22CA2252 Peo v Monte 03-05-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2252 Jefferson County District Court No. 21CR716 Honorable Russell Klein, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Lorenzo Owen Monte,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE KUHN Fox and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 5, 2026
Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor General & Senior Assistant Attorney General, Denver, Colorado, for Plaintiff- Appellee
Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Lorenzo Owen Monte, was convicted of attempted
first degree murder as a crime of violence, first degree assault, and
second degree kidnapping. He now appeals the attempted first-
degree murder and first degree assault convictions and sentences.
We affirm.
I. Background
¶2 Heather Tallant first met Monte in March 2020. The two
became friends, and the friendship soon progressed into a romantic
relationship. Monte moved into Tallant’s home later that year.
¶3 One morning about a year later, Tallant woke up around 3:48
a.m. and headed upstairs for a glass of water. As she headed back
towards the stairs, she noticed Monte sitting on the couch with
“Fireball shooters all over the table.” Tallant continued towards the
stairs and Monte followed her. As Tallant started down the stairs,
Monte grabbed her by her hair and pulled her back up the stairs.
He “slammed” her against the wall on one side of the kitchen and
again into a wall on the other side of the kitchen where Tallant
“smacked [her] head” and fell to the floor. Tallant tried to fight back
against Monte and get away, but previous nerve damage to her back
made trying to defend herself difficult and painful.
1 ¶4 After Tallant fell to the floor, Monte got on top of her and
began to strangle her with his hands. She “blacked out a couple
times, . . . couldn’t breathe[,] and . . . started seeing stars.” This
went on for a couple minutes. Throughout the encounter, Monte
repeatedly threatened to kill Tallant and called her “worthless.”
Monte also threatened to kill Tallant’s mom and “go after [her] dog”
if she “told anybody anything.”
¶5 Monte then got off of Tallant and asked her to sit down on the
couch. The two started having a conversation. But Monte “flipped
out” on Tallant, and she ended up in the corner of her living room.
Monte was convinced that Tallant was a “snitch for the DEA” and
that she was wearing a wire, so he “ripped” off all of her clothes.
Monte then started “whipping” Tallant on the back with a phone
cord.
¶6 As Tallant tried to get away and run back downstairs towards
her bedroom, Monte pushed Tallant down the stairs and into the
bathroom wall. Monte came down the stairs, grabbed Tallant, and
again “slammed” her onto the “hardwood floor.” Tallant once again
lost consciousness. When she came to, Tallant was inside of the
bathtub. She was on her back and underneath the open faucet,
2 while Monte was on top of her “trying to drown [her].” Monte made
sure that Tallant’s “nose was closed[,] and . . . [her] mouth was
open.” This went on for five to ten minutes.
¶7 Monte then dragged Tallant to her bedroom, where he pushed
her to the floor and sat on top of her. Tallant started screaming
and Monte “beat” her on the left side of her face with his fists.
Tallant lost consciousness and woke up a few hours later with
“blood all over [her] face.” She went to the bathroom to wash the
blood off of her face, and Monte professed his love for her multiple
times.
¶8 Later that day, police arrived at Tallant’s home to arrest Monte
on an unrelated matter. Officers asked Tallant about the injuries
on her face and neck, and Tallant claimed that she had gotten into
a fight at a bar with another woman. Despite this interaction,
Tallant called 911 later that night and reported the incident.
Tallant’s mom later joined her at her home. They agreed to go to
the hospital “just in case [Tallant] had a concussion.”
¶9 The prosecution charged Monte with attempted first degree
murder as a crime of violence, first degree assault by strangulation,
second degree kidnapping, third degree assault, and a crime of
3 violence sentence enhancer. See §§ 18-3-102(1)(a), 18-2-101,
18-3-202(1)(g), 18-3-302(1), 18-3-204(1)(a), 18-1.3-406(2)(a)(I)(B),
C.R.S. 2025. A jury convicted him of attempted first degree murder
as a crime of violence, first degree assault by strangulation, and
second degree kidnapping.
¶ 10 Monte now appeals the attempted first degree murder and first
degree assault convictions and sentences.
II. Analysis
¶ 11 Monte contends that (1) insufficient evidence supported the
jury’s serious bodily injury finding for the crime of violence finding
and the first degree assault conviction. He also contends that the
court reversibly erred by (2) improperly instructing the jury on the
law governing serious bodily injuries; (3) admitting into evidence an
“incomplete and misleading legal definition of serious bodily injury”;
and (4) permitting “pervasive prosecutorial misconduct.” Finally,
Monte contends that (5) the trial court should have granted him a
mistrial and (6) cumulative error requires reversal.
