21CA1982 Peo v Counterman 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1982 Jefferson County District Court No. 20CR1644 Honorable Lily W. Oeffler, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Michael David Counterman,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE FREYRE Schock and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Michael David Counterman, appeals the judgment
of conviction and sentence entered on a jury verdict finding him
guilty of first degree murder. We affirm.
I. Background
¶2 On the evening of April 4, 2020, Counterman fatally shot
Randi Ackerman outside of Ackerman’s apartment. Counterman,
who was attending a party nearby at his girlfriend’s house, was
drinking in the backyard when he learned that Ackerman, his
girlfriend’s former boyfriend, drove past the front of the house.
Counterman heard his girlfriend yell, “That’s my ex,” after which
point he got into his own truck and headed toward Ackerman’s
apartment. Counterman said he went to Ackerman’s apartment to
“speak [his] piece” and tell Ackerman to stay away from his
girlfriend.
¶3 The two got into a heated argument in the parking lot. The
argument became physical and Counterman “hit [Ackerman] in
[the] chest and [swept] his legs,” knocking Ackerman to the ground.
After the physical fight, Counterman said he walked back to his
truck and heard Ackerman tell him to “turn around.” When he
turned, he saw Ackerman with a gun at his side. Counterman
1 claimed that he tried to turn and leave when Ackerman fired the
gun at him and missed. Counterman said he then disarmed
Ackerman and tried to leave with Ackerman’s gun.
¶4 As Counterman opened his truck door, Ackerman grabbed him
and pulled him away from the truck. Ackerman yelled for his gun
back, to which Counterman responded, “No . . . I don’t want to die
tonight. Do you want to die tonight?”
¶5 Ackerman continued to attempt to pull Counterman out of his
truck, at which point Counterman said he “[pulled] the trigger until
it stopp[ed] firing.” Once the gun stopped firing, Counterman felt
Ackerman let go. Counterman said he dropped the gun and left,
but the gun was never recovered.
¶6 Ackerman yelled for help. His girlfriend and several others
came to his aid. Ackerman told them that Counterman had shot
him. Once police and paramedics arrived, Ackerman was taken to
the hospital.
¶7 Shortly thereafter, neighbors saw Counterman drive back to
his girlfriend’s house, and one of them overheard Counterman tell
his girlfriend “I shot [Ackerman], I shot him.” That neighbor then
2 called 911, and the police took Counterman and his girlfriend to the
police station for questioning.
¶8 The prosecution charged Counterman with first degree murder
and a jury convicted him. The trial court sentenced him to the
custody of the Department of Corrections for life without the
possibility of parole.
¶9 Counterman contends the trial court erroneously (1) denied
his intervening cause defense and accompanying instruction as well
as his non-deadly force self-defense jury instruction; (2) precluded
expert testimony concerning the drugs and alcohol found in
Ackerman’s system; (3) admitted evidence that Counterman was
part of a motorcycle club and lived in a house with weapons
unrelated to the offense that should have been excluded under CRE
404(b); and (4) committed cumulative errors that deprived him of a
fair trial. We address and reject each of his contentions and affirm
the judgment.
II. Intervening Cause
¶ 10 Counterman contends that because he presented credible
evidence that Ackerman died from grossly negligent medical care,
3 the trial court erred by excluding his intervening cause defense and
related jury instruction. We disagree.
A. Additional Facts
¶ 11 Ackerman sustained gunshot wounds to the arm, legs, back,
and chest. The wounds to his arm, legs, and back were superficial
and nonfatal. The bullet that entered Ackerman’s chest pierced his
lungs. Several days later, Ackerman died from sepsis.
¶ 12 The parties offered conflicting expert opinions regarding
Ackerman’s perforated esophagus. The forensic pathologist testified
that these injuries were consistent with Ackerman’s bullet wound to
the chest and that the resulting sepsis was a complication of this
injury. By contrast, defense expert Dr. Michael Arnall opined
pretrial that medical personnel caused the perforation during a
later intubation and that delays in treating Ackerman with
antibiotics resulted in Ackerman’s respiratory failure and death.
¶ 13 Before trial, the defense moved to allow an intervening cause
defense and submitted Dr. Arnall’s affidavit and medical records as
evidence of gross negligence. The prosecution responded with their
own medical records and the opinions of the forensic pathologist
4 and treating physician that sepsis was caused by the gunshot
wounds.
