23CA1347 Peo v Kalan 06-25-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1347 Jefferson County District Court No. 21CR3150 Honorable Robert Lochary, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sarah Anne Kalan,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE LIPINSKY Yun and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 25, 2026
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Sarah Anne Kalan appeals her convictions for second degree
murder, menacing, and second degree aggravated motor vehicle
theft. We affirm.
I. Background
¶2 A jury could have reasonably found the following facts from
the evidence introduced at trial.
¶3 Kalan lived with Wayne Nichols in his trailer. Tracy Ahee, a
friend of Kalan, was also staying there when, late on November 27,
2021, Kalan and Nichols began arguing about moving the trailer
and Kalan’s use of Nichols’s truck.
¶4 The argument escalated, resulting in Kalan fatally shooting
Nichols. Ahee witnessed the shooting.
¶5 Ahee offered multiple accounts of the events leading to the
shooting. In a recorded interview with police played for the jury,
she recounted that, after Nichols told Kalan to “[s]hut the fuck up,”
Kalan became angry and struck him with a pot multiple times.
Nichols tried to protect himself with his hands and asked, “What
are you doing? What is wrong with you?”
¶6 According to Ahee, Kalan picked up a gun, cocked it, and
pointed it at Nichols. After setting the gun down, Kalan grabbed the
1 pot and continued striking Nichols with it. Ahee said that Kalan
picked up the gun again and told Ahee, “Close your eyes, bitch.”
After shooting Nichols in the leg, Kalan told him, “You’re just gonna
sit there and bleed to death,” and she warned Ahee, “You’re gonna
be next because you’re a witness.”
¶7 Ahee also said that she believed Kalan had been plotting
against Nichols, though she offered no specifics. After the shooting,
Ahee left the trailer. Kalan loaded belongings into Nichols’s truck
and drove off.
¶8 At trial, Ahee testified that the argument between Kalan and
Nichols became physical, with both “throwing punches at each
other.” She said, “[T]hey were both being physical, and they were
both being aggressive towards each other.” Ahee asserted that
Kalan “decided to scare” Nichols by pointing a gun at him.
¶9 The bullet struck Nichols in the right leg near the groin,
severing the femoral artery, “the major blood vessel supplying blood
to the leg,” and causing him to bleed to death. He also sustained
injuries to his scalp, upper lip, left arm, left forearm, and left wrist.
¶ 10 Kalan was charged with first degree murder (after
deliberation), felony menacing, possession of a weapon by a
2 previous offender, second degree aggravated motor vehicle theft,
and two crime of violence enhancement counts.
¶ 11 Kalan did not testify at trial. Defense counsel argued that
Kalan pointed the gun at Nichols only to scare him and that it
discharged accidentally. The trial court gave the jury a general
self‑defense instruction.
¶ 12 The jury convicted Kalan of second degree murder, menacing,
and second degree aggravated motor vehicle theft. The trial court
sentenced her to forty‑five years in the custody of the Department of
Corrections.
¶ 13 On appeal, Kalan contends that the trial court (1) violated
Batson v. Kentucky, 476 U.S. 79 (1986), by permitting the
prosecutor to use a peremptory challenge to strike a prospective
juror based on her race; (2) erred by refusing to instruct the jury on
the use of nondeadly force in self-defense; and (3) improperly
allowed prosecutorial misconduct during closing argument. Kalan
also argues that we should reverse her conviction under the
doctrine of cumulative error. We affirm the judgment of conviction.
3 II. Analysis
A. The Trial Court Properly Denied Kalan’s Batson Challenge
1. Standard of Review
¶ 14 “Batson outlines a three-step process for evaluating claims of
racial discrimination in jury selection under the Equal Protection
Clause.” People v. Cerrone, 854 P.2d 178, 185 (Colo. 1993). “On
appeal, each step of the trial court’s Batson analysis is subject to a
separate standard of review.” People v. Rodriguez, 2015 CO 55,
¶ 13, 351 P.3d 423, 429.
