23CA1483 Peo v Graciano 02-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1483 Adams County District Court No. 21CR3135 Honorable Jeffrey Smith, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ricardo Graciano,
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 26, 2026
Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Ricardo Graciano, appeals his conviction of felony
menacing. We affirm.
I. Background
¶2 According to the trial evidence, Graciano encountered his
estranged half-brother, Desiderio Flores, at a convenience store. As
Flores was leaving the store and Graciano was entering, the two
recognized each other. Before Flores could get out the door,
Graciano shoved him, prompting Flores to go back into the
convenience store and walk toward Graciano in a series of
aggressive stutter steps. Graciano then removed a knife from his
belt and held it at his side while the two men continued to exchange
words. Surveillance footage showed Flores backing out of the
store’s entrance.
¶3 Once outside, the two men continued to yell at each other.
Graciano and Flores drew nearer to each other and continued to
argue as if “getting ready to fight.” Flores then backed away and got
into his car while Graciano continued to “hoot[] and holler[]” by the
gas pumps.
¶4 Flores’s wife, who was sitting in the car, called 911 and told
the operator that her brother-in-law had just pulled a knife on her
1 husband. Graciano was arrested and charged with felony
menacing.
¶5 On appeal, Graciano argues that (1) the trial court erred by
failing to suppress a statement he made to police during his arrest
and transport because it was the product of a custodial
interrogation; (2) the trial court violated his constitutional rights to
confrontation and a fair trial when one of the jurors was unable to
hear a portion of Flores’s cross-examination; (3) the prosecution
shifted the burden of proof by arguing in closing that the jury
should “demand” more evidence from the defense to support the
self-defense theory; (4) the trial court erred in admitting evidence
that Graciano habitually carried a knife; (5) the trial court
improperly instructed the jury on the provocation and initial
aggressor exceptions to self-defense; and (6) the cumulative effect of
the trial court’s errors requires reversal. We address each
contention.
II. Interrogation and Personal Knowledge
¶6 Graciano contends that his statement to police that “[he] let
[his] emotions get the better of [him]” should have been excluded
because the prosecution failed to prove it was not the product of
2 custodial interrogation. Alternatively, he contends that the court
should have excluded the statement under CRE 602 because the
deputy who testified to it lacked personal knowledge of the events.
We are not persuaded.
A. Additional Facts
¶7 Defense counsel moved to suppress several statements
Graciano made to the police. The motion however, specifically
referenced only Graciano’s statement, “I know what I did, I put
myself here.”1
¶8 At the motions hearing, Deputy Thompson testified that
Graciano volunteered statements throughout his pat-down and
arrest. Thompson explained that he patted down Graciano, took
his belongings, and put them in a plastic bag. He did not believe he
asked Graciano any questions at the scene or during the car ride to
the police station. Thompson testified that during the pat-down,
Graciano said, “This is just a family issue,” and “I pushed my
brother, but he used to push me . . . ; it’s nothing but a family
1 The court did suppress one statement, not expressly referenced in
the motion, that Graciano made to Deputy Davis at the police station when Graciano was in a holding cell.
3 problem.” And during the ride to the police station, Graciano again
said, “It was a family issue. I let my emotions get the better of me.”
¶9 Throughout the hearing, Thompson reviewed his report to
refresh his memory of that day. He explained that it was his
general rule not to question suspects during rides to the police
station and that he prepared his report within one hour of the
incident. During cross-examination, defense counsel asked
whether he remembered how many officers were at the scene and
who was there. Thompson responded, “To be honest, I don’t recall
this call at all” because “it was over a year ago,” and he handled a
lot of calls.
¶ 10 Defense counsel objected to Thompson reading directly from
his report rather than using it to refresh his recollection. The trial
court overruled the objection and reasoned that the parties were
there for a motions hearing and not a jury trial.
¶ 11 The court acknowledged Thompson’s waning memory and
found it “not surprising given the length of time here.” The court
nonetheless found Thompson’s testimony credible “on balance” and
determined that the statements Graciano made at the scene during
the pat-down were not in response to any questioning or other
4 actions that would be reasonably likely to elicit an incriminating
response. The court further found that any statements Graciano
made during the ride to the substation were spontaneous.
