Peo v. Green

• Court: Colorado Court of Appeals
• Decided: February 12, 2026
• Docket: 23CA1305
• Status: Unpublished

Opinion

23CA1305 Peo v Green 02-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1305 Douglas County District Court No. 22CR952 Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael Lyne Green,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE HARRIS Schock, J., concurs Taubman*, J., concurs in part and dissents in part

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 12, 2026

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Michael Lyne Green, appeals the judgment of

conviction entered on jury verdicts finding him guilty of

misdemeanor possession of a controlled substance and felony

aggravated motor vehicle theft.

¶2 We reject the only argument implicating the drug possession

conviction and therefore affirm that conviction. But we agree that

the trial court erred by admitting extensive CRE 404(b) evidence at

Green’s trial without conducting the proper analysis, so we reverse

the motor vehicle theft conviction and remand for a new trial.

I. Background

¶3 Green and two other men were in a Kohl’s store when Lyndia

High, the store’s loss prevention supervisor, observed them on the

store’s surveillance system engaging in behaviors that she thought

were consistent with shoplifting. She called the police.

¶4 Before the police arrived, High rewound the surveillance video

to track the group’s path from a car in the parking lot to the store

entrance. Using the camera’s zoom feature, she saw a man in a

blue sweatshirt exit the driver’s side of the car and two other men,

one in a white sweatshirt and one in a black jacket, get out of the

car from the passenger side. Following her review of the

1 surveillance footage, High gave the police dispatcher a physical

description of the men and told the dispatcher that they had arrived

in a silver sedan parked in the store’s lot.

¶5 When the police arrived, they located the silver Kia sedan and

ran the car’s Florida license plate number. The search revealed no

vehicle information associated with that license plate number, so

officers ran the vehicle identification number (VIN) and discovered

that the Kia was registered in Tennessee and had been reported

stolen in Arvada. Based on this information, the officers blocked

the Kia with their patrol cars, and one officer searched the car.

¶6 The Kia’s ignition was damaged. The officer saw a flathead

screwdriver in the center console. He also found a key in the

console, but the key did not start the Kia. The officer deduced that

the driver of the Kia had used the flathead screwdriver to start the

car. The officer removed the Florida license plate and discovered

the Tennessee license plate matching the Kia’s VIN underneath.

2 ¶7 While that officer searched the car, other officers entered

Kohl’s to contact the suspected shoplifters whom High had

connected to the stolen Kia.1

¶8 The man in the blue sweatshirt was identified as Green.

Officers searched Green and found a Dodge car key, two glass

pipes, and a small white rock, later identified as cocaine, in his

pockets. They also reviewed the security footage High had used to

connect the three men to the Kia. Green was arrested and charged

with aggravated motor vehicle theft and unlawful possession of a

controlled substance.

¶9 On the first day of trial, defense counsel moved to exclude any

evidence that police had been called to Kohl’s to investigate

suspected shoplifting. Defense counsel contended that the evidence

was extrinsic to the charged offenses, constituted impermissible

character evidence under CRE 404(b), lacked probative value, and

was unduly prejudicial under CRE 403. The prosecutor argued

that the evidence of the suspected shoplifting was “important and

1 While police were checking the license plate information on the

Kia, one of the three men High had identified as a suspected shoplifter left Kohl’s and fled on foot. Police searched the area but were unable to locate or identify him.

3 relevant . . . to give the jury complete context of the facts in this

case” and to explain why police had responded to Kohl’s. The trial

court denied defense counsel’s motion without explanation.

¶ 10 The prosecutor began her opening statement by explaining

that High had suspected Green and the other men of shoplifting.

High testified about the suspected shoplifting, as did three police

officers. The suspected shoplifting conduct was also depicted in

several video and photo exhibits. One exhibit, narrated by High

during her testimony, was a five-minute video of the inside of Kohl’s

that showed the three men walking into the store and then

engaging in suspected shoplifting.