¶ 15 We “review de novo a trial court’s conclusions regarding
whether the objecting party established a prima facie case at step
one and whether the striking party has articulated a race-neutral
reason at step two.” People v. Johnson, 2024 CO 35, ¶ 21, 549 P.3d
985, 991. But we “review the trial court’s ultimate step-three
conclusion, regarding ‘whether the objecting party proved
purposeful discrimination by a preponderance of the evidence,’ for
clear error.” Id. (quoting People v. Beauvais, 2017 CO 34, ¶ 2, 393
P.3d 509, 512). Under that standard, we “defer to the trial court’s
ruling ‘so long as the record reflects that the trial court weighed all
of the pertinent circumstances.’” Id. (quoting Beauvais, ¶ 2, 393
4 P.3d at 512). “Given this deferential standard, reversal is only
proper under ‘exceptional circumstances.’” Beauvais, ¶ 22, 393
P.3d at 517 (quoting Snyder v. Louisiana, 552 U.S. 472, 477
(2008)).
2. Additional Facts
¶ 16 During voir dire, CDC, one of the prospective jurors, said, “I
have four kids, two working for the state and one for the phone
company. One is unemployed right now. I’m a proud grandma of a
police officer, and is soon to be a fire guy. . . . I’m married, and my
husband is retired . . . .”
¶ 17 In response to the court’s question regarding whether “serving
on a trial in this case for six days would be a hardship such that
you don’t think you could serve,” CDC explained:
[CDC]: My husband [unintelligible] bypass surgery. He’s at home right now, and last night it’s a little swollen, so we have to call the doctor and see what’s going on.
THE COURT: Okay. Can you check in on him during the break? We’re going to take our break right after this.
[CDC]: Yes, I can.
THE COURT: Okay. Thank you.
5 ¶ 18 Another prospective juror — F — also reported illness in her
family. She explained that her twenty-month-old twins were sick,
she was a stay‑at‑home mother, and her husband was an attorney.
When the court inquired about hardships, F said that her mother
had planned to watch the twins that morning but had fallen ill, so
her husband was staying home with them, despite being behind at
work, and she had no child care for the upcoming week. When
asked if her husband could take additional time off if she served on
the jury, F answered that she “assum[ed] he c[ould].”
¶ 19 The prosecutor then explored how jurors assess a person’s
mental state by offering a hypothetical about someone brushing
past her at a Starbucks and spilling her coffee. The prosecutor
asked, “How do we know whether that was on purpose or not on
purpose?” After another prospective juror suggested considering
whether the person “apologized” and “seemed remorseful,” the
prosecutor and CDC engaged in the following colloquy:
[PROSECUTOR]: . . . . So in that hypothetical, how do you know if someone hit the coffee out of my hand on purpose or if it was accidental?
....
6 [CDC]: Okay. Well, if that person [is] going to push hard and they didn’t say I’m sorry, I guess it was on purpose.
[PROSECUTOR]: Okay. So you think that maybe how hard I was hit might come into play?
[CDC]: Well, not — probably not that hard, but they push you, like, okay. I don’t know.
[PROSECUTOR]: Okay.
[CDC]: I’m not good explaining stuff.
[PROSECUTOR]: Okay. Well, what else do you look for in terms of determining what intent is?
[CDC]: Some people, especially when our age, we don’t — we’re kind of clumsy, and I think we get — I don’t know, we get pass [sic] without looking what’s around us, and — but if that happens, if that happens, we say I’m sorry. But it’s people that is really rude, and, yeah, and they can pass by you and push you, and not hard but hard enough to spill your coffee.
[PROSECUTOR]: Okay. And because you brought it up this morning, how is your husband?
[CDC]: It’s a little swollen on the right side, which it was the blockage, so we have to call the doctor. And I took some pictures last night to see the difference, so —
[PROSECUTOR]: Were you able to call the doctor over the break?
7 [CDC]: No. No. Because the papers are at home. And he’s sore.
[CDC]: But thank you to remember.
(Emphasis added.)
¶ 20 Defense counsel then asked the entire panel, “Do you feel like
in a case that involves a homicide, the death of somebody, that the
prosecution should have to prove just a little less than they would,
say, in a forgery or a drug case because somebody lost their life?
Should they prove less?” One prospective juror responded no,
saying, “They still have to prove the same amount of beyond a
reasonable doubt.” Defense counsel then asked CDC for her view:
[DEFENSE COUNSEL]: [CDC], what do you think?
[CDC]: I agree with her.
[DEFENSE COUNSEL]: Okay. I want to ask you a question about your husband. Were you able to talk with him?
[CDC]: Yes.
[DEFENSE COUNSEL]: Okay. And are things okay?
[CDC]: Well, he was trying to call the doctor and see if he needs to go back.
8 [DEFENSE COUNSEL]: Okay. So he’s capable physically of making that call —
[DEFENSE COUNSEL]: — and getting himself there?
