23CA2033 Peo v McGee 04-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2033 Mesa County District Court No. 22CR271 Honorable Matthew D. Barrett, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Bobbie Sue McGee,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE SULLIVAN Fox and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 2, 2026
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Bobbie Sue McGee, appeals the judgment of
conviction entered on a jury verdict finding her guilty of possession
with intent to distribute a controlled substance, following too
closely, and a special offender count for possession with intent to
distribute. We affirm in part, vacate in part, and remand the case
with directions.
I. Background
¶2 In February 2022, Trooper Jeff Vrbas, a member of the
smuggling and trafficking interdiction section of the Colorado State
Patrol, was sitting in his patrol car in the median of I-70 when he
noticed McGee driving an SUV with out-of-state plates. According
to Vrbas, McGee yawned as she drove past him. Vrbas perceived
her yawn as exaggerated or fake.
¶3 After Vrbas began following McGee, he observed her driving in
the left lane for several miles without passing any other vehicles
before merging back into the right lane. Vrbas later observed
McGee come within a one-second following distance behind a
semi-truck before she changed lanes to pass. Vrbas then initiated a
traffic stop.
1 ¶4 When Vrbas approached McGee’s passenger-side window, he
smelled “raw marijuana” and the “overwhelming odor of air
fresheners.” He also noticed several air fresheners hanging
throughout the SUV. After asking for McGee’s license, Vrbas
learned that the SUV was a rental. Vrbas directed McGee to exit
the SUV and wait by the passenger-side window of his patrol car
while he checked her information and gave her a warning. McGee’s
passenger, Amber Jackson, remained in the SUV’s passenger seat.
¶5 While McGee waited next to the patrol car, Vrbas asked her
several questions about her trip, which McGee answered. McGee
relayed that she was the president of several motorcycle clubs and
that she and Jackson were driving from New York to California and
back to visit a few of the chapters. She said that they chose to rent
the SUV instead of flying because it was cheaper, that they rented a
large vehicle because she “like[s] big cars,” that they were in
California for about a week, and that they spent a lot of time
shopping on their trip. She also explained that her passenger,
Jackson, was “new in [her] club” and had “just joined.”
¶6 After McGee relayed this information, Vrbas walked back to
the SUV and asked Jackson similar questions. Jackson repeated a
2 similar narrative but told Vrbas that she had “just joined” the
motorcycle club “about a year ago.”
¶7 Once Vrbas finished giving McGee a verbal warning and
returned her documents, he asked if he could “ask [her] a couple
questions.” He first asked whether she or Jackson had a large
amount of cash, weapons, guns, or “anything else in there.” McGee
said no, except for gas money and a taser. Vrbas then asked if he
could search her SUV. McGee agreed.
¶8 During the search, Vrbas found seven bricks of cocaine in the
spare tire under the SUV. The prosecution charged McGee with
possession with intent to distribute a controlled substance,
§ 18-18-405(1), (2)(a)(1)(A), C.R.S. 2025, following too closely,
§ 42-4-1008(1), C.R.S. 2025, and a special offender sentence
enhancement, § 18-18-407(1)(c), C.R.S. 2025.
¶9 Before the trial, McGee moved to suppress the drug evidence,
arguing that Vrbas lacked reasonable suspicion to initiate the traffic
stop, that he unlawfully prolonged the stop, and that her consent to
search was involuntary. After holding an evidentiary hearing, the
district court denied McGee’s motion in a detailed oral ruling.
3 ¶ 10 A jury convicted McGee as charged, and the district court
sentenced her to concurrent terms of sixteen years in the custody of
the Department of Corrections on the possession with intent to
distribute count and the special offender sentence enhancement
count. The court closed out the following too closely charge with
the payment of fees and costs. McGee now appeals, challenging the
district court’s (1) denial of her motion to suppress; (2) admission of
Vrbas’s testimony regarding safe distances for following other
vehicles; and (3) separate conviction and sentence on the special
offender sentence enhancement.