A. Sufficiency of the Evidence
¶ 12 Monte contends that the prosecution presented insufficient
evidence to prove that he caused serious bodily injury to Tallant,
4 which is an essential element of both first degree assault and the
crime of violence sentence enhancer.
1. Applicable Law and Standard of Review
¶ 13 We apply the substantial evidence test to determine if the
prosecution introduced evidence “sufficient both in quantity and
quality to sustain the defendant’s conviction.” Clark v. People, 232
P.3d 1287, 1291 (Colo. 2010). In doing so, we review the record de
novo and 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.” Id. (quoting People v.
Bennett, 515 P.2d 466, 469 (Colo. 1973)); see also McCoy v. People,
2019 CO 44, ¶ 17.
¶ 14 A person commits first degree murder if “[a]fter deliberation
and with the intent to cause the death of a[nother] person . . .
[they] cause[] the death of that person or of another person.”
§ 18-3-102. Attempted first degree murder requires that a person
take a “substantial step” towards committing first degree murder.
§ 18-2-101. When a person “[c]aused serious bodily injury or death
5 to any other person except another participant” during an
attempted first degree murder, they are subject to mandatory
sentencing under the crime of violence statute. § 18-1.3-406(1)(a),
(2)(a)(I)(B), (2)(a)(II)(B).
¶ 15 A person commits first degree assault by strangulation when
“[w]ith the intent to cause serious bodily injury, he or she applies
sufficient pressure to impede or restrict the breathing or circulation
of the blood of another person by applying such pressure to the
neck or by blocking the nose or mouth of the other person and
thereby causes serious bodily injury.” § 18-3-202(1)(g).
¶ 16 Bodily injury is “physical pain, illness, or any impairment of
physical or mental condition.” § 18-1-901(3)(c). And serious bodily
injury is
bodily injury that, either at the time of the actual injury or at a later time, involves a substantial risk of death; a substantial risk of serious permanent disfigurement; a substantial risk of protracted loss or impairment of the function of any part or the organ of the body; or breaks, fractures, a penetrating knife or penetrating wound, or burns of the second or third degree.
§ 18-1-901(3)(p).
6 2. Sufficient Evidence Supported the SBI Finding
¶ 17 The foundation of Monte’s argument that insufficient evidence
supported the jury’s serious bodily injury determination is People v.
Vigil, 2021 CO 46. In Vigil, the victim was stabbed in the neck. Id.
at ¶ 5. He sustained minor injuries and the serious bodily injury
form (SBI form) indicated “that the stab wound to the neck did not
constitute serious bodily injury.” Id. at ¶ 6. However, at a
preliminary hearing, the doctor who signed off on the SBI form had
a “change of heart” and testified that the stab wound itself, knowing
nothing else, constituted a substantial risk of death because “a stab
wound to the neck could create certain risks with respect to blood
vessels, lungs, esophagus, and other critical components of the
body.” Id. at ¶¶ 8-9 (alteration in original).
¶ 18 The supreme court clarified the definition of a “substantial risk
of death.” The court concluded that there is a nexus between the
facts of the actual injury and the substantial risk of death. Id. at
¶ 32. Accordingly, the court held that “the facts of the actual injury
control the substantial risk of death determination under section
7 18-1-901(3)(p), not the risk generally associated with the type of
conduct or injury in question.” Id. at ¶ 16 (alteration in original).
¶ 19 Monte argues that insufficient evidence supports his
conviction because the evidence didn’t show that Tallant had
suffered one of “four general risks that can lead to death” from the
strangulation or drowning: (1) damage to neck bones or spinal cord;
(2) damage to blood vessels or arteries; (3) damage to the brain; or
(4) cardiac arrest. We are not convinced.
¶ 20 When Tallant arrived at the hospital, she was “immediately
taken into a room[,]” where hospital personnel began evaluating
her. Dr. Bartholomew Paull ordered a CT scan and a CTA scan to
image Tallant’s head and cervical spine. As Monte points out, Dr.
Paull testified at trial that the CT scan was “unremarkable,”
showing that Tallant did not have any broken bones in her neck
and the bones were in “normal alignment.” Likewise, the CTA scan
also came back “unremarkable.” He testified that the “blood vessels
that were imaged showed normal blood flow, and there wasn’t
damage done to the . . . linings of the arteries.” Dr. Paull also
testified that Tallant’s lungs sounded normal, and the neurological
exam revealed that Tallant could “move all her extremities” and feel
8 her arms and legs. Accordingly, he eventually discharged Tallant to
self-care at home.