[CDC]: No.
[DEFENSE COUNSEL]: No?
[CDC]: No, he’s not able to drive.
[DEFENSE COUNSEL]: Is there somebody besides yourself who can drive him, if necessary?
[CDC]: Not really. My boys, they are working.
[DEFENSE COUNSEL]: Okay. Could he take an Uber?
[CDC]: I don’t know.
[DEFENSE COUNSEL]: Okay.
[CDC]: But thank you.
¶ 21 Following voir dire, the prosecutor exercised a peremptory
strike to remove CDC but did not strike F from the panel. Defense
counsel then made a Batson objection, leading to the following
exchange:
[DEFENSE COUNSEL]: . . . . [CDC] is a Hispanic lady. We only have two Hispanics on our jury. . . .
9 THE COURT: Okay. And have you raised your inference of racial motivation?
[DEFENSE COUNSEL]: I guess I should give you a little bit more record. Because she is only one of the two, she did not provide very much information during jury selection, but the information that she provided mostly had to do with the state of health affairs for her husband. Ultimately what she provided is that her husband is able to take care of himself in terms of calling the doctor. She wasn’t sure about transportation, but she didn’t indicate that was any sort of an issue. Outside of that, there wasn’t a lot of discussion by the People or myself with her.
THE COURT: Thank you. I think that raises it.
And over to the prosecution to articulate a race neutral reason for excluding.
[PROSECUTOR]: Your Honor, she indicated that her husband had recent open heart surgery and that last night, it looked like it was getting swollen. She took a picture of it last night and was comparing it to the status of the wound today. She was not able to touch base with her husband over the first break, and over the lunch break indicated he still wasn’t feeling well and wanted to get in touch with the doctor. She indicated there was no one else to transport him, and that she would need to do so. And so for that reason, that is it. Additionally, Your Honor, the People did question her with respect to the People’s initial hypothetical regarding intent. She had difficulty articulating what she thought intent was, what she would be able to look at. She
10 wasn’t really able to give my [sic] any answers, and that is an additional consideration.
THE COURT: All right. The Court will find that the People have offered a few race neutral reasons for excluding her from jury service, particularly the husband having — I think he had bypass surgery last night. He’s swollen, she said, and she hasn’t been able to contact him, and it appears he’s home alone. So I’ll switch it back over to the defense for an opportunity to rebut that explanation.
[DEFENSE COUNSEL]: I’ll address that and what [the prosecutor] said for completeness of the record. In terms of her responses, she was responsive. She gave examples based on the spilling of coffee. She said that people who are older can be clumsy, that she would be looking at that, she would be looking at whether somebody said sorry, because generally saying sorry will — happens when it’s an accident.
Yes, she did indicate that her husband is home alone. She also told us in initial voir dire she has four children. She — there’s not been an indication that she is needed there to care for him. She has certainly not pressed the issue with this Court today. And, Your Honor, I think if we look at her compared to [F], she is an individual that has children, children who are sick children, and the People have not made an effort at this point to have her dismissed. I don’t have anything further.
THE COURT: Okay. So the Court has to examine whether, by preponderance of the evidence, there was purposeful discrimination here. Under recent U.S. Supreme Court precedent, the resolution of the question turns
11 on the application of the substantial motivating factor test. A peremptory strike is purposefully discriminatory under Step 3 if the strike is motivated in substantial part by discriminatory intent.
The Court here, in evaluating the reasons that the prosecutor gave, does not find that . . . they were implausible pretexts for purposeful discrimination. The Court also has to evaluate the proponent’s credibility and plausibility of her explanation. The Court doesn’t find that this is a pretextual strike, especially in light of — and I agree, Counsel, I think what you said about — I think the answers to her questions were fine, but her husband having bypass surgery, he’s alone today, and he just had the surgery last night, and she’s obviously concerned about him, and no one else is there, I think that those are race neutral reasons for the strike. And so the Court will deny the motion under Batson.