Therefore, it found no violation under Miranda v. Arizona, 384 U.S.
436 (1966), and denied Graciano’s motion as to those statements.
¶ 12 Before trial, defense counsel moved to preclude Thompson’s
testimony because he had “absolutely no personal knowledge of
what happened.” The court overruled the objection stating, “The
fact that he may not have remembered much or almost all of what
happened” was not “a basis to categorically exclude his testimony.”
Thompson testified consistently with his description of events at the
motions hearing. He admitted that he had no specific memory of
what occurred and was relying on his report. During cross-
examination, defense counsel elicited testimony that Thompson
could not recall the details of the day of the incident without
reading his report.
B. Standard of Review and Applicable Law
¶ 13 Whether the district court erred by failing to suppress
evidence presents a mixed question of fact and law. People v.
Kutlak, 2016 CO 1, ¶ 13. We defer to the district court’s factual
5 findings that are supported by the record, but we review the district
court’s legal conclusions de novo. Id.
¶ 14 Both the United States Constitution and Colorado
Constitution guarantee individuals the privilege against self-
incrimination. U.S. Const. amend. V; Colo. Const. art. II, § 18;
People v. Sanders, 2023 CO 62, ¶11. To safeguard this privilege,
statements procured by custodial interrogation are generally
inadmissible unless officers precede their interrogation with certain
warnings. People v. Davis, 2019 CO 84, ¶ 16. Before undergoing a
custodial interrogation, a suspect must be advised of his Miranda
rights, which include the Fifth Amendment right to remain silent in
the face of questioning, as well as the right to counsel. People v.
Arroya, 988 P.2d 1124, 1129-30 (Colo. 1999). However, these
warnings are required “only ‘when a suspect is subject to both
custody and interrogation.’” Davis, ¶ 16 (quoting Effland v. People,
240 P.3d 868, 873 (Colo. 2010)).
¶ 15 In this context, “‘[i]nterrogation’ refers to express questioning
by a police officer as well as to ‘words or actions . . . that the officer
“should know are reasonably likely to elicit an incriminating
response from the suspect.”’” People v. Gonzales, 987 P.2d 239,
6 241 (Colo. 1999) (quoting People v. Trujillo,784 P.2d 788, 790 (Colo.
1990)). In determining whether a suspect was interrogated, we
consider the totality of the circumstances, focusing on “whether the
officer reasonably should have known that [their] words or actions
would cause the suspect to perceive that [they were] being
interrogated, and whether those words or actions, like express
questioning, could compel the defendant to overcome [their] desire
to remain silent.” People v. Madrid, 179 P.3d 1010, 1014 (Colo.
2008).
¶ 16 “Under the due process clauses of the United States and
Colorado Constitutions, a defendant’s statements must be
voluntary to be admissible as evidence.” People v. Ramadon, 2013
CO 68, ¶¶ 18-19 (“To be voluntary, a statement must be the
product of an essentially free and unconstrained choice by its
maker.”).
¶ 17 We review a court’s evidentiary rulings for an abuse of
discretion. People v. Miller, 2024 COA 66, ¶ 40. A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair. Id.
¶ 18 CRE 602 provides:
7 A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that [he] has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness [himself].
C. Analysis
¶ 19 We discern no error in the court’s ruling denying the
suppression motion, for two reasons.
¶ 20 First, the court found Deputy Thompson’s testimony credible,
including his testimony that he prepared his report within an hour
of the incident, and we must defer to that finding. See People in
Interest of R.C., 2019 COA 99M, ¶ 7 (deferring to the district court’s
resolution of evidentiary conflicts and its determinations of witness
credibility, the weight of the evidence, and the inferences to be
drawn from it). Therefore, we reject Graciano’s argument that the
record does not support the court’s findings due to Thompson’s
inability to recall the events without referring to his report.
