22CA1914 Peo v Messerly 07-17-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1914 Moffat County District Court No. 21CR59 Honorable Sandra H. Gardner, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kaylee Ann Messerly,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE FREYRE Gomez and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 17, 2025
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Kaylee Ann Messerly, appeals her convictions for
child abuse resulting in serious bodily injury and child abuse
resulting in death. We affirm the judgment.
I. Background
¶2 In the early morning of March 11, 2021, an individual reported
an abandoned car and stroller on a private road off County Road
54. When Deputy Leanna Dennis arrived, the snow was beginning
to melt, and the road was muddy and slick. She was concerned her
car would get stuck, so she stopped when she was near enough to
read the car’s license plate. After running the plate number, she
learned that the car was registered to Messerly. Dennis called the
associated phone number and Messerly’s sister, Amy,1 answered.
She said that Messerly had left her phone at home and that she had
not seen Messerly for a couple of days.
¶3 Dennis called her partner, Corporal Nathan Baker and asked
him to bring the sheriff’s office utility vehicle to conduct a search.
When Baker arrived, they drove up to the car and saw no one was
1 Because Amy shares the same name last name as Messerly, we
refer to her by her first name. We mean no disrespect in doing so.
1 inside it. They walked a quarter of a mile down the private road
and found a stroller stuck in the mud.
¶4 Back at the station, Lieutenant Chip McIntyre followed up
with Amy. Amy had not heard from Messerly since March 9 and
said Messerly often left without her phone and without telling her
family where she was going. Amy said Messerly’s one-year-old
daughter, E.S., and two-year-old daughter, A.S., were likely with
her.
¶5 After a ground and aerial search, Baker found Messerly
holding A.S. approximately one mile from the car. Messerly was
wearing a T-shirt, black stretchy pants, and leather boots. A.S. was
wrapped in a black coat but had no socks or shoes. As Baker
approached, Messerly said that her other baby was up the hill.
Approximately one hundred yards away, E.S. was lying in a pile of
sage brush. She wore leopard print leggings and a light jacket but
had no hat, gloves, shoes, or socks. E.S. had died of hypothermia.
¶6 Messerly and A.S. were taken to the hospital where Detective
Gary L. Nichols interviewed Messerly. Messerly said she and her
children spent two nights in the snow. On March 9, around 1 p.m.,
she brought A.S. and E.S. to the private road to look for sticks and
2 stones to paint. When they arrived, it was a nice day.2 Messerly
did not check the weather, so she did not know a blizzard was
expected that night, and she did not bring winter clothing.3 After
collecting stones, Messerly’s car got stuck in the mud and would
not start. Messerly sat in her car for four hours until she thought
she saw house lights in the distance. With both children in the
stroller, Messerly started walking towards the lights.4 When the
stroller got stuck in the mud, she continued down the road holding
both children. When she reached the lights, she realized it was an
oil rig, not a house. It was dark, and when Messerly looked back
she did not see her car. She continued to walk away from the car,
calling out for help. As it began snowing, Messerly and her children
sat in the sage brush.5 A.S. and E.S. lost their shoes and socks.
The next day, they slept in the trees as it continued to snow. When
Messerly tried to walk she could only travel a distance of around six
2 According to a report from the National Weather Service, at 1:53
p.m. the temperature was 50 degrees and conditions were fair. 3 During the search of Messerly’s car, officers found clothing,
jackets, shoes, and a comforter. 4 At 4:53 p.m. the temperature was 50 degrees, and it was slightly
cloudy. 5 At 11:53 p.m. the temperature was 33 degrees, and it was
snowing heavily.
3 feet before having to sit down. During the second night, Messerly
fell asleep for twenty minutes, and when she awoke, E.S. was “not
ok.” She then wrapped her black coat around A.S. to keep her
warm.
¶7 When A.S. arrived at the emergency room, she had fourth-
degree frostbite, the most severe level of frostbite, causing
irreversible injury to her lower extremities. A.S.’s left foot required
amputation above the ankle, and her right leg required amputation
below the knee.
¶8 Messerly admitted to previously smoking methamphetamine
but said that she was trying to get clean. Messerly said that if
methamphetamine was found in her system it was because she and
E.S. consumed snow that was next to a methane gas plant. A.S.
did not eat the snow because she was “the smart one of us.”
