustive factors:
(1) whether the defendant was in custody;
(2) whether the defendant was free to leave;
(3) whether the defendant was aware of the situation;
(4) whether the police read Miranda rights to the defendant;
(5) whether the defendant understood and waived Miranda rights;
(6) whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;
(7) whether the statement was made during the interrogation or volunteered later;
(8) whether the police threatened [the] defendant or promised anything directly or impliedly;
(9) the method or style of the interrogation;
(10) the defendant’s mental and physical condition just prior to the interrogation;
(11) the length of the interrogation;
20 (12) the location of the interrogation; and
(13) the physical conditions of the location where the interrogation occurred.
Id. at ¶ 20 (quoting People v. Medina, 25 P.3d 1216, 1222-23 (Colo.
2001)). “While a defendant’s mental condition, by itself and apart
from its relationship to official coercion, does not resolve the issue
of constitutional voluntariness, the deliberate exploitation of a
person’s weakness by psychological intimidation can under some
circumstances constitute a form of governmental coercion that
renders a statement involuntary.” Effland, 240 P.3d at 877
(quoting People v. Gennings, 808 P.2d 839, 844 (Colo. 1991)).
D. Discussion
¶ 43 Applying the nonexhaustive factors to this case, we conclude
there was no evidence of police coercion. Though Cotter’s hospital
room was guarded by police, the district court found, and our
independent review of the recorded interview confirms, the
following:
• Cotter was aware of the situation. He asked about the
condition of the officer he shot and requested a lawyer
during his first encounter with the detective.
21 • Cotter then voluntarily re-initiated contact with the
detective, confirming that he now wanted to make a
statement without an attorney present.
• The detective read Cotter his Miranda rights and
“methodically verified” that Cotter wanted to speak with him
voluntarily.
• Cotter understood and waived his Miranda rights because
the detective read aloud from a physical copy, pointing out
key aspects.
• The officers neither threatened Cotter nor directly or
impliedly promised him anything. When Cotter asked,
“How long will I get for this?” the detective declined to
answer.
• The detective’s interview remained “conversational”
throughout.
• Despite Cotter’s injuries, his mental condition appeared
adequate. The district court found, and we agree, that his
responses were “thoughtful” and “appropriate[],” and his
thinking was “complex.” For example, when the detective
22 inaccurately summarized Cotter’s answers, Cotter would
interject to correct him.
¶ 44 Although Cotter had been given fentanyl before the detective
first arrived, a nurse confirmed that, based on the dosage and
timing, its effects “should have worn off by” the time of the
interview. And, while Cotter may have struggled with suicidal
ideation as in Effland, there was no evidence of exploitation or
intimidation. Unlike in Effland, the detective here did not
repeatedly ignore Cotter’s multiple requests for an attorney, tell
Cotter that he was not entitled to an attorney, or confront Cotter
with evidence against his will. Cf. Effland, 240 P.3d at 878.
¶ 45 For these reasons, the district court did not err by finding that
Cotter’s statements were voluntary because the totality of the
circumstances does not suggest coercive police conduct.
IV. Evidentiary Issues
¶ 46 We next turn to Cotter’s arguments that the district court
reversibly erred by admitting 3-D images of the crime scene as
demonstrative aids and allowing the prosecutor to use an
intoxication pamphlet during cross-examination of the defense
toxicology expert.
23 A. Standard of Review
¶ 47 We review a district court’s evidentiary rulings for an abuse of
discretion. People v. Douglas, 2016 COA 59, ¶ 20. A district court
abuses its discretion if its decision is manifestly unreasonable,
arbitrary, or unfair, or based on an erroneous understanding or
application of the law. See Margerum v. People, 2019 CO 100, ¶ 9.
¶ 48 If we discern error under this standard of review, the standard
of reversal for preserved evidentiary issues is harmless error.
People v. Summitt, 132 P.3d 320, 327 (Colo. 2006). The harmless
error analysis asks “whether, viewing the evidence as a whole, the
contested evidence substantially influenced the verdict or affected
the fairness of the trial proceedings.” Id. “An error in a criminal
trial will be disregarded if there is not a reasonable possibility that
it contributed to the jury’s guilty verdict.” Id.
B. Demonstratives Aids of the Incident
¶ 49 Cotter contends that the district court reversibly erred by
admitting the prosecution’s demonstrative aids of the crime scene.
Specifically, Cotter argues that four exhibits “did not accurately
reflect the time of day or physical characteristics of the subjects,”
and that their probative value was low because the jury had access
24 to the underlying evidence on which the demonstrative aids were
based. We are not persuaded.
1. Additional Facts
¶ 50 The prosecution introduced several exhibits created through
“FARO,” a 3-D scanner software that generates images of the crime
scene, including four demonstrative aids in which featureless
mannequins had been superimposed onto images. Officer John
Tollefson, qualified as an expert in FARO computerized crime scene
imaging, explained that FARO produces accurate 3-D
representations of the scene and provides precise measurements
between reference points identified during the original scan.