¶ 21 Second, Thompson described Graciano’s statements during
the pat-down process and the ride to the substation and explained
that neither of the statements was preceded by any questioning. He
further explained that it was his general rule not to question
8 suspects during pat-downs and rides to the substation. Because
the court considered all these circumstances when it found that
Graciano’s statements were not the product of interrogation, we
discern no error in its ruling. See Arizona v. Mauro, 481 U.S. 520,
529 (1987) (a defendant’s volunteered statements do not implicate
the Fifth Amendment); People v. Wood, 135 P.3d 744, 749 (Colo.
2006) (“[P]urely spontaneous or volunteered statements made in the
absence of counsel are admissible as ‘[t]he Fifth Amendment
protects defendants from improper forms of police interrogation, not
from their own impulses to speak.’” (quoting Gonzales, 987 P.2d at
243)). Accordingly, we conclude that Graciano’s statements were
not the product of interrogation and affirm the court’s ruling.
¶ 22 We also reject Graciano’s contention that the court should
have precluded Thompson’s trial testimony for lack of personal
knowledge. The “threshold for satisfying the personal-knowledge
requirement is not very high and may be inferable” from the “total
circumstances surrounding the matter.” Curry v. Brewer, 2025
COA 28, ¶ 52 (quoting Murray v. Just In Case Bus. Lighthouse, LLC,
2016 CO 47M, ¶ 33).
¶ 23 The threshold is met
9 as long as there is evidence before the trial court that the jury, as the trier of fact, could reasonably find that the witness has personal knowledge of the event to which the witness is about to testify, the witness should be permitted to testify, and the questions of credibility and weight should be left for the jury to resolve.
People v. Garcia, 826 P.2d 1259, 1264 (Colo. 1992) (quoting
Burlington N. R.R. Co. v. Hood, 802 P.2d 458, 469 (Colo. 1990)).
¶ 24 Here, Thompson testified that he prepared his report
documenting the statements and the events that occurred within an
hour of the incident. Thus, he possessed personal knowledge at the
time he prepared the report and subsequently relied on that report
to recall what had occurred. In our view, this constitutes sufficient
evidence from which the jury could reasonably determine that
Thompson had personal knowledge of the incident. See Garcia, 826
P.2d at 1264. Accordingly, we discern no violation of CRE 602 or
abuse of discretion in the court’s admission of Thompson’s trial
testimony.
III. Confrontation and Jury Trial Rights
¶ 25 Graciano next contends that his constitutional rights of
confrontation and to a twelve-person jury were violated when one of
10 the jurors advised the court that she had trouble hearing all of
Flores’s cross-examination answers. We discern no abuse of
discretion in the court’s decision to remedy the issue by reading the
cross-examination aloud from a transcript.
¶ 26 On the second day of trial, a juror told the court she had not
fully heard Flores’s cross-examination testimony. She said she
“was having some trouble hearing when [Flores] was on the stand”
because she was “a little bit hard of hearing and [didn’t] have
hearing aids or anything” and asked if Flores “could speak more
into the microphone.”
¶ 27 She thought she “did hear most of it” and “didn’t really have
any questions about what he said,” but had “a little bit of trouble
understanding some of the words.” The trial court asked the juror
what she meant by “most of it,” and the juror responded that “some
of the words were just a little bit mumbled for [her]” but that she
“heard his testimony” and “didn’t really have any questions about
what he said.” She explained that she could hear fine when the
witnesses spoke into the microphone and that she missed some of
11 defense counsel’s objections, but she could hear the court’s rulings
and knew what was going on.
¶ 28 When the prosecutor asked what she missed, the juror
responded, “[W]hat words were exchanged.” She summarized her
understanding by saying she thought Flores said that Graciano was
“hem hawing.” Defense counsel then asked the juror if she knew
how much she was unable to hear from Flores. The juror
responded:
It wasn’t a lot. It was when . . . you were asking him what [Graciano] was, like, saying, what words were exchanged. And I could kind of hear him just say, oh, he was just kind of . . . hem hawing, going back and forth. So . . . I heard what he said but it just — that was really the most part that I was like I had to really, like, listen.
