22CA1113 Peo v Menendez 11-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1113 City and County of Denver District Court No. 20CR3399 Honorable Edward D. Bronfin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Allen J. Menendez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE MOULTRIE Kuhn and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 20, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tanja Heggins, Alternate Defense Counsel, 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, Allen J. Menendez, appeals the judgment of
conviction entered on a jury verdict finding him guilty of second
degree murder. We affirm.
I. Background
¶2 In May 2020, an argument between Menendez and the victim,
Paul Evans, escalated into a physical altercation in which
Menendez stabbed and killed Evans.
¶3 The following factual background reflects the evidence that the
jury heard at trial.
¶4 The altercation took place in an alley between businesses and
residences. Derek Robinson owned a business, the rear of which
was adjacent to the alley. Robinson said that the doors of his
business were open the evening of the altercation, so he heard
Menendez and Evans arguing in the alley.
¶5 After hearing what Robinson described as “elevated voices,” he
exited his business, went to a wooden fence1 adjacent to the alley,
and peered through a large hole in the fence to see what was going
1 Robinson described having two fences between his business
property and the alleyway: one wooden picket fence with a large hole in it and a second fence made of chain-link that bordered the alleyway.
1 on. Robinson saw two men whom he recognized from the
neighborhood in a “heated exchange” and “in very close proximity
[to] each other.” At this point, he called 911 because Menendez and
Evans “were on the ground having a bit of a tussle,” and he “was
concerned that there was a fight going on.” Robinson described
Menendez as the aggressor in the altercation because he saw
Menendez “attacking [Evans].” However, Robinson didn’t see either
Menendez or Evans with a weapon while the men were fighting on
the ground. While Menendez and Evans fought, Robinson moved
from the wooden picket fence to the chain-link fence to “get a better
understanding of what [was] going on and [to] get a description of
the people involved to the 911 operator.”
¶6 Robinson said that the altercation ended with “[Evans] being
stabbed,” but he didn’t see Menendez stab Evans. By this time,
Robinson was standing in between the wooden fence and chain-link
fence and saw Menendez with a bloody knife in his hand. And he
recounted that Menendez looked him “squarely in the eye[s]” and
said, “I stabbed that motherfucker.” After that encounter, Robinson
watched Menendez walk north and enter the backyard of a
residential property near Robinson’s business. Robinson knew the
2 neighbor who lived at the residential property that Menendez had
entered. After hanging up with the 911 operator, Robinson called
that neighbor, Catherine Mosely.
¶7 Mosely testified that Robinson called her the evening of the
altercation and asked her to come outside because there had been a
stabbing. Mosely said that she went outside and spoke with
Robinson. She then went to her garage to check on her son, who
was living with her, and saw that he and his friend, whom she knew
as Jeff Menendez,2 were in the garage smoking cigarettes. Based on
her conversation with Robinson, Mosely believed police officers were
looking for Menendez. However, when Mosely went into the alley to
let police officers know that Menendez was in her garage, he fled,
and the police were unable to detain him at that time.
¶8 Hours later, police officers on scene learned that Menendez
had returned to the area where the altercation happened. Officer
Sean McCandless and Officer Cameron Torrez canvassed the area,
located Menendez, and arrested him.
2 Defendant’s full name is Allen Jeffrey Menendez.
3 ¶9 Officer McCandless transported Menendez to jail in his patrol
car, and Officer Torrez followed separately. Officer McCandless
testified that Menendez was uncooperative during transport. And
Officer Torrez recalled Menendez’s combative behavior once the
patrol car was parked in the jail’s garage — such as screaming and
kicking the patrol car’s windows and partition. So that the officers
could escort Menendez out of Officer McCandless’s patrol car and
into the jail, Officer Torrez attempted to calm down Menendez and
build a rapport with him. During that interaction, Menendez told
Officer Torrez, “I can’t. I just killed someone.”
¶ 10 The prosecution filed a complaint and information charging
Menendez with first degree murder. Menendez didn’t contest that
he stabbed Evans, which resulted in Evans’s death. Rather, he
asserted self-defense as an affirmative defense. A jury found
Menendez guilty of the lesser included offense of second degree
murder.
¶ 11 Menendez now appeals his judgment of conviction and asserts
that (1) the court erred when it took judicial notice of his in-court
statements of guilt (prior statements); (2) there is insufficient
evidence to sustain his conviction; (3) the prosecutor impermissibly
4 shifted the burden of proof during rebuttal closing argument; and
(4) cumulative error deprived him of a fair trial by an impartial jury.