¶ 14 The trial court denied Counterman’s motion and noted that
Dr. Arnall assessed Ackerman based on his condition when he had
already received significant medical treatment. The trial court
found that the Ackerman’s injuries, including the gunshot wound to
his chest, “would have certainly caused his death with little or no
medical treatment.” After the supreme court denied Counterman’s
C.A.R. 21 petition on this issue, the case proceeded to trial and the
trial court instructed the jury on intervening cause as follows:
A defendant is not relieved of liability if the original wound would likely have been fatal without medical treatment. One who has inflicted a wound or injury upon another is criminally responsible for the victim’s death even where different or more skillful medical treatment might have saved the victim’s life.
¶ 15 After trial, Counterman moved for a new trial and argued, in
part, that the trial court erred by not allowing evidence of
intervening cause. The trial court denied the motion.
B. Standard of Review and Applicable Law
¶ 16 The right to due process and a fair trial guarantee defendants
the right to present a defense. U.S. Const. amends. V, VI, XIV;
5 Colo. Const. art. II, §§ 16, 25. Accordingly, trial courts must
properly instruct the jury on every element of the crime charged,
and the prosecution must prove each of those elements beyond a
reasonable doubt. Griego v. People, 19 P.3d 1, 7 (Colo. 2001).
¶ 17 As relevant here, to prove homicide, the prosecution must
prove “that the defendant’s conduct was the actual cause of death,
in the sense that it began a chain of events the natural and
probable consequence of which was the victim’s death.” People v.
Saavedra-Rodriguez, 971 P.2d 223, 225 (Colo. 1998); People v.
Gentry, 738 P.2d 1188, 1190 (Colo. 1987); Hamrick v. People, 624
P.2d 1320, 1323-24 (Colo. 1981). “[U]nder certain circumstances,
the defendant may be relieved of liability for the death of the victim
if there has been an independent intervening act.” Saavedra-
Rodriguez, 971 P.2d at 225. But only an intervening cause that is
not reasonably foreseeable will relieve a defendant of liability. Id. at
226. Unlawful conduct that is broken by an independent
intervening cause cannot be the proximate cause of injury to
another. Gentry, 738 P.2d at 1190; People v. Calvaresi, 534 P.2d
316, 319 (Colo. 1975), aff’d, 600 P.2d 57 (Colo. 1979).
6 ¶ 18 An independent intervening cause “is an act of an independent
person or entity that destroys the causal connection between the
defendant’s act and the victim’s injury and, thereby becomes the
cause of the victim’s injury.” Saavedra-Rodriguez, 971 P.2d at 225-
26. “Three elements must be satisfied to establish an independent
intervening cause sufficient to relieve a defendant of responsibility”
for another’s death or injury. People v. Lopez, 97 P.3d 277, 282
(Colo. App. 2004). First, the defendant must not participate in the
intervening cause. Id. Second, the intervening cause must be one
but for which the death or injury would not have occurred. Id.
Finally, the intervening cause must not have been reasonably
foreseeable. Id. “A foreseeable act is one that ‘is likely enough in
the setting of modern life that a reasonably thoughtful person
would take account of it in guiding practical conduct.’” Garcia v.
Colo. Cab Co., 2023 CO 56, ¶ 22 (quoting Taco Bell, Inc. v. Lannon,
744 P.2d 43, 48 (Colo. 1987)). “[F]oreseeability is based on common
sense perceptions of the risks created by various conditions and
circumstances.” Id. (quoting Taco Bell, 744 P.2d at 48). Because a
defendant must satisfy all three elements to receive an intervening
7 cause instruction, his failure to establish one element deprives him
of the affirmative defense. Lopez, 97 P.3d at 282.
¶ 19 In the case of medical treatment, mere negligence on the part
of a physician is foreseeable and does not constitute a defense.
Calvaresi, 534 P.2d at 318; People v. Stewart, 55 P.3d 107, 121
(Colo. 2002). However, “[g]ross negligence . . . is unforeseeable
behavior that may serve as an intervening cause.” Stewart, 55 P.3d
at 121; see People v. Sieck, 2014 COA 23, ¶¶ 9–11.
¶ 20 Gross negligence is abnormal human behavior that constitutes
“an extreme departure from the ordinary standard of care.” Lopez,
97 P.3d at 282; Calvaresi, 534 P.2d at 319. Put another way, gross
negligence is “willful and wanton conduct, that is, action committed
recklessly, with conscious disregard for the safety of others.”