¶ 11 The prosecution presented its evidence in one day. At the

conclusion of the trial, the jury returned guilty verdicts on both

charges. The jury also determined, based on the value of the Kia,

that the aggravated motor vehicle theft was a class 5 felony. The

trial court subsequently found that Green had two prior motor

vehicle theft convictions that were separately brought and tried,

which elevated the aggravated motor vehicle theft conviction to a

class 3 felony. The trial court sentenced Green to six years in

prison.

4 II. Analysis

¶ 12 We begin with Green’s challenge to the 2022 model criminal

jury instruction on reasonable doubt, the only issue on appeal that

applies to the drug possession conviction as well as the motor

vehicle theft conviction.2 Because we reject that challenge, we

affirm the drug possession conviction. From there, we turn to

Green’s claim concerning the admission of CRE 404(b) evidence.

Because we agree that the court erred in admitting the evidence

without conducting the proper analysis or giving a limiting

instruction, we reverse the motor vehicle theft conviction and

remand for a new trial. Last, we address the one issue likely to

arise on remand.

A. Jury Instruction on Reasonable Doubt

¶ 13 Before 2022, the Colorado model criminal jury instructions

defined reasonable doubt as follows:

2 Aside from a brief reference in the background section of the forty-

five-page opening brief, Green never mentions the drug possession conviction, nor does he present any argument concerning that conviction. To the extent he intended his other arguments to apply to the drug conviction, he does not explain the connection. Accordingly, the arguments are too undeveloped to permit review. See People v. Stone, 2021 COA 104, ¶ 52 (explaining that the appellate court will not address undeveloped arguments).

5 Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

COLJI-Crim. E:03 (2021).

¶ 14 In 2022, the model instruction was substantially revised:

Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty,

6 then the prosecution has failed to prove the crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.

After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022).

¶ 15 Over Green’s objection, the court instructed the jury on

reasonable doubt using the 2022 version of the model instruction

rather than the prior version.

¶ 16 Green contends that the 2022 instruction impermissibly

lowered the prosecution’s burden of proof, undercut the

presumption of innocence, and shifted the burden of proof to him.

We disagree.

1. Legal Principles and Standard of Review

¶ 17 The trial court must properly instruct the jury on the

reasonable doubt standard. Tibbels v. People, 2022 CO 1, ¶ 25.

Whether the court’s instruction lowered the prosecution’s burden of

proof is a question of law that we review de novo. Id. at ¶ 22. “An

7 instruction that lowers the prosecution’s burden of proof below

reasonable doubt constitutes structural error and requires

automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8.

2. Application

¶ 18 While Green’s appeal was pending, three divisions of this court

considered similar challenges to the 2022 model reasonable doubt

instruction. See People v. Melara, 2025 COA 48, ¶¶ 22-23; People v.

Schlehuber, 2025 COA 50, ¶¶ 16-17; People v. Berumen, 2025 COA

93, ¶ 14. In all three cases, the majority opinions concluded that

the 2022 instruction did not lower the prosecution’s burden of proof

below the reasonable doubt standard. Melara, ¶ 24; Schlehuber,

¶ 20; Berumen, ¶ 21. We agree with those majority opinions and

adopt their reasoning to resolve Green’s arguments.

¶ 19 First, the 2022 model instruction’s omission of the specific

language directing the jury that it may consider “the lack of

evidence” does not lower the prosecution’s burden of proof because

the instruction as a whole informs the jury that “if the prosecution

fails to present sufficient evidence of guilt, it will not have met its

burden.” Schlehuber, ¶ 22; see also Melara, ¶ 24; Berumen, ¶ 33.

8 ¶ 20 Next, though the “hesitate to act” phrase was previously

approved by Colorado courts, Green does not explain why the

deletion of that phrase lowers the prosecution’s burden of proof.

Moreover, we reject Green’s contention that “the jury was left

without anything tangible to understand the concept of ‘reasonable

doubt’” by the omission of this phrase, as the instruction as a whole

renders the concept sufficiently concrete. We agree with the

Schlehuber division that omission of the phrase clarifies the

reasonable doubt standard by discouraging courts from using

analogies to explain it. See Schlehuber, ¶ 27.

