Peo v. Montgomery

Opinion

24CA0098 Peo v Montgomery 07-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0098 Montezuma County District Court No. 22CR5017 Honorable Todd Jay Plewe, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Krystopher Quinn Montgomery,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE MOULTRIE Gomez, J., concurs Berger*, J., concurs in part and dissents in part

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 16, 2026

Philip J. Weiser, Attorney General, Erin K. Grundy, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy State Public Defender, 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, Krystopher Quinn Montgomery, appeals the

judgment of conviction entered after a jury found him guilty of

possession of a weapon by a previous offender (POWPO). We affirm.

I. Background

¶2 While Montgomery, his fiancee, and his friend were hauling

wood, three boys were playing “a cop game” nearby with their

friends. One of the boys took out a toy gun and pointed it at

Montgomery. According to the prosecution, Montgomery then took

out his fiancee’s nine-millimeter gun from the floorboard of a truck

and pointed it in the children’s direction. Montgomery said, “I got a

real strap” or “I have a strap of my own” while pointing the gun. At

some point, Montgomery also showed one of the boys’ friends “how

to hold the gun” and “took the magazine out.”

¶3 Montgomery had a different account of what happened.

Montgomery contended that before one of the boys pointed a toy

gun at him, the boys’ friend found his fiancee’s BB gun — not a

nine millimeter — in the truck. The BB gun was tan and looked

like a handgun. Montgomery took the BB gun from the friend and

told her that she shouldn’t take things from other people’s vehicles

and not to put her finger on the trigger. Montgomery then showed

1 the friend how to properly hold the BB gun, telling her not to aim it

at anyone even though it was fake. Both Montgomery’s fiancee and

his friend denied seeing Montgomery point the BB gun at any point

or hearing Montgomery make any threats.

¶4 About a week later, the father of two of the boys confronted

Montgomery online, stating: “My kids say you pulled a gun on

them.” Montgomery replied, “Excuse me? [Your] kids are stupid.

And so are you for believing that if you do . . . .” He later added,

“They asked me if I have one and I said yes but everything was

friendly and I was teaching [the friend] how to properly hold one.

Barrel never got pointed at anyone. But I like to fight so I will let

you believe [your] kids.” After telling Montgomery to stay away from

his kids, the father then reported Montgomery to the police.

Montgomery was charged with one count of POWPO, two counts of

felony menacing, and three counts of misdemeanor child abuse.

¶5 A sergeant with the Montezuma County Sheriff’s Office

testified at trial that Montgomery admitted that he had his fiancee’s

nine millimeter during the incident. However, the police didn’t

retrieve the nine-millimeter gun during their investigation. Thus,

the nine millimeter was not admitted as evidence, though

2 Montgomery’s counsel did admit photos of the BB gun for the jury’s

consideration.

¶6 The prosecution dismissed one child abuse count before the

jury was impaneled, and the court granted Montgomery’s motion for

judgment of acquittal on the remaining two child abuse counts.

The jury acquitted Montgomery of both menacing counts but

convicted him of the POWPO count. Although the court initially

sentenced Montgomery to one year in the custody of the

Department of Corrections, the court resentenced him to one year

of community corrections.

¶7 Montgomery now appeals, arguing that the court erred by (1)

instructing the jury using the 2022 model jury instruction on

beyond a reasonable doubt; (2) declining to respond to a jury

question about whether a BB gun is a legal firearm; and (3)

admitting testimony from one of the boys (child’s testimony) about

the make of the gun at issue.

II. Jury Instruction on Reasonable Doubt

¶8 Because Montgomery’s challenge to the 2022 model criminal

jury instruction on reasonable doubt would, if sustained, require

3 reversal of his conviction, we address it first. We conclude that the

trial court didn’t err by using that instruction.

A. Additional Facts

¶9 Before trial, the prosecution and defense each submitted

proposed jury instructions. The prosecution’s proposed instruction

on the reasonable doubt standard used the language in the 2022

model instruction. The instruction said in relevant part,

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.

COLJI-Crim. E:03 (2022).

¶ 10 Defense counsel’s proposed instruction on the reasonable

doubt standard used the language from the 2021 model instruction

and said:

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

4 would cause reasonable people to hesitate to act in matters of importance to themselves.

COLJI-Crim. E:03 (2021).

¶ 11 The court held a jury instructions conference, during which

defense counsel objected to the prosecution’s proposed reasonable

doubt instruction, arguing that it lowered the prosecution’s burden.

The court noted defense counsel’s objection but decided to instruct

the jury using the prosecution’s proposed instruction.

¶ 12 On appeal, Montgomery contends that (1) the inclusion of the

“real possibility” language in the reasonable doubt instruction

shifted the burden of proof to him and undermined the

presumption of innocence and (2) the instruction’s omission of

language explicitly telling the jury it should consider the lack of

evidence in the case lowered the prosecution’s burden of proof.

B. Legal Principles and Standard of Review

¶ 13 The trial court must properly instruct the jury on the

reasonable doubt standard. Tibbels v. People, 2022 CO 1, ¶ 25.