Martinez v. People, 2024 CO 6M, ¶ 14 (quoting Hamill v. Cheley
Colo. Camps, Inc., 262 P.3d 945, 954 (Colo. App. 2011)); People v.
Smoots, 2013 COA 152, ¶ 10, aff’d sub nom. Reyna-Abarca v.
People, 2017 CO 15. But even an intentionally tortious or criminal
act will not immunize the defendant from liability if it was
reasonably foreseeable. Ekberg v. Greene, 588 P.2d 375, 376 (Colo.
1978). Indeed, “[a] failure to provide or select the best treatment,
8 and therefore save the victim, should not relieve the original
assailant of liability if the wound was of the type likely to result in
death if little or no treatment had been provided.” Saavedra-
Rodriguez, 971 P.2d at 228. Moreover, for gross negligence to
constitute a defense in a homicide case, “the maltreatment must
also be the cause but for which death would not have occurred.” Id.
at 226.
¶ 21 An intervening cause defense is treated like an affirmative
defense for the purpose of determining the quantum of evidence
necessary to submit the issue to the jury. Id. at 228; Smoots, ¶ 9.
Therefore, the defendant must produce a scintilla of evidence to
warrant the instruction. Saavedra-Rodriguez, 971 P.2d at 228.
However, it is the court, not the jury, that must determine, as a
threshold matter, whether sufficient evidence supports the
instruction. Id.
¶ 22 We review jury instructions de novo to determine whether the
instructions, as a whole, accurately informed the jury of the
governing law. People v. Theus-Roberts, 2015 COA 32, ¶ 18. If they
do, the trial court enjoys substantial discretion in formulating the
instructions and deciding whether additional instructions are
9 required. Id. We also review de novo whether sufficient evidence
exists to support a requested jury instruction, reviewing the
evidence in the light most favorable to giving the instruction.
Castillo v. People, 2018 CO 62, ¶ 32; People v. Silva, 987 P.2d 909,
914 (Colo. App. 1999). Additionally, we review a trial court’s
decision to give a particular jury instruction for an abuse of
discretion. People v. Singley, 2015 COA 78M, ¶ 40. A trial court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair or is based on a misapplication of the law.
People v. Maloy, 2020 COA 71, ¶ 54.
C. Analysis
¶ 23 Applying the three elements required to relieve a defendant of
liability due to an intervening cause, we conclude that Counterman
presented insufficient evidence to warrant an intervening cause
instruction.
¶ 24 Even assuming, without deciding, that Counterman showed
that he did not participate in the intervening cause and that
medical personnel provided Ackerman grossly negligent care that
was not foreseeable when his esophagus was perforated, we find
Saavedra-Rodriguez instructive and conclude that Counterman
10 failed to present any evidence that Ackerman would have survived
without treatment.
¶ 25 In Saavedra-Rodriguez, the defendant stabbed the victim in
the chest. 971 P.2d at 224. The victim was taken to the hospital
and later died. Id. The defendant then requested an intervening
cause instruction and made an offer of proof that several medical
practitioners would opine that the treating physician made errors in
his diagnosis and treatment and unnecessarily delayed treatment,
and that the victim would have had a better chance of survival
given proper and timely treatment. Id. at 225. He did not, however,
offer evidence that the substandard care was the cause of the
victim’s death. Id. Indeed, all the doctors would have testified that
the cause of death was the stab wound inflicted by the defendant.
Id. And the court held that grossly negligent medical care is not an
intervening cause unless the “initial wound would not have been
fatal without treatment.” Id. at 227. The court concluded that the
defendant failed to meet the foundational requirements necessary to
present the intervening cause defense because while he offered
evidence of improper medical care, he failed to show that the
11 victim’s stab wound was unlikely to have killed the victim had little
or no treatment been provided. Id. at 228.
¶ 26 Here, no one disputes that the gunshot wound to Ackerman’s
chest was serious. The record shows that upon admission to the
emergency room, Ackerman required immediate intubation to assist
with his breathing, due to the significant chest trauma. Indeed,
hospital staff believed that Ackerman would have died within an
hour of the gunshot wound if he had not received treatment.
