Peo v. Johnson

Opinion

23CA1002 Peo v Johnson 12-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1002 Jefferson County District Court No. 22CR328 Honorable Philip J. McNulty, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joshua Levi Johnson,

Defendant-Appellant.

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

Division VII Opinion by JUDGE TOW Moultrie and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 11, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, 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, Joshua Levi Johnson, appeals the judgment of

conviction entered after a jury found him guilty of attempted second

degree murder, second degree kidnapping, second degree assault,

third degree assault, menacing, and criminal mischief. We reverse

Johnson’s second degree kidnapping conviction and remand the

case to the district court for further proceedings consistent with

this opinion. We otherwise affirm the judgment.

I. Background

¶2 At trial, the prosecution presented evidence from which the

jury could find the following:

¶3 Johnson and Jacqueline Ramquist had been dating for a few

months and were living together at her apartment. One morning,

after staying up all night “partying and drinking,” they began to

argue. The argument turned physical when Johnson “backhanded”

Ramquist in the face.

¶4 Over the next two hours, Johnson continued to assault

Ramquist. During that time, Ramquist estimated that Johnson

strangled her approximately ten times; she lost consciousness each

time. At one point, Ramquist attempted to get up and leave the

apartment, but Johnson pulled her back from the front door by her

1 waist and dragged her ten feet into the bedroom, where he

continued to strangle and assault her.

¶5 In the bedroom, Johnson held a kitchen knife against

Ramquist’s neck and later, put a plastic bag over her head for a few

seconds while she was regaining consciousness. Eventually,

Ramquist feigned unconsciousness, Johnson picked her up and

“threw” her on the bed, and they both fell asleep. When Ramquist

woke up, Johnson was still asleep. She left the apartment and

drove herself to the hospital.

¶6 Johnson defended against Ramquist’s allegations by asserting

that he “did not assault [her], he did not strangle her, and he

certainly did not try to murder her.” In support of his theory of

defense, he presented evidence from a forensic medical examination

and strangulation expert who reviewed the police reports and the

forensic nurse examiner’s records and opined that “one can neither

confirm nor refute that [strangulation] took place.” The expert also

testified to the lack of bruises on Ramquist’s neck. Johnson also

presented testimony from the emergency room doctor who treated

Ramquist. The doctor testified that he did not observe any “hard

signs” of strangulation, such as bruising or swelling, and

2 Ramquist’s CT scan and CT angiogram returned normal results

with “[n]o evidence of injury.”

¶7 The jury found Johnson guilty of the lesser included offenses

of attempted second degree murder and misdemeanor menacing

but otherwise found him guilty as charged. The district court

imposed a controlling sentence of fifteen years in the custody of the

Department of Corrections for attempted second degree murder,

with shorter concurrent sentences on the remaining convictions.

II. Discussion

¶8 On appeal, Johnson contends that (1) the prosecutor

committed misconduct during voir dire and closing argument and

(2) the district court incorrectly instructed the jury on the meaning

of the “one place to another” element of second degree kidnapping.

We address each contention in turn.

A. Prosecutorial Misconduct

¶9 Johnson’s prosecutorial misconduct claim rests on the

premise that, during voir dire and closing argument, the prosecutor

explained the concept of “substantial step” by analogizing to a

fictional crime of attempt to bring coffee into the courtroom. We

discern no misconduct.

3 ¶ 10 During voir dire, the prosecutor introduced the concept of

criminal attempt liability to the prospective jurors by asking them

the following: “if it was a crime for me to bring my coffee into the

courtroom this morning, do you think I would have committed the

crime of attempting to do so by making it, putting it in a cup, [and]

putting it on the countertop?” The prosecutor discussed the

analogy with a couple of prospective jurors and then modified it and

asked the jurors what additional evidence they would be looking for

to find her guilty of the fictional crime:

What if I put someone on the stand and that person, for example, my partner, who lives at home with me, what if he told you, [I] said, before [I] left the house today, that [I] was going to drink this coffee in the courtroom, how would you feel then?

Later in voir dire, the prosecutor returned to the analogy:

So then, in this particular scenario, for example, maybe me on video saying that I was going to bring it into the courtroom, would that carry some additional weight?”

¶ 11 Johnson did not object.