¶ 21 While it’s true that this evidence doesn’t support the four risks
that Monte identifies, we don’t think those risks properly frame the
issue. We must determine whether there was sufficient evidence
from which a reasonable juror could have concluded that Tallant
suffered “physical pain, illness, or any impairment of physical or
mental condition,” which “at the time of the actual injury or at a
later time, involves a substantial risk of death[] . . . [or] a
substantial risk of protracted loss or impairment.” § 18-1-901(3)(b),
(p).
¶ 22 The prosecution presented evidence showing that Tallant had
suffered “physical pain, illness, or any impairment of physical or
mental condition.” Id. Tallant testified that when she arrived at the
hospital, she was still in pain, she was seeing stars, and she had a
raspy voice. Dr. Paull testified that he saw bruising on Tallant’s
“legs, her buttocks, [and] the side of her neck[,]” along with cuts on
her lips. He also saw petechiae — small purple and red spots that
indicate bleeding from small blood vessels — on Tallant’s neck.
Those suggested that Tallant’s “neck was under a high degree of
9 pressure.” Dr. Paull’s primary diagnosis for Tallant was “assault by
manual strangulation.”
¶ 23 Forensic Nurse Examiner (FNE) Tanya Hunsaker also testified
at trial. During her examination, FNE Hunsaker noticed Tallant’s
raspy voice and “petechiae on her neck and her face, under her
eyes, her eyelid, and the whites of her eyes.” She testified that
during strangulation, when pressure is applied to the neck, blood
cannot drain back down from the brain resulting in the petechiae.
She also testified to “the bruising on [Tallant’s] face and neck.” FNE
Hunsaker testified that Tallant’s “throat was very red and very sore”
and that Tallant “had a hard time swallowing.” FNE Hunsaker
testified that Tallant reported losing consciousness more than once
during the incident. FNE Hunsaker also testified that during the
examination, she observed, or Tallant reported, that Tallant had
experienced the following in connection with the assault: neck pain,
sore throat, memory loss, weakness or numbness in the
extremities, nausea, dizziness, headache, lightheadedness, loss of
consciousness, vision changes, difficulty swallowing, hoarse or
raspy voice, coughing more than normal, and neck swelling.
10 ¶ 24 FNE Hunsaker completed an SBI form after examining Tallant.
On the form, FNE Hunsaker indicated that, at the time of
examination, Tallant had petechiae in the face, neck, and eyes;
neck pain; numbness in her right thumb and hand; and that she
reported difficulty swallowing. She indicated that Tallant’s injuries
involved “a substantial risk of death.” She indicated that her
reason for this opinion was that Tallant “was strangled multiple
times [with loss of consciousness with] the intent to impede or
restrict circulation/oxygenation to the brain.”
¶ 25 FNE Hunsaker also explained why these details were
important. She testified that it is “very important” to know that
Tallant had lost consciousness multiple times “because that is
indicative of the . . . lethality of the strangulation. If you lose
consciousness, you’re losing blood flow to your brain, which means
you’re losing brain cells.” She testified that it only takes eleven
pounds of pressure to cut off oxygenated blood flow to the brain,
while it takes twenty pounds of pressure to open a soda can. Under
these circumstances, she testified, it takes about ten seconds for
someone to lose consciousness. And while FNE Hunsaker testified
about the injuries that could follow a strangulation, she also
11 testified that Tallant’s loss of consciousness indicated that she had
lost blood flow to her brain, which she said informed her expert
opinion that there was a risk of death in this case. Moreover, the
prosecutor and FNE Hunsaker engaged in the following exchange:
Q: I want to talk to you specifically about the types of injuries that you were talking about, which is . . . the blood restriction at the time of that injury. At the time of that injury, was the blood restriction, in your opinion, and the things that were going on a substantial risk of death to Ms. Tallant?
A: Yes.
¶ 26 We therefore disagree with Monte’s argument. Viewing the
record in the light most favorable to the prosecution, there was
ample evidence before the jury for it to conclude that when Monte
repeatedly strangled Tallant into unconsciousness, she suffered
“physical pain, illness, or an[] impairment of physical or mental
condition.” See § 18-1-901(3)(b). And there was ample evidence
from which the jury could conclude that the strangulation cut off
the flow of blood to Tallant’s brain, depriving her brain of oxygen,
and causing a substantial risk of death at that time. See
§ 18-1-901(3)(p). The fact that Tallant didn’t die or suffer other
potential consequences of strangulation doesn’t change this
12 analysis. As the supreme court noted, an injury “which involves
substantial risk of death does not become any less of a serious
bodily injury because the victim recovers.” Vigil, ¶ 32.