Ackerman then underwent bilateral surgeries to his chest from the
blast wounds, as well as a partial lung resection. The forensic
pathologist testified that the gunshot went through Ackerman’s
lungs and esophagus and that death would have occurred had little
or no treatment been provided. The trial court found, and the
record supports, that Counterman’s conduct (the act of shooting)
would have resulted in Ackerman’s death if little or no treatment
had been provided, including the delayed treatment of his sepsis.
Saavedra-Rodriguez, 971 P.2d at 227.
¶ 27 We are not convinced otherwise by Dr. Arnall’s affidavit, which
only addresses the result of the medical treatment rather than
Counterman’s act, the nature of the wound, the location of the
12 wound, and the natural and probable causes of the injury. See id.
at 226-27. Indeed, Dr. Arnall opined that the esophagus was
perforated after the initial surgeries when Ackerman had to be
intubated again, that sepsis developed, and that delays in treating
Ackerman’s sepsis constituted gross negligence that resulted in
death. However, Dr. Arnall never opined that Ackerman would have
survived the chest wound without the treatment he received upon
admission to the emergency room. Therefore, as in Saavedra-
Rodriguez, Counterman “offered proof of improper medical care,”
rather than offering “any evidence that would show the victim’s
wound was unlikely to result in death had little or no treatment
been provided.” Id. at 228.
¶ 28 As the trial court noted, Counterman’s defense, and Dr.
Arnall’s opinion in particular, was predicated on Ackerman’s status
“after receiving extensive medical care and surgery to repair the
damage from the shooting, to include removal of part of his lung.
Only after all of this has happened, does the defense opine gross
negligence occurred and caused [Ackerman’s] death.” We agree and
conclude that Counterman failed to produce sufficient evidence to
support an intervening cause defense or accompanying instruction.
13 III. Self-Defense Jury Instructions
¶ 29 Counterman next contends that he was entitled to a non-
deadly force self-defense jury instruction that the court wrongly
refused. We disagree.
A. Standard of Review and Applicable Law
¶ 30 The parties dispute preservation. While acknowledging that
Counterman tendered a non-deadly force self-defense instruction,
the People claim that he was required to do more by making
arguments at the jury instruction conference. We disagree and
conclude that tendering the instruction sufficiently preserved the
issue for our review. People v. Tardif, 2017 COA 136, ¶ 10. We
apply the standard of review set forth in the previous section.
¶ 31 If there is some evidence to show that the defendant acted in
self-defense, the court must give a self-defense instruction. Id. at ¶
20. The “some credible evidence” standard — sometimes referred to
as the “some evidence,” “any credible [even if highly improbable]
evidence,” “a scintilla of evidence,” “a small quantum of evidence,”
and “any evidence standard,” Galvan v. People, 2020 CO 82, ¶ 24
(citations omitted) — is “‘exceedingly low’ making [the] preclusion of
an affirmative defense appropriate only when there is ‘simply no
14 evidence . . . in th[e] record’” to support it, People v. Jacobson, 2017
COA 92, ¶ 15 (quoting People v. Platt, 170 P.3d 802, 806 (Colo. App.
2007)). However, the jury should not be instructed “on abstract
principles of law unrelated to the issues in controversy.” People v.
Knapp, 2020 COA 107, ¶ 20 (quoting Castillo, ¶ 34). The trial court
must determine whether there is sufficient evidence to warrant an
instruction on an affirmative defense and any exceptions to that
defense. Castillo, ¶ 34.
[A] person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
§ 18-1-704(1), C.R.S. 2024.
¶ 32 A person may use deadly force only if, among other
circumstances, there are reasonable grounds to believe that they
are in imminent danger of being killed or of sustaining great bodily
injury. See § 18-1-704(1)-(2). Whether physical force is properly
considered “deadly” does not turn on the subjective intent of the
person using the force, but rather on the “objective likelihood that,
15 in the absence of some intervening circumstance, a result will
occur.” People v. Opana, 2017 CO 56, ¶ 14.
¶ 33 Moreover,
the assessment [of] whether or not physical force arguably used in self-defense constituted “deadly physical force” ceases to be a matter for the jury only where the credible evidence permits no other finding than that the physical force used by the defendant would normally be expected to, and in fact did, produce death.
Id. at ¶ 16.
B. Analysis
¶ 34 Counterman argues that the force he used against Ackerman
was not deadly force because, as he testified, he was not facing
Ackerman at the time of the shooting, and “most of the shots
caused superficial wounds” to Ackerman’s legs, arms, and back.