Messerly and A.S. tested positive for methamphetamine. During a
follow up interview, Messerly said that she did a “hot rail”6 on
March 8 or 9.
6 A “hot rail” refers to when an individual heats up the end of a
glass pipe/stem and inhales the vapor of methamphetamine up their nose.
4 ¶9 The State charged Messerly with one count of child abuse
resulting in death (E.S.) and one count of child abuse resulting in
serious bodily injury (A.S.). The jury convicted Messerly on both
counts. The trial court sentenced her to sixteen years in the
custody of the Department of Corrections for E.S.’s death and
imposed a consecutive sentence of ten years for A.S.’s serious bodily
injury.
¶ 10 On appeal Messerly contends that she was erroneously
convicted of “knowingly” or “recklessly” committing child abuse
because the trial court determined at the preliminary hearing that
the evidence did not establish probable cause to believe that
Messerly “knowingly” committed the charged crimes. She further
contends the trial court erred by permitting the prosecutor to use
reasonable doubt analogies and by admitting other act evidence.
We affirm the judgment.
II. Preliminary Hearing and Probable Cause
¶ 11 Messerly contends that she was erroneously convicted of
“knowingly” and “recklessly” committing child abuse despite the
trial court determining that probable cause did not exist for the
“knowingly” mental state at the preliminary hearing. We conclude
5 that this contention was waived. However, even if the contention
was not waived, we perceive no plain error.
A. Additional Background
¶ 12 In the complaint, the State charged Messerly with two counts
of child abuse:
Count 1 – Child Abuse Resulting in Death
Between and including March 9, 2021 and March 11, 2021, Kaylee Ann Messerly unlawfully, feloniously, knowingly, or recklessly caused an injury to, or permitted to be unreasonably placed in a situation that posed a threat of injury to, the life, or health if a child, namely: E.S., that resulted in the death of the child; in violation of section 18-6-401(1)(a), (7)(a)(I), C.R.S. [2024.]
Count 2 – Child Abuse Resulting in Serious Bodily Injury
Between and including March 9, 2021 and March 11, 2021, Kaylee Ann Messerly unlawfully, feloniously, knowingly, or recklessly caused an injury to, or permitted to be unreasonably placed in a situation that posed a threat of injury to, the life or health of a child, namely: A.S., that resulted in serious bodily injury to the child; in violation of section 18-6-401(1)(a), (7)(a)(III), C.R.S.
(Emphases added.)
¶ 13 Messerly requested the lesser included offense of child abuse,
negligence.
6 ¶ 14 Lieutenant McIntyre testified at the preliminary hearing. The
prosecutor argued that McIntyre’s testimony was sufficient to
establish probable cause that Messerly recklessly caused serious
bodily injury to A.S. and recklessly caused E.S.’s death by
“recklessly leaving the vehicle, not bringing them warm clothes, not
going back to the vehicle . . . and just staying out there in this cold
for . . . multiple nights.”
¶ 15 Messerly argued that the prosecutor failed to establish
probable cause that Messerly acted “knowingly” or “recklessly” and
instead asked the trial court bind the case over to the district court
on the lesser included offense of negligent child abuse. Messerly
argued:
I could acknowledge that they’ve made a case for negligence. But [when you] talk about knowing conduct or reckless conduct, in the case of knowingly, Your Honor, [you] have to demonstrate that there was evidence that Ms. Messerly was aware that her conduct [was] going to cause either death or [serious] bodily injury to her children, [and] notwithstanding that, [she] persisted in that conduct, knowing that it would cause death or serious bodily injury, or alternatively — and she would — they have to show that her conduct was reckless.
7 That is to say that she consciously disregarded a known risk that death would occur, or serious bodily injury would occur to one of the — one of the children. And . . . they have not set out facts sufficient to allow the Court to draw such a conclusion.
¶ 16 Messerly argued that the prosecution relied on the fact that
Messerly did not check the weather, that her car got stuck, and that
she exited the car to show probable cause for knowing or reckless
conduct. Messerly asserted that this conduct only established
probable cause for negligent child abuse resulting in serious bodily
injury and death.
¶ 17 The prosecutor responded:
[T]he standard here is that Ms. Messerly recklessly — not that she recklessly (indiscernible) the death, but that she recklessly permitted a child to be unreasonably placed in a situation that posed a threat of injury to the child’s life or health, which then resulted in serious bodily injury or the death of a child.