¶ 27 Thus, we conclude that there was sufficient and substantial
evidence from which a reasonable juror could have concluded that
Monte caused serious bodily injury to Tallant by repeatedly
strangling her.
B. Jury Instruction
¶ 28 Monte contends that the trial court erred when it refused to
incorporate Vigil’s holding into the jury instruction defining serious
bodily injury. More specifically, Monte argues that the “Vigil
instruction was crucial here because reasonable people of common
intelligence have routinely misunderstood the [serious bodily injury]
statutory definition.” We are not convinced.
¶ 29 A trial court must properly instruct the jury on the applicable
law. People v. Zukowski, 260 P.3d 339, 343 (Colo. App. 2010). “We
review jury instructions de novo to determine whether the
instructions accurately informed the jury of the governing law.” Id.
However, as long as they are correct statements of the law, the trial
13 court has substantial discretion in formulating the jury
instructions. Id. “We review a court’s decision to give a particular
jury instruction for an abuse of discretion. A court abuses its
discretion if it bases its ruling on an erroneous understanding or
application of the law.” People v. Coahran, 2019 COA 6, ¶ 14
(citation omitted).
¶ 30 “[I]f a statutory definition does not adequately inform the jury
of the governing law, additional instructions are required.” People
v. Perez, 2024 COA 94, ¶ 36 (alteration in original) (quoting People
v. Mendenhall, 2015 COA 107M, ¶ 24). However, “when ‘a term,
word, or phrase in a jury instruction is one with which reasonable
persons of common intelligence would be familiar, and its meaning
is not so technical or mysterious as to create confusion in jurors’
minds as to its meaning, an instruction defining it is not required.’”
Id. (quoting Garcia v. People, 2023 CO 30, ¶ 20).
2. The Court Did Not Improperly Instruct the Jury
¶ 31 During the jury instruction conference, defense counsel
proposed adding language to the statutory definition. Instead of
using section 18-1-901(3)(p)’s definition of serious bodily injury,
14 counsel proposed the following supplemental language: “The facts of
the actual injury control the substantial risk of death determination
for ‘serious bodily injury’, not the risk generally associated with the
type of conduct or injury in question.”
¶ 32 The trial court acknowledged that the proposed language
accurately represented Vigil’s holding. But the court was hesitant
to include Monte’s proposed instruction because it couldn’t figure
out how to “mesh” the two definitions together without running the
“risk of seriously confusing these definitions.”
¶ 33 The court instructed the jury as follows:
Serious bodily injury means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
¶ 34 To start, the jury instruction is almost identical to the
definition of serious bodily injury in section 18-1-901(3)(p). The
given instruction omits only a few words, which do not significantly
alter the statutory definition. As a general rule, “jury instructions
15 framed in the language of statutes are usually adequate and
proper.” Zukowski, 260 P.3d at 343.
¶ 35 Next, we agree with the People that while the Vigil court
clarified that “the facts of the actual injury” determine whether
there was a substantial risk of death rather than the “risk generally
associated with the type of conduct or injury in question[,]” it did
not conclude that the statute was ambiguous. Vigil, ¶ 16. “A
statute is ambiguous when it is reasonably susceptible of multiple
interpretations.” McCoy, ¶ 38. Monte does not argue that the
definition of serious bodily injury is susceptible to multiple
interpretations. He instead argues that the language “at the time of
actual injury or at a later time” in the serious bodily injury definition
allowed the jury to consider the general risks of strangulation
rather than Tallant’s actual injuries. But we think the instruction
properly states the law. The instruction doesn’t suggest that the
jury can make its decision based on generalized risks. Instead, the
instruction correctly states that the jury must consider the bodily
injury and whether that injury posed a substantial risk of death.
We therefore conclude that the jury instruction properly stated the
applicable law.
16 ¶ 36 Given this conclusion, we see no abuse of discretion in the
trial court’s decision not to incorporate Vigil’s holding into the
instruction that followed the statutory definition. Given the trial
court’s “substantial discretion in formulating the jury
instructions[,]” Zukowski, 260 P.3d at 343, we perceive no error in
this decision.
C. SBI Form
¶ 37 Monte contends that the trial court reversibly erred when it
admitted FNE Hunsaker’s SBI form. At trial, defense counsel
objected to the form as containing hearsay and argued that it
“contained an incomplete and inaccurate statement of the law on
SBI.” The court overruled the objection, noting that “these
documents are typically admitted in these cases.” On appeal,
Monte argues that the ruling should be reversed under CRE 403
because “evidence must be excluded if its probative value is
substantially outweighed by the danger of misleading the jury.”