¶ 29 Because the juror did not hear the complete testimony,
defense counsel moved for a mistrial or, in the alternative, to recall
Flores. The court disagreed with defense counsel’s characterization
of the juror’s explanation and found that the juror did not hear
Flores because he was mumbling and that she did not “identify
anything with specificity.” The prosecutor agreed with the court
and said the juror “heard most of everything [Flores] was saying,
12 there was just one part where he was asked a question about what
was said and she heard more or less the gist of it.” The prosecutor
further argued that the juror did not miss any material portion of
Flores’s testimony.
¶ 30 The court denied both of the defense’s requests, finding that a
mistrial was too drastic a remedy and that the less severe option of
allowing the jury to listen to a reading of the transcribed testimony
of Flores’s cross-examination was more appropriate. Defense
counsel lodged a constitutional due process objection and argued
that he should be allowed to recross-examine Flores before the jury.
The court overruled the objection and read Flores’s cross-
examination transcript to the jury twice in open court — once
before the jury instruction conference and again before
deliberations began.
¶ 31 We review the district court’s ruling involving jury irregularity
for an abuse of discretion. People v. Mollaun, 194 P.3d 411, 416
(Colo. App. 2008). A district court abuses its discretion when its
decision or action “is manifestly arbitrary, unreasonable, or unfair,
or based on an erroneous view of the law.” Id. “When confronted
13 with allegations of irregularity in the jury’s proceedings, the trial
judge has broad discretion ‘to determine what manner of hearing, if
any, is warranted.’” Id. (quoting United States v. Campbell, 684
F.2d 141, 151 (D.C. Cir. 1982)).
¶ 32 The parties dispute the preservation of the confrontation
clause and jury-of-twelve issues. Although the defense objected on
due process grounds, counsel did not articulate objections based on
the confrontation clause or the right to a jury of twelve. Therefore,
we conclude these arguments are unpreserved because counsel
objected on grounds different from those raised on appeal. Thus,
we review these contentions for plain error. See People v. Ujaama,
2012 COA 36, ¶ 37 (an issue is unpreserved for appeal when an
objection at trial was made on grounds different from those raised
on appeal). Under this standard, we will reverse only if the error is
obvious and substantial and so undermines the fundamental
fairness of the trial itself as to cast serious doubt on the judgment
of conviction. Hagos v. People, 2012 CO 63, ¶ 14.
¶ 33 The right of a criminal defendant to confront an adverse
witness is guaranteed by the Confrontation Clause of the Sixth
Amendment and article II, section 16, of the Colorado Constitution.
14 The Colorado Constitution’s provision is more protective and states,
“In criminal prosecutions the accused shall have the right . . . to
meet the witnesses against him face to face . . . .” Colo. Const. art.
II, § 16. Generally, the right to confrontation requires a witness to
testify under oath, in open court, and face-to-face with the
defendant. People v. Collins, 2021 COA 18, ¶ 39.
¶ 34 Although a criminal defendant is not entitled to a jury of
twelve under the Sixth Amendment, they are guaranteed a “right to
a jury of twelve in felony cases” under the Colorado Constitution.
People v. Rodriguez, 112 P.3d 693, 698, 703 (Colo. 2005); see Colo.
Const. art II, §§ 16, 23. Colorado’s constitutional provisions are
independent of, and may extend beyond, the Federal Constitution to
offer greater protection for the people of Colorado. People v. Young,
814 P.2d 834, 842 (Colo. 1991), superseded by statute on other
grounds, Ch. 292, sec. 8, § 16-12-102(1), 1993 Colo. Sess. Laws
1728-29.
¶ 35 We discern no constitutional violations stemming from the
trial court’s ruling, for four reasons.
15 ¶ 36 First, while we recognize the state constitution’s language
concerns face-to-face confrontation, we conclude that face-to-face
confrontation occurred here. The record shows that the juror had
no problems seeing Flores during cross-examination, so she was
able to observe his demeanor throughout his testimony, even
though she may not have heard a few mumbled words. Thus, this
case is distinguishable from People v. Boykins, 140 P.3d 87, 93
(Colo. App. 2005), on that basis.