II. Motion to Suppress
¶ 11 McGee contends that the district court erred by denying her
motion to suppress because (1) Vrbas lacked reasonable suspicion
to initiate the traffic stop; (2) the scope, character, and extent of the
stop exceeded its traffic-related justifications; and (3) her consent to
search was involuntary.
A. General Legal Principles and Standard of Review
¶ 12 The United States and Colorado Constitutions protect
individuals from unreasonable searches and seizures. U.S. Const.
amend. IV; Colo. Const. art. II, § 7. Absent an exception, a
4 warrantless search or seizure of a person is presumed unreasonable
and therefore violates these constitutional protections. People v.
Johnson, 2024 CO 47, ¶ 23; People v. McKnight, 2019 CO 36, ¶ 50.
¶ 13 Two exceptions to the warrant requirement are at issue here:
investigatory stops and consensual searches. See People v.
Funez-Paiagua, 2012 CO 37, ¶ 7 (citing Terry v. Ohio, 392 U.S. 1,
30-31 (1968)); People v. Syrie, 101 P.3d 219, 222 (Colo. 2004).
¶ 14 “An investigatory stop is an encounter in which an officer
briefly stops a suspicious person and makes reasonable inquiries to
confirm or dispel these suspicions, such as determining an
individual’s identity or obtaining an explanation of a person’s
behavior.” Funez-Paiagua, ¶ 7. A traffic stop typically falls into this
category because it constitutes a limited, investigatory intrusion.
People v. Chavez-Barragan, 2016 CO 66, ¶ 19 (Chavez-Barragan II)
(citing Rodriguez v. United States, 575 U.S. 348, 354 (2015)). A law
enforcement officer may employ such limited seizures so long as
(1) there is a specific and articulable basis in fact for suspecting that criminal activity has taken place, is in progress, or is about to occur (that is, “reasonable suspicion”); (2) the purpose of the intrusion is reasonable; and (3) the scope and character of the intrusion are reasonably related to its purpose.
5 People v. White, 2023 CO 43, ¶ 32 (quoting People v. Archuleta, 980
P.2d 509, 512 (Colo. 1999)). McGee challenges only the first and
third requirements.
¶ 15 We assess whether an officer had reasonable suspicion by
asking whether the facts known to the officer, when taken together
with rational inferences from those facts, gave rise to a reasonable
and articulable suspicion of criminal activity justifying the intrusion
into the defendant’s personal privacy. People v. Wheeler, 2020 CO
65, ¶ 13. “This is an objective inquiry that requires us to consider
the totality of the circumstances at the time of the intrusion.”
People v. Gamboa-Jimenez, 2022 COA 10, ¶ 40.
¶ 16 A consensual search by law enforcement is constitutionally
permissible if the person’s consent is voluntarily given.
Chavez-Barragan II, ¶ 36. “Consent is voluntary if it is ‘the product
of an essentially free and unconstrained choice by its maker.’” Id.
at ¶ 37 (quoting People v. Munoz-Gutierrez, 2015 CO 9, ¶ 16). By
contrast, consent is involuntary if it results from “duress or
coercion, express or implied, or any other form of undue influence
exercised [by the police] against the defendant.” Id. (alteration in
original) (quoting Munoz-Gutierrez, ¶ 17).
6 ¶ 17 A trial court’s suppression order presents a mixed question of
fact and law. Chavez-Barragan II, ¶ 18. We defer to the trial court’s
factual findings if they are supported by competent evidence in the
record, but we assess the legal significance of those facts de novo.
Gamboa-Jimenez, ¶ 35. When a stop is captured on an audio or
video recording and no disputed facts outside the recording control
the suppression issue, we sit in a similar position as the trial court
and therefore may independently review the recording. See People
v. Furness, 2025 CO 16, ¶ 3 n.1 (citing People v. Kutlak, 2016 CO 1,
¶ 13).
