Peo v. Duran

• Court: Colorado Court of Appeals
• Decided: February 5, 2026
• Docket: 24CA1458
• Status: Unpublished

Opinion

24CA1458 Peo v Duran 02-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1458 Douglas County District Court No. 23CR488 Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Louis Salomon Duran,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE FREYRE Brown and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 5, 2026

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Belzer Law, Aaron B. Belzer, Ashlee N. Hoffmann, Boulder, Colorado, for Defendant-Appellant ¶1 Defendant, Louis Salomon Duran, appeals his conviction of

felony driving under the influence with three or more prior offenses

(DUI). We affirm.

I. Background

¶2 One night, while at a sports bar, Duran got into a heated

argument with a group of patrons. Tensions between the group and

Duran began approximately an hour before the argument, when the

group observed Duran behaving inappropriately with other women.

One of the patrons eventually approached Duran to confront him.

The argument turned physical, resulting in other bar patrons

having to separate Duran from the group.

¶3 Duran was told to leave the bar, and he ran to the parking lot.

He retrieved a gun from his car and pointed it at the group as they

left the parking lot approximately a minute later. The group

continued their argument in the parking lot until Duran got in his

car and left. One of the patrons called the police as Duran drove

away. They provided a detailed description of Duran’s car,

including its license plate number. Police officers located Duran in

a nearby neighborhood.

1 ¶4 When officers apprehended Duran, they noticed that he was

unsteady on his feet and smelled of alcohol. After declining a field

sobriety test, Duran was transported to the hospital for the injuries

he sustained during the brawl, and while there, he consented to a

blood test. The test revealed his blood alcohol content (BAC) was

0.134.

¶5 The State charged Duran with one count of felony DUI, five

counts of menacing, five counts of prohibited use of a weapon

(aiming), and one count of prohibited use of a weapon while under

the influence. During the jury’s deliberations, it became apparent

that the jury was struggling to resolve the menacing and weapon

charges. The prosecution and Duran reached an agreement

whereby Duran pleaded guilty to prohibited use of a weapon under

section 18-12-106(1)(d), C.R.S. 2025, and the prosecution

dismissed the menacing and remaining prohibited use of a weapon

charges. The jury then found Duran guilty of felony DUI.

¶6 On appeal, Duran argues that his motions for mistrial should

have been granted and that the prosecutor’s misconduct

throughout the trial cumulatively warrants reversal. We are not

persuaded.

2 II. Motions for Mistrial

A. Additional Facts

¶7 During direct examination, one of the patrons involved in the

bar fight testified that before the physical altercation, he was

“concerned” with Duran’s behavior toward his group of friends and

toward other women in the bar. The prosecutor asked the patron

what was concerning, and the patron responded, “There was [sic]

two girls specifically he was groping and sexually assaulting at the

bar top.” Defense counsel objected and, out of the jury’s presence,

moved for a mistrial. The prosecutor responded that the patron’s

testimony was relevant because it rebutted Duran’s theory that he

had been unreasonably confronted by the other patrons. The trial

court denied Duran’s motion for mistrial, but it found that the

patron’s testimony created prejudice that outweighed its probative

value. The court then instructed the jury to disregard the

testimony.

¶8 During cross-examination, defense counsel asked the patron

how much he had been drinking. The patron replied: “I had been —

I had just ordered my first beer. And then that’s when my female

friends brought over the girl that he was groping at the bar.”

3 ¶9 Defense counsel asked to approach the bench and again

moved for a mistrial. The court agreed that the statement by the

patron was improper and deferred ruling on the motion until the

parties could present argument outside of the presence of the jury.

After the jury was dismissed for the day, defense counsel again

argued that a mistrial was necessary because the testimony

constituted bad character evidence of which the prosecutor had

failed to give proper notice under CRE 404(b). The prosecutor

disagreed and argued that a curative instruction would remedy any

prejudice that had occurred. The prosecutor also argued that the

patron’s statement was not subject to CRE 404(b) because it was

intrinsic to the menacing and weapon charges and otherwise

relevant given the fact that defense counsel told the jury during

opening statements that the bar patrons had attacked Duran

without any reason.