3. Kalan Did Not Establish that the Prosecutor’s Strike of CDC Was Substantially Motivated by Discriminatory Intent
¶ 22 Kalan contends that the prosecutor’s use of a peremptory
challenge to strike CDC was substantially motivated by
discriminatory intent for five reasons:
(1) F, “a non-Hispanic individual who served on the jury,
was similarly experiencing health issues with her twin
twenty‑month‑year [sic] olds”;
12 (2) “from CDC’s voir dire, it appear[ed] she would have been
a good juror for the prosecution”;
(3) “the prosecutor never sought to get a definitive answer
from CDC about potential alternative transportation in
the event [her husband] had to see the doctor”;
(4) because the court did not credit the prosecutor’s
argument that she struck CDC based on CDC’s answers
to the prosecutor’s questions about intent, the court
necessarily found that the prosecutor misrepresented the
record, which “points to a discriminatory intent”; and
(5) because “the court didn’t credit the intent hypothetical
reason” for the strike, “half of the reasons [for striking
CDC] given by the prosecution” were pretextual “and this
evidences purposeful discrimination.”
We disagree.
¶ 23 “At Batson’s first step, ‘the objecting party must make a prima
facie showing that the striking party exercised a peremptory
challenge based on race or gender.’” Johnson, ¶ 18, 549 P.3d at
990-91 (quoting People v. Owens, 2024 CO 10, ¶ 76, 544 P.3d
1202, 1222). “The standard for doing so isn’t high and requires the
13 objecting party to present evidence sufficient to raise only an
inference of discrimination rather than proof by a preponderance of
the evidence that discrimination occurred.” Id. at ¶ 18, 549 P.3d at
991.
¶ 24 “At step two, the prosecutor must come forward with a
race-neutral explanation ‘related to the particular case to be tried.’”
Rodriguez, ¶ 11, 351 P.3d at 429 (quoting Batson, 476 U.S. at 98).
“At step three, after the defendant has a chance to rebut the
prosecutor’s race-neutral explanation, the trial court must decide
the ultimate question: whether the defendant has established
purposeful discrimination.” Id. at ¶ 12, 351 P.3d at 429. “A trial
court must presume initially that a prosecutor has exercised
peremptory challenges on constitutionally permissible
grounds . . . .” People v. Morales, 2014 COA 129, ¶ 19, 356 P.3d
972, 978.
¶ 25 We address each of the five prongs of Kalan’s argument in
turn.
¶ 26 First, the record does not support Kalan’s claim that F and
CDC faced similar hardships if selected to serve on the jury. When
the court asked F whether her husband could “take time off” to care
14 for their sick twenty-month-old twins, she said that she could serve
on the jury if selected. F added, “I mean, I’m assuming [my
husband] can. I mean, he’s an attorney, so I think they would have
to understand . . . .” The court remarked, “I think they of all people
would understand, because without you, we can’t do this, and the
system wouldn’t work.”
¶ 27 When responding to the prosecutor’s argument that CDC was
struck for a race-neutral reason, defense counsel did not
acknowledge that CDC said that no one besides herself could drive
her husband, that CDC said she did not know whether her
husband could take an Uber, or that F said her husband could stay
home with the children during the trial:
Yes, [CDC] did indicate that her husband is home alone. She also told us in initial voir dire she has four children. She — there’s not been an indication that she is needed there to care for him. She has certainly not pressed the issue with this Court today. And, Your Honor, I think if we look at her compared to [F], she is an individual that has children, children who are sick children, and the People have not made an effort at this point to have her dismissed.
¶ 28 We agree with the trial court that F was not similarly situated
to CDC. F’s husband was apparently able to care for the couple’s
15 ailing children during the trial, while CDC said she was the only
one able to drive her husband to the doctor if he continued to
experience post-operative complications. See Beauvais, ¶¶ 56-57,
393 P.3d at 524 (For purposes of deciding a Batson challenge, “an
empaneled juror is similarly situated to a dismissed potential juror
. . . if the empaneled juror shares the same characteristics for
which the striking party dismissed the potential juror,” but
“[i]solated similarities do not automatically render two jurors
‘similarly situated.’”).
¶ 29 Second, Kalan’s contention that the prosecutor’s use of a
peremptory challenge to strike CDC showed purposeful
discrimination because “she would have been a good juror for the
prosecution” lacks record support. In Miller-El v. Dretke, the United
States Supreme Court concluded that the subject juror — a Black
man who “unequivocally stated that he could impose the death
penalty regardless of the possibility of rehabilitation,” 545 U.S. 231,
244 (2005) — “should have been an ideal juror in the eyes of a
prosecutor seeking a death sentence,” id. at 247. In contrast, the
record does not show that CDC was a “good” or “ideal” juror for the
prosecution. Id. Kalan points to no statement from CDC that
16 sheds light on her views on the criminal justice system or
willingness to convict. Her description of herself as “a proud
grandma of a police officer” and soon-to-be “fire guy” did not, by
itself, make her favorable to the prosecution.