¶ 37 Second, the court credited the juror’s testimony that she did
not miss much of Flores’s testimony and that only a few words were
mumbled. Moreover, she was able to summarize the meaning of
what she missed. Therefore, this case is unlike People v. Trevino,
826 P.2d 399, 401 (Colo. App. 1991), cited by Graciano, when a
division of this court found a violation of the right to twelve jurors
because a juror forgot to wear her hearing aids and missed a
substantial portion of the trial testimony. And to the extent the
juror here missed mumbled words, the court remedied that by
allowing Flores’s testimony to be read back on two separate
occasions. Thus, we disagree with Graciano that the juror was
unable to assess the credibility of his defense due to a few missed
16 words. See Forgette v. People, 2023 CO 4, ¶¶ 16-18 (holding that
possible juror misconduct, like sleeping or inattentiveness, does not
implicate a defendant’s right to a jury of twelve); People v. Daley,
2021 COA 85, ¶ 67 (allegation of inattentive or drowsy jurors did
not rise to the level of constitutional juror misconduct).
¶ 38 Third, while we agree that a cold record is a poor substitute for
live testimony, the juror here did not rely solely on a cold record to
assess Flores’s credibility because she was able to assess Flores’s
demeanor throughout his testimony. Indeed, nothing in the record
suggests otherwise. Additionally, the juror had the surveillance
video, which captured the incident, to evaluate the witnesses’
descriptions and Graciano’s defense.
¶ 39 Finally, to the extent Graciano challenges the court’s remedy
of reading the transcript of Flores’s cross-examination to the jury,
we discern no abuse of discretion. “A mistrial is a drastic remedy
that is warranted only when the prejudice to the accused is so
substantial that its effect on the jury cannot be remedied by other
means.” People v. Cousins, 181 P.3d 365, 373 (Colo. App. 2007)
(quoting People v. Dore, 997 P.2d 1214, 1221 (Colo. App. 1999)).
The court stated that the brief portion of cross-examination that the
17 juror missed did not contain any substantial testimony. We agree
and note that Graciano has not identified any specific responses
that were not heard by the juror either during testimony or in the
read-back transcript that demonstrate prejudice. Accordingly, we
discern no obvious or substantial constitutional violation in the
court’s remedy.
IV. Closing Arguments
¶ 40 Graciano next contends that the prosecution
unconstitutionally shifted the burden of proof to him by telling the
jury to “demand” more evidence of self-defense during closing
arguments. We conclude reversal is not warranted.
A. Applicable Law and Standard of Review
¶ 41 “Whether a prosecutor’s statements constitute misconduct is
generally a matter left to the trial court’s discretion.” Domingo-
Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We will not
disturb the trial court’s rulings regarding such statements absent
an abuse of that discretion. People v. Strock, 252 P.3d 1148, 1152
(Colo. App. 2010), overruled in part by, People v. Kennedy, 2025 CO
63.
18 ¶ 42 When reviewing claims of prosecutorial misconduct, such as
whether the prosecutor’s statement lowered the burden of proof, we
conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
Second, if the comments were improper, we evaluate whether they
warrant reversal according to the proper standard of review. Id. In
conducting this analysis, we consider the prosecutor’s statement(s)
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.
¶ 43 Closing arguments cannot be used to mislead or unduly
influence the jury. Domingo-Gomez, 125 P.3d at 1049. A
prosecutor may not, for example, intentionally misstate the
evidence, attempt to inflame the jurors’ passions, or offer a personal
opinion as to the defendant’s guilt. See id.
¶ 44 We determine if reversal is necessary under the
nonconstitutional harmless error standard. See Hagos, ¶ 12
(reversal required if the error substantially influenced the verdict or
affected the fairness of the trial proceedings).
19 B. Analysis
¶ 45 During closing, the prosecutor told the jury the following:
Let me be clear, the burden is ours. The burden is mine to prove this charge beyond a reasonable doubt and I embrace that burden and I’ve met that burden. But if the defense is going to give you a theory of defense, which they have in their instructions, you should demand more evidence from them.