He argues this was sufficient to support a non-deadly force self-
defense instruction and to show that the force he used would not be
expected to produce death. We disagree and find Opana dispositive.
¶ 35 Counterman admitted firing the gun “until it stopped firing”
and presented nothing to show that multiple gunshots would not
normally be expected to produce death. The fact that some shots
proved nonfatal does not change the fact that the chest wound was
16 fatal. Indeed, hospital staff believed that without medical
intervention, Ackerman would have died within an hour of the
gunshot wound to his chest. Therefore, we discern no dispute
about whether the force used by Counterman was typical of what “a
normal or typical person would use only if he intended to produce
death” and instead conclude that Counterman’s multiple shots
“would normally be expected to, and in fact did, produce death.”
Opana, ¶¶ 15, 16. Accordingly, we discern no error in the trial
court’s decision not to instruct the jury on non-deadly self-defense.
IV. Expert Testimony
¶ 36 Counterman next contends the trial court abused its
discretion by not admitting expert testimony that Ackerman had
ingested cocaine and alcohol before the shooting. We disagree and
discern no abuse of discretion.
¶ 37 Ackerman’s toxicology report upon admission to the hospital
revealed that he had alcohol, cocaine, and THC in his system. The
autopsy report also noted that blood tests revealed “recent cocaine
use.” The prosecution filed a motion to exclude this evidence as
17 irrelevant, and the court granted the motion, subject to
reconsideration if circumstances changed.
¶ 38 The defense endorsed self-defense and Sarah Urfer as an
expert in toxicology. Urfer opined that “a person such as
[Ackerman] could have displayed emotional volatility, emotional
lability, and aggression leading to a verbal altercation and physical
violence while under the influence of these drugs as described.”
¶ 39 At a pretrial conference, the trial court asked whether the
defense intended to call Urfer at trial and counsel said, “We haven’t
decided yet.” The trial court reserved ruling on the issue until
“Urfer is . . . brought forward as a witness.” The prosecutor noted
that Urfer was endorsed as an expert and “her opinion suggests
that somebody could be more aggressive if they have cocaine in
their system.” However, Urfer also noted that the effects of cocaine
wear off within a couple of hours, and the prosecutor argued that
“[h]er opinion is based entirely on the substances themselves, and
because the metabolites are so — they’re suggestive of use that is so
far removed from our incident, it’s just not relevant, and it would
prejudice the jury to hear that potentially he had used cocaine that
day.” The prosecutor also argued that “the existence of metabolites
18 doesn’t suggest that [Ackerman] was aggressive at the time of the
incident, and Ms. Urfer specifically cannot tie her opinion to any
indication in the evidence that [Ackerman] was aggressive.”
Defense counsel responded, “I think they should be able to consider
it, but I can’t disagree with what counsel said that Urfer reported.”
¶ 40 Ackerman’s blood sample was collected on April 4, 2020, at
10:19 p.m. The test results found cocaine metabolites at a level
such that Urfer thought the cocaine “would have been taken hours
prior to this incident.”
¶ 41 The court ultimately precluded Counterman from cross-
examining the forensic pathologist on Ackerman’s intoxication, and
it also precluded Urfer’s testimony, noting that Urfer referenced
possible behaviors the substances could cause, but “she doesn’t
relate it to the case itself.” It also noted that the presence of
cocaine metabolites in Ackerman’s system did not “provide the
Court with [a] sufficient basis to allow simple speculation on the
part of the expert to say how possibly something could have
impacted at some point in time.” The trial court found “just use of
the substance alone without more would simply be prejudicial
without providing a real scientific basis to Ms. Urfer’s statements.”
19 ¶ 42 In denying Counterman’s motion for a new trial based on this
issue, the court again found that Urfer’s testimony “was vague and
inconclusive,” “didn’t give sufficient information for a jury to
evaluate wisely,” and “indicate[d] disparagement of the victim for no
reason.”
¶ 43 We review the admission of expert witness testimony for an
abuse of discretion and “will reverse only when that decision is
manifestly erroneous.” People v. Cooper, 2021 CO 69, ¶ 44 (quoting
People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011)).
¶ 44 To determine whether such testimony is admissible, the trial
court should “focus on the reliability and relevance of the proffered
evidence.” People v. Shreck, 22 P.3d 68, 70 (Colo. 2001). The court
must determine “(1) the reliability of the scientific principles
[involved], (2) the qualifications of the witness, . . . (3) the
usefulness of the testimony to the jury,” and (4) whether the
evidence satisfies CRE 403. Id. A trial court’s “CRE 702
determination must be based upon specific findings on the record
as to the helpfulness and reliability of the evidence.” Id. at 78.