B. Reasonable Suspicion
¶ 18 McGee contends that Vrbas lacked reasonable suspicion to
initiate the traffic stop. But Vrbas testified that he observed McGee
driving in the left lane for several miles without passing another
vehicle. The district court found his testimony credible. Absent
exceptions not relevant here, Colorado law prohibits driving in a
highway’s passing lane unless the driver is passing other vehicles.
§ 42-4-1013(1), C.R.S. 2025. Based on the district court’s findings,
which McGee doesn’t contest on appeal, we conclude that Vrbas
had reasonable suspicion to initiate the traffic stop. See People v.
7 Chavez-Barragan, 2016 CO 16, ¶ 10 (Chavez-Barragan I)
(“Suspicion of even a minor traffic offense can provide the basis for
a stop.”).
¶ 19 McGee nonetheless argues that the district court applied an
incorrect standard by considering events that arose after Vrbas
initiated the traffic stop — specifically, that she didn’t contest
Vrbas’s assertion that she had committed traffic violations. But the
court’s ruling that reasonable suspicion supported Vrbas’s decision
to stop McGee didn’t turn on her lack of dispute. Instead, the court
found that reasonable suspicion existed “even putting [the lack of
dispute] aside and even if [the court] were to not consider it at all.”
And regardless, Vrbas had reasonable suspicion to stop McGee
based solely on her passing lane violation, which Vrbas observed
before he initiated the stop.
¶ 20 McGee also argues that the court failed to resolve a conflict in
its findings regarding her violation of the following too closely
statute. § 42-4-1008(1). But again, McGee’s passing lane violation
alone provided reasonable suspicion for the stop. So we need not
decide whether the court made conflicting findings regarding the
following too closely violation.
8 C. Scope, Character, and Extension of the Stop
¶ 21 McGee next contends that the scope and character of the stop
unlawfully exceeded the intrusion required for Vrbas to complete
his traffic-related objectives. She also asserts that Vrbas illegally
extended the stop after returning her documents.
1. Additional Applicable Law
¶ 22 Once a law enforcement officer accomplishes the purpose of an
investigatory stop and no further reasonable suspicion exists to
support additional investigation, the officer generally may no longer
detain the vehicle’s driver or passengers. Gamboa-Jimenez, ¶ 38.
During the stop, however, an officer may discover additional
information giving rise to a new reasonable suspicion that may
permit further investigation. Chavez-Barragan II, ¶ 21. If the
underlying detention remains lawful, a “shift” in investigatory
purpose isn’t improper. Id. at ¶ 26.
¶ 23 When deciding whether an officer has unreasonably extended
a lawful traffic stop, we must consider the facts and circumstances
that gave rise to the initial stop plus any additional information the
officer learned before issuing a warning or citation.
Gamboa-Jimenez, ¶ 39. “[B]ecause an officer is entitled to draw
9 rational inferences from all the circumstantial evidence, we may not
dismiss or discount acts simply because in isolation they may each
have plausible innocent explanations.” Id. at ¶ 40.
2. Analysis
¶ 24 In its oral ruling, the district court determined that Vrbas
didn’t violate McGee’s constitutional rights because he credibly
suspected her of drug trafficking. In support of this determination,
the court made the following factual findings: (1) McGee drove a
large, rented SUV from New York to California to visit motorcycle
clubs and go shopping; (2) the SUV smelled strongly of raw
marijuana; (3) the SUV contained several air fresheners; (4) McGee
and Jackson had driven all night from California; (5) the SUV rental
was due back “the very next day,” which would have been a “long
haul” from western Colorado; and (6) McGee and Jackson gave
conflicting statements about the length of time that Jackson had
been in the motorcycle club.
¶ 25 On appeal, McGee doesn’t contest the court’s factual findings.
Rather, she asserts that such facts didn’t amount to reasonable
suspicion of criminal activity justifying the expanded scope and
character of the stop, nor did they support Vrbas’s decision to
10 extend the stop after he had completed his traffic-related objectives.