Defense counsel objected to the statement and argued that it
violated Graciano’s due process rights by shifting the burden to the
defense. The trial court overruled the objection without discussion.
¶ 46 We agree with Graciano that the argument was improper.
Nevertheless, we conclude that the error was harmless and did not
ultimately shift the burden of proof, for two reasons.
¶ 47 First, immediately preceding the misstatement, the prosecutor
told the jury she had the burden of proof beyond a reasonable
doubt. This comported with the written jury instructions reiterating
that burden and instructing the jury that the prosecution had the
burden of disproving the element of self-defense. When considered
together, we conclude the written and oral jury instructions
concerning the burden of proof rendered the court’s error in failing
to sustain the objection to the improper argument harmless. We
20 assume, absent contrary evidence, that the jury understood and
correctly applied the court’s instructions. People v. Abdulla, 2020
COA 109M, ¶ 58.
¶ 48 Second, the statement occurred only once during closing
arguments, so this fleeting statement did not prejudice Graciano,
nor does the record evidence any bad faith. Cf. People v. Kern, 2020
COA 96, ¶ 16 (relatively brief and vague references were harmless).
Accordingly, we conclude that any error was harmless. See People
v. Delsordo, 2014 COA 174, ¶ 7.
V. Habit Evidence
¶ 49 Graciano next contends that the court violated his right to a
fair trial by admitting evidence that he always carried a knife. We
are not persuaded.
¶ 50 Before trial, the prosecution informed defense counsel that it
intended to introduce evidence that Graciano habitually carried a
knife, under CRE 406, and argued that it was “neither a bad act
[n]or a good act. It’s just something he does out of habit. . . [, and]
it’s not implicitly a bad act.” Defense counsel objected, and the trial
21 court ordered defense counsel to file a written motion with
supporting case law and argument.
¶ 51 Defense counsel never filed a motion and instead orally argued
in limine that the evidence was irrelevant. The trial court then
asked the prosecution to lay a foundation for the habit evidence.
The prosecution responded that Flores had personal knowledge that
Graciano habitually carried a knife by virtue of being his family
member. The trial court found that Flores’s personal knowledge
was a sufficient foundation and admitted the evidence of Graciano’s
habitual carrying of a knife under CRE 406. The court also told
defense counsel that they could object to the evidence during trial.
¶ 52 On direct examination, the prosecution asked Flores whether
he had “any personal knowledge as to whether or not the defendant
ha[d] particular habits as far as carrying any weapons?” Defense
counsel objected and argued lack of foundation, and the trial court
overruled the objection. Flores said he knew that Graciano “always
carr[ied] a knife with him.” Flores also stated that Graciano was
“somebody that don’t have no kind of integrity, loyalty, respect.”
The prosecutor interrupted Flores and stated, “Let me stop you
22 right there.” The court struck Flores’s statement and instructed the
jury to disregard it.
¶ 53 We review a trial court’s evidentiary rulings for abuse of
discretion. Nicholls v. People, 2017 CO 71, ¶ 17. A trial court
abuses its discretion only when its ruling is manifestly arbitrary,
unreasonable, or unfair. Id.
¶ 54 To be admissible, evidence must be relevant. CRE 401.
Evidence is relevant when it has “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.” Id.
¶ 55 Habit evidence is admissible to prove that a person’s conduct
on a particular occasion was in conformity with their habit or
routine practice. CRE 406; People v. T.R., 860 P.2d 559, 562 (Colo.
App. 1993). CRE 406 provides that “[e]vidence of the habit of a
person . . . , whether corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove that the conduct of
the person . . . on a particular occasion was in conformity with the
habit or routine practice.” A habit “‘denotes one’s regular response
23 to a repeated situation’ and ‘is the person’s regular practice of
responding to a particular kind of situation with a specific type of
conduct.’” People v. Trujillo, 2015 COA 22, ¶ 10 (citation omitted).