And certainly these children were permitted to be unreasonably placed in a situation that posed a threat of injury to their life or health. You know, even if each of these individual actions, you know, themselves don’t give — rise to the level of reckless, all of them together do. They show that there was this substantial risk. It continued to build, it continued to build, and it was disregarded.
8 ¶ 18 The prosecutor argued that the amount of time Messerly
remained outside without attempting to return to the car
established reckless behavior. “And that that recklessness did
permit the child to be unreasonably placed in this situation that
posed a threat of injury to the child’s life or health and — and did
result in serious bodily injury and death.”
¶ 19 The trial court found:
Starting with child abuse resulting in death, . . . and focusing specifically on recklessly. I don’t think that the People have established knowingly, but that recklessly Ms. Messerly permitted — permitted her child to be unreasonably placed in a situation that posed a threat of injury to the life or health of the child, and then resulted in death.
....
But when you look at all of these events, and how they transpired, I think from a probable cause standard, they rise to the level of recklessly, recklessly permitting a child to be unreasonably placed in a situation that posed the threat of injury to the life or health of a child. And we know that that resulted in the death of a child. That is clear. That that occurred in Moffat County between March 9th and March 11th of 2021.
With regard to Count 2, under the same standard, recklessly, permitted to be unreasonably placed in a situation that posed
9 a threat of injury to the life or health of a child that resulted in serious bodily injury. And that particular child also tested positive for methamphetamine, adding a — an additional layer of what could be deemed as reckless. That she was unreasonably placed in a situation that posed a threat of injury to her life or health. That occurred, as the testimony explained, between March 9th and March 11th, 2021, and resulted in serious bodily injury to the child. We heard testimony that the doctor at Children’s Hospital who examined her signed off on a serious bodily injury form.
Let me just make sure I’ve covered everything I wanted to cover in my notes, folks. For the purpose of the preliminary hearing, I find that the People have carried their burden, and I will order both cases being bound over to the district court for further proceedings.
DEFENSE COUNSEL: My understanding is the Court has found that they have not shown probable cause for knowing conduct; is that correct?
TRIAL COURT: That is correct. I have not found probable cause for knowingly.
¶ 20 The court ruled the trial would proceed on both counts.
¶ 21 During the jury instruction conference, the prosecutor
tendered the following instruction:
The elements of the crime of Child Abuse as it relates to Counts 1 and 2 are:
10 1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. caused an injury to a child’s life or health, or permitted a child to be unreasonably placed in a situation that posed a threat or injury to the child’s life or health, or engaged in a continued pattern of conduct that resulted in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately resulted in the death of a child or serious bodily injury to a child.
After considering all the evidence, if you decide the prosecution has proven each of the elements beyond a reasonable doubt, you should find the defendant guilty of Child Abuse.
After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements beyond a reasonable doubt, you should find the defendant not guilty of Child Abuse.
(Emphasis added.)
¶ 22 The following discussion ensued:
TRIAL COURT: I believe there is an error on Element 3, knowingly. As charged in the complaint, it is knowingly or recklessly.
DEFENSE COUNSEL: I can live with knowingly.
11 PROSECUTION: We would ask that recklessly be added.
TRIAL COURT: All right. Any further modifications to that instruction?
DEFENSE COUNSEL: I don’t think so, Judge.
TRIAL COURT: So Element 3 will read knowingly or recklessly.
B. Applicable Law and Standard of Review
¶ 23 “[P]reliminary hearings are for the purpose of determining
whether ‘there is probable cause to believe that an offense has been
committed and that the person charged committed it.’” People v.
Villapando, 984 P.2d 51, 55 (Colo. 1999) (quoting People v. Dist. Ct.,
803 P.2d 193, 196 (Colo. 1990)). The prosecution has probable
cause when it “present[s] evidence sufficient to induce a person of
ordinary prudence and caution to entertain a reasonable belief that
the defendant committed the crime.” Dist. Ct., 803 P.2d at 196. At
a preliminary hearing, the prosecution does not need to “present
evidence sufficient to support a conviction for the crime charged.”
Villapando, 984 P.2d at 55. “Rather, the preliminary hearing acts
as a screening device . . . .” Id.