Specifically, Monte argues that the SBI form had no probative value
because (1) the court should have instructed the jury instead of
permitting the form to do so and (2) FNE Hunsaker could have
testified to the other information in the form. We are not convinced.
17 ¶ 38 Relevant evidence may be excluded under CRE 403 if “its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury.” “We
review a trial court’s evidentiary decisions for an abuse of
discretion.” People v. Ramos, 2017 CO 6, ¶ 5.
¶ 39 While it’s true that the SBI form contained the statutory
definition of serious bodily injury, that doesn’t make it an
instruction. The court properly instructed the jury that the court
would decide what law applies to the case and that the jurors must
apply that law as stated in the instructions. We presume that the
jurors followed that instruction. People v. McKeel, 246 P.3d 638,
641 (Colo. 2010). Regardless, the serious bodily injury definition on
the SBI form tracked the statutory definition, which, as we conclude
above, correctly stated the law.
¶ 40 As for FNE Hunsaker’s testimony, the contents of the form
summarized her opinion at the time of the examination about
whether Tallant’s injuries constituted serious bodily injury, which
was ultimately a fact question for the jury. See People v. Baker, 178
P.3d 1225, 1233 (Colo. App. 2007). The form’s contents therefore
had probative value. See CRE 401. And even if the form was
18 cumulative of FNE Hunsaker’s trial testimony, that doesn’t make it
inadmissible. See People v. Salas, 902 P.2d 398, 401 (Colo. App.
1994).
¶ 41 Accordingly, the court did not abuse its discretion when it
admitted the SBI form into evidence.
D. Prosecutorial Misconduct
¶ 42 Monte contends that the trial court permitted “pervasive
prosecutorial” misconduct on numerous occasions requiring
reversal. He argues that the challenged statements (1) misstated
the law; (2) misled the jury by referring to facts not in evidence;
(3) shifted the burden of proof to Monte; or (4) appealed to the jury’s
sympathies and prejudices. We consider each prosecutorial claim
in turn.
¶ 43 We conduct a two-step analysis to review prosecutorial
misconduct claims. People v. Robinson, 2019 CO 102, ¶ 18. “First,
we must determine whether the prosecutor’s conduct was improper
‘based on the totality of the circumstances.’” Id. (quoting Wend v.
People, 235 P.3d 1089, 1096 (Colo. 2010)). If we determine that the
19 conduct was improper, then “we must decide whether such actions
warrant reversal according to the proper standard of review.” Id.
¶ 44 “We review preserved claims of prosecutorial misconduct
under the nonconstitutional harmless error standard.” People v.
Walker, 2022 COA 15, ¶ 28. We reverse under this standard “only
if the error substantially influenced the verdict or affected the
fairness of the trial.” Id. However, if the defendant doesn’t object at
trial, the prosecutorial misconduct claim is unpreserved, and we
apply the plain error standard. Robinson, ¶ 19. Plain error is “error
that was obvious and substantial and that so undermined the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction.” Id. We only reverse
plain error for prosecutorial misconduct when it was “flagrantly,
glaringly, or tremendously improper.” Id. (quoting Domingo-Gomez
v. People, 125 P.3d 1043, 1053 (Colo. 2005)). Prosecutorial
misconduct during closing arguments is rarely “so egregious as to
constitute plain error.” People v. Constant, 645 P.2d 843, 847 (Colo.
1982) (quoting People v. Sepeda, 581 P.2d 723, 732 (Colo. 1978)).
20 2. Misstating the Law
¶ 45 Monte contends that the prosecutor misstated the law of
serious bodily injury during closing arguments. “Although a
prosecutor may argue all reasonable inferences from the evidence in
the record, he or she may not misstate or misinterpret the law.”
People v. McMinn, 2013 COA 94, ¶ 62.
¶ 46 The prosecutor stated “[t]he defendant wants you to believe
that there’s no serious bodily injury because Ms. Tallant did not
suffer a stroke, blood clot, or have an abnormal CT scan. Ladies
and gentlemen, that’s not what serious bodily injury is. The end
result is not what matters.” After the court overruled a defense
objection, the prosecutor continued, “What matters is that loss of
consciousness is the beginning of death. That’s a basic concept.”
¶ 47 We don’t perceive this as a misstatement of the law. Instead,
the prosecutor was appealing to the jury to focus on Tallant’s loss of
consciousness rather than the negative test results. In context, the
prosecutor’s argument was attempting to convince the jury that
Tallant’s loss of consciousness constituted a serious bodily injury.
Accordingly, we perceive no error in the court’s ruling.