Specifically, McGee asserts that Vrbas impermissibly “detour[ed]”
from the traffic-related “mission” of the stop by asking McGee and
Jackson detailed questions about their trip.
¶ 26 We conclude that the record supports the district court’s
determination that Vrbas had reasonable suspicion of criminal
activity to justify the stop’s expanded scope and character and its
time extension. Vrbas had reasonable suspicion of criminal activity
beyond the minor traffic violations even before he told McGee to exit
her SUV — the earliest point that McGee says he began conducting
investigatory tasks unrelated to her traffic violations. By that time,
Vrbas had already noticed the smell of raw marijuana and the
overwhelming odor of air fresheners. Viewed together, these facts
provided Vrbas with reasonable suspicion of illegal drug activity
that justified brief, additional investigation beyond McGee’s traffic
violations. See People v. Brown, 2022 CO 11, ¶ 26 (odor of burnt
marijuana emanating from the defendant’s car provided reasonable
suspicion of criminal activity); People v. Cervantes-Arredondo, 17
P.3d 141, 149 (Colo. 2001) (“[T]he presence of a scent-masking
11 agent, coupled with other indicia of criminal activity, can support a
reasonably brief inquiry.”).
¶ 27 Upon further inquiry, Vrbas discovered more information that
added to his reasonable suspicion. In particular, he learned that
the SUV was rented, that McGee was driving across the country
and back within a short time, and that she and Jackson had
conflicting stories about Jackson’s motorcycle club membership.
See People v. Bailey, 2018 CO 84, ¶¶ 31-32 (driver providing
“inconsistent information” and trooper’s belief that “it was almost
impossible” for the driver to travel “from Iowa to Las Vegas and then
to Colorado” in three days, coupled with other circumstances,
provided a “legitimate inference of criminal activity”); see also
United States v. Bracamontes, 614 F.3d 813, 816 (8th Cir. 2010)
(driver’s and passenger’s conflicting stories established requisite
reasonable suspicion for further investigation).
¶ 28 Viewing the totality of these circumstances together,
Gamboa-Jimenz, ¶ 40, we perceive no error in the district court’s
conclusion that Vrbas didn’t unlawfully expand the scope and
character of the stop or illegally extend its duration.
12 ¶ 29 Even so, McGee argues that the district court erred by failing
to make specific findings under the Chavez-Barragan II factors:
(1) the length of the detention; (2) whether the officer diligently
pursued the basis for the initial stop; (3) whether the suspect was
required to move from one location to another; and (4) whether
alternative, less intrusive means were available.
Chavez-Barragan II, ¶ 22. But McGee doesn’t point us to the
location in the record where she made this argument to the district
court. See C.A.R. 28(a)(7)(A). Moreover, the Chavez-Barragan II
factors are “non-exhaustive,” White, ¶ 43, and we’re not permitted
to reweigh the evidence on appeal. See, e.g., People in Interest of
S.Z.S., 2022 COA 133, ¶ 29.
¶ 30 Even if we considered the Chavez-Barragan II factors based on
the undisputed facts, they wouldn’t change our conclusion. First,
“‘[t]he length of a valid investigatory stop is properly measured,’ in
part, by ‘the time required . . . to diligently complete the
investigation given the complexity of the situation.’” White, ¶ 44
(quoting People v. Garcia, 11 P.3d 449, 455 (Colo. 2000)). The
district court found that the stop lasted eleven minutes before
Vrbas asked for McGee’s consent to search the SUV. Given the
13 investigatory tasks facing Vrbas, eleven minutes wasn’t an
unreasonable length of time. Moreover, as mentioned, Vrbas
already had reasonable suspicion of drug trafficking by the earliest
point that McGee says he detoured from traffic-related tasks. In
short, Vrbas’s questions unrelated to the traffic violations didn’t
“transform the traffic stop into a seizure of unreasonable duration.”
Chavez-Barragan II, ¶ 26.