20 ¶ 45 The court “must also issue specific findings as to its
consideration under CRE 403 as to whether the probative value of
the evidence is substantially outweighed by its prejudicial effect.”
Id. Absent such specific findings “or a record not only supporting
admission but virtually requiring it or precluding any reasonable
dispute as to the basis of the court’s admission, the trial court must
be considered to have abused its discretion in admitting expert
testimony.” Ruibal v. People, 2018 CO 93, ¶ 14.
¶ 46 A trial court’s decision to admit expert testimony is reviewed
under the nonconstitutional harmless error standard. Id. at ¶ 17;
People v. Wilson, 2013 COA 75, ¶ 24. An error is harmless if a
reviewing court can say with fair assurance that, in light of the
entire record, the error did not substantially influence the verdict or
impair the fairness of the trial. Wilson, ¶ 24. Reversal is required
only if the error affects the substantial rights of the parties. Hagos
v. People, 2012 CO 63, ¶ 12.
¶ 47 As Counterman concedes, Urfer’s qualifications and expertise
were not at issue. Rather, the court found that her findings were
not helpful to the jury because she could not determine or opine on
21 the level of cocaine in Ackerman’s blood at the time of the offense.
The court noted that “[w]e don’t know when — if [Ackerman] used
cocaine that day, when it would have happened. We know that our
expert has said that cocaine wears off in a couple of hours.” Urfer
acknowledged that her analysis was based on “limited information”
and indicated that she could not “assign any of these impacts to the
victim.”
¶ 48 Urfer believed the cocaine “would have been taken hours prior
to this incident.” Therefore, we perceive no abuse of discretion in
the trial court’s determination that Urfer’s testimony would not
have helped the jury determine whether cocaine affected Ackerman
at the time of the offense and that it was therefore irrelevant. See
CRE 401, 402. Moreover, the trial court acted within its discretion
in finding that any minimum probative value of this evidence was
outweighed by the danger of unfair prejudice by casting Ackerman
as a drug user, an issue not relevant to the case.
¶ 49 Accordingly, we discern no abuse of discretion in the court’s
preclusion of this evidence.
22 V. Motorcycle Club and Firearms Evidence
¶ 50 Counterman next contends that the trial court erroneously
admitted evidence of his membership in the Gringos Motorcycle
Club and evidence that he possessed firearms and ammunition. We
disagree.
¶ 51 Counterman moved in limine to preclude any reference to his
affiliation with a motorcycle club called “Gringos Motorcycle Club,”
as well as any testimony or evidence of the ammunition and guns
found at his girlfriend’s home where they both lived. He argued
that the “mere mention of [his] affiliation with the Gringos
Motorcycle Club, an ‘outlaw motorcycle gang’, would create unfair
prejudice” and argued the same for the admission of the guns and
ammunition found at his home. Separately, Counterman requested
notice of any potential CRE 404(b) evidence the prosecution
intended to admit.
¶ 52 The prosecutor stated that the police found .357 revolver
rounds in the house but found no revolver; that the bullet found in
Ackerman was consistent “with a .357 Magnum round”; that the
prosecution believed Ackerman was killed with a revolver because
23 no shell casings were found at the scene; that a revolver holster was
recovered from the house; and that none of the three other firearms
found in the house could have fired revolver rounds. The murder
weapon was never recovered by the police. The prosecutor also
argued that possessing guns is not inherently prejudicial. Further,
receipts for two of the guns showed they were owned by
Counterman’s girlfriend.
¶ 53 The trial court found the firearms and ammunition satisfied
CRE 401 and 403. Specifically, the court found that “it makes it
more probable than not that the prosecution’s theory is supported
that [Counterman] used this gun, shot [Ackerman], and then
disposed of the gun, leaving ammunition in the home that could
also fit the gun.” The court limited the evidence and determined
that photographs could be used but that the guns themselves could
not be admitted. The court also noted, “If there’s a limiting
instruction being requested with regard to any kind of prejudice
about having other guns in the house, I’d certainly take a look at
that, give me an idea of what you would be requesting,” noting that
it would consider “something clarifying the fact that two of the guns
are registered to a different individual.”