¶ 21 Finally, defining proof beyond a reasonable doubt as proof that

leaves jurors “firmly convinced” of the defendant’s guilt and

reasonable doubt as “a real possibility that the defendant is not

guilty” does not lower the prosecution’s burden of proof. COLJI-

Crim. E:03 (2022). “The phrase ‘firmly convinced’ correctly

connotes a standard of ‘near certitude,’” Schlehuber, ¶ 31 (quoting

Jackson v. Virginia, 443 U.S. 307, 315 (1979)), while the phrase

“real possibility” correctly requires the prosecution to dispel any

legitimate possibility the defendant is not guilty, “not just a serious

or substantial one,” id. at ¶ 32. And like the Berumen majority, we

9 disagree that the use of the phrase “real possibility” “warrants

reversal because courts in other jurisdictions have criticized or

rejected similar language.” Berumen, ¶ 23.

¶ 22 We acknowledge that Judge Berger’s partial dissent in

Berumen raises legitimate concerns about the use of the “real

possibility” language but, ultimately, we agree with the Berumen

majority that the use of that phrase, when considered in context

and as a part of the instructions as a whole, does not shift the

prosecution’s burden. Id. at ¶¶ 26-30; see id. at ¶¶ 60-79 (Berger,

J., concurring in part and dissenting in part). And we echo Judge

Berger’s observation that, should they share his concerns about the

revised model instruction, trial courts retain discretion to use the

well-tested 2021 model instruction while the revised model

instruction is under review by our supreme court.3 Id. at ¶ 78 &

n.5 (Berger, J., concurring in part and dissenting in part).

3 The Colorado Supreme Court has granted certiorari in Teran-

Sanchez v. People, (Colo. No. 25SC148, Sep. 2, 2025) (unpublished order), to address whether the definition of reasonable doubt in the revised model instruction violates a defendant’s rights to due process and a fair trial.

10 ¶ 23 Considering the reasonable doubt instruction as a whole, we

perceive no cumulative error because there is not a reasonable

likelihood that the instruction would “allow a conviction based on a

standard lower than beyond a reasonable doubt.” Schlehuber, ¶ 35

(quoting Tibbels, ¶ 36).

¶ 24 Accordingly, we discern no error in the court’s decision to give

the 2022 model instruction. Because Green’s challenge to the 2022

model instruction is the only claim of error related to his

misdemeanor drug conviction, and the trial court did not err by

giving that instruction to the jury, we affirm the misdemeanor

conviction.

B. Admission of Suspected Shoplifting Evidence

¶ 25 Green contends that the trial court erred by admitting

evidence of the suspected shoplifting without conducting the

required CRE 404(b) analysis or issuing a limiting instruction. We

agree.

¶ 26 Admission of uncharged misconduct evidence — often referred

to as “other acts evidence” — is restricted under the rules of

evidence because of its potential to unfairly prejudice a defendant.

11 Perez v. People, 2015 CO 45, ¶ 24. CRE 404(b)(1) prohibits the

admission of such evidence if offered to prove a person’s character

and to show that the person acted in conformity with a character

trait on a particular occasion — often described as “a propensity to

commit the charged offense.” Rojas v. People, 2022 CO 8, ¶ 52.

¶ 27 Nonetheless, under the now-defunct res gestae doctrine,

courts would frequently admit evidence of the defendant’s prior

misconduct related to the charge on trial to “provide the fact-finder

with a full and complete understanding of the events surrounding

the crime and the context in which the charged crime occurred.”

People v. Skufca, 176 P.3d 83, 86 (Colo. 2008) (citation omitted),

abrogated in part by, Rojas, ¶ 33. But because res gestae became a

convenient way to “‘short-circuit[] the evaluation called for in Rule

404(b)’ analysis,” Rojas, ¶ 37 (citation omitted), permitting the

introduction of otherwise inadmissible character evidence, the

supreme court abolished the res gestae doctrine and adopted a new

framework for determining when CRE 404(b) governs the admission

of other acts evidence, id. at ¶¶ 3-4, 41, 43.

¶ 28 To determine whether CRE 404(b) is triggered, a court must

first assess if the evidence is intrinsic or extrinsic to the charged

12 offense. Id. at ¶ 52. “Intrinsic acts are those (1) that directly prove

the charged offense or (2) that occurred contemporaneously with

the charged offense and facilitated the commission of it.” Id.