¶ 31 Second, nothing in the court’s findings or the dash cam
footage suggests that Vrbas was less than diligent in pursuing the
investigative purposes that justified the stop. See White, ¶ 48. He
promptly explained the traffic violations to McGee and requested
her license after approaching the SUV. And, as discussed, Vrbas
obtained additional reasonable suspicion after approaching the
SUV, beyond the minor traffic violations, based on the smell of raw
marijuana and air fresheners.
¶ 32 Third, Vrbas’s instruction that McGee move to the passenger
side of his patrol car didn’t render the stop unreasonable. See
Chavez-Barragan II, ¶ 29 (police officer during a valid traffic stop
may order the driver to exit their vehicle).
14 ¶ 33 Finally, we agree with McGee that Vrbas had less-intrusive
means available to investigate the traffic violations — for example,
he could have asked McGee to remain in the SUV while he checked
her driver’s license. But after he approached the SUV, Vrbas was
no longer investigating only traffic violations; he also had
reasonable suspicion of drug trafficking based on the smell of raw
marijuana and air fresheners. Under these circumstances, we fail
to see any alternative, less intrusive means that were available to
Vrbas. Regardless, the supreme court’s precedent doesn’t “require
the police to choose the least intrusive means of detention.” White,
¶ 53 (quoting Garcia, 11 P.3d at 455).
¶ 34 Accordingly, we detect no error in the district court’s
D. Consent
¶ 35 McGee also contends that her consent to search was
involuntary because (1) Vrbas had ordered her out of her SUV;
(2) she was being detained in a traffic stop; (3) a person in her
situation wouldn’t believe she could refuse Vrbas’s search request,
15 in part because she knew the stop was pretextual; and (4) Vrbas
failed to inform her that she could refuse consent.
¶ 36 A law enforcement officer may conduct a consensual search
only after informing the person subject to the search that they are
being asked to voluntarily consent to the search and have the right
to refuse the request. § 16-3-310(1)(b), C.R.S. 2025. But an
officer’s failure to give this advisement is only one factor a court
considers in determining the voluntariness of consent.
§ 16-3-310(3); Chavez-Barragan II, ¶ 38. The key question is
whether law enforcement’s intrusive conduct critically impaired the
defendant’s judgment. Id. at ¶ 39. Law enforcement’s conduct
must not overbear the defendant’s will. Id. At the same time, the
“fact of custody alone has never been enough in itself to
demonstrate a coerced confession or consent to search.” Id. at ¶ 43
(quoting United States v. Watson, 423 U.S. 411, 424 (1976)).
¶ 37 We conclude that McGee’s consent to search her SUV was
voluntary. Though Vrbas should have given McGee the statutory
advisement, no evidence suggested — and our independent review
16 of the dash cam footage doesn’t reveal — that Vrbas used duress,
coercion (express or implied), or any form of undue influence to
induce McGee’s consent. See Chavez-Barragan II, ¶ 37. To the
contrary, the district court found that the interaction between
Vrbas and McGee was “conversational” throughout the stop, that
McGee was “extremely relaxed,” and that Vrbas didn’t make any
threats or promises. See id. at ¶¶ 51-54. Moreover, McGee
reaffirmed her consent to search after she informed Vrbas that she
had marijuana gummies in the SUV. See id. at ¶ 54 (explaining the
defendant “demonstrated his ongoing consent by volunteering to
obtain the keys for officers to search the trailer”).
¶ 38 We aren’t persuaded otherwise by McGee’s four contentions on
appeal. We resolve her contentions as follows:
• Absent coercion not present here, an officer’s order to
exit the vehicle during a traffic stop doesn’t render the
driver’s later consent to search involuntary. See id. at
¶ 54 (consent voluntary even though deputy moved the
defendant to the interior of her patrol car).