We address each contention in turn. Because we conclude there
was no reversible error, we affirm.
II. The Court Erred When It Took Judicial Notice of Menendez’s Prior Statements, But the Error Was Harmless
A. Additional Background
¶ 12 A preliminary hearing occurred in June 2020. Because the
hearing occurred at the height of the COVID-19 pandemic,
Menendez appeared in person with counsel, while the prosecutor
and the lead detective on the case, Detective Eric Bueno, appeared
virtually. As a result, the parties and the court discussed how to
arrange various courtroom equipment so that those appearing
virtually could see those in person in the courtroom, and vice versa.
¶ 13 During the hearing, the prosecutor asked Detective Bueno to
identify the defendant in the courtroom. While the court was
attempting to orient a courtroom camera toward defense counsel’s
table before continuing with the detective’s testimony, the following
exchange occurred:
[COURT]: Mr. Menendez just said, “I feel like this is a waste of time because I’m guilty of
5 this murder. I don’t know why we’re doing this. It’s just a bunch of legalese.”
Mr. Menendez, if you don’t want to go forward with the preliminary hearing, you don’t have to. You can tell your attorneys that you want to plead guilty or do something else. That’s —
[MENENDEZ]: I’m guilty. I’m not looking for a deal either. I want to be held accountable for what I did.
¶ 14 Menendez ultimately decided to go to trial. At the end of the
first day of trial, but outside the presence of the jury, the
prosecution presented the court with an excerpt of the transcript
from the preliminary hearing and requested the court to take
judicial notice of Menendez’s prior statements.
¶ 15 Defense counsel conceded that, “generally[,] . . . a defendant’s
statements in a criminal case can be admitted” but objected to the
admission of the transcript because it would “mak[e] the Court a
witness to th[e] case.” Defense counsel argued that the “only
remedy would be for the Court to recuse itself so that [the defense]
could then call the Court as a potential witness.” Defense counsel
also argued that the transcript would “unfairly highlight[] that piece
of evidence” for the jury, and the defense couldn’t defend and
6 prepare a cross-examination of a witness — specifically, the
court — if the transcript was admitted into evidence.
¶ 16 The prosecution argued that the certified copy of the transcript
was self-authenticating under CRE 902(4). The prosecution further
argued that the prior statements were admissible as an admission
by a party-opponent under CRE 801(d)(2). The prosecution also
argued that, because the transcript was a certified copy, the court
wasn’t a witness.
¶ 17 The court made the following preliminary findings of fact
about the admissibility of Menendez’s prior statements:
• Menendez’s statements were volunteered and not in
response to any question by defense counsel, the court,
or anyone else.
• The transcript was a certified court record, which is no
different than a transcript from a prior trial when the
transcript could be used without calling the judge or the
court reporter as a witness.
• Menendez’s statements were an admission by a
party-opponent.
7 • When a party makes a statement in court on the record,
it’s no different than a statement that a defendant might
make during transport where there’s no Miranda3 issue.
¶ 18 After its findings, the court entered the following preliminary
ruling:
[G]iven [the transcript] is a certified document under seal, a court can take judicial notice under the rules of evidence and as an admission by Mr. Menendez[.] I’m going to . . . redact[] the sentence, “I’m not looking for a deal either.” I’m going to allow in the statement, “I’m guilty. I want to be held accountable for what I did.”
The court further ruled that it wouldn’t send the transcript back to
the jury. Instead, it would read Menenedez’s prior statements to
the jury. The court concluded its preliminary ruling by stating that,
“under [CRE] 201, taking judicial notice of a statement that was
made and as part of the court record is appropriate because it’s
part of the certified court record.” However, the court reiterated
that its ruling was only preliminary, and it would conduct further
3 The court was referencing Miranda v. Arizona, 384 U.S. 436
(1966).
8 legal research and consider additional case law from counsel
regarding the matter.
¶ 19 After the court made its preliminary ruling, defense counsel
further objected and argued that Menendez’s prior statements
weren’t subject to judicial notice “because a judicially noticed fact
under [CRE] 201 must be one not subject to reasonable dispute,
that is either generally known within the territorial jurisdiction of
the trial court or capable of accurate and ready determination by
resort to sources whose accuracy cannot be reasonably questioned.”
Defense counsel also argued that, because Menendez wasn’t under
oath at the preliminary hearing, there was a distinction in this case
from the example the court used regarding a transcript from a prior
trial being admitted into evidence.