¶ 12 During closing argument, the prosecutor read the statutory

definition of “substantial step” and told the jury,

4 So I want you to think about what we talked about in jury selection when I was asking whether or not you could find me guilty for attempting to bring my coffee into the courtroom. We talked about the idea of all the steps that I took in order to get ready to bring coffee in. We talked about how I made it, put it in a cup, put that cup on the counter so I wouldn’t forget it. We also talked about how, potentially, your testimony from a partner, my partner, saying that I would bring that coffee into the courtroom.

Those are all substantial steps. And like in this case, you can consider all of them towards whether or not I was guilty of that crime.

¶ 13 Johnson objected to the use of the analogy in closing

argument, but the district court overruled the objection. Without

discussing it further, the prosecutor turned to the substantial step

evidence that had been presented at trial related to the attempted

first degree murder charge.

1. Standard of Review

¶ 14 When reviewing claims of prosecutorial misconduct, we

determine whether the conduct was improper based on the totality

of the circumstances. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). In doing so, we evaluate claims of improper argument in the

5 context of the argument as a whole and in light of the evidence

before the jury. People v. Conyac, 2014 COA 8M, ¶ 132.

¶ 15 The parties disagree on the appropriate standard of review.

Johnson, asserting that the hypothetical violates due process,

submits that we should review this issue de novo, while the People

assert that our review is for an abuse of discretion. We agree with

the People. See Wend, 235 P.3d at 1097 (“A deferential standard of

review applies, but the analysis remains subject to the maxim that

‘the trial court is best positioned to evaluate whether any

statements made by counsel affected the jury’s verdict.’” (quoting

Domingo-Gomez v. People, 125 P.3d 1043, 1049-50 (Colo. 2005))).

2. Analysis

¶ 16 Johnson contends that the prosecutor’s analogy to the

fictional crime of “attempt to bring coffee in the courtroom” to

explain the concept of a “substantial step” lowered the prosecution’s

burden and misstated the law. We are not persuaded that the

analogy was improper.

¶ 17 While our supreme court has repeatedly cautioned courts and

prosecutors against using analogies to illustrate certain legal

concepts, see Tibbels v. People, 2022 CO 1, ¶ 25 (addressing

6 courts); see also People v. Vialpando, 2022 CO 28, ¶ 41 (addressing

prosecutors), not all analogies are improper, see Vialpando, ¶ 41;

see also People v. Sauser, 2020 COA 174, ¶ 89 (noting that a

prosecutor’s use of an analogy, without more, does not require

reversal). Indeed, case law dictates that prosecutors may properly

employ rhetorical devices and engage in oratorical embellishment

and metaphorical nuance. See, e.g., People v. Samson, 2012 COA

167, ¶ 31.

¶ 18 During voir dire, the prosecutor never referenced “substantial

step” or referred to the elements required to establish attempt

liability. Instead, the prosecutor’s analogy was offered in the form

of a series of questions, each time adding an additional fact to see if

it would change the prospective jurors’ view on whether the

prosecutor had committed the fictional offense. Because of this, the

jury was less likely to understand the analogy as an endorsement

by the prosecutor of any particular definition of substantial step.

See id. at ¶ 30 (“[B]ecause arguments delivered in the heat of trial

are not always perfectly scripted, reviewing courts accord

prosecutors the benefit of the doubt when their remarks are

ambiguous or simply inartful.”).

7 ¶ 19 During closing argument, the prosecutor told the jurors that

the steps she took — making the coffee, putting it in a cup, putting

the cup on the counter, and telling her partner that she would bring

the coffee into the courtroom — were “all substantial steps.” But

before using the analogy, the prosecutor correctly explained the

concept of substantial step to the jury. And after using the analogy

the prosecutor qualified her comments by telling the jurors that

they “could consider” (but were not required to consider) these facts

“towards whether or not [she] was guilty of that crime.”

¶ 20 In light of these facts, we conclude that the prosecutor’s

analogy was not a misstatement of the law, and it did not lower the

prosecution’s burden. Rather, the analogy was an effort to give

context to the concept of a “substantial step” toward the

commission of an offense, as required to establish attempt liability.