• While we agree with McGee that the return of a driver’s
documents is necessary but not sufficient to establish
17 that an investigatory stop has ended, see id. at ¶ 41, the
officer need not complete the stop for the driver’s consent
to be voluntary. See id. at ¶ 52 (consent voluntary even
though officer asked for consent before completing
traffic-related tasks). In any event, Vrbas had already
returned McGee’s documents when he asked for her
consent to search. See id. at ¶ 41.
• Although some drivers may hesitate to decline an officer’s
request to search (because they subjectively believe the
stop is pretextual or for other reasons), we must
objectively assess whether, under the totality of the
circumstances, the police conduct could have reasonably
appeared coercive to a person with the defendant’s
knowledge and particular characteristics. See
Munoz-Gutierrez, ¶ 23. Applying that standard, we see
nothing coercive in Vrbas’s interaction with McGee that
would have rendered her consent involuntary. The
district court found that (1) McGee’s consent contained
no hesitation or reluctance and (2) Vrbas applied no
pressure, trickery, or coercion. We won’t disturb these
18 findings because competent record evidence supports
them. See Gamboa-Jimenez, ¶ 35.
• McGee is correct that Vrbas failed to inform her that she
could legally refuse his request to search her SUV,
contrary to Colorado law. See § 16-3-310(1)(b). But
Vrbas’s failure to provide this advisement is only one
factor in the voluntariness analysis. See § 16-3-310(3);
Munoz-Gutierrez, ¶¶ 26, 37 (consent voluntary even
though troopers failed to inform driver they could refuse
consent to search). Considering the totality of the
circumstances, nothing suggests that Vrbas overbore
McGee’s will when seeking her consent. See id. at ¶ 37.
¶ 39 Accordingly, the district court didn’t err by denying McGee’s
motion to suppress the drug evidence collected from her SUV.
III. Opinion Evidence
¶ 40 McGee contends that Vrbas gave improper opinion testimony
about safe following distances and that this testimony misled the
jury on the law. We disagree.
19 A. Additional Background
¶ 41 In the dash cam footage, which the prosecution played for the
jury, Vrbas explained to McGee that she followed the semi-truck too
closely before she passed it because she came as close as one
second away from the back of the truck. McGee asked, “So what’s
the rule for that?” Vrbas responded that she “can’t be closer than
three seconds cause [sic] it takes the average person a second and a
half to respond to something.” Later, by the patrol car, McGee
again sought clarification by asking, “So if I’m behind a truck does
that mean I gotta stay how many feet away?” Vrbas replied, “You
gotta be three seconds behind another vehicle, so you got as close
as a second . . . you got up to at least a second behind the semi.”
¶ 42 At trial, Vrbas testified consistently with the explanation that
he provided to McGee during the traffic stop. He told the jury that
McGee’s SUV “got as close as a second behind [the] semi before it
decided to change lanes and go to — to start safely passing that
semi.” When the prosecutor asked why he was concerned about
that distance, Vrbas explained that
the distances [sic] is — was concerning. Because, you know, through the accident reconstruction stuff that we do, it takes the
20 average person a second-and-a-half to perceive and react of — of something happening, like somebody putting on their brakes or something like that.
So if they’re a second, then they’ve already run into the back of that semi before they’ve even had a chance to react. And that’s a person who isn’t under the influence of anything or tired. So that’s concerning that it’s — it’s a safety issue they could run into the back of that semi if it — something was to happen.
B. Standard of Review and Applicable Law
¶ 43 We review a trial court’s decision on the admissibility of
evidence for an abuse of discretion. People v. Baker, 2021 CO 29,
¶ 29. “A trial court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, or unfair, or when it misapplies
the law.” Id. Because McGee didn’t object at trial to Vrbas’s
testimony or the dash cam footage, our review is limited to plain
error. Hagos v. People, 2012 CO 63, ¶ 14. Plain error is error that
is both obvious and substantial. People v. Burdette, 2024 COA 38,
¶ 32. To satisfy this standard, the error must so undermine the
trial’s fundamental fairness as to cast serious doubt on the
reliability of the judgment of conviction. Hoggard v. People, 2020
CO 54, ¶ 13.