¶ 24 “If, from the evidence [presented at a preliminary hearing], it
appears to the district court that no probable cause exists to believe
12 that any or all of the offenses charged were committed by the
defendant, the court shall dismiss those counts from the
information . . . .” Crim. P. 7(h)(4).
¶ 25 A trial court has a duty to instruct the jury correctly on all
matters of law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).
We review jury instructions de novo to determine whether they
correctly informed the jury of the applicable law. Id.
¶ 26 Waiver is the intentional relinquishment of a known right or
privilege. People v. Rediger, 2018 CO 32, ¶ 39. A waived claim of
error presents nothing for an appellate court to review. People v.
Kessler, 2018 COA 60, ¶ 68. Although a mere failure to object does
not in all cases constitute a waiver, Rediger, ¶ 44, unequivocally
agreeing to a proposed course of action with full knowledge of the
surrounding facts and circumstances does, Forgette v. People, 2023
CO 4, ¶ 34 (when counsel was fully aware of a sleeping juror but
failed to ask the court to address the issue, defendant intentionally
relinquished his right to object and therefore waived appellate
review of the issue).
¶ 27 We review unpreserved, forfeited errors for plain error. People
v. Van Meter, 2018 COA 13, ¶ 42. Reversal is required under this
13 standard only if the error was obvious and “so undermined the
fundamental fairness of the trial itself so as to cast serious doubt
on the reliability of the judgment of conviction.” Hagos v. People,
2012 CO 63, ¶ 18.
C. Analysis
¶ 28 We conclude that Messerly waived this contention. Despite
the court’s ruling at the preliminary hearing, defense counsel
affirmed that he “[could] live with” the prosecutor’s tendered
instruction that only included “knowingly” after the trial court
identified that the instruction did not match the charges that
contained both “knowingly” and “recklessly.” Messerly did not
merely acquiesce to the proposed instruction, but she explicitly
agreed to it during the discussion. Cf. Rediger, ¶¶ 43-44 (perceiving
no waiver of a constructive amendment claim when there was no
discussion of the jury instruction challenged on appeal or any
indication that counsel knew of a discrepancy between the jury
instruction and the charging document). Then, when asked if the
instruction needed further modification after “recklessly” was
added, defense counsel responded, “I don’t think so.” Accordingly,
based on this record, we conclude Messerly waived this issue.
14 ¶ 29 However, even assuming an error occurred and was not
waived, we conclude any error was not plain for three reasons.
First, the error was not obvious because the jury instruction
tracked the statutory language and was therefore legally correct.
See People v. Chase, 2013 COA 27, ¶ 60 (“A jury instruction that
tracks [the] language of the statute is almost always sufficient.”). It
also tracked the model instruction. See COLJI-Crim. 6-4:01 (2022).
Moreover, when a statute describes two ways in which an offense
can be committed, it is proper to instruct the jury in the disjunctive,
requiring conviction if any of the statutory alternatives are
established by the evidence. People v. Viduya, 703 P.2d 1281, 1292
(Colo. 1985).
¶ 30 Second, Messerly argues that the verdict does not indicate the
mens rea on which the jury convicted her. But a finding of knowing
child abuse necessarily includes a finding of reckless child abuse.
People v. Struckmeyer, 2020 CO 76, ¶ 6. And “knowingly” is a more
difficult mental state to prove. See People v. Rigsby, 2020 CO 74,
¶ 21. Therefore, its inclusion in the instruction served to increase
the prosecution’s burden, making it unlikely that any error
contributed to Messerly’s conviction.
15 ¶ 31 Third, we reject Messerly’s argument that she did not receive
notice of the charges against her. A charging instrument is
sufficient so long as “it advises the defendant of the charges he is
facing so that he can adequately defend himself.” Campbell v.
People, 2020 CO 49, ¶ 44 (quoting Cervantes v. People, 715 P.2d
783, 785 (Colo. 1986)). “The prosecution cannot constitutionally
require a defendant to answer a charge not contained in the
charging instrument.” People v. Rodriguez, 914 P.2d 230, 257
(Colo. 1996). Here, the prosecutor charged Messerly with knowing
or reckless conduct, and the jury instructions and verdict forms
matched the charging document.
¶ 32 Accordingly, we perceive no reversible error.