24 ¶ 54 Concerning the motorcycle club membership, the trial court
noted that unless there was a significant nexus between a
defendant’s membership in a gang and the crime, it would not allow
any discussion of gang affiliation or membership at trial. The court
explained that Counterman’s membership in the motorcycle club
was entwined with various witness descriptions of him but said it
would not allow such membership to be used to argue that he
committed murder. The court ordered that no one could refer to
the Gringos Motorcycle Gang as a “motorcycle gang “and could only
refer to it as a “club” or “group.” The court found no “evidential
reason” to allow discussion of the “gang.”
¶ 55 In a later hearing, Counterman expressed further concerns,
and the trial court asked the prosecution to submit copies of
evidence that included references to the motorcycle club. The court
then addressed the issue again at a third hearing. It decided it
would only permit mention of the motorcycle club “when necessary”
and would rule as the evidence was admitted. The court told
defense counsel, “[I]f you see something coming up that you’re
concerned that there is going to be discussion of the Gringos or
connection of the Gringos . . . , let the Court know . . . .” The court
25 ordered that while there would not be an absolute prohibition, the
prosecution would “have limited reference to [the motorcycle club]
only when necessary for a witness to be able to testify and [for it to]
make sense.”
¶ 56 Both the prosecution and the trial court agreed to consider a
limiting instruction if Counterman proposed one, but he never did.
¶ 57 The relevant motorcycle club evidence heard by the jury
included the following:
(1) During opening statements, the prosecutor said, “But the
defendant and [his girlfriend], they decided to throw a
party. He was a part of the Gringos Motorcycle Club, and
they had a gathering on April 4th, 2020.” The defense
did not object.
(2) Also during opening statements, defense counsel said,
“Oh, I was with my club brother. Oh, we went to [his]
house.”
(3) During Adam Wilson’s testimony, the prosecutor asked
whether he and Counterman were a part of the “Gringos
Motorcycle Club together” and he answered, “No, I’m not
26 a member. I haven’t had any contact with the Gringos in
about a year.”
(4) A Snapchat video of the party was admitted into evidence
and showed references to motorcycle club paraphernalia.
(5) Pictures of Ackerman wearing “Gringos Motorcycle Club”
labeled clothing and other motorcycle club paraphernalia
was admitted into evidence.
(6) Counterman testified that he joined a motorcycle club in
2017 and met his girlfriend through one of the club
member’s wives. On cross-examination, he said some
party guests were members of the motorcycle club. He
also told police about the club when asked about his
relationship to Adam Wilson.
¶ 58 The trial court admitted this evidence and found it was
relevant to identity and was part of the res gestae of the case. It
further found that the firearms and ammunition were relevant to
show that a .357 revolver was missing.
¶ 59 All relevant evidence is admissible unless otherwise provided
by constitution, statute, or rule. CRE 402. Relevant evidence is
27 that evidence “having any tendency to make the existence of any
fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
CRE 401. Relevant evidence can be excluded, however, if its
probative value is substantially outweighed by the danger of unfair
prejudice. CRE 403.
¶ 60 Additionally, relevant evidence can be excluded if it is used to
prove the character of a person to show that he acted in conformity
with that character on a particular occasion. CRE 404(b).
Notwithstanding these limitations on the admissibility of relevant
evidence, evidence of other crimes, wrongs, or acts is admissible if
used for purposes independent of an inference of bad character
such as proving motive, opportunity, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident. Id.
¶ 61 We review a court’s evidentiary ruling for an abuse of
discretion. People v. Sims, 2019 COA 66, ¶ 44. A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair or when it misapplies the law. Id.
¶ 62 The trial court’s ruling rested in part on the res gestae
doctrine, which the Colorado Supreme Court abolished in 2022.
28 See Rojas v. People, 2022 CO 8, ¶¶ 40-41. This change occurred
after Counterman’s trial, but while his direct appeal was pending,
and is therefore proper for us to consider. See People v. Morse,
2023 COA 27, ¶ 51. Accordingly, we review the court’s ruling under
Rojas.
¶ 63 In Rojas, the Colorado Supreme Court established a
framework requiring courts to first determine whether the evidence
at issue is intrinsic or extrinsic to the crime charged. Rojas, ¶ 44.