¶ 30 Third, we are not persuaded by Kalan’s argument that the
prosecutor’s race‑neutral reason for striking CDC was pretextual
because the prosecutor “never sought to get a definitive answer
from CDC about potential alternative transportation.” CDC said
that her husband was unable to drive, no one else was available to
take him to the doctor, and she did not know whether he could use
an Uber. Kalan does not clarify what would have qualified as a
“definitive answer” or what additional steps the prosecutor should
have taken to obtain one. The prosecutor was not required to ask
CDC about every possible means of transportation in metro Denver
— public buses, light rail, taxis, Lyft, scooters, ambulances, and the
like. Further, during the colloquy regarding the defense’s Batson
challenge, defense counsel never contended that CDC’s responses
about her husband’s transportation challenges were inadequate or
less than “definitive.”
17 ¶ 31 Accordingly, the trial court did not err by finding that the
prosecutor struck CDC for a race-neutral reason because CDC
“indicated there was no one else to transport [her husband], and
that she would need to do so.”
¶ 32 Fourth, we disagree with Kalan’s assertion that the trial
court’s rejection of the prosecutor’s alternative reason for striking
CDC — her struggle to articulate her thoughts — shows that the
prosecutor “misrepresent[ed]” the record or purposefully
discriminated against CDC. CDC’s admission that she was “not
good [at] explaining stuff” supported the prosecutor’s reasoning.
The trial court’s brief remark that CDC’s “answers to her questions
were fine” does not amount to a finding that the prosecutor
misrepresented the record or offered a pretextual justification for
the strike.
¶ 33 Fifth, Kalan’s Batson argument fails to the extent it relies on a
“per se approach,” which the supreme court rejected in Johnson.
See Johnson, ¶¶ 57-58, 549 P.3d at 997-98 (holding “that, in
resolving the question of purposeful discrimination at step three,
the trial court should use a substantial-motivating-factor
approach,” and rejecting “a per se approach” under which “a court
18 must sustain a Batson challenge when the striking party gives both
race-based and race-neutral reasons to support the strike”).
¶ 34 Thus, under the deferential standard of review for step-three
Batson determinations, Beauvais, ¶ 22, 393 P.3d at 517, we affirm
the trial court’s conclusion that Kalan did not prove “by a
preponderance of the evidence that discriminatory animus drove
the [prosecutor’s] use of [the] peremptory challenge[]” to CDC, id. at
¶ 32, 393 P.3d at 519.
B. The Trial Court Did Not Err by Declining to Give the Jury a Nondeadly Force Self-Defense Instruction
¶ 35 “[T]o present an affirmative defense for the jury to consider, a
defendant must offer ‘some credible evidence’ to support the
claimed defense.” Pearson v. People, 2022 CO 4, ¶ 16, 502 P.3d
1003, 1007 (quoting § 18-1-407(1), C.R.S. 2025).
¶ 36 We review de novo whether there is “sufficient evidence in the
record to support a self-defense jury instruction.” People v.
Coahran, 2019 COA 6, ¶ 15, 436 P.3d 617, 621. “When considering
an affirmative defense instruction, we consider the evidence in the
19 light most favorable to the defendant.” Id. (quoting People v. Newell,
2017 COA 27, ¶ 19, 395 P.3d 1203, 1207).
¶ 37 At the jury instruction conference, defense counsel argued
that, because “the facts . . . indicate[d] that there was no intent to
use deadly physical force, only an intent to use physical force,”
Kalan was entitled to a nondeadly force self‑defense instruction.
Defense counsel asserted that
[h]ere what we have is a single gunshot wound to the leg. Typically, most people don’t have knowledge about the locations of various arteries in the body. There’s no indication that [Kalan], via the testimony, said anything in advance of the shooting itself that she intended to kill [Nichols]. The wound itself seems to indicate that she did not.
¶ 38 Citing People v. Opana, 2017 CO 56, ¶¶ 3-17, 395 P.3d 757,
758-62, in which the defendant admitted he shot the victim in the
chest, and observing that “there’s evidence that [Kalan] . . . said
bleed out and die, that the door was locked [when Kalan left], and
. . . that [Kalan] had to go through [steps] to fire th[e] gun,” the
court concluded, “I don’t think I can give a general self-defense
instruction. I think it has to be a use of deadly physical force
20 instruction, given the facts and circumstances here and the holding
in Opana. So that’s what I will rule.”