III. Prosecutorial Misconduct
¶ 33 Messerly next contends that the prosecutor committed
misconduct when he employed two analogies to explain reasonable
doubt. We disagree and discern no plain error.
¶ 34 Before voir dire, the trial court instructed the jury on
reasonable doubt:
16 A reasonable doubt is the highest standard we have in our justice system. It is a doubt based upon reason and common sense, which arises from a fair and rational consideration of all the evidence, or lack of evidence, in this case. It is not a doubt that is vague, speculative, or imaginary, but such a doubt as would cause a reasonable person to hesitate to act in matters of importance to themselves.
¶ 35 During voir dire, the prosecutor presented prospective jurors
with a pair of analogies to explain the concept of reasonable doubt.
The first analogy involved a dog being left in an apartment.
So [Juror R], I — I use a stupid little factual scenario to kind of explain proof beyond a reasonable doubt. You heard the Judge say it’s not vague, speculative, or imaginary doubt. Okay. And so in this little factual scenario, I have a small 600 square foot apartment. I have a couch inside that apartment and I have a dog. Okay? No windows, just the front door.
I leave to go to work in the morning, I lock the door, leave my dog inside. When I leave my dog inside the couch is in the — in the way that I left it, you know, clean, tidy. I come home and the couch is ripped up to shreds and there’s fuzz everywhere. Okay? In that stupid little factual scenario, have I proven to you beyond a reasonable doubt that my dog probably destroyed my couch while I was out that day?
JUROR R: Chances are, yeah. The dog probably did it.
17 ¶ 36 The prosecution questioned two more jurors, and they said
that they would believe that the dog tore up the couch. The
prosecutor continued:
PROSECUTOR: Uh-huh. Yeah. Do you think beyond a reasonable doubt that the dog did it?
JUROR B: Most likely.
PROSECUTOR: Yeah. Most likely.
JUROR B: Yeah.
PROSECUTOR: And — and it’s just like a — it is just this weird concept, right? It’s not a numerical concept. It’s not 51 percent, 75 percent, 99 percent. You can’t attach a number to it, of — how sure you are. It’s — it’s a legal definition.
But what we do know is it’s not vague, speculative, or imaginary. And so one of the things that [a juror] and I was [sic] talking about was, should I speculate that somebody walked in that front door and did it, and blamed it on the dog? Right? Would that be speculative if the — if the evidence was, nope that door wasn’t open? What do you think, [Juror B], would that be speculative?
JUROR B: Yes.
PROSECUTOR: Okay. All right? It’s not an imaginary doubt.
¶ 37 In the middle of the dog scenario, the prosecutor said:
18 PROSECUTOR: Right? And you know, we’re — we’re kind of in that world in criminal law, as well, where we don’t oftentimes get a confession about what happened. And so it is left up to us to kind of put the pieces together, put these puzzle pieces together to find out whether or not this actually happened the way it did. What do you think about that?
¶ 38 Messerly’s counsel did not object.
¶ 39 Before opening statements, the trial court instructed the jury:
Please understand that it is my job to decide what rules of law apply to the particular case, and you are to follow those rules as I instruct you on them. Even if you disagree or you do not understand why we have a particular rule, you are still to follow the rules. You will then apply these rules that I give you throughout these proceedings to the facts of the case, and that is how you will reach your verdict. And this is how you’ll determine whether the prosecution has proven the guilt of Ms. Messerly beyond a reasonable doubt.
¶ 40 Before closing arguments, the trial court instructed the jury:
It is my job to decide what rules of the law apply to the case, the attorneys may comment on these rules, you must follow the instructions I give you. Even if you disagree or do not understand the reasons for some of the rules of law, you must follow them. No single instruction describes all of the law which must be applied. The instructions must be considered as a whole.
19 The burden of proof is upon the prosecution to prove to the satisfaction of the jury beyond a reasonable doubt the existence of all of the elements necessary to constitute the crime charged. Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence or the lack of evidence in the case. It is a doubt which is not a vague, speculative, or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters important to themselves.
B. Standard of Review and Applicable Law
¶ 41 “Whether a prosecutor’s statements constitute misconduct is
generally a matter left to the trial court’s discretion.”