Intrinsic acts are those that (1) directly prove the charged offenses
or (2) occurred contemporaneously with the charged offenses and
facilitated their commission. Id. at ¶ 52. They are not “other” acts
and, therefore, fall outside the scope of CRE 404(b). Id. If
uncharged misconduct evidence is extrinsic to the charged offense
and suggests bad character, it is admissible only as provided by
CRE 404(b) and only after completing the analysis required by
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).
¶ 64 The parties dispute preservation, but we need not resolve this
dispute because, even if preserved, we discern no abuse of
discretion in the court’s limited admission of this evidence.
29 C. Analysis
¶ 65 We first conclude that the ammunition evidence is intrinsic to
the charged offense and that the court correctly evaluated its
admissibility under CRE 401 and CRE 403, for three reasons.
First, we reject Counterman’s assertion that the evidence was not
part of the commission of the crime. No one disputes that
Ackerman was shot with a .357 round of ammunition and that no
semi-automatic weapon shell cases were recovered from the
shooting location. Therefore, unlike Kaufman v. People, 202 P.3d
542, 554-55 (Colo. 2009), where the supreme court found that the
possession of knives and brass knuckles, weapons dissimilar to the
murder weapon, constituted bad character evidence, the presence
of such ammunition where Counterman lived made it more
probable than not that he was the shooter and is therefore relevant
to identity. CRE 401. Second, Counterman’s possession of the
ammunition occurred contemporaneously with the crime charged
and facilitated its commission, thereby exempting it from a CRE
404(b) analysis. Third, we reject Counterman’s criticism of the trial
court for failing to give a limiting instruction, because the record
30 shows the court offered to do so if requested. Counterman never
requested the instruction.
¶ 66 To the extent the firearms evidence is extrinsic, we discern no
abuse of discretion in its admission, for three reasons. First, we
conclude it has some minimal relevance because the fact that none
of the three firearms in the home could fire the .357 ammunition
made it more likely that the weapon capable of firing such
ammunition had been discarded. Second, ownership of a firearm
does not constitute a “bad act” that required review under CRE
404(b), and nothing in the record shows that the presence of these
firearms was illegal. Third, the record shows that two of the three
firearms were registered to Counterman’s girlfriend, and the owner
of the third firearm was never identified. Under these facts, we
discern no abuse of discretion in the court’s admission of this
evidence.
¶ 67 We agree with Counterman that the motorcycle club evidence
is extrinsic to the crime charged, but we discern no error in the
court’s admission of it because it does not suggest bad character.
See Rojas, ¶ 52 (“[I]f extrinsic evidence does not suggest bad
character, Rule 404(b) does not apply . . . .”). As admitted, this
31 evidence served only to explain how Counterman knew a witness,
how the attendees at the party knew one another, and the content
of some images. And as with the firearms and ammunition
evidence, the court offered to provide a limiting instruction if
requested, but Counterman never requested one.
¶ 68 Additionally, we are not persuaded that People v. Trujillo, 2014
COA 72, requires a different result. The Trujillo division noted that
“gang-related evidence must be admitted with care.” Id. at ¶¶ 71-72
(quoting People v. Morales, 966 N.E.2d 481, 492 (Ill. App. Ct. 2012)).
The court did just that by specifically precluding any reference to
“gangs,” which would have implied bad character. Moreover, for the
reasons explained above, we find this case distinguishable from
Kaufman. Finally, we note that the prosecution never argued
Counterman’s club membership as evidence of his guilt and
conclude that the evidence was “not so shocking that [its] probative
value was outweighed by the likelihood that [it] would inflame the
passions of the jury or cause them ‘to abandon their mental
processes and give expression to their emotions.’” People v. Thorpe,
641 P.2d 935, 943 (Colo. 1982) (quoting Archina v. People, 307 P.2d
1083, 1095 (Colo. 1957)).
32 VI. Cumulative Error
¶ 69 Counterman last contends that the alleged errors, when taken
together, show that he did not receive a fair trial.
¶ 70 The cumulative error doctrine applies when “the cumulative
effect of [multiple] errors and defects substantially affected the
fairness of the trial proceedings and the integrity of the fact-finding
process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting
People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).
¶ 71 However, because we have found no errors, we necessarily
conclude the cumulative error doctrine does not apply. See People
v. Villa, 240 P.3d 343, 359 (Colo. App. 2009) (cumulative error
analysis is required only when multiple errors have been identified).
VII. Disposition
¶ 72 The judgment is affirmed.
JUDGE SCHOCK and JUDGE SULLIVAN concur.