“Evidence of acts that are intrinsic to the charged offense are

exempt from Rule 404(b) because they are not ‘other’ crimes,

wrongs, or acts.” Id.

¶ 29 If the evidence is not intrinsic, then it is extrinsic. Id. at ¶ 44.

And if the extrinsic evidence suggests bad character, it is

admissible only if it satisfies the test articulated in People v. Spoto,

795 P.2d 1314, 1318 (Colo. 1990). Rojas, ¶ 52. Under this test, a

trial court must find that the evidence (1) “relates to a material

fact”; (2) is “logically relevant”; (3) has such relevance “independent

of the intermediate inference, prohibited by CRE 404(b), that the

defendant has a bad character” and acted in conformity therewith;

and (4) satisfies CRE 403 by having probative value that is not

“substantially outweighed by the danger of unfair prejudice.” Spoto,

795 P.2d at 1318. If a trial court determines that the evidence is

admissible under CRE 404(b), “the court must also, upon request,

contemporaneously instruct the jurors of the limited purpose for

which the evidence may be considered.” Rojas, ¶ 27.

13 ¶ 30 Trial courts have substantial discretion in deciding whether to

admit other acts evidence. Perez, ¶ 22. We review the trial court’s

ruling for an abuse of discretion, and we will not disturb the

decision unless it was manifestly arbitrary, unreasonable, or unfair.

Id. Because Green preserved his claim, if we conclude that the

court abused its discretion, we must reverse his conviction unless

the error was harmless, meaning “there is no reasonable

probability, or possibility, that it contributed to the defendant’s

conviction.” People v. Roman, 2017 CO 70, ¶ 13 (footnote omitted)

(citing Crider v. People, 186 P.3d 39, 42-43 (Colo. 2008)).

¶ 31 Green argues that the evidence that he was suspected of

shoplifting was extrinsic to the charged crimes, and therefore, the

trial court erred by admitting the evidence without conducting a

Spoto analysis or issuing a limiting instruction. The People contend

that the evidence was either intrinsic and admissible under CRE

401 and 403, or it was extrinsic but nonetheless admissible under

Spoto, and, regardless, any error in admitting the evidence was

harmless. We agree with Green.

14 ¶ 32 At trial, the prosecutor argued that because the shoplifting

evidence “provide[d] complete context” for the jury, CRE 404(b) did

not apply. To the extent the court adopted that position, it erred.

See Rojas, ¶ 38 (“The ‘completing the story’ rationale to admit other-

acts evidence ‘create[s] the greatest risk of subverting the

limitations that ought to apply whenever the jury is informed of a

person’s uncharged wrongdoing.’” (quoting David P. Leonard, New

Wigmore on Evidence: Evidence of Other Misconduct § 5.3.2 (2d ed.

Supp. 2020))). However, because the trial court denied Green’s

motion without explanation, we do not know the basis of its

decision. In other words, it might have concluded that, for some

other reason, the evidence was not subject to CRE 404(b).

Therefore, we turn to that issue.

¶ 33 As required by Rojas, we first consider whether the evidence of

suspected shoplifting is intrinsic or extrinsic to the charged offense

of aggravated motor vehicle theft. Id. at ¶ 52.

¶ 34 The People argue that the evidence is intrinsic to the charged

offense, on the theory that Green’s “intent to shoplift at Kohl’s

facilitated [aggravated motor vehicle theft] because shoplifting

15 motivated him to get in the car and drive it to Kohl’s.” We reject

that argument.

¶ 35 To “facilitate” means to “make the commission of (a crime)

easier.” Black’s Law Dictionary 732 (12th ed. 2024). Green’s

suspected shoplifting did not make the alleged theft of the Kia

easier. Indeed, the suspected shoplifting occurred after the alleged

theft of the Kia was completed, which also demonstrates the two

acts were not contemporaneous. Perhaps, under different

circumstances, the inverse argument could be made — that the

alleged theft of the Kia facilitated the shoplifting. But under these

circumstances, the suspected shoplifting could not have facilitated

the earlier theft of a car.