¶ 20 The following morning, again outside the presence of the jury,
the court confirmed its preliminary ruling that it would take judicial
notice of a portion of Menendez’s prior statements. In reaching its
conclusion, the court reasoned, in part, that — unlike in People v.
Doyle, 2015 CO 10 — it wasn’t taking judicial notice of Menendez’s
guilt; rather, it was taking judicial notice of Menendez’s statement
of guilt.
9 ¶ 21 During the trial, Menendez’s prior statements were presented
to the jury as follows:
The court takes judicial notice of the following fact: During a hearing on June 23, 2020, Mr. Menendez made the following statement on the record, which was reported in a certified reporter’s transcript.
Quote, “I’m guilty, I want to be held accountable for what I did,” close quote.
A judicially noticed fact is one which the court determines is not subject to reasonable dispute and has been accepted as being true. You may or may not accept this fact as true. It is entirely your decision to determine what weight, if any, shall be given to the evidence.
¶ 22 The court also said that “implicit” in its ruling was that
Menendez’s prior statements were admissible as nonhearsay
party-opponent admissions under CRE 801(d)(2). The court
maintained its ruling that the transcript itself wouldn’t be admitted
as an exhibit that the jury would receive.
B. Applicable Legal Principles
1. CRE 201
¶ 23 CRE 201 governs a court’s ability to take judicial notice of an
adjudicative fact, which means the “fact must be one not subject to
reasonable dispute” because “it is either (1) generally known within
10 the territorial jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.” CRE 201(b). But in a criminal
case, the court must “instruct the jury that it may, but is not
required to, accept as conclusive any fact judicially noticed.” CRE
201(g). Rule 201 has “traditionally been used cautiously in keeping
with its purpose to bypass the usual fact finding process only when
the facts are of such common knowledge that they cannot
reasonably be disputed.” Prestige Homes, Inc. v. Legouffe, 658 P.2d
850, 853 (Colo. 1983).
¶ 24 While a court may judicially notice information in court
records, “the mere reflection of an adjudicative fact in a court record
in no way places the truth or accuracy of that fact beyond
reasonable dispute, within the contemplation of Rule 201.” Doyle,
¶ 11. Furthermore, “a court may not take judicial notice of facts on
the very issue the parties are litigating.” Mun. Subdistrict, N. Colo.
Water Conservancy Dist. v. OXY USA, Inc., 990 P.2d 701, 711 (Colo.
1999).
11 2. CRE 801
¶ 25 “Hearsay” is defined as “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). An
admission by a party-opponent is not considered a hearsay
statement when, as relevant here, “[t]he statement is offered against
a party” and “is . . . the party’s own statement.” CRE 801(d)(2)(A).
3. Standard of Review
¶ 26 We review a court’s evidentiary rulings, such as a ruling on
taking judicial notice pursuant to Rule 201, for an abuse of
discretion. People v. Garrison, 2017 COA 107, ¶ 30. A trial court
abuses its discretion when its ruling is “manifestly arbitrary,
unreasonable, or unfair” or when it misapplies the law. People v.
Payne, 2019 COA 167, ¶ 5. We review preserved nonconstitutional
errors under a harmlessness standard, which means if we
determine the court erred, we will reverse the judgment only if the
error “substantially influenced the verdict or affected the fairness of
the trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (quoting
Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).
12 C. Analysis
1. Menendez’s Prior Statements Weren’t Adjudicative Facts Subject to Judicial Notice
¶ 27 Menendez argues that the issue of whether he was guilty of
the charges against him was subject to dispute; therefore, the
court’s judicial notice of his prior statements violated Rule 201. We
agree.
¶ 28 Although the court discussed Doyle when deciding whether to
take judicial notice of Menendez’s prior statements, its ruling was
inapposite to Doyle’s rationale. The fact that Menendez’s
statements appeared in a certified court record didn’t “place[] the
truth or accuracy of th[ose] fact[s] beyond reasonable dispute”
under Rule 201. Doyle, ¶ 11. A criminal defendant is free to
challenge the accuracy or adequacy of a fact that a court record
purports to establish. Indeed, by claiming he acted in self-defense,
challenging the prosecution’s evidence, and presenting evidence of
his own, Menendez challenged the accuracy of the statement that
he was “guilty.”
¶ 29 Consistent with Menendez’s theory of the case, the jury was
instructed on self-defense as an affirmative defense to first degree
13 murder and the lesser included offense of second degree murder.