¶ 39 Later that day, the court gave the jury the general self‑defense
instruction that the defense had tendered. That instruction
provided, in relevant part:
The evidence presented in this case has raised the affirmative defense of “Defense Of Person” as a defense to 1st Degree Murder and 2nd Degree Murder.
The defendant was legally authorized to use physical force upon another person without first retreating if:
1. She used that physical force in order to defend herself or a third person from what she reasonably believed to be the use or imminent use of unlawful physical force by that other person, and
2. She used a degree of force which she reasonably believed to be necessary for that purpose, and
3. She had a reasonable ground to believe, and did believe, that she or another person was in imminent danger of being killed or of receiving great bodily injury . . . .
(Emphases added.)
21 3. The Self-Defense Instruction Did Not Lower the Prosecution’s Burden of Proof
¶ 40 Kalan contends that, “[b]ecause the district court didn’t
instruct the jury on the affirmative defense of use of non-deadly
force in self-defense, the prosecution didn’t bear the burden of
disproving it,” which “impermissibly lowered” the prosecution’s
burden of proof. We disagree.
¶ 41 “An affirmative defense essentially admits the defendant’s
commission of the elements of the charged act but seeks to justify,
excuse, or mitigate the commission of the act.” Roberts v. People,
2017 CO 76, ¶ 20, 399 P.3d 702, 705; see People v. Pickering, 276
P.3d 553, 555 (Colo. 2011) (noting that affirmative defenses admit
“the defendant’s commission of the elements of the charged act, but
seek to justify, excuse, or mitigate the commission of the act”).
¶ 42 The elements of first and second degree murder, coupled with
the facts surrounding Nichols’s death, demonstrate why a
nondeadly force jury instruction was not warranted in this case.
¶ 43 A person commits first degree murder “[a]fter deliberation and
with the intent to cause the death of a person,” § 18-3-102(1)(a),
C.R.S. 2025, and a person commits second degree murder by
22 “knowingly caus[ing] the death of a person,” § 18-3-103(1)(a), C.R.S.
2025. A person acts knowingly, “with respect to a result of h[er]
conduct, when [s]he is aware that h[er] conduct is practically
certain to cause the result.” § 18-1-501(6), C.R.S. 2025. And “if
one has acted ‘with intent,’ one has necessarily acted ‘knowingly.’”
People v. Snider, 2021 COA 19, ¶ 63, 491 P.3d 423, 436.
¶ 44 “Deadly physical force” means “force, the intended, natural,
and probable consequence of which is to produce death, and which
does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2025.
Whether physical force qualifies as “deadly” turns on the nature of
the force itself, and not the actor’s subjective intent. Opana,
¶¶ 16-17, 395 P.3d at 761-62.
¶ 45 “[I]f the record contains any evidence to support [a
defendant’s] theory” of the case, then the trial court must give “an
instruction embodying” that theory. People v. Garcia, 28 P.3d 340,
347 (Colo. 2001). “[W]hether there is credible evidence to support
each element of an affirmative defense is a question for the court
rather than the jury.” People v. Speer, 255 P.3d 1115, 1119 (Colo.
2011). In addition, when “credible evidence permits no other
finding than that the physical force used by the defendant would
23 normally be expected to, and in fact did, produce death,” the
assessment of “whether or not physical force arguably used in
self-defense constituted ‘deadly physical force’” is not a question for
the jury. Opana, ¶ 16, 395 P.3d at 762.
¶ 46 We reject Kalan’s argument that she was entitled to a
nondeadly force instruction for three reasons.
¶ 47 First, to be convicted of murder, Kalan had to engage in
conduct with an awareness that her conduct was practically certain
to, and did, cause Nichols’s death. See §§ 18-3-102(1)(a),
18-3-103(1)(a). Force that is “practically certain,” § 18-1-501(6), to
cause death satisfies — if not surpasses — the standard for “deadly
physical force,” meaning force that is “normally . . . expected” to
cause death, Opana, ¶ 16, 395 P.3d at 762. Kalan’s self-defense
argument could not rely on nondeadly force because any affirmative
defense to murder requires an admission that the defendant
committed the elements of murder — including that she used force
normally expected to cause death. See Roberts, ¶ 20, 399 P.3d at
705. Thus, in a murder prosecution, the force supporting self-
defense is necessarily deadly force; a defendant cannot seek
acquittal for murder based on using only nondeadly force. Such an
24 argument cannot be squared with the concept of an affirmative
defense. See id.