21 3. Misleading the Jury By Referencing Facts Not in Evidence
¶ 48 Monte contends that the prosecutor referred to facts not in
evidence on three different occasions and thereby misled the jury.
While it is improper for the prosecutor to misstate the facts during
closing arguments, it only rises to the level of misconduct when the
misstatement is intentional, and the prosecutor intends to “mislead
the jury as to the inferences it may draw [from the evidence.]”
Domingo-Gomez, 125 P.3d at 1049 (quoting ABA Standards,
§ 3-5.8).
¶ 49 First, Monte argues that the prosecutor misled the jury when
she argued that Dr. Paull found petechiae in Tallant’s eyes. More
specifically, during closing argument, the prosecutor stated that the
jury “heard testimony from Dr. Paull and FNE Hunsaker about the
petechiae they both saw in [Tallant’s] eyes.” Defense counsel
objected that this misstated the facts, arguing that Dr. Paull did not
find petechiae in Tallant’s eyes. The court overruled the objection
and disagreed with the defense as it had “double-checked [its]
notes.”
22 ¶ 50 Defense counsel later questioned this statement, saying “You
heard from Dr. Paull . . . that she did not have petechiae in her
eyes.” The prosecutor objected and argued that the court “just
ruled that the statement is an inaccurate reflection of the testimony
we heard.” The court then overruled the objection, permitting the
defense to raise questions about Dr. Paull’s testimony.
¶ 51 A review of the record reveals that Dr. Paull referred to
petechiae two times during his testimony. Both times he testified
that he saw petechiae only on Tallant’s neck. Therefore, defense
counsel was correct that Dr. Paull did not testify to seeing petechiae
in Tallant’s eyes. However, we see no indication that the prosecutor
made this statement intending to mislead the jury. And the
statement was partially correct because FNE Hunsaker testified to
seeing petechiae in Tallant’s eyes. Given that testimony, we don’t
see — and Monte doesn’t explain — how this erroneous ruling was
prejudicial. Accordingly, we conclude it was harmless.
¶ 52 Second, Monte argues that the prosecutor misled the jury
when, in an attempt to argue the seriousness of strangulation, she
said, “Think about why, in Colorado, the police prohibited the use
of chokeholds.” Monte objected to the statement on the ground that
23 these facts were not in evidence, which the trial court sustained.
The court then instructed the jurors that “they should not consider
any information regarding why police may or may not have barred
chokeholds.”
¶ 53 While a prosecutor has “wide latitude in the language and
presentation style used to obtain justice[,]” a prosecutor may not
refer to facts not admitted into evidence. People v. Burdette, 2024
COA 38, ¶ 62 (quoting Domingo-Gomez, 125 P.3d at 1048). It was
improper for the prosecutor to refer to police chokehold bans.
However, we agree with the People that Monte again does not
explain how the court’s ruling was prejudicial. The court sustained
Monte’s objection and instructed the jury to not consider whether
“police may or may not have barred chokeholds.” We presume that
the jurors followed this instruction. McKeel, 246 P.3d at 641. And
because the defense obtained relief — and Monte did not request
further relief — “we need not consider this alleged error.” People v.
Douglas, 2012 COA 57, ¶ 65; see also People v. Garcia, 526 P.2d
292, 294 (Colo. 1974) (holding that because the trial court
sustained the defendant’s objection, the possibility of prejudice was
eliminated).
24 ¶ 54 Third, Monte argues that the prosecutor improperly referred to
“intimate partner violence manipulation” because no evidence was
presented on that topic. During closing arguments, the prosecutor
talked about how Tallant did not initially report the crime to the
police “because she loved him.” The prosecutor then referred to a
jail call between Monte and Tallant and said, “Listen to how he
talks to her in the jail call. Listen to the classic intimate partner
violence manipulation. You’re the only one that can help me now.
You’re the only one that can help me get out of here.”
¶ 55 Monte did not object to this statement, so we review it for plain
error. See Robinson, ¶ 19. It’s true that there was no expert
testimony specifically about “intimate partner manipulation.” But
based on what Monte told Tallant during the jail call, the prosecutor
could argue that Monte was manipulating her when he pleaded for
help just one day after the incident. And as the People point out,
Detective Jeffrey Adams testified to his experience with domestic
violence cases and that some witnesses can be “reluctant or
uncooperative because of the nature of their relationship.” Given
this testimony, we conclude that even if the argument was
25 improper, it wasn’t “flagrantly, glaringly, or tremendously
improper.” Domingo-Gomez, 125 P.3d at 1053.
4. Shifting the Burden of Proof
¶ 56 Monte contends that the prosecution improperly shifted its
burden of proof twice during closing arguments.