21 ¶ 44 A driver may not “follow another vehicle more closely than is
reasonable and prudent, having due regard for the speed of such
vehicles and the traffic upon and the condition of the highway.”
§ 42-4-1008(1).
¶ 45 “Testimony in the form of an opinion or inference otherwise
admissible is not objectionable because it embraces an ultimate
issue to be decided by the trier of fact.” CRE 704. However, a
witness may not testify that they believe the defendant committed
the crime at issue. People v. Penn, 2016 CO 32, ¶ 31. But in some
circumstances, a law enforcement officer “may testify about the
reasons they took certain investigative steps, even where this
testimony touches upon prohibited subjects.” Id. at ¶ 32.
¶ 46 As relevant here, the trial court may exclude relevant evidence
if the danger of misleading the jury substantially outweighs its
probative value. CRE 403. In reviewing the trial court’s decision,
we assume the maximum probative value that a reasonable fact
finder might give the evidence and the minimum unfair prejudice to
be reasonably expected. People v. Hood, 2024 COA 27, ¶ 19.
22 C. Analysis
¶ 47 We perceive no abuse of discretion in the district court’s
admission of Vrbas’s statements regarding safe following distances.
At trial, Vrbas testified about safe following distances and accident
reconstruction to help explain to the jury why he was concerned
about the close distance between McGee’s SUV and the semi-truck.
Vrbas’s explanation of safe following distances to McGee in the dash
cam footage, which the prosecution played for the jury, served the
same purpose. In both instances, Vrbas’s statements provided
relevant and material context for his investigative actions. See
Penn, ¶ 32.
¶ 48 Further, Vrbas never mentioned section 42-4-1008(1)’s
“reasonable and prudent” legal standard, nor did he opine that
McGee had violated that standard. Cf. Baker, ¶ 32 (identifying
factors that courts consider in determining whether expert opinion
testimony is admissible under CRE 704). In addition, the district
court properly instructed the jury (1) on the applicable law; (2) that
the court alone would instruct the jury on the applicable law; and
(3) that the jury could accept or reject any part of a witness’s
testimony. See id.; Washington v. People, 2024 CO 26, ¶ 31
23 (“Absent evidence to the contrary, we presume the jury understood
and followed the court’s instructions.”).
¶ 49 We also aren’t persuaded that the district court abused its
discretion under CRE 403 by admitting this evidence. Vrbas’s
testimony and his statements on the dash cam footage were highly
probative for the following too closely charge. Affording Vrbas’s
statements their maximum probative value and the minimum
unfair prejudice to be reasonably expected, we perceive no abuse of
discretion in the court’s decision admitting this evidence. See
Hood, ¶ 19.
¶ 50 Moreover, even if Vrbas’s testimony or statements on the video
crept close to the line, we can’t say their admission so undermined
the fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. See Hoggard, ¶ 13.
¶ 51 We aren’t convinced otherwise by McGee’s reliance on People
v. Barrera, 2022 CO 44. There, the supreme court explained that a
driver’s violation of the three-second rule1 for following another
1 The three-second rule, included in the Colorado Driver’s
Handbook, states that “a driver should follow another vehicle at a distance of at least three seconds.” People v. Barrera, 2022 CO 44, ¶ 6.
24 vehicle — a “regulatory” rule — didn’t supply reasonable suspicion
that the driver had violated the lane-change statute, section
42-4-1007(1)(a), C.R.S. 2025. See Barrera, ¶ 16. The court
reasoned that the lane-change statute “contains no such rule.” Id.
But here, Vrbas didn’t rely on the three-second rule when testifying
about his reasonable suspicion that prompted the traffic stop.