For example, “a person may be in the habit of bounding down a
certain stairway two or three steps at a time, of patronizing a
particular pub after each day’s work, or of driving his automobile
without using a seatbelt.” 1 Kenneth S. Broun et al., McCormick On
Evidence § 195, Westlaw (Robert P. Mosteller ed., 9th ed. database
updated Feb. 2025) (McCormick On Evidence). The “doing of the
habitual act may become semi-automatic, as with a driver who
invariably signals before changing lanes.” Id.
¶ 56 In contrast, character evidence is a “generalized description of
a person’s disposition, or of the disposition in respect to a general
trait, such as honesty.” Trujillo, ¶ 11 (quoting McCormick On
Evidence § 195).
¶ 57 As best we can discern, Graciano argues that habit evidence
must constitute a response to a certain stimulus, and the fact there
was no stimulus renders Graciano’s habit of always carrying knife
24 as improper character evidence. We reject this argument for two
reasons.
¶ 58 First, the plain language of CRE 406 does not require that
habitual conduct be in response to a particular stimulus but,
instead, simply requires that a person’s conduct on a particular
occasion conform with their habit. Moreover, Graciano has not
cited any authority stating that the absence of such a stimulus
transforms the conduct into character evidence. For example, one’s
habit of driving the same route home from work every day occurs
without a particular stimulus and does not constitute character
evidence. See McCormick On Evidence § 195. We also note that
before trial, the trial court denied the prosecution’s motion to
introduce evidence of two prior violent incidents involving Graciano
and Flores, under CRE 404(b).
¶ 59 Second, habit evidence is admissible to prove that the conduct
of a person on a particular occasion was in conformity with the
habit. Character evidence, however, is not admissible for the
purpose of proving that a person acted in conformity with his or her
character on a particular occasion. CRE 404(a); see People v.
Ayala, 919 P.2d 830, 832 (Colo. App. 1995). We conclude that the
25 act of carrying a knife does not in and of itself constitute a bad act
or describe any general character trait. Indeed, many people of
good character regularly carry knives. Here, the prosecutor laid a
proper foundation and offered the evidence to rebut Graciano’s self-
defense theory, not to prove Flores’s state of mind or to impugn
Graciano’s character. While minimally relevant, the fact that Flores
knew Graciano always carried a knife made it less likely that Flores
used unlawful physical force against Graciano.
¶ 60 Further, we note that defense counsel made a foundation
objection, not a character evidence or relevance objection. And this
evidence is distinguishable from the prior acts of Graciano’s
aggressiveness that the court excluded under CRE 404(b). Absent
those facts, it is far less likely that the jury perceived Graciano as a
bad person, particularly when the evidence showed that an
argument preceded the showing of the knife.
¶ 61 To the extent that Graciano argues that Flores crossed the line
and testified about his character when he blurted out that he did
not want to be around people like Graciano, we conclude any
prejudice was cured because the trial court instructed the jury to
disregard the statement. Absent contrary evidence, we presume the
26 jury understood and followed this instruction. See Abdulla, ¶ 58
(“[W]e employ the presumption that the jury understands and
applies the given instructions unless a contrary showing is made
. . . .”)
VI. Jury Instruction
¶ 62 Graciano next contends that the trial court plainly erred by
instructing the jury on the provocation and initial aggressor
exceptions to self-defense. We are not persuaded.
A. Standard of Review and Applicable Law
¶ 63 We review jury instructions de novo to determine whether the
instructions 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 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).
¶ 64 Because the issue is unpreserved, we review for plain error.
See People v. Leyba, 2019 COA 144, ¶ 55, aff’d, 2021 CO 54.
27 Reversal under this standard requires that the error be obvious and
so undermine the fundamental fairness of the trial as to cast
serious doubt on the reliability of the judgment of conviction. See
Hagos, ¶ 14.
¶ 65 A trial court has a duty to correctly instruct the jury on all
matters of law for which there is sufficient evidence to support
giving instructions. People v. Knapp, 2020 COA 107, ¶ 20.
However, a court shouldn’t instruct the jury “on abstract principles
of law unrelated to the issues in controversy, nor . . . on doctrines
or principles which are based upon fanciful interpretations of the
facts unsupported by the record.” Castillo, ¶ 34 (quoting People v.