Thus, the prosecution was required to disprove self-defense. See
§ 18-1-407(2), C.R.S. 2025; Castillo v. People, 2018 CO 62, ¶ 39
(“When self-defense is an affirmative defense, . . . [d]isproving the
existence of self-defense becomes an additional element of the
offense that the prosecution has to disprove beyond a reasonable
doubt.”). We recognize that, in taking judicial notice of Menendez’s
prior statements, the court reasoned that it wasn’t taking judicial
notice of Menendez’s guilt, but rather of the fact that Menendez
stated in a prior hearing, “I’m guilty,” and “I want to be held
accountable for what I did.” But by judicially noticing Menendez’s
statement that he was “guilty” — a statement that expressed a legal
conclusion — and instructing the jury that the statement wasn’t
subject to reasonable dispute, the court came perilously close to
expressing that the prosecution’s burden had been met.
¶ 30 Thus, we conclude that the court abused its discretion when it
judicially noticed Menendez’s prior statements. However, as we
discuss next, that error was harmless.
14 2. Judicially Noticing the Prior Statements Was Harmless
¶ 31 The People assert that any error in taking judicial notice of the
prior statements was harmless because the prior statements were
(1) also admissible under CRE 801(d)(2)4 and (2) cumulative of
Menendez’s admissions to two witnesses that he killed Evans. We
agree with the People that Menendez’s prior statements were
admissible under CRE 801(d)(2).5 See People v. Dyer, 2019 COA
161, ¶ 39. Although the court primarily premised the admission of
Menendez’s prior statements on judicial notice, it also found that
Menendez’s statements were admissible as party-opponent
admissions under CRE 801(d)(2). Indeed, Menendez’s defense
counsel conceded as much during trial and doesn’t argue otherwise
on appeal.
4 The People also argue Menendez’s prior statements were
admissible because the transcript of the preliminary hearing was self-authenticating under CRE 902(4). But the court explicitly refused to admit the transcript. So we don’t address this argument further. 5 Because we agree that Menendez’s prior statements were
admissible under CRE 801(d)(2), we need not address the People’s argument that they were also admissible under CRE 803(8)(A). See Mulberger v. People, 2016 CO 10, ¶ 23 (Gabriel, J., concurring in the judgment).
15 ¶ 32 We also agree with the People that Menendez’s statements
were cumulative of those he made to two witnesses. Robinson
testified that Menendez, in reference to Evans, said that he “stabbed
that motherfucker.” And Officer Torrez testified that Menendez
admitted that he “just killed someone.” Menendez doesn’t dispute
he made those statements to Robinson and Officer Torrez.
¶ 33 Finally, we reject Menendez’s assertion that the court’s error
in judicially noticing his prior statements wasn’t harmless because
the prosecution referenced the statements during its closing
argument. Nowhere during its closing argument did the
prosecution refer to the court’s judicial notice of the statements or
argue that the jury should determine Menendez’s guilt because the
court judicially noticed his prior statements; rather, the prosecution
referenced the content of the prior statements themselves. Because
we have concluded that Menendez’s prior statements were
admissible under Rule 801(d)(2) and were cumulative of undisputed
statements he made to two testifying witnesses, we can’t conclude
that the court’s error in judicially noticing the statements
substantially influenced the verdict or affected the fairness of the
trial proceedings. See Hagos, ¶ 12; see also People v. Vanderpauye,
16 2021 COA 121, ¶ 39 (“Whether an error is harmless depends on ‘the
overall strength of the state’s case, . . . whether the proffered
evidence was cumulative, and the presence of other evidence
corroborating or contradicting the point for which the evidence was
offered.’” (citation omitted)), aff’d, 2023 CO 42.
III. The Evidence Was Sufficient to Support the Conviction
¶ 34 In addition to Menendez’s admissions to Robinson and Officer
Torrez, the jury heard extensive testimony from Robinson in which
he recounted seeing the altercation between Menendez and Evans.
Robinson described to the jury that Menendez was on top of Evans
during the altercation and that Menendez was the aggressor
because he saw Menendez “attacking” Evans. Robinson also said
that Menendez didn’t appear afraid after he had stabbed Evans;
rather, Menendez’s demeanor was “more or less factual.” Robinson
also saw Menendez holding a bloody knife when he admitted to
stabbing Evans.
¶ 35 Less than a month later, a crime scene investigator recovered
from Mosely’s backyard a bloody knife that contained Evans’s DNA
17 on the blade. And the shoes Menendez was wearing the evening of
the altercation came back positive for Evans’s blood.