Rather, he mentioned the rule during the stop when responding to
McGee’s questions. We discern nothing improper in a law
enforcement officer mentioning a regulatory rule, even if not
codified in statute, when answering a driver’s question during a
traffic stop. In addition, Vrbas had other reasonable suspicion (the
passing lane violation) unrelated to the three-second rule that
justified the traffic stop, rendering Barrera even further afield.
¶ 52 Accordingly, we discern no error in the district court’s
admission of Vrbas’s statements about safe following distances.
IV. Hearsay
¶ 53 McGee contends that Vrbas’s testimony and statements in the
dash cam footage about driver response times, quoted above,
constituted inadmissible hearsay. We see no reversible error.
25 A. Standard of Review and Applicable Law
¶ 54 Although we review a trial court’s evidentiary rulings for an
abuse of discretion, whether a statement constitutes hearsay is a
legal conclusion that we review de novo. People v. Schnorenberg,
2023 COA 82, ¶ 10. Because McGee didn’t object to Vrbas’s
testimony or statements, our review is again limited to plain error.
Hagos, ¶ 14.
¶ 55 Hearsay generally isn’t admissible except as provided by rule
or statute. CRE 802. Hearsay is “a statement other than one made
by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” CRE 801(c). A
declarant is “a person who makes a statement.” CRE 801(b). A
statement is “(1) an oral or written assertion or (2) nonverbal
conduct of a person, if it is intended by the person to be
communicative.” CRE 801(a).
B. Analysis
¶ 56 We perceive no reversible error in the district court’s
admission of Vrbas’s testimony about driver response times or his
related statements in the dash cam footage.
26 ¶ 57 Although McGee points to Vrbas’s testimony about “accident
reconstruction stuff,” she doesn’t identify any declarant or
out-of-court statement within the meaning of CRE 801. Instead,
Vrbas generally described information about driver response times
and accident reconstruction that he directly observed or learned
firsthand through his experience and training. Such personal
perceptions aren’t hearsay. See, e.g., People v. Abad, 2021 COA 6,
¶ 62.
¶ 58 To the extent McGee argues that Vrbas’s related statements in
the dash cam footage about driver response times constitute
hearsay because he made them out of court, that presents a closer
question. But even if we assume that his recorded statements were
inadmissible hearsay, we can’t say that their admission so
undermined the trial’s fundamental fairness as to cast serious
doubt on the reliability of the judgment of conviction. Hoggard,
¶ 13. Before the court admitted the video, Vrbas had already
testified that the average person takes one and a half seconds to
react to something on the road. Thus, even if hearsay, Vrbas’s
statements on the video were “cumulative of other properly
27 admitted evidence.” People v. Caldwell, 43 P.3d 663, 669 (Colo.
App. 2001).
V. Sentence Enhancement
¶ 59 McGee contends, the People concede, and we agree that the
district court erred by imposing a separate conviction and sentence
on the special offender count. As relevant here, the special offender
statute, section 18-18-407(1)(c), increases the drug felony
classification level when a defendant is found guilty of importing
fourteen or more grams of cocaine into Colorado. “[T]he special
offender statute is a sentence enhancing provision, not a
substantive offense.” People v. Martinez, 36 P.3d 201, 204 (Colo.
App. 2001). “Trial courts may not enter a separate conviction or
sentence on a count that is only a sentence enhancer.” People v.
Torrez, 2013 COA 37, ¶ 23.
¶ 60 Because the district court erred by entering the special
offender sentence enhancement as a separate conviction, we vacate
McGee’s separate conviction and sentence on the special offender
count and remand for the district court to correct the mittimus.
See Martinez, 36 P.3d at 204 (where the mittimus reflects a
conviction and separate sentence imposed on the special offender
28 charge as a substantive offense, the conviction and sentence must
be vacated).
VI. Disposition
¶ 61 We affirm the judgment as to McGee’s convictions for
possession with intent to distribute a controlled substance and
following too closely. We vacate the separate conviction and
sentence on the special offender count and remand the case to the
district court with instructions to correct the mittimus.
JUDGE FOX and JUDGE KUHN concur.