¶ 36 We therefore conclude that the shoplifting evidence was

extrinsic to the charged offense. And because the shoplifting

evidence suggested Green had bad character and a propensity to

steal (i.e., to commit the charged crime of aggravated motor vehicle

theft), CRE 404(b) governed the admission of the evidence.

¶ 37 The trial court, however, did not conduct the required Spoto

analysis before admitting the suspected shoplifting evidence. The

16 failure to conduct the analysis amounts to an abuse of discretion.

Rojas, ¶ 54.

¶ 38 The People invite us to perform the required Spoto analysis for

the first time on appeal, but we decline that invitation. For one

thing, that is not the approach the supreme court took in Rojas.

See id. at ¶¶ 54-55 (proceeding directly to a harmlessness analysis

after concluding that the trial court abused its discretion by failing

to conduct a Spoto analysis). But more importantly, the sheer

volume and disparateness of the admitted CRE 404(b) evidence

complicates the endeavor. It is possible that some evidence of

Green’s suspected shoplifting activity is admissible for a non-

propensity purpose, but the trial court must sift through the

proffered evidence and weigh its probative value against the

prejudicial effect, particularly in the aggregate. And if such

evidence is admitted, it must be admitted with the “accompanying

procedural safeguards” required by CRE 404(b). Id. at ¶ 54.

¶ 39 What we can say with no trouble is that the court’s error in

admitting all of the shoplifting evidence was not harmless. The

issue at trial was whether Green had stolen the Kia. His defense

was identity — he claimed that he was not the driver and had not

17 knowingly obtained or exercised control over the car. See § 18-4-

409(2), C.R.S. 2022.

¶ 40 Notwithstanding the elements of the charged offense and

Green’s defense, the court admitted extensive evidence that Green

was potentially stealing from a store on the night he was arrested

for stealing a car. Of the seven witnesses who testified, four

mentioned the suspected shoplifting conduct. The prosecution’s

first witness narrated a five-minute video that showed nothing more

than Green and two others engaging in conduct consistent with

shoplifting. Three police officers mentioned that they were

dispatched to the store based on a report that three men were

“going to conduct a run-out” from the store. All of this evidence

was presented during what was effectively a one-day trial. Cf.

Howard-Walker v. People, 2019 CO 69, ¶ 40 (where “entire trial

itself lasted less than nine hours (excluding voir dire and jury

deliberations),” the impact of the errors was “compound[ed]”).

¶ 41 And even if, as we have noted, some of this evidence might

have been admissible under CRE 404(b), “the absence of a limiting

instruction permitted the jury to misuse the evidence.” Rojas, ¶ 56.

The People contend that a limiting instruction was unnecessary

18 because Green failed to request one. But in this case, the court

apparently agreed with the prosecution that CRE 404(b) did not

apply and admitted the evidence without conducting the proper

analysis. Under the circumstances, Green did not have a basis to

request a CRE 404(b) limiting instruction. See Rojas, ¶ 27

(explaining that if a court finds evidence admissible under CRE

404(b), then it must consider any request for a limiting instruction).

¶ 42 We likewise disagree with the People’s position that any error

was harmless given the overwhelming evidence of guilt. The

evidence the People rely on is evidence that the Kia was stolen —

the license plate and VIN search revealed that the Kia was reported

stolen, the ignition was “punched,” a flathead screwdriver

(apparently used to start the car) was located in the center console,

the key in the center console did not start the car, and the Florida

license plate displayed on the Kia was covering the registered

Tennessee plate. But the fact that the Kia was stolen was not

seriously in dispute. And none of that evidence connects the stolen

Kia to Green.

¶ 43 The only evidence connecting Green to the Kia was the Kohl’s

surveillance footage, taken together with High’s and the testifying

19 officers’ interpretation of that footage. By their accounts, the

footage was grainy, taken from a distance, included rows of cars

surrounding the Kia, and featured a tree obstructing the view of the

Kia’s windshield, blocking the view of anything or anyone inside the

car. Indeed, Green’s theory of defense focused on the inadequacies

of the video evidence, including that the footage did not show the

Kia arriving to the parking lot and that the footage was nearly

indecipherable because of poor picture quality.