¶ 36 Detective Bueno testified at trial about surveillance video
obtained from a neighboring business during the investigation. The
video didn’t have audio, nor did the camera angle capture the
altercation. However, the video did show another part of the
alleyway and a brief interaction between Robinson and Menendez.
And Detective Bueno testified that the video showed Menendez
dropping the knife, picking it back up, and walking toward Mosely’s
backyard.
¶ 37 The jury also heard from Mosely, who testified that when she
saw Menendez in her garage with her son, the two were “just sitting
there, talking, smoking cigarettes, [and] listening to music.” She
told Menendez to speak with police officers who were outside of her
garage, and he replied that “he was going to smoke his cigarette . . .
[b]ecause it was going to be awhile before he’d get to smoke another
one.” A police officer on the scene testified that when Mosely
pointed out Menendez to the officers, he began to run through the
house, and the officers were unable to detain him at that time.
18 ¶ 38 The medical examiner testified that Evans was stabbed in the
neck, underneath his chin. The wound, which was nearly four
inches long, extended through Evans’s tongue, toward the back of
his throat, and ended near his spine.
1. Second Degree Murder and Self-Defense
¶ 39 A person commits the crime of second degree murder if the
person “knowingly causes the death of a person.” § 18-3-103(1)(a),
C.R.S. 2025. A person acts “knowingly” with respect to a result of
their conduct when they are aware that their conduct is “practically
certain to cause the result.” § 18-1-501(6), C.R.S. 2025.
“Second-degree murder, then, is a general intent crime which
entails being aware that one’s actions are practically certain to
result in another’s death.” People v. Mingo, 584 P.2d 632, 633
(Colo. 1978). The prosecution must establish two factors in a
second degree murder case: (1) death was more than merely a
probable result of the defendant’s actions, and (2) the defendant
was aware of the circumstances that made death practically certain.
Id.
19 ¶ 40 A defendant’s use of deadly physical force is lawful as
self-defense only if they reasonably believe a lesser degree of force is
inadequate and, as applicable here, have a reasonable ground to
believe, and do believe, that they are “in imminent danger of being
killed or of receiving great bodily injury.” § 18-1-704(2)(a), C.R.S.
2025. Thus, the affirmative defense of self-defense considers both
the actual belief of a defendant and whether a reasonable person
would have believed and acted as the defendant did. People v.
Luna, 2020 COA 123M, ¶ 26. To evaluate the reasonableness of a
defendant’s belief in the need to use deadly physical force, the jury
must consider the totality of the circumstances. People v. Chirico,
2012 COA 16, ¶ 11.
¶ 41 When a defendant raises self-defense as an affirmative
defense, “the guilt of the defendant must be established beyond a
reasonable doubt as to that issue as well as all other elements of
the offense.” § 18-1-407(2); Castillo, ¶ 39. The prosecution can
defeat an affirmative defense of self-defense in one of two ways:
(1) by disproving beyond a reasonable doubt at least one of the two
conditions of the defense or (2) by proving beyond a reasonable
doubt that an exception to self-defense — such as the initial
20 aggressor exception — applies. People v. Mosely, 2021 CO 41, ¶ 18;
see also People v. Harrison, 2020 CO 57, ¶ 34 (holding that the
prosecution must disprove beyond a reasonable doubt at least one
of the conditions of the affirmative defense of self-defense).
2. Sufficiency of the Evidence
¶ 42 “[T]he prosecution has the burden of establishing a prima facie
case of guilt through introduction of sufficient evidence.” Clark v.
People, 232 P.3d 1287, 1291 (Colo. 2010). On review, “[w]e
consider ‘whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to support
a conclusion by a reasonable mind that the defendant is guilty of
the charge beyond a reasonable doubt.’” McCoy v. People, 2019 CO
44, ¶ 63 (quoting Clark, 232 P.3d at 1291). However, “[w]e do not
sit as a thirteenth juror to determine the weight of the evidence
presented to the jury.” Clark, 232 P.3d at 1293.
¶ 43 We review sufficiency of the evidence claims de novo. McCoy,
¶ 63; Maestas v. People, 2019 CO 45, ¶ 13 (“[A] conviction that is
based on legally insufficient evidence cannot stand.”).