At best, the prosecutor’s comments accurately conveyed that a

substantial step requires more than mere preparation and can be

satisfied when conduct strongly indicates that a person intends to

commit the act in question. Cf. People v. Lehnert, 163 P.3d 1111,

1116 (Colo. 2007) (holding evidence that the defendant possessed

bomb-making materials was sufficient to support attempted murder

8 conviction even though bombs were not assembled and victims were

not within striking range). At worst, the prosecutor’s comments

were ambiguous (during voir dire) or inartful (during closing), but

they were not improper. See Domingo-Gomez, 125 P.3d at 1048.

¶ 21 Moreover, at no point did the district court lend credence to or

endorse the prosecutor’s analogy. Instead, at the outset of the trial

the court instructed the jury, “It’s my job to decide what rules of law

apply to this particular case. You must follow the law as I explain it

to you . . . .” And in response to Johnson’s objection to the analogy

during the prosecutor’s closing argument, the court instructed the

jurors that “this is the argument of the prosecution.” The court also

correctly instructed the jury on the concept of substantial step. We

presume the jury followed the court’s instructions. See Vialpando,

¶ 41; see also People v. Carter, 2015 COA 24M-2, ¶¶ 59-61 (holding

that a district court’s instructions can cure any prejudice from an

improper analogy).

¶ 22 Further, the prosecutor’s illustration did not resemble other

analogies that Colorado appellate courts have cautioned

prosecutors against using, such as a puzzle analogy. See Sauser,

¶ 90. It did not “(1) ‘quantify the concept of reasonable doubt’; (2)

9 ‘inappropriately trivialize the state’s burden’; (3) ‘equate the burden

of proof to an everyday choice’; or (4) ‘use iconic images, which

invite the jury to jump to a conclusion about a defendant’s guilt.’”

Id. (quoting People v. Camarigg, 2017 COA 115M, ¶¶ 44-47).

¶ 23 Taking these considerations together, we conclude that the

prosecutor’s illustration of substantial step did not lower the

burden of proof or a misstate the law. Accordingly, the

prosecution’s use of the “coffee-in-the-courtroom” analogy did not

constitute misconduct.

B. The Elemental Jury Instruction

¶ 24 Johnson next contends that the district court reversibly erred

by incorrectly instructing the jury on an element of second degree

kidnapping. We agree.

¶ 25 During deliberations, the jury sent a question to the district

court, which asked, “Regarding the charge of kidnapping, could ‘one

place to another’ be within the confines of the apartment?” Over

defense counsel’s objection, the court instructed the jury:

Jury Instruction Number 15 sets forth the elements for Second Degree Kidnapping. Those elements are as follows:

10 The elements of the crime of Second Degree Kidnapping are:

1. That the defendant

2. in the State of Colorado, at or about the date and place charged,

3. knowingly,

4. seized and carried any person from one place to another,

5. without her consent, and

6. without lawful justification.

As to element number 4, the District Attorney must prove beyond a reasonable doubt that the defendant (1) seized the victim and (2) carried the victim from one place to another. “One place to another” could be within the confines of the apartment.

(Emphasis added.)

¶ 26 We review for an abuse of discretion the district court’s

decision to provide the jury with additional written instructions in

response to a question. People v. Chase, 2013 COA 27, ¶ 37.

¶ 27 The parties dispute whether we should review the alleged error

for constitutional or nonconstitutional harmless error. Most

instructional errors are subject to harmless error review. People v.

11 Frye, 2014 COA 141, ¶ 23. But the error alleged here is that the

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

proof. And when an instructional error relieves the prosecution of

its obligation to prove an element of the crime beyond a reasonable

doubt, we apply a constitutional harmless error standard. See

Garcia v. People, 2022 CO 6, ¶18; see also People v. Sabell, 2018

COA 85, ¶ 22 (concluding that a court commits constitutional error

when it “erroneously instructs the jury in a manner that lessons the

prosecution’s burden of proof”).

¶ 28 Thus, we will reverse a conviction unless the prosecution can

prove that the error was harmless beyond a reasonable doubt. See

Garcia, ¶ 18. An error is not harmless beyond a reasonable doubt if

there is a reasonable possibility that the error might have

contributed to the conviction. Hagos v. People, 2012 CO 63, ¶ 11.

¶ 29 When an instruction is needed to answer a jury question, the

court should provide it unless:

(1) the jurors can be adequately informed by directing their attention to some portion of the original instructions; (2) the request concerns matters not in evidence or does not pertain to the law of the case; or (3) the request would

12 call upon the judge to express an opinion upon factual matters that the jury should determine.