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We
will not disturb the trial court’s ruling regarding such a statement
absent a showing of an abuse of discretion. People v. Strock, 252
P.3d 1148, 1152 (Colo. App. 2010). A trial court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair or is based on a misunderstanding or misapplication of
the law. People v. Snelling, 2022 COA 116M, ¶ 31.
¶ 42 When, as here, a defendant does not object at trial, we review
the error under the plain error standard. People v. James, 117 P.3d
91, 95 (Colo. App. 2004). “To constitute plain error, misconduct
20 must be flagrant or glaring or tremendously improper, and it must
so undermine the fundamental fairness of the trial as to cast
serious doubt on the reliability of the judgment of conviction.”
People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119
P.3d 1073 (Colo. 2005). And although lawyers “should avoid using
analogies when explaining the concept of reasonable doubt to a
jury,” People v. Sauser, 2020 COA 174, ¶ 88, prosecutorial
misconduct rarely constitutes plain error, People v. Carter, 2015
COA 24M-2, ¶ 53.
¶ 43 When reviewing claims of prosecutorial misconduct, we
conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine “whether the prosecutor’s
questionable conduct was improper based on the totality of the
circumstances.” Id. In doing so, we consider the context of the
argument as a whole and view it in the light of the evidence before
the jury. People v. Samson, 2012 COA 167, ¶ 30.
¶ 44 Second, if the comments were improper, we determine
“whether such actions warrant reversal according to the proper
standard of review.” Wend, 235 P.3d at 1096.
21 C. Analysis
¶ 45 Messerly contends that the analogies lowered the prosecutor’s
burden of proof and trivialized the jury’s task by equating the
burden to an everyday choice and by encouraging jurors to guess or
jump to a conclusion.
¶ 46 Concerning the puzzle analogy, divisions of this court have
specifically held that prosecutors should avoid using puzzle
analogies when explaining reasonable doubt to a jury. See Van
Meter, ¶¶ 31-34. Puzzle analogies can be problematic if they
(1) “quantify the concept of reasonable doubt”; (2) “inappropriately
trivialize the state’s burden”; (3) “equate the burden of proof to an
everyday choice”; and (4) “use iconic images, which invite the jury
to jump to a conclusion about a defendant’s guilt.” People v.
Camarigg, 2017 COA 115M, ¶¶ 44-47; see also Van Meter, ¶ 28.
¶ 47 In People v. Sanders, the prosecutor said, “All the evidence you
heard are pieces for the puzzle. This is the final puzzle.” 2022 COA
47, ¶ 46, aff’d, 2024 CO 33. The division concluded that the
prosecutor’s comments did not trivialize the prosecutor’s burden
because (1) the prosecutor did not compare his burden of proof to
simple activities, and (2) there was no attempt to quantify the
22 amount of proof necessary to solve the puzzle. Id. at ¶¶ 48-49. As
in Sanders, the prosecutor here did not use recognizable images or
reference missing pieces to quantify reasonable doubt. Cf. Van
Meter, ¶ 32 (concluding the prosecutor’s use of a puzzle analogy,
including the display of an incomplete puzzle of a recognizable
space shuttle image, was improper). Nor did the prosecutor equate
the burden of proof to an everyday choice. Instead, the prosecutor
told the jury that it had to consider each piece of evidence in
determining whether Messerly was guilty.
¶ 48 But even assuming the prosecutor’s use of the analogies was
improper, we conclude that any error in allowing the analogies was
not plain for three reasons. First, the prosecutor referred to the
analogies only briefly during voir dire. See Sauser, ¶ 93 (using a
puzzle analogy to explain reasonable doubt was improper but didn’t
amount to plain error because the prosecutor referred to the
analogy “only briefly during voir dire and closing argument”); see
also People v. Dominguez-Castor, 2020 COA 1, ¶ 91 (finding no plain
error in prosecutor’s improper analogy because, among other
things, it was not repeated).
23 ¶ 49 Second, this is unlike cases in which the court gave
problematic reasonable doubt analogies. See Tibbels v. People,
2022 CO 1; see also Pettigrew v. People, 2022 CO 2. In contrast to
the prosecutor’s analogies, the court properly instructed the jury on
the prosecution’s burden of proof and the definition of reasonable
doubt during voir dire, before opening statements, in the jury
instructions, and before closing arguments. See Carter, ¶ 59
(concluding the prosecutor’s puzzle analogy was not plain error
because the trial court instructed the jury twice on the definition of
reasonable doubt). Messerly does not contend that the trial court
incorrectly instructed the jury on the meaning of reasonable doubt.