21 C. Analysis
¶ 44 Menendez argues that the evidence was insufficient to support
a conviction for second degree murder for two reasons. First, he
contends that the prosecution failed to prove beyond a reasonable
doubt that he knew his conduct was practically certain to cause
death. Second, he contends that the prosecution failed to defeat his
claim of self-defense for three reasons: It didn’t (1) disprove that he
reasonably believed he needed to use physical force to defend
himself against Evans’s causing him imminent harm; (2) disprove
that the degree of force he used was reasonable; and (3) prove that
he was the initial aggressor in the altercation.
¶ 45 We aren’t persuaded.
1. The Evidence Was Sufficient to Prove Menendez Knew His Actions Were Practically Certain to Cause Evans’s Death
¶ 46 Menendez argues that “[he] is not a physician,” so “[h]e d[id]
not know what he need[ed] to hit in the neck in order to make sure
that he cause[d] death.” In support of this assertion, Menendez
cites language in Mingo that says to prove second degree murder,
the prosecution must establish that the victim’s “death was more
22 than merely a probable result of [the] defendant’s actions.” 584
P.2d at 633. But Mingo undermines his argument.
¶ 47 In Mingo, the evidence demonstrated that the defendant was
three feet away from the victim when she shot him in the chest and
killed him. Id. The trial court refused to instruct the jury as to
second degree murder, reasoning that such evidence was
insufficient to prove beyond a reasonable doubt that the defendant
knowingly caused the victim’s death. The prosecution appealed and
the supreme court reversed.
¶ 48 Noting that “subjective awareness of the probability of
consequences is a matter which often must be inferred from [the]
defendant’s conduct and surrounding circumstances,” the supreme
court concluded that the evidence was sufficient to support a
conviction for second degree murder because “it is obvious that a
jury could reasonably conclude that discharging a gun from a
distance of three feet creates such a high probability of death that
death was practically certain, not merely a probable result.” Id. at
634.
¶ 49 And a person doesn’t need to be a physician to understand
that stabbing someone in the neck is practically certain to cause
23 death. Indeed, Menendez acknowledges that it’s a part of the body
“that takes the same amount of force to cut through [as] a banana.”
Given the circumstances of the stabbing in this case, we determine
that a jury could reasonably conclude that — by stabbing Evans in
the neck, a part of the body that holds numerous vital arteries, and
creating a nearly four-inch laceration that ended near Evans’s
spine — Menendez knew his actions were practically certain to
cause Evans’s death. See id.; see also Mata-Medina v. People, 71
P.3d 973, 984 (Colo. 2003) (concluding that the evidence was
sufficient for the jury to find that the defendant was aware that
striking the victim in the neck with his fists was practically certain
to cause the victim’s death).
2. The Evidence Was Sufficient to Disprove Menendez’s Self-Defense Claim
¶ 50 We also reject Menendez’s second contention that the
prosecution failed to disprove beyond a reasonable doubt that
Menendez acted in self-defense.
¶ 51 In support of his second contention, Menendez argues in part
that, given the circumstances of the altercation, “[a] reasonable
person would believe that unlawful physical force was imminent,”
24 and Menendez in fact reasonably believed that he needed to use
physical force to defend himself from imminent unlawful physical
force.
¶ 52 To evaluate the reasonableness of Menendez’s belief that he
needed to use deadly force against Evans, the jury was required to
consider the totality of the circumstances. Chirico, ¶ 11. The
circumstances of the altercation were presented to the jury through
witness testimony, Menendez’s prior statements and conduct after
the altercation, and forensic evidence.
¶ 53 Robinson was the only witness who saw the altercation.
Robinson testified that he saw Menendez on top of Evans,
“physically attacking” Evans ; saw Evans “trying to defend
himself . . . the best he could”; and observed Menendez’s unafraid
demeanor after the altercation. Additionally, Menendez told him, “I
stabbed that motherfucker,” while holding a bloody knife.
¶ 54 Robinson also said he perceived Menendez as the aggressor in
the altercation. The jury submitted multiple questions during
Robinson’s testimony asking him about his recollection of the
altercation. One of those questions asked Robinson how he knew
Menendez was the aggressor. Robinson responded that his
25 perception was “[b]ased on what I could see, from my vantage point,
at the back of the property,” and he indicated that his view of the
altercation wasn’t obstructed.
¶ 55 The forensic evidence demonstrated that the laceration in
Evans’s neck from Menendez’s knife was longer than the knife’s
blade and went through Evans’s neck, ending near his spine. And
despite being aware police were looking for him right after the
altercation, Menendez fled. People v. Summitt, 132 P.3d 320, 324
(Colo. 2006) (holding evidence of flight and concealment to avoid
arrest may be relevant to demonstrate a defendant’s consciousness
of guilt when a defendant was aware they were being sought by law
enforcement).