¶ 51 After creating the crime scene images with FARO, Officer
Tollefson placed featureless mannequins in the images to show the
positions of the officer who was shot, Officer Sagner, and Cotter.
He based his placements on information from body-camera footage,
officers’ reports, witness testimony, the bullet’s entry point, the
officers’ heights, and Cotter’s interview statements.
¶ 52 Over Cotter’s objection, the district court admitted four FARO
exhibits as demonstrative aids but excluded others that purported
25 to show Cotter’s perspective or how far Officer Sagner’s body
protruded from behind the pillar.
¶ 53 When the four FARO exhibits were admitted, the court read
the jury a limiting instruction — approved by defense counsel —
which explained, “[T]he Court has admitted as demonstrative
exhibits those four exhibits only for the purpose of showing the
general location of individuals involved in this incident. You may
not consider the exhibits for any other reason.” During Officer
Tollefson’s testimony, the prosecution repeatedly clarified that these
exhibits depicted only general locations, not sight lines, lighting
conditions, or perspectives.
2. Applicable Law
¶ 54 Demonstrative aids can include diagrams, maps, computer
animations, models, or mock-ups. People v. Palacios, 2018 COA
6M, ¶ 19. Their purpose is to “illustrate other admitted evidence
and thus to render it more comprehensible to the trier of fact.” Id.
(citation omitted). Demonstrative aids “should be encouraged since
they give the jury and the court a clear comprehension of the
physical facts, certainly much clearer than one would be able to
26 describe in words.” Id. (quoting Intermill v. Heumesser, 391 P.2d
684, 686 (Colo. 1964)).
¶ 55 A demonstrative aid is admissible if the proponent can
“(1) authenticate it; (2) show that it is relevant; (3) show that it is a
‘fair and accurate representation of the evidence to which it relates’;
and (4) show that its probative value is not substantially
outweighed by the danger of unfair prejudice.” Douglas, ¶ 22
(citation omitted). As to fair and accurate representation, a
demonstrative aid “need not be exact in every detail, but the
important elements must be identical or very similar to the scene.”
Id. at ¶ 45 (citation omitted). Additionally, absent contrary
evidence, the jury is presumed to have followed a court’s limiting
instructions. See People v. Perez, 2024 COA 94, ¶ 48.
3. Discussion
¶ 56 We are not persuaded that the district court abused its
discretion by admitting the four FARO exhibits as demonstrative
aids.
¶ 57 Officer Tollefson authenticated the exhibits, and the general
location of the parties was relevant to the charged offenses. As to
the exhibits’ fairness and accuracy, Cotter contends they were
27 fatally inaccurate because Officer Tollefson did not input Cotter’s
height, weight, or body type for the featureless mannequin that
represented him. However, demonstrative aids “need not be exact
in every detail,” and Cotter does not explain how omitting these
attributes bears on the exhibit’s admitted purpose: showing the
general locations of parties. Douglas, ¶ 45. Additionally, though
the exhibits showed daytime conditions, both the court’s limiting
instruction and the prosecution’s examination of Officer Tollefson
flagged this discrepancy. Such minor discrepancies do not render
the demonstrative aids so misleading that admitting them would
amount to an abuse of discretion.
¶ 58 Further, the probative value of the exhibits was not
substantially outweighed by any danger of unfair prejudice. The
court excluded exhibits purporting to show Cotter’s vantage point
and sight lines. The admitted exhibits simply helped the jury
visualize the general locations of parties at the crime scene — a
task not easily accomplished by testimony and body-camera footage
alone. Also, absent evidence to the contrary, we presume the jury
followed the court’s limiting instruction to consider the exhibits only
for general locations. Perez, ¶ 48.
28 ¶ 59 Even if we assume the district court abused its discretion in
admitting the demonstrative aids, we cannot say “the contested
evidence substantially influenced the verdict or affected the fairness
of the trial proceedings.” Summitt, 132 P.3d at 327. As Cotter
points out, the jury already had access to the underlying evidence
on which the exhibits were based, and Cotter does not claim that
these exhibits contradicted the underlying evidence.
¶ 60 In sum, the court did not reversibly err by admitting the four
FARO exhibits as demonstrative aids.
C. Intoxication Pamphlet
¶ 61 Lastly, Cotter contends that the district court reversibly erred
when it allowed the prosecutor to cross-examine the defense’s
toxicology expert using Professor Kurt Dubowski’s intoxication
pamphlet because the pamphlet was irrelevant and inadmissible
hearsay. We disagree.
¶ 62 To support the position that Cotter’s intoxication negated
specific intent, the defense called a toxicology expert to testify about
the effects of blood alcohol content (BAC).
29 ¶ 63 The expert explained the significance of Cotter’s BAC by
referencing the so-called “Dubowski chart,” created by Professor
Dubowski. She described the chart as a summary of extensive
literature on the most common effects of alcohol at various BAC
levels. She relied on a 2006 version of the chart, published in a
peer-reviewed article.