¶ 10 The trial court took the issue under advisement, and the

following morning it denied the second motion for mistrial. The

court reasoned that although the testimony about Duran’s alleged

sexual assault was highly prejudicial, the evidence was intrinsic

because it was directly related and relevant to Duran’s claim of self-

4 defense. The court reasoned that it “explained why people would

have approached [Duran] at the bar in an aggressive fashion” and

would “go to the reasonableness of [Duran’s] response and the

threat that he may have perceived from these individuals.” The

court went on to note that the patron could have properly testified

to seeing “inappropriate behavior” from Duran toward women at the

bar. The trial court concluded by finding that the prosecutor had

not committed any misconduct in eliciting the patron’s testimony

and that any prejudice that had occurred could be properly cured

by an instruction to disregard the improper testimony.

B. Standard of Review and Applicable Law

¶ 11 We review the denial of a motion for a mistrial for an abuse of

discretion. People v. Johnson, 2017 COA 11, ¶ 39. “A trial court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or based on an erroneous understanding

or application of the law.” Id. A mistrial is a drastic remedy and is

warranted only when prejudice to the accused is so substantial that

its effect on the jury cannot be remedied by other means. People v.

Ned, 923 P.2d 271, 274 (Colo. App. 1996).

5 ¶ 12 “In order to be admissible, evidence must be relevant; and

unless otherwise provided by constitution, statute, or rule, all

relevant evidence is admissible.” People v. Rath, 44 P.3d 1033,

1038 (Colo. 2002). And “[e]vidence is relevant, in the logical sense,

as long as it . . . ‘[tends] 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.’” Id. (quoting

CRE 401).

¶ 13 “Colorado Rule of Evidence 403 strongly favors the admission

of relevant evidence, so the evidence should be given its maximum

probative value and minimum prejudicial effect. Evidence is

unfairly prejudicial where it introduces into the trial considerations

extraneous to the merits, such as bias, sympathy, anger, or shock.”

People v. Greenlee, 200 P.3d 363, 367 (Colo. 2009) (citation

omitted), abrogated by, Rojas v. People, 2022 CO 8, ¶ 4; see People

v. Robinson, 908 P.2d 1152, 1156 (Colo. App. 1995), aff’d, 927 P.2d

381 (Colo. 1996). “The trial court has considerable discretion to

determine the relevancy, admissibility, probative value, and

prejudicial impact of evidence.” People v. Cordova, 293 P.3d 114,

118 (Colo. App. 2011).

6 C. Analysis

¶ 14 We conclude that the court did not abuse its discretion in

denying Duran’s motions for mistrial, for two reasons. First,

although, as acknowledged by the court, the patron’s testimony was

prejudicial, the court cured any error on both occasions by

instructing the jury to disregard the testimony orally and in writing.

“[A] curative instruction is generally sufficient to overcome an

evidentiary error, and an instruction is inadequate only when

evidence is so prejudicial that, but for its exposure, the jury might

not have found the defendant guilty.” People v. Gillespie, 767 P.2d

778, 780 (Colo. App. 1988) (citing Vigil v. People, 731 P.2d 713

(Colo. 1987)). Moreover, we are not convinced that the court’s

second limiting instruction, given the day following the prejudicial

statement, was “vague and indefinite” because it specifically

directed the jury to the witness’s opinion of Duran’s actions at the

bar given the previous day and instructed the jury to disregard it.

We presume that the jury understood and followed the court’s

instructions. People v. Reed, 2013 COA 113, ¶ 28.

¶ 15 Second, despite the prejudicial nature of the statement, we

discern no prejudice flowing from the error because the evidence

7 related only to the menacing and prohibited use of weapons

charges, which were dismissed (or pleaded guilty to) before the

verdict and were tangential to the felony DUI contested on appeal.

The record shows that during deliberations, the jury struggled with

these charges and the evidence related to them, resulting in a mid-

deliberations plea agreement. In our view, this demonstrates that

the jury heeded the court’s limiting instruction. See People v.

Abdulla, 2020 COA 109M, ¶ 58 (“[W]e employ the presumption that

the jury understands and applies the given instructions unless a

contrary showing is made . . . .”). And while Duran contends that

the prejudice extended to the felony DUI, we reject his assertion

that the evidence on that charge was not overwhelming. In light of

the BAC evidence and the officers’ observations of intoxication at

the time of Duran’s arrest, we discern no abuse of discretion in the

court’s decision to deny Duran’s mistrial motions. See C.A.R. 35(c)

(the appellate court may disregard any error or defect not affecting

the substantial rights of the parties); Leiting v. Mutha, 58 P.3d

1049, 1053–54 (Colo. App. 2002) (proper inquiry in deciding a

harmless error question is whether the error substantially

influenced the verdict or affected the fairness of the trial).