¶ 56 It was up to the jury to assess the credibility and weight of the
evidence presented to it. See People v. Richardson, 2018 COA 120,
¶ 13, aff’d, 2020 CO 46. There’s no indication from the record that
it didn’t appropriately do so. Likewise, the jury was entitled to draw
reasonable inferences from the evidence presented to it to determine
whether the prosecution proved beyond a reasonable doubt all the
elements of second degree murder, including the elements
necessary to negate self-defense. See id.; see also People v. Donald,
26 2020 CO 24, ¶ 27 (noting jurors may draw reasonable inferences
from both direct and circumstantial evidence).
¶ 57 In finding Menendez guilty of second degree murder, it’s clear
that the jury rejected Menendez’s self-defense theory, which
necessarily means that it found the prosecution disproved beyond a
reasonable doubt at least one of the self-defense elements in the
jury instruction. See Mosely, ¶ 2 (“[T]he jury need not unanimously
agree on the specific reason that self-defense was disproven, so long
as it unanimously agrees that the prosecution disproved
self-defense beyond a reasonable doubt.”). And the evidence
described above, considered as a whole and in the light most
favorable to the prosecution, supports the jury’s verdict.
Accordingly, we don’t reach Menendez’s remaining arguments
because the prosecution didn’t also need to disprove that the degree
of force Menendez used was reasonable or, alternatively, prove that
he was the initial aggressor in the altercation. See id. at ¶ 1
(holding that, to defeat an affirmative defense of self-defense, the
prosecution must either disprove one of the two conditions of
self-defense or prove that an exception to self-defense applies); see
also Mulberger v. People, 2016 CO 10, ¶ 23 (Gabriel, J., concurring
27 in the judgment) (noting that the “cardinal principle of judicial
restraint” is not deciding issues unnecessary to the resolution of the
case (quoting PDK Lab’ies Inc. v. U.S. Drug Enf’t Admin., 362 F.3d
786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and
concurring in the judgment))).
IV. The Prosecutor Didn’t Commit Prosecutorial Misconduct During Rebuttal Closing Argument
¶ 58 During closing argument, defense counsel reminded the jury
that the burden was on the prosecution, not the defense.
¶ 59 Defense counsel argued that Menendez had “just been
attacked by [Evans] potentially” and then said to the jury,
The fact of the matter is you don’t know who the aggressor was. You did hear some testimony that at one point [Robinson] was saying that [Menendez] was on top of [Evans]. You know what also makes sense with that is that [Evans] felt cornered, pulled out a knife, and that’s how the knife got introduced into this situation.
¶ 60 Defense counsel also urged the jury to consider any evidence
that was lacking or contradictory. As part of that argument,
defense counsel said,
28 [The prosecution is] asking you to work backwards in this case, to obfuscate and cloud the fact that they have no evidence to present you the following information at the time that the stabbing occurred what [Menendez’s] mental state was. Think about what evidence of this would look like. It would look like him saying, I’m going to kill this person, or, I want to kill this person, or even any kind of reason. To be clear, they don’t have to prove motive. But a reason helps, right?
¶ 61 In its rebuttal, the prosecution argued,
[T]he way self-defense works is the [prosecution] only ha[s] to disprove one of [the two statutory factors] . . . . But here we have disproven both.
Because you have no evidence, none, other than speculation, other than sympathy of what the defendant was thinking . . . with respect to his belief that he had to use deadly physical force to defend himself. There is none. There is none.
He reasonably believed a lesser degree of force was inadequate. He had a reasonable ground to believe and did believe that he or another person was in imminent danger of being killed or receiving great bodily injury. None zero. Where would that evidence have come from?
When he walks out of the space behind the café with a knife in his hand, he turns to [Robinson] and what’s the first thing he says? He attacked me. Help, oh my God, I just stabbed someone, but he attacked me first.
29 ¶ 62 Defense counsel objected and argued that the prosecution was
burden-shifting. The court overruled the objection.
B. Applicable Legal Principles and Standard of Review
¶ 63 We evaluate a claim of prosecutorial misconduct during
closing arguments “in the context of the argument as a whole and
in light of the evidence before the jury.” People v. McMinn, 2013
COA 94, ¶ 60. “In doing so, we recognize that prosecutors have
wide latitude in the language and style they choose to employ, as
well as in replying to an argument by opposing counsel.” Id. And
the prosecution’s closing argument “may properly include the facts
in evidence and any reasonable inferences drawn therefrom.”