“Absent evidence to suggest otherwise, we presume that the jury
followed these instructions.” Carter, ¶ 59.
¶ 50 Third, Messerly’s failure to object to the analogies may indicate
her counsel did not believe they were overly damaging. See People
v. Villa, 240 P.3d 343, 356 (Colo. App. 2009) (“The fact that the
defendant did not object to the remarks may indicate his belief that
the live argument was not overly damaging.”).
¶ 51 Accordingly, we perceive no plain error.
24 IV. CRE 404(b)
¶ 52 Messerly last contends that the trial court erred in admitting
evidence of a prior interaction she had with a tow truck driver. We
disagree.
¶ 53 Before trial, Messerly filed a motion in limine seeking to
exclude evidence of two interactions she had with Kelly Hatten, a
tow truck driver. On December 27, 2020, Hatten towed Messerly’s
car after she was stuck in a ditch. Then on March 7, 2021,
Messerly called Hatten because she locked her keys in her car.
During both interactions, Hatten was concerned with Messerly’s
safety based on comments she made to him. The prosecutor
responded by filing a notice of intent to introduce the evidence
under CRE 404(b) and arguing that the evidence was admissible to
show intent, common scheme or plan, and motive.
¶ 54 In a written order, the trial court found evidence of Messerly’s
interactions with Hatten admissible. It concluded that the evidence
was relevant to show lack of accident or mistake as it “directly
bears on the culpable mental state of knowingly and/or particularly
recklessly.” The court stated:
25 The evidence is logically relevant, because, again at minimum, it would show that [Messerly] knew the potential perils of driving in rural Moffat County in the winter months and the need to be properly prepared. The evidence does not demand the inference of bad character, and the proffered evidence is logically relevant independent of that inference. Furthermore, the probative value is not substantially outweighed by the danger of unfair prejudice.
¶ 55 Before Hatten testified, Messerly expressly waived the option
to request that the court provide an oral limiting instruction for
tactical reasons, stating, “I just believe that sometimes those
limiting instructions serve to highlight the evidence instead of the
purpose that they intended.”
¶ 56 Hatten testified that on December 27, 2020, he received a call
from a passerby about a car stuck in a ditch. It was a cold night,
and when Hatten reached Messerly’s car, he noticed that she was
not appropriately dressed for the weather. She was wearing a
T-shirt and shorts and did not have a jacket. Messerly’s children
were not with her.
¶ 57 We review a trial court’s decision to admit or exclude other
acts evidence under CRE 404(b) for an abuse of discretion. People
26 v. Jones, 2013 CO 59, ¶ 11. We will uphold the trial court’s ruling
unless it is manifestly arbitrary, unreasonable, or unfair or contrary
to law. Id.
¶ 58 CRE 404(b) prohibits using evidence of a defendant’s prior
acts to prove his character or to show that he acted in conformity
with that character on a particular occasion. However, evidence of
an uncharged act may be admissible for another purpose, “such as
proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” CRE 404(b)(2).
¶ 59 To be admissible, the prosecution must establish that the
prior acts occurred by a preponderance of the evidence, and the
evidence must satisfy the four-prong test set out in People v. Spoto,
795 P.2d 1314 (Colo. 1990). See People v. Garner, 806 P.2d 366,
372-73 (Colo. 1991). First, the evidence must relate to a material
fact. Spoto, 795 P.2d at 1318. Second, the evidence must be
logically relevant to that material fact: It must tend to make the
existence of the material fact more or less probable. Id. Third, the
evidence’s logical relevance must be independent of the prohibited
character inference. Id. Fourth, the evidence’s probative value
27 must not be substantially outweighed by the danger of unfair
prejudice. Id.
¶ 60 A trial court has substantial discretion in deciding whether to
admit evidence of other acts. Perez v. People, 2015 CO 45, ¶ 22.
“In deference to the trial court’s discretion, we must assume the
maximum probative value and the minimum unfair prejudice to be
given the evidence.” Yusem v. People, 210 P.3d 458, 467 (Colo.
2009).