Copeland v. People, 2 P.3d 1283, 1288 (Colo. 2000); see also ABA

Standards for Criminal Justice 15-5.3 (3d ed. 1996). As one

division of this court has observed, the American Bar Association

has noted the “sensitive” nature of providing additional instructions

because they “may have the effect, intended or not, of coercing a

juror into abandoning his or her original position.” People v.

Thornton, 251 P.3d 1147, 1152 (Colo. App. 2010) (quoting ABA

Standards for Criminal Justice 15-5.3 cmt.).

¶ 30 The jury’s question did not reflect a fundamental

misunderstanding of an element of the offense but rather

uncertainty regarding how to apply the legal standard to the

particular facts of the case. Specifically, the jury was struggling to

apply an element of the offense of kidnapping (“seized and carried

any person from one place to another”) to the factual allegations,

which occurred exclusively within an apartment. Thus, when the

district court responded that “‘[o]ne place to another’ could be

within the confines of the apartment” — and the jury heard no

evidence of any conduct occurring outside of the apartment — the

13 court’s response definitively answered the jury’s question. And

because the question called upon the court to express an opinion

upon factual matters, it was an abuse of discretion for the court to

answer in the way that it did. Cf. Chase, ¶ 43 (“[B]ecause the jury

asked a question about how to apply the facts to an element of the

offense, it was not an abuse of discretion for the trial court to

simply reiterate the original instructions . . . .”); see People v. Alexis,

806 P.2d 929, 932 (Colo. 1991) (district court properly referred jury

back to original instructions, when providing jury with additional

information or instructions would have expressed an opinion on a

factual matter that was properly determinable by the jury).

¶ 31 The People’s reliance on Leonardo v. People, 728 P.2d 1252

(Colo. 1986), is unavailing. In Leonardo, the district court erred by

referring the jury back to the original instruction when the jury

misunderstood the applicable legal standard, which was not clearly

defined in the other instructions. See id. at 1255-56. But here, the

question from the jury did not relate to a misunderstanding of the

law of the case but rather to a determination that required

application of the facts of the case to an instruction — a

14 determination on which the district court must not express an

opinion. See Copeland, 2 P.3d at 1288.

¶ 32 We are also unpersuaded by the People’s argument that the

district court’s instruction did not tell the jury that an element of

kidnapping was met because the instruction merely told the jury

that kidnapping could be within the apartment. Because there was

no evidence presented that any conduct occurred outside of the

apartment, the court’s response definitively answered the question

for the jury.

¶ 33 Having concluded that the district court’s instruction was

improper, and because the parties agree that Johnson preserved his

objection, we must reverse unless the People can demonstrate that

the error was harmless beyond a reasonable doubt — that is, there

is no reasonable possibility that the error contributed to the

conviction. See Hagos, ¶ 11.

¶ 34 The People assert that the district court’s instruction was both

harmless and harmless beyond a reasonable doubt because even if

the court had never provided the additional instruction (and instead

referred the jury back to the instructions it had already given as

requested by defense counsel), the jury would have reached the

15 same result. We will not speculate about jury deliberations. See

Castro v. People, 2024 CO 56, ¶ 80; see also People v. Oram, 217

P.3d 883, 895 (Colo. App. 2009) (“We must also be careful not to

inquire into or speculate about jury deliberations . . . .”). Instead,

we conclude that because the court’s instruction essentially told the

jury that a contested element of the crime was met, thereby

lowering the prosecution’s burden of proving that element, the error

was not harmless beyond a reasonable doubt. See People v. Garcia,

113 P.3d 775, 784 (Colo. 2005) (“Because a defendant’s

constitutional right to due process is violated by an improper

lessening of the prosecution’s burden of proof, such error cannot be

deemed harmless.”).

¶ 35 Accordingly, we conclude that the district court abused its

discretion when the jury’s question called for, and the court offered,

an opinion on factual matters. Further, because the court’s

instruction lowered the prosecution’s burden of proof, the error was

not harmless beyond a reasonable doubt. We therefore reverse the

second degree kidnapping conviction.

16 III. Disposition

¶ 36 Johnson’s second degree kidnapping conviction is reversed,

and the case is remanded to the district court for further

proceedings consistent with this opinion. The judgment is

otherwise affirmed.

JUDGE MOULTRIE and JUDGE BERGER concur.