8 III. Prosecutorial Misconduct

¶ 16 Duran next contends that the prosecutor committed reversible

misconduct by failing to notify Duran of her intent to introduce

CRE 404(b) evidence and by making allegedly improper statements

throughout the trial. We disagree.

¶ 17 During opening statements, the prosecutor informed the

jurors that they would hear from a man who was “worried about

what Mr. Duran [was] doing [in the] bar” that night. She argued,

without objection, that the witness was “concerned about some

approaches [Duran] made to some other women” and that the

witness and the other patrons were “just generally worried.”

¶ 18 Then, during closing argument, the prosecutor argued:

Driving under the influence means someone is substantially capable of exercising clear judgment. Is [Duran] substantially capable of exercising clear judgment? A hundred percent. He pulls a gun on people. He doesn’t call 911.

Defense counsel objected, stating the argument was improper, and

the court overruled the objection. The prosecutor continued,

9 “[Duran] pulls a gun on people and then he drives 12 miles away

while he’s drunk. Yes. [Duran] is absolutely under the influence.”

¶ 19 Later, the prosecutor asked the jury to hold Duran

accountable and argued, “Your common sense will tell you, after

you consider all of the evidence, that what makes sense is not that

Mr. Duran was randomly attacked.” She then told the jury, “Only

you can hold the guilty accountable,” and she repeated that

“[Duran] is guilty of each and every count, and you should find him

so.” Defense counsel objected, and the court overruled the

objection.

¶ 20 Finally, in rebuttal closing, the prosecutor argued, without

objection:

What [defense counsel] just came up here and told you would be great, except it’s not what the evidence shows. You got an instruction from the judge that it is your job, and only job, to determine the credibility of the evidence. To determine whose story to believe.

[Duran’s] story is just blatantly false. It’s just false. Beyond a reasonable doubt means a reasonable doubt that’s not something vague, speculative or imaginary. And every single thing [defense counsel] just told you to base your decision upon is vague, speculative, imaginary.

10 He says well, the video isn’t in its original format. . . . They didn’t get the video from the other end of the building . . . . He’s asking you to imagine what other folks might have said. He’s asking you to imagine that the video from the other end of the building, the video from other businesses would have showed something different.

¶ 21 When reviewing a claim of prosecutorial misconduct, “we

consider whether the prosecutor’s conduct was improper and

whether any impropriety requires reversal.” People v. Walker, 2022

COA 15, ¶ 27. “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).

¶ 22 The parties agree that some, but not all, of Duran’s claims for

prosecutorial misconduct are preserved for appeal. While Duran’s

preserved claims are governed by the harmless error standard, we

review his unpreserved claims for plain error. See Wend v. People,

235 P.3d 1089, 1097 (Colo. 2010); People v. Licona-Ortega, 2022

COA 27, ¶ 86. For prosecutorial misconduct to constitute plain

error, the conduct must be “flagrantly, glaringly, or tremendously

improper” and “so undermine[] the fundamental fairness of the trial

11 itself as to cast serious doubt on the reliability of the jury’s verdict.”

Domingo-Gomez, 125 P.3d at 1053 (quoting People v. Avila, 944 P.2d

673, 676 (Colo. App. 1997)).

¶ 23 In analyzing a prosecutorial misconduct claim, the reviewing

court must determine (1) whether the prosecutor’s questionable

conduct was improper based on the totality of the circumstances,

and (2) whether such actions warrant reversal according to the

proper standard of review. Wend, 235 P.3d at 1096. A prosecutor

has wide latitude to make arguments based on facts in evidence

and reasonable inferences drawn from those facts. People v. Maloy,

2020 COA 71, ¶ 61.

C. Analysis

¶ 24 We begin with Duran’s contention that the prosecution should

have provided notice, under CRE 404(b), of its intent to introduce

the bar patron’s prejudicial statement and should not have argued

these circumstances in closing. While the trial court found this

evidence “intrinsic,” we need not resolve whether it was intrinsic or

subject to CRE 404(b) because the court agreed with the defense

that it was inadmissible. And for the reasons set forth in Part II, we

discern no prejudice flowing from the prejudicial information due to

12 the court’s limiting instructions. To the extent Duran argues that

the prosecutor committed misconduct by arguing the patrons were

“concerned” with his behavior in the bar, the court had already

determined pretrial that the concerning circumstances were

relevant to the weapons charges and self-defense, and because the

prosecutor never argued that Duran sexually assaulted women, we

discern no misconduct.