¶ 57 The prosecution has to prove each element of a crime beyond a
reasonable doubt. See People v. Clark, 214 P.3d 531, 540 (Colo.
App. 2009), aff’d on other grounds, 232 P.3d 1287 (Colo. 2010).
This burden of proof cannot be shifted to a defendant. Id. Even if
“a prosecutor’s comments and questions . . . imply a defendant has
the burden of proof, such comments and questions do not
necessarily shift the burden of proof, constituting error.” People v.
Santana, 255 P.3d 1126, 1131 (Colo. 2011). A court must instead
assess whether the prosecution shifted the burden of proof in light
of the entire record. Id.
¶ 58 The first statement that Monte claims shifted the burden of
proof was when the prosecutor said, “For you to find the defendant
not guilty, you would need to believe every single version of their
events.” While defense counsel objected to this statement, she did
not object to burden shifting, and therefore this claim is
26 unpreserved and reviewed for plain error. See People v. Ujaama,
2012 COA 36, ¶ 37.
¶ 59 While this statement arguably constitutes burden shifting, it is
not “flagrantly, glaringly, or tremendously improper” as to
constitute plain error. Domingo-Gomez, 125 P.3d at 1053. In
addition, the court correctly instructed the jury at the conclusion of
trial that the defendant was presumed innocent, and the
prosecution had the burden of proof and needed to prove each
element beyond a reasonable doubt. Santana, 255 P.3d at
1131-32.
¶ 60 The second statement that Monte claims shifted the burden of
proof was “[a]ll of these things would have to be true. That Ms.
Tallant got in a bar fight, but the bruises somehow don’t show up
for that kind of assault, and they don’t show up until two days later
somehow. It’s spontaneous bruising two days after the fight. That
would have to be true. You would have to accept that fact as true.”
The defense objected to the statement and claimed that the
prosecution was burden shifting. The court overruled the objection,
but then it reminded the jury that “the People hold the burden of
proof and must prove all elements beyond a reasonable doubt. The
27 defendant does not hold any burden of proof with regards to the
charges in this case.”
¶ 61 Monte is correct that the jurors would not need to believe that
Tallant got into a bar fight to acquit him. It was always the
prosecution’s burden to prove Monte’s guilt beyond a reasonable
doubt. See People v. Heilman, 52 P.3d 224, 227 (Colo. 2002) (“The
burden of proof . . . always remains with the prosecution.”). But in
light of the entire record and the court’s instructions on the burden
of proof, we can’t conclude that this statement shifted the burden to
Monte.
5. Appealing to Juror Sympathies and Prejudices
¶ 62 Prosecutors cannot make arguments that are intended to
“inflame the passions or prejudice of the jury.” Mendenhall, ¶ 78
(quoting People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999)).
¶ 63 Monte contends that the prosecution appealed to the jury’s
sympathy, inflamed the jury’s passions, and mischaracterized and
denigrated the defense and Monte six times during closing
argument. We address each claim in turn.
28 ¶ 64 First, Monte argues that the prosecutor denigrated the defense
when she stated that the “[d]efense wants you to disregard the
entire [strangulation] story because of tiny minute details, details
they described as minor because that’s all they have. They even
resort to slut-shaming Ms. Tallant for trying to move on.” The
defense objected to the statement, and the court sustained the
objection. The court then instructed the jury to “disregard the
statement.”
¶ 65 While Monte acknowledges that he obtained relief when the
court sustained his objection, he claims that the prosecutor
“doubled down” when she subsequently said, “Ladies and
gentlemen, you have your notes. You know what the testimony
was, and you’re going to be able to look back at that testimony.”
Monte does not explain why this statement “doubled down” on the
prosecutor’s slut-shaming comment, nor do we see how urging the
jurors to refer to their notes reinforces the statement. Moreover,
Monte obtained relief when the court sustained his objection and
instructed the jury to disregard the statement. And he didn’t seek
further relief after the conduct he perceives as “doubling down.”
See Garcia, 526 P.2d at 294; Douglas, ¶ 65.
29 ¶ 66 Second, Monte challenges an analogy that “appealed to and
inflamed the jury’s passions and emotions.” The prosecutor said,
“Think of [these events] as a gun analogy. If someone pulls a gun
and says, I’m going to kill you, you need to die, and then pulls the
trigger, that’s easily accepted as attempted murder. And the issue
here is that the method the . . . defendant used was the most lethal
form of intimate partner violence: strangulation. Every time he
wrapped his hands around her throat and squeezed, he pulled the
trigger.” The defense objected to this statement, and the trial court
overruled its objection. The prosecutor then continued, “When he
threw her down the stairs and she blacked out, he pulled the
trigger. When he beat her until she lost consciousness, he pulled
the trigger.”