¶ 44 True, High and the officers testified that, using a special

feature only available in the loss prevention office, they viewed a

magnified version of the footage that showed Green emerge from the

driver’s side of the Kia. The jury could have credited those

witnesses’ out-of-court perceptions. But if it did not, then it had to

rely on the less sophisticated, lower-quality version of the footage

admitted at trial, and the jury might not have found that version

particularly elucidating. Given those options available to the jury

and the absence of any other evidence connecting Green to the Kia,

we cannot say that the evidence that Green stole the car was

overwhelming.

20 ¶ 45 Rather, we think there is a reasonable possibility that

admitting the extensive shoplifting evidence, “without any [CRE]

404(b) safeguards, affected the fairness of the trial by allowing the

jury to convict [Green] based on implied propensity” — he is a thief

who steals from stores; therefore, he likely stole the car. Id. at ¶ 56;

see Roman, ¶ 13. In other words, we conclude that the erroneously

admitted evidence might well have “tipped the scales” in favor of the

prosecution. Yusem v. People, 210 P.3d 458, 470 (Colo. 2009); see

also People v. Jefferson, 2014 COA 77M, ¶¶ 27-30 (trial court’s

evidentiary error was not harmless where alleged victim’s credibility

was main issue at trial, evidence of guilt was not overwhelming, and

prosecution emphasized the evidence during trial), aff’d, 2017 CO

35. Accordingly, we conclude that the trial court’s error was not

harmless.

21 C. “Punched” Ignition Testimony

¶ 46 Because the issue is likely to arise on remand,4 we briefly

address Green’s contention that an officer’s testimony about

“punched” ignitions amounted to improper expert testimony.

¶ 47 “Under CRE 701, lay witness opinion testimony must be

(1) rationally based on the witness’ perception; (2) ‘helpful to a clear

understanding of the witness’ testimony or the determination of a

fact in issue’; and (3) ‘not based on scientific, technical, or other

specialized knowledge within the scope of [CRE] 702.’” People v.

Williams, 2025 COA 26, ¶ 30 (quoting CRE 701). Whether an

opinion is lay testimony under CRE 701 or expert testimony under

CRE 702 depends on the basis for the opinion. Venalonzo v. People,

2017 CO 9, ¶ 23.

4 We do not address Green’s remaining claims, as they are unlikely

to arise on remand in the same posture. For example, the Supreme Court’s intervening decision in Erlinger v. United States, 602 U.S. 821, 835 (2024), resolves Green’s challenge to the enhancement of his conviction from a class 5 felony to a class 3 felony. It is now clear that the jury must determine on remand whether Green’s prior convictions were “separately brought and tried.” § 18-4- 409(3)(b), C.R.S. 2022; see also People v. Gregg, 2025 CO 57, ¶ 24 (“[T]he question of separate and distinct criminal episodes demands a jury finding . . . .”).

22 ¶ 48 “Police officers’ testimony may sometimes walk a fine line

between lay and expert testimony.” Williams, ¶ 31 (citing People v.

Stewart, 55 P.3d 107, 123 (Colo. 2002)). “[I]f an ordinary person

could form the officer’s opinion using ‘a process of reasoning

familiar in everyday life, it is admissible as lay opinion evidence.’”

Id. (quoting People in Interest of D.I., 2015 COA 136, ¶ 29). “If, on

the other hand, the [officer] provides testimony that could not be

offered without specialized experiences, knowledge, or training, then

the [officer] is offering expert testimony.” Venalonzo, ¶ 16.

¶ 49 Green argues that the officer gave expert testimony about

punched ignitions in the guise of lay testimony. Some of the

officer’s testimony — including his observations about the ignition

appearing damaged and the presence of the screwdriver in the Kia

— was proper because it was based on his “perceptions and

experiences.” People v. Rincon, 140 P.3d 976, 982 (Colo. App. 2005)

(citation omitted). However, we caution that, on remand, the trial

court must carefully assess the basis of the officer’s opinion that

the Kia’s ignition was “punched” and that the screwdriver was used

to operate the Kia before admitting such testimony as lay testimony.