¶ 61 We discern no abuse of discretion in the trial court’s
admission of Messerly’s interaction with Hatten. We begin with the
requirement that the prosecution prove the existence of the prior
acts by a preponderance of the evidence. Although the court made
no specific finding concerning this requirement, we conclude it is
implied in the court’s ruling because Messerly did not argue that
someone else committed these prior acts or assert that they never
occurred. See People v. McGraw, 30 P.3d 835, 838 (Colo. App.
2001) (trial court’s ruling admitting evidence under CRE 404(b)
necessarily implied a finding that the court was satisfied, by a
28 preponderance of the evidence, that defendant committed the other
act).
¶ 62 The child abuse statute requires that the defendant knowingly
or recklessly caused serious bodily injury, § 18-6-401(1)(a),
(7)(a)(III), or death, § 18-6-401(1)(a), (7)(a)(I) to a child. The culpable
mental state relates “to the nature of the offender’s conduct in
relation to the child or to the circumstances under which the act or
omission occurred,” not a particular injury to the child. People v.
Archer, 2022 COA 71, ¶ 19 (quoting People v. Deskins, 927 P.2d
368, 371 (Colo. 1996)).
Thus, “knowing” child abuse does not require that the defendant is aware that his conduct will cause serious bodily injury. Instead, to knowingly commit child abuse, a defendant need only be aware of the conduct he is engaging in with the child. Similarly, to recklessly commit child abuse, a defendant need only consciously disregard a substantial and unjustifiable risk that, given the child’s circumstances, the child may be injured.
Id. at ¶ 19.
¶ 63 As to Spoto’s first and second factors, “[t]he first prong of the
Spoto test is the easiest to satisfy.” Yusem, 210 P.3d at 464. A
material fact is one “that is of consequence to the determination of
29 the action.” CRE 401. “So long as the purposes for which the prior
act evidence is offered are somehow probative of an ultimate fact,
the first prong is satisfied.” Yusem, 210 P.3d at 464. And to satisfy
the second prong, the prosecution “need only show logical
relevance — that the prior act evidence has any tendency to make
the existence of the material fact more or less probable than
without the evidence.” Id. at 464-65.
¶ 64 Messerly’s mental state was of consequence to the
determination of whether she committed child abuse. See Archer,
¶ 19. Further, the evidence was logically relevant to prove the
absence of mistake or accident. The mental state the prosecution
had to prove was that Messerly “knowingly” or “recklessly” caused
serious bodily injury or death to a child. Therefore, the absence of
mistake or accident was relevant to both to her awareness of the
conduct in which she was engaging and to whether she consciously
disregarded a substantial and unjustifiable risk that, given the
children’s circumstances, the children may be injured. See id.
Evidence that Messerly’s car got stuck in the winter months when
she was not dressed appropriately for the weather made it more
probable that she was aware of or consciously disregarded a
30 substantial and unjustifiable risk of injury to her children. See
People v. Fry, 74 P.3d 360, 370-71 (Colo. App. 2002) (evidence of
other acts tending to show the defendant’s absence of mistake or
accident related to a material fact were logically relevant), aff’d, 92
P.3d 970 (Colo. 2004).
¶ 65 Concerning the third Spoto factor, we conclude that the other
acts evidence was logically relevant independent of any
impermissible character inference. See Jones, ¶ 16. Although the
other acts evidence “could support a propensity inference, Spoto
‘does not demand the absence of the inference’ but ‘merely requires
that the proffered evidence be logically relevant independent of that
inference.’” People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009)
(quoting People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994)). The
evidence of Messerly’s interaction with Hatten was relevant to
Messerly’s mental state independent of the prohibited character
inference.
¶ 66 Concerning the fourth Spoto factor, and giving the evidence its
maximum probative value, we conclude that its probative value
outweighed any danger of unfair prejudice. See CRE 403; People v.
McCants, 2021 COA 138, ¶ 36. As discussed, evidence of
31 Messerly’s interaction with Hatten was probative of her mental state
and of whether the incident could be attributed to accident or
mistake instead of knowing or reckless conduct. The probative
value of this evidence was not substantially outweighed by any
danger of unfair prejudice.
¶ 67 Accordingly, we discern no abuse of discretion in the court’s
admission of the other acts evidence.
V. Disposition
¶ 68 The judgment is affirmed.
JUDGE GOMEZ and JUDGE MEIRINK concur.