¶ 64 Using the 2006 chart, the expert testified that Cotter’s
estimated BAC level of between .11 and .12 indicated that he was
“substantially intoxicated by alcohol at the time of the incident.”
She stated that this BAC level renders people “more likely to do
things they wouldn’t do if they were sober.”
¶ 65 The prosecutor cross-examined the expert with a pamphlet
authored by Professor Dubowski, featuring a 1989 version of the
chart, apparently prepared as a police training document. The
expert testified that she had never reviewed the pamphlet and saw
no indication it was peer-reviewed.
¶ 66 Defense counsel objected to the pamphlet, arguing it was
irrelevant hearsay. Counsel contended the prosecution needed an
expert to establish the learned treatise exception, since the defense
expert did not consider the pamphlet authoritative. The district
30 court overruled the objection, concluding that the defense expert
had relied on Professor Dubowski’s materials and that the
pamphlet, which featured a 1989 version of the chart, qualified as a
learned treatise.
¶ 67 The court allowed the prosecutor to have the expert read aloud
the following passage from the pamphlet:
Ethanol does not cause people to perform an act which they fundamentally oppose. But if fear is the only thing keeping them from committing an act, the alcohol consumption will take away the fear and it is more likely that they will commit an act they would not commit when sober. The ethics of robbing a bank are not changed by being drunk.
The pamphlet itself was not admitted as an exhibit, and the jury did
not review it.
¶ 68 Hearsay is “a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). However, “[e]vidence
presented to impeach the witness rather than establish the truth of
the matter asserted is not hearsay.” Foster v. Ward, 182 F.3d 1177,
1188 (10th Cir. 1999). A witness who takes the stand puts her
31 credibility in issue, and the opposing party is entitled to impeach
the witness’s credibility. People v. Segovia, 196 P.3d 1126, 1130
(Colo. 2008).
¶ 69 Under CRE 705, “it is fundamental that an expert witness may
be cross-examined concerning the basis of his opinion.” People v.
Alward, 654 P.2d 327, 331 (Colo. App. 1982). This rule allows the
cross-examiner to probe the expert’s knowledge, elicit the facts
underlying the opinion, and explore any other matters that may
shed light on the weight to be given to the opinion. See 23 Sheila K.
Hyatt, Colorado Practice Series, Evidence Law § 705:3 (3d ed. 2023).
The scope of cross-examination for expert witnesses is traditionally
broader than it is with lay witnesses. Id.
¶ 70 Although the district court found that Professor Dubowski’s
intoxication pamphlet was a learned treatise — an exception to the
hearsay rule — we may affirm on any ground supported by the
record, even if it was not relied on or considered by the district
court. See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006).
We conclude that the pamphlet was not offered for the truth of the
matter asserted but for impeachment purposes.
32 ¶ 71 The toxicology expert’s testimony relied almost exclusively on
the work of Professor Dubowski. Using Professor Dubowski’s chart,
the expert testified that Cotter was “on the more extreme side of the
intoxication curve,” indicating that he would have been “more likely
to do things [he] wouldn’t do if [he was] sober.” In response, the
prosecutor introduced Professor Dubowski’s pamphlet — not to
prove the truth of its statements, but to challenge the expert’s
interpretation of the chart and to point out weaknesses in the bases
of her testimony. Contrary to the expert’s testimony, the pamphlet
indicated that BAC levels above .08 do not “cause people to perform
an act which they fundamentally oppose.” As the district court
observed, the expert “relied in part on the expertise of Mr. Kurt
Dubowski to reach a portion of her conclusion, specifically the chart
of intoxication.” Professor Dubowski’s own interpretation of his
chart, even an older version, was thus relevant for the jury to
assess the credibility of the expert’s testimony.
¶ 72 Moreover, even if the district court erred by allowing the
prosecutor to cross-examine using the pamphlet, the error was
harmless. The contested statement was brief and made up only a
small part of the seven-day trial. See People v. Daley, 2021 COA
33 85, ¶ 98 (“The fact that improperly admitted testimony was brief
and fleeting supports a conclusion that it was harmless.”). During
cross-examination, the expert repeatedly warned that the pamphlet
was not peer-reviewed. On redirect, the expert had ample
opportunity to clarify and counter the statement. She emphasized
the lack of context, noted the progress of research since 1989, and
shared an anecdote to demonstrate how BAC affects judgment.
Under these circumstances, the challenged statement was not so
prejudicial to the expert’s testimony that it substantially influenced
the verdict or undermined the trial’s basic fairness. Summitt,
132 P.3d at 327.
¶ 73 Accordingly, the district court did not reversibly err by
allowing the prosecution to cross-examine the toxicology expert with
Professor Dubowski’s pamphlet.
V. Disposition
¶ 74 The judgment is affirmed.
JUDGE FREYRE and JUDGE PAWAR concur.