¶ 67 While the prosecution cannot appeal to the passions and
prejudices of the jury, “[i]n closing argument, [a prosecutor] may
employ rhetorical devices and engage in oratorical embellishment
and metaphorical nuance.” People v. Ortega, 2015 COA 38, ¶ 52
(alteration in original) (quoting People v. Allee, 77 P.3d 831, 837
(Colo. App. 2003)). This is exactly what the prosecutor did here,
using the gun analogy to describe how Monte was “pulling the
30 trigger” each time he strangled Tallant until she lost consciousness,
beat her, and threw her down the stairs.
¶ 68 Third, Monte argues that the prosecutor disparaged the
defense’s argument when she said, “The defense got up here on
their closing . . . statement and essentially tried to bash Ms.
Tallant’s credibility.” The defense objected to the statement, and
the court sustained its objection. The court then instructed the
jury to disregard the statement as to “bash.” As before, Monte
obtained relief through a sustained objection and a curative
instruction. And he didn’t seek further relief. See Garcia, 526 P.2d
at 294; Douglas, ¶ 65.
¶ 69 Fourth, Monte argues that the prosecutor “mischaracterized
and denigrated the defense” when she stated that the “[d]efense
wants you to find the defendant not guilty of attempted murder
because he didn’t keep trying to murder her.” The defense objected
to this statement, and the court sustained the objection. The
prosecution did not continue this line of argument. Again, Monte
obtained relief from the court. See Douglas, ¶ 65.
¶ 70 Fifth, Monte argues that the prosecutor denigrated Monte
when she referred to him as a “bully.” The prosecutor explained
31 why Tallant was initially hesitant to report the incident to the police
when they first arrived at her house and said, “Of course she’s not
going to say anything. Her bully is right there.” The defense
objected, and the court overruled the objection.
¶ 71 As Monte points out, “courts have uniformly condemned as
improper a prosecutor using such terms as ‘rat,’ ‘dog,’ or ‘animal,’
to describe a defendant.” People v. Hernandez, 829 P.2d 394, 396
(Colo. App. 1991). The term “bully” is not among these terms,
which are more denigrating and dehumanizing. Given the facts of
this case, we consider the use of the word “bully” as an oratorical
embellishment rather than improper conduct. See Ortega, ¶ 52.
¶ 72 Sixth, Monte argues that the prosecutor appealed to the
jurors’ emotions when, in response to the defense’s speculation as
to FNE Hunsaker’s decision not to suggest follow-up care for
Tallant, the prosecutor said, “The defendant wants you to believe
there’s no serious bodily injury because the nurse didn’t force the
victim into a follow-up, as if that’s relevant. They want you to
believe that she didn’t suffer serious bodily injury because [FNE]
Hunsaker refused to subject her to another kidnapping.” Monte did
not object to this statement, so we review it for plain error.
32 ¶ 73 While dramatic, the statement was more of a rhetorical device
than improper argument. Ortega, ¶ 52. And to the extent it was
improper at all, it certainly wasn’t “flagrantly, glaringly, or
tremendously improper.” Domingo-Gomez, 125 P.3d at 1053.
¶ 74 Given all of this, we conclude that there were no instances of
prosecutorial misconduct that require reversal in this case.
E. Mistrial
¶ 75 Monte also contends that the trial court erred by applying an
appellate standard of review in evaluating whether the effect of the
multiple alleged instances of prosecutorial misconduct required a
new trial. It’s true that the court noted that the defense had not
objected to some statements. But then the court detailed on the
record why — for many of the reasons described above — it didn’t
find many of the statements in closing argument significantly
prejudicial. On this record, we can’t conclude that denying the
drastic remedy of a mistrial was a gross abuse of the trial court’s
discretion. See People v. Peoples, 8 P.3d 577, 580 (Colo. App.
2000).
33 F. Cumulative Error
¶ 76 Lastly, Monte contends that the cumulative effect of
prosecutorial misconduct warrants a new trial.
¶ 77 The cumulative error doctrine applies when “the cumulative
effect of [multiple] errors and defects substantially affected the
fairness of the trial proceedings and the integrity of the fact-finding
process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (alteration in
original) (quoting People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).
Considering the cumulative effect of the errors we identified or
assumed, we still conclude that they did not substantially affect the
fairness of the trial or the integrity of the fact-finding process. We
therefore reject Monte’s final contention.
III. Disposition
¶ 78 The judgment is affirmed.
JUDGE FOX and JUDGE SULLIVAN concur.