Domingo-Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005).
¶ 64 While it’s “improper for a prosecutor to shift the burden of
proving innocence to a defendant,” People v. Duncan, 2023 COA
122, ¶ 32, “[a] prosecutor’s burden-shifting actions fall on a
spectrum,” People v. Santana, 255 P.3d 1126, 1131 (Colo. 2011). If
a prosecutor explicitly argues that a defendant must prove their
innocence, then they have indeed engaged in burden-shifting. See
Santana, 255 P.3d at 1131. Conversely, a prosecutor’s actions that
“only tangentially and weakly imply [that] the defendant bears the
30 burden of proof[] carry[] little to no danger the jury will place the
burden of proof on the defendant.” Id.
¶ 65 To determine whether the prosecution has improperly shifted
the burden of proof, we view the entire record and consider to what
extent
(1) the prosecutor specifically argued or intended to establish that the defendant carried the burden of proof; (2) the prosecutor’s actions constituted a fair response to the questioning and comments of defense counsel; and (3) the jury is informed by counsel and the court about the defendant’s presumption of innocence and the prosecution’s burden of proof.
Id. at 1131-32 (footnotes omitted).
¶ 66 Furthermore, because “[t]he scope of closing argument rests in
the sound discretion of the trial court,” we won’t disturb the court’s
ruling “absent a gross abuse of discretion” resulting in prejudice to
the defendant. People v. Bowles, 226 P.3d 1125, 1132 (Colo. App.
2009). We review a preserved objection that the prosecution’s
argument lowered its burden of proof for constitutional
harmlessness. See People v. Cuellar, 2023 COA 20, ¶ 62.
31 C. Analysis
¶ 67 Menendez argues that the prosecution suggested in its
rebuttal closing argument that Menendez had an obligation to
present evidence in support of his theory of self-defense and that it
didn’t have the burden to disprove the affirmative defense of
self-defense. We aren’t persuaded.
¶ 68 Prosecutors are afforded “‘wide latitude in the language and
presentation style used’ during closing argument,” which “is
especially true when a prosecutor is responding to defense
counsel’s closing argument.” People v. Tran, 2020 COA 99, ¶ 58
(quoting Domingo-Gomez, 125 P.3d at 1048).
¶ 69 Although the prosecutor’s comments implied that there was no
evidence to support Menendez’s theory of self-defense, the
prosecution’s rebuttal closing argument, when considered in
context of the entire record, responded to defense counsel’s
hypothetical arguments about what caused the altercation and
Menendez’s state of mind during it. See Santana, 255 P.3d at
1131-32
¶ 70 For example, none of the witnesses’ testimony or the admitted
evidence suggested that Evans “felt cornered” or that he, rather
32 than Menendez, introduced the knife into the altercation. Thus, it
wasn’t burden-shifting when the prosecution responded to defense
counsel’s hypotheticals by stating that there was no evidence to
support them. See id. at 1132 (“[B]y considering the strength of the
burden-shifting actions in light of the whole record, we protect a
prosecutor’s ability to ‘comment on the lack of evidence confirming
[a] defendant’s theory of the case.’” (citation omitted)). Likewise,
because defense counsel argued that there was no evidence of the
types of statements by Menendez that would negate self-defense, it
wasn’t improper for the prosecution to argue in response that there
were also no statements that would support self-defense.
¶ 71 We therefore can’t conclude that the prosecutor’s conduct
improperly shifted the burden to Menendez or that the court abused
its discretion by overruling defense counsel’s objection to the
prosecution’s rebuttal closing argument because our review of the
entire record demonstrates that the prosecutor was responding to
defense counsel’s arguments.
¶ 72 Because we have concluded that the prosecutor’s conduct here
didn’t improperly shift the burden, we need not address whether
33 the conduct warranted reversal. See People v. Robinson, 2019 CO
102, ¶ 18.
V. There Is No Cumulative Error
¶ 73 Finally, Menendez argues that reversal is warranted under the
cumulative error doctrine. Because we’ve identified only one
harmless error, we need not conduct a cumulative error analysis.
See People v. Conyac, 2014 COA 8M, ¶ 152 (“The doctrine of
cumulative error requires that numerous errors be committed, not
merely alleged.”).
VI. Disposition
¶ 74 The judgment is affirmed.
JUDGE KUHN and JUSTICE MARTINEZ concur.