¶ 25 Next, we reject Duran’s assertion that misconduct occurred in

the prosecutor’s opening statement. She properly told the jury that

it would hear that Duran’s concerning behaviors toward others

prompted the altercation leading to the charges in the case. The

description of Duran’s behavior as “concerning,” without more, did

not inject prejudice or improperly imply bad character. We note

that the statement drew no defense objection. See Domingo-Gomez,

125 P.3d at 1054.

¶ 26 Next, we discern no misconduct in the prosecutor’s closing

argument asking the jury to hold Duran accountable and find him

guilty. Unlike the cases on which Duran relies, the argument here

was confined to the evidence presented and did not ask the jury to

hold him accountable for the broader consequences of his crimes,

13 see People v. Tibbels, 2019 COA 175, ¶ 20, rev’d on other grounds,

2022 CO 1, or otherwise misstate the evidence, see People v.

Carian, 2017 COA 106, ¶ 57.

¶ 27 We next conclude there was no misconduct in the prosecutor’s

argument that the circumstances at the bar showed that Duran

was intoxicated. We agree the prosecutor misspoke when arguing

that driving under the influence means someone is substantially

capable of exercising clear judgment. But the behavior she

described was rooted in the evidence, and the jury received a

written jury instruction properly stating that being under the

influence means one is substantially incapable of exercising

judgment. Moreover, Duran never argued that he called 911, nor

did he contest the facts that he pointed a gun at the patrons before

driving away. Therefore, we discern no prejudice flowing from this

misstatement.

¶ 28 Finally, we agree with Duran that the prosecutor’s arguments

that Duran’s story was “blatantly false” and “it’s just false”

constitute obvious misconduct. Indeed, it is well-settled law that

prosecutors may not accuse defendants of having “lied.” People v.

McBride, 228 P.3d 216, 221 (Colo. App. 2009). And while the

14 prosecutor here did not expressly use the word “lie,” we discern no

meaningful distinction between the words “lie” and “blatantly false.”

See Crider v. People, 186 P.3d 39, 41 (Colo. 2008) (“[I]t is improper

for a lawyer to use any form of the word ‘lie’ in characterizing for a

jury a witness’s testimony or his truthfulness.”); see also People v.

Bobian, 2019 COA 183, ¶ 32 (prosecutors may not “express a

personal opinion on the truth or falsity of witness testimony”).

Nevertheless, because we must consider this error in the context of

the argument as a whole and in light of the evidence before the jury,

People v. Samson, 2012 COA 167, ¶ 30, we conclude it does not

constitute plain error, for three reasons.

¶ 29 First, the argument drew no objection from defense counsel

despite its obviousness, which shows it had little prejudicial impact

in the moment. See Domingo-Gomez, 125 P.3d at 1054 (“The lack of

an objection may demonstrate the defense counsel’s belief that the

live argument, despite its appearance in a cold record, was not

overly damaging.” (citation omitted)). Second, the statement was

made once and was not repeated numerous times. See People v.

Abbott, 690 P.2d 1263, 1269 (Colo. 1984) (“[T]he mere reference to

an accused’s past criminal act is not per se prejudicial, requiring a

15 new trial.”); see also People v. Krueger, 2012 COA 80, ¶ 73 (holding

that a witness’s brief reference to having met the defendant in jail

was not prejudicial enough to warrant a mistrial). Finally, the

defense’s self-defense theory, to which the argument was directed,

applied only to the menacing and prohibited use of weapon charges,

not the felony DUI that is being appealed here. Therefore, when

viewed in the context of the entire argument, we conclude that the

improper argument did not substantially influence the fairness of

the trial or cast doubt on Duran’s judgment of conviction for felony

DUI.

¶ 30 In the alternative, Duran asks us to find the cumulative effect

of the alleged misconduct warrants reversal. “The doctrine of

cumulative error is based on the notion that multiple errors, in

isolation, may be viewed as harmless, but the synergistic effect of

the multiple errors may be so prejudicial that they deprive a

defendant of a fair trial.” People v. Serna-Lopez, 2023 COA 21, ¶ 47.

“Stated simply, cumulative error involves cumulative prejudice.”

Howard-Walker v. People, 2019 CO 69, ¶ 25. We have identified

only one error that occurred during closing argument. Because

that error did not substantially affect the outcome of this case, we

16 conclude there was no cumulative error. See People v. Villa, 240

P.3d 343, 359 (Colo. App. 2009) (cumulative error analysis is

required only when multiple errors have been identified).

IV. Disposition

¶ 31 The judgment is affirmed.

JUDGE BROWN and JUDGE SCHUTZ concur.