¶ 48 Accordingly, by asserting self‑defense as an affirmative defense
to murder, Kalan effectively admitted that she used deadly force
against Nichols. For this reason, Kalan was not entitled to a
nondeadly force self‑defense instruction.
¶ 49 Second, Kalan was not entitled to a nondeadly force
self‑defense instruction because shooting Nichols in the leg, near
the groin, at close range — resulting in fatal blood loss —
constituted “force, the intended, natural, and probable consequence
of which [was] to produce death, and which d[id], in fact, produce
death.” § 18-1-901(3)(d) (emphasis added).
¶ 50 Third, even assuming that Kalan was entitled to a nondeadly
force self‑defense instruction, the court still allowed the jury to
consider Kalan’s possible use of nondeadly force by giving Kalan’s
tendered general self‑defense instruction.
¶ 51 In sum, we hold that the general self‑defense instruction the
court provided did not reduce the prosecution’s burden of proof.
25 C. The Trial Court Correctly Found No Prosecutorial Misconduct
¶ 52 “In a claim of prosecutorial misconduct, the reviewing court
engages in a two-step analysis.” Wend v. People, 235 P.3d 1089,
1096 (Colo. 2010). “First, it must determine whether the
prosecutor’s questionable conduct was improper based on the
totality of the circumstances and, second, whether such actions
warrant reversal according to the proper standard of review.” Id.
2. The Prosecutor’s Rebuttal Closing
¶ 53 Kalan contends that the prosecutor committed misconduct in
his rebuttal closing argument by (1) “argu[ing] matters outside the
record and inject[ing] his credibility into the case” and (2)
“misstat[ing] the law.” We disagree.
¶ 54 “[P]rosecutors have wide latitude in the language and style
they choose to employ, as well as in replying to an argument by
opposing counsel.” People v. Samson, 2012 COA 167, ¶ 30, 302
P.3d 311, 317. “In addition, because 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.” Id.
26 ¶ 55 “In closing argument, counsel may employ rhetorical devices
and engage in oratorical embellishment and metaphorical nuance,”
provided that counsel “does not thereby induce the jury to
determine guilt on the basis of passion or prejudice, attempt to
inject irrelevant issues into the case, or accomplish some other
improper purpose.” People v. Allee, 77 P.3d 831, 837 (Colo. App.
2003).
a. Arguing Matters Outside the Record
i. Additional Facts
¶ 56 In addressing the aggravated motor vehicle theft charge during
closing argument, defense counsel disputed the prosecution’s
assertion that Kalan took Nichols’s truck without authorization.
Defense counsel asserted that Kalan “ha[d] been using this truck
basically freely as much as she want[ed].”
¶ 57 In his rebuttal, the prosecutor addressed Kalan’s conduct after
the shooting — specifically, her decision to leave the scene in
Nichols’s truck rather than seek help from neighbors. To support
his argument that, even if Kalan once had permission to use the
truck, she no longer had authorization after killing him, the
prosecutor said: “Now, I had a friend in college, let him borrow my
27 car a lot. It wasn’t a problem. We were friends. We had a big
argument one day.”
¶ 58 Defense counsel objected, arguing, “Your Honor, this gets into
his testifying as to his own personal experience, puts his credibility
on the line. That’s improper.” The court overruled the objection,
saying, “Well, I haven’t heard anything improper yet, so overruled.”
The prosecutor continued:
After the argument, he wasn’t allowed to use my car. I didn’t have to tell him that. It was common sense. When you murder a man, he’s probably not going to consent to you driving off in his truck. That’s common sense. That’s what we’re asking you to take back into the deliberation room.
ii. The Prosecutor’s Argument Was Permissible
¶ 59 Kalan contends that “[t]he prosecutor’s anecdote concerned
matters outside the record and beyond the jury’s experiences and
observations in life” and, therefore, was not a “proper
consideration[] for the jurors in rendering a verdict.” She further
asserts that “the prosecutor improperly used his story to suggest a
standard for assessing mental state, thereby injecting his own
28 credibility and knowledge into the case.” This argument lacks
merit.
¶ 60 “[P]rosecutorial remarks that evidence personal opinion [or]
personal knowledge . . . are improper. Factors to consider when
determining the propriety of statements include the language used,
the context in which the statements were made, and the strength of
the evidence supporting the conviction.” Domingo-Gomez v. People,
125 P.3d 1043, 1050 (Colo. 2005). “The context in which
challenged prosecutorial remarks are made is significant, including
the nature of the alleged offenses and the asserted defenses, the
issues to be determined, the evidence in the case, and the point in
the proceedings at which the remarks were made.” Id. (quoting
Harris v. People, 888 P.2d 259, 266 (Colo. 1995)).