See Stewart, 55 P.3d at 124 (police officer with specialized training

23 may testify as a lay witness to observations and investigation at the

crime scene but may not testify about deductions regarding a car’s

speed, direction, and trajectory without being qualified as an expert

witness).

¶ 50 At trial, the officer testified that his knowledge of punched

ignitions and his ability to identify a punched ignition were gained

through his training and experience as a police officer, which is a

“hallmark” of expert testimony. People v. Ramos, 2012 COA 191,

¶ 18, aff’d, 2017 CO 6; see People v. Dominguez, 2019 COA 78, ¶ 42

(where officer’s opinion was expressly based on his training and

experience, it constituted an expert opinion). And we note that the

owner of the car was unfamiliar with the term “punched ignition.”

¶ 51 Therefore, if the issue arises on remand, the trial court should

parse the officer’s opinions to ensure that his testimony does not

cross the line into expert territory.

III. Disposition

¶ 52 The judgment of conviction for unlawful possession of a

controlled substance is affirmed. The judgment of conviction for

aggravated motor vehicle theft is reversed, and the case is

remanded for a new trial on that charge.

24 JUDGE SCHOCK concurs.

JUDGE TAUBMAN concurs in part and dissents in part.

25 JUDGE TAUBMAN, concurring in part and dissenting in part.

¶ 53 I agree with the majority’s reversal of the aggravated motor

vehicle theft conviction of defendant, Michael Lyne Green. However,

I dissent in part because I would reverse his drug possession

conviction and remand that charge for a new trial using a different

reasonable doubt instruction.

¶ 54 As the majority notes, the validity of the supreme court’s 2022

model criminal jury instruction on reasonable doubt has been

challenged in several cases, including one in which the supreme

court has granted certiorari. See supra ¶¶ 18, 22 n.3 (citing Teran-

Sanchez v. People, (Colo. No. 258SC148, Sep. 2, 2025) (unpublished

order)).

¶ 55 I write separately because I agree with Judge Berger’s

persuasive dissent in People v. Berumen, 2025 COA 93, ¶¶ 60-79,

___ P.3d ___ , ___ (Berger, J., concurring in part and dissenting in

part), that the third paragraph of the 2022 model jury instruction

on reasonable doubt impermissibly lowers the prosecution’s burden

of proof. That paragraph, in pertinent part, states, “[I]f you think

there is a real possibility that the defendant is not guilty, then the

26 prosecution has failed to prove the crime charged beyond a

reasonable doubt.” COLJI-Crim. E:03 (2022).

¶ 56 While the majority correctly notes that Judge Berger’s partial

dissent raises legitimate concerns and emphasizes that trial judges

are not required to use the 2022 model instruction, the trial court

did so here over Green’s objection. See supra ¶¶ 15, 22. Thus, the

possibility that a trial court may not use the 2022 model instruction

does not resolve the issue of its actual use here.

¶ 57 I agree with the majority’s rejection of Green’s other challenges

to the 2022 model instruction, but I believe that the use of the “real

possibility” language in that instruction is problematic. Instead of

providing clarity to jurors regarding the meaning of “reasonable

doubt,” this language creates ambiguity. That ambiguity is clearly

illustrated in this case by the prosecutor’s closing argument

explaining at length the meaning of “real possibility” without

emphasizing the prosecution’s burden of proof to establish guilt

beyond a reasonable doubt.

¶ 58 I believe that the 2022 model instruction was motivated by the

supreme court’s rejection of a hypothetical used by a trial judge in

Tibbels v. People, 2022 CO 1, ¶¶ 49-53, 501 P.3d 792, 801-02, to

27 explain the “hesitate to act” language in the previous model

instruction. Nevertheless, removal of the “real possibility” language

from the 2022 model jury instruction would simplify and clarify for

jurors the meaning of “proof beyond a reasonable doubt.”

¶ 59 Accordingly, I concur in part and dissent in part and urge the

supreme court to delete the “real possibility” language from the

2022 model instruction.