Alexander, 663 P.2d 1024, 1032 (Colo. 1983)). Thus, a trial court
must determine whether there is sufficient evidence to warrant a
jury instruction as to a defense and any exceptions to that defense.
Id.
¶ 66 A person is justified in using physical force upon another
person “in order to defend himself . . . from what he reasonably
believes to be the use or imminent use of unlawful physical force by
that other person.” § 18-1-704(1), C.R.S. 2025.
28 ¶ 67 When properly raised, the prosecution must disprove beyond a
reasonable doubt the existence of self-defense. Castillo, ¶ 39. One
way for the prosecution to meet that burden is to prove that an
exception to self-defense applies. Id. at ¶ 40. Initial aggressor and
provocation are two such exceptions.
¶ 68 A defendant may be the initial aggressor if they “initiated the
physical conflict by using or threatening the imminent use of
unlawful physical force.” Id. at ¶ 41 (citation omitted). A court may
give an initial aggressor instruction “if the evidence will support a
reasonable inference that the defendant initiated the physical
conflict by using or threatening the imminent use of unlawful
physical force.” People v. Griffin, 224 P.3d 292, 300 (Colo. App.
2009).
¶ 69 Under the provocation exception to self-defense, a defendant is
“not justified in using physical force” against another person if the
defendant, “[w]ith intent to cause bodily injury or death to another
person, . . . provokes the use of unlawful physical force by that
other person.” § 18-1-704(3)(a).
¶ 70 When a court instructs the jury on an exception to self-
defense, that exception must be “supported by some evidence.”
29 Galvan v. People, 2020 CO 82, ¶ 25. This is a low burden that
requires the proponent to produce a scintilla or small quantum of
evidence. Id. at ¶ 24.
B. Analysis
¶ 71 We discern no error in the court’s instructions, for two
¶ 72 First, some evidence supported the prosecution’s theory that
Graciano was the initial aggressor. Flores testified that Graciano
was the initial aggressor. The surveillance footage also shows that
Graciano pushed Flores first as Flores was exiting the store.
Therefore, the video evidence alone provides more than a scintilla of
evidence that Graciano was the initial aggressor. See People v.
Newell, 2017 COA 27, ¶ 28 (If “the prosecution has offered evidence
that the defendant was the initial aggressor, the jury should be
provided with the . . . initial aggressor exception[] and be permitted
to weigh the evidence to decide whether self-defense has been
disproved.”).
¶ 73 Second, we reach the same conclusion as to provocation. See
Knapp, ¶ 23; see also Silva, 987 P.2d at 914 (“In order to warrant
the giving of [a provocation] instruction, the prosecution has the
30 burden of establishing that the defendant intended to harm the
victim and that he . . . intended the provocation to goad the victim
into attacking him . . . as a pretext for injuring or killing the
victim.”). Here, viewing the evidence in the light most favorable to
giving the provocation instruction, see Silva, 987 P.2d at 914, we
conclude some evidence supported the provocation exception.
Flores’s testimony and the video evidence show that Graciano
provoked Flores by shoving him as Flores was walking out the door
and that the two argued outside the store before Flores attempted
to kick Graciano. The prosecution argued that if a kick occurred, it
was provoked by Graciano’s shove and verbal threats, and we
cannot say at what point the jury concluded that Graciano had
menaced Flores. See Galvan, ¶ 25 (The court “should instruct the
jury on the provocation exception or any other exception to that
defense if the exception is supported by some evidence.”).
¶ 74 Accordingly, we discern no error in the court’s self-defense
instruction and conclude it is supported by the evidence.
VII. Cumulative Error
¶ 75 The cumulative error doctrine applies when “the cumulative
effect of [multiple] errors and defects substantially affected the
31 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)).
¶ 76 However, because we have found only one error and have
concluded that error was harmless, 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).
VIII. Disposition
¶ 77 The judgment is affirmed.
JUDGE BROWN and JUDGE SCHUTZ concur.