¶ 61 Although the prosecutor employed a personal anecdote, it
served only to illustrate that the jury should use its “common
sense” in deciding whether Kalan was still authorized to use the
truck after the shooting. The anecdote did not suggest that the
prosecutor had information outside the evidence presented to the
jury. For these reasons, the prosecutor’s argument properly rested
on a logical inference. See id.
29 b. Misstating the Law
¶ 62 During rebuttal closing argument, the prosecutor offered the
following remarks about self‑defense:
Self-defense requires that [Kalan] use[d] reasonable force in response to a reasonable threat, and because she used deadly force, it had to have been a risk of serious bodily injury or death to her or someone else by [Nichols].
What evidence do you have of that? None. The closest you got to that this whole week was [Ahee] sat up there on Monday and said, then they started fighting. But what did [Ahee] say [seventeen] months ago when she was still affected by what she had just observed [Kalan] do? You will get those videos from her interview with [the police], and I want you to look at them and see how emotional and affected she still is. And what does she say?
We were laying [sic] in bed trying to sleep, and [Nichols] said, Shut the fuck up, [Kalan].
You tell me to shut the fuck up? I’ll shut you the fuck up.
She was the instigator. You don’t get to claim self-defense if you start the fight, and you definitely don’t get to exercise self-defense if you are the one who drew the gun in the first place.
30 ¶ 63 Defense counsel objected, “That misstates the law, Your
Honor. You can, in fact, do that.” In response, the court addressed
the jury, “Ladies and gentlemen, I’ll instruct you to rely on the jury
instructions that you will receive and that I read to you in terms of
what the law is.”
¶ 64 The prosecutor then continued:
What threat did that man pose to her that night? What danger was she in? What danger was so severe that, after hitting him with a pot seven to nine times, she went and got her gun, cocks it, and points at him? What danger is he posing at that point when she puts the gun back down? What danger is he posing when she picks the pot back up and hits him again? What danger is he posing when she picks her gun back up one final time? What danger is posed? There is no danger, so she doesn’t get to claim self-defense.
ii. The Prosecutor’s Comments Did Not Rise to the Level of Misconduct Based on the Totality of the Circumstances
¶ 65 Relying on the prosecutor’s emphasized comments above and
the statutory phrase “imminent use of unlawful physical force,”
§ 18-1-704(1), C.R.S. 2025, Kalan contends that the “comments
misstated the law.” She asserts that they “suggest one has to let
31 the other person cause physical harm before they can act in
self-defense.” We are not persuaded.
¶ 66 Considering the totality of the circumstances, the challenged
comments were not improper. See Wend, 235 P.3d at 1096. Before
making those comments, the prosecutor accurately described the
governing principles of self-defense, including that a person may
use force in response to an imminent threat of unlawful force. The
prosecutor’s statement, made after the court referenced the jury
instructions, makes clear he was properly arguing that Kalan could
not rely on a self-defense theory under the circumstances because
Nichols posed no threat to her, let alone an imminent one.
¶ 67 In sum, the prosecutor did not commit misconduct.
D. The Doctrine of Cumulative Error Does Not Apply
¶ 68 “[N]umerous formal irregularities, each of which in itself might
be deemed harmless, may in the aggregate show the absence of a
fair trial, in which event a reversal would be required.” Howard-
Walker v. People, 2019 CO 69, ¶ 24, 443 P.3d 1007, 1011 (quoting
Oaks v. People, 371 P.2d 443, 446 (Colo. 1962)). To obtain relief, a
defendant must demonstrate that “the cumulative effect of
[multiple] errors and defects substantially affected the fairness of
32 the trial proceedings and the integrity of the fact-finding process.”
Id. (quoting People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).
¶ 69 But “[c]umulative error applies only if the trial court
committed numerous errors; defendant’s mere assertions of error
are insufficient to warrant reversal.” People v. Blackwell, 251 P.3d
468, 477 (Colo. App. 2010).
¶ 70 As explained above, we reject Kalan’s arguments that the trial
court erred. Accordingly, the doctrine of cumulative error does not
apply.
III. Disposition
¶ 71 The judgment is affirmed.
JUDGE YUN and JUDGE SCHUTZ concur.