Whether the court’s instruction lowered the prosecution’s burden of

proof is a question of law that we review de novo. Id. at ¶ 22. “An

instruction that lowers the prosecution’s burden of proof below

5 reasonable doubt constitutes structural error and requires

automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8.

C. Application

¶ 14 While Montgomery’s appeal was pending, three divisions of

this court published opinions considering similar challenges to the

2022 model reasonable doubt instruction. See People v. Melara,

2025 COA 48, ¶¶ 22-23; People v. Schlehuber, 2025 COA 50, ¶¶ 16-

17; People v. Berumen, 2025 COA 93, ¶ 14. In all three cases, the

majorities concluded that the 2022 instruction doesn’t lower the

prosecution’s burden of proof. Melara, ¶¶ 24, 30; Schlehuber, ¶¶ 2,

19, 28-29; Berumen, ¶¶ 29-30, 33.1 We agree with the reasoning of

those majority opinions and adopt it to resolve Montgomery’s

arguments.

1 The Colorado Supreme Court has granted a petition for certiorari

in Teran-Sanchez v. People, No. 25SC148, 2025 WL 2506067 (Colo. Sep. 2, 2025) (unpublished order), to address “[w]hether the trial court’s jury instruction on burden of proof and reasonable doubt, based on the 2023 Model Criminal Jury Instruction . . . violated [the defendant’s] federal and constitutional rights to due process and a fair trial.” The 2023 version of the model instruction includes the “lack of evidence” language but is otherwise identical to the 2022 model instruction. See COLJI-Crim. E:03 cmt. 8 (2023) (“In 2023, the Committee added the final sentence to the instruction’s first paragraph regarding evidence or lack of evidence.”).

6 ¶ 15 First, we aren’t persuaded by Montgomery’s argument that the

“real possibility” language in the instruction holds a defendant to a

higher standard than the law requires and skirts the line of

directing a jury to determine whether a defendant is innocent,

rather than simply requiring it to determine whether the

prosecution has met its burden to demonstrate that a defendant is

guilty.

¶ 16 The court’s instruction said that “reasonable doubt” is a “real

possibility that the defendant is not guilty” and that it “requires

more than proof that something is highly probable.” See COLJI-

Crim. E:03 (2022). The “real possibility” language explains the

prosecution’s evidentiary threshold, and it instructs the jury not to

acquit the defendant based on any conceivable doubt, no matter

how improbable. See Schlehuber, ¶¶ 31, 34. This is an accurate

expression of the prosecution’s burden of proof under the

reasonable doubt standard. Id. at ¶¶ 30-31; see Victor v. Nebraska,

511 U.S. 1, 24-27 (1994) (Ginsburg, J., concurring in part and

concurring in the judgment) (concluding that similar model

instruction language stated the reasonable doubt standard

“succinctly and comprehensibly”).

7 ¶ 17 Moreover, “equating reasonable doubt with a ‘real possibility’

[doesn’t] shift the burden to the defendant to establish that real

possibility” because nothing about that phrase suggests that

evidence from the defendant must be “the source of the ‘real

possibility.’” Schlehuber, ¶ 34 (quoting United States v. Taylor, 997

F.2d 1551, 1557 (D.C. Cir. 1993)); accord Berumen, ¶ 29. To the

contrary, the court’s instruction said that if a juror thinks “there is

a real possibility that the defendant is not guilty, then the

prosecution has failed to prove the crime charged beyond a

reasonable doubt.” (Emphasis added.) And the court’s instruction

also correctly informed the jury that the burden of proof was “upon

the prosecution” and that the “prosecution must prove to the

satisfaction of the jury beyond a reasonable doubt the existence of

each and every element necessary to constitute the crime charged.”

See Berumen, ¶ 28.

¶ 18 We acknowledge Judge Berger’s partial dissent in Berumen

raises legitimate concerns about the use of the “real possibility”

language. See id. at ¶¶ 60-79 (Berger, J., concurring in part and

dissenting in part). Judge Berger maintains that position here.

Nevertheless, we agree with the Berumen majority that the use of

8 that phrase, when considered in context and as a part of the

instructions as a whole, doesn’t shift the prosecution’s burden. Id.

at ¶¶ 26-30 (majority opinion); see also United States v. Petty, 856

F.3d 1306, 1310 (10th Cir. 2017) (concluding that a similar

definition of reasonable doubt that instructed the jury that it must

acquit the defendant if there existed a “real possibility” that the

defendant wasn’t guilty was “a correct and comprehensible

statement of the reasonable doubt standard” (quoting United States

v. Conway, 73 F.3d 975, 980 (10th Cir. 1995))).

¶ 19 Second, the instruction’s omission of specific language

directing the jury that it may consider “the lack of evidence” didn’t

lower the prosecution’s burden of proof because the instruction as a

whole informed the jury that “if the prosecution fails to present

sufficient evidence of guilt, it will not have met its burden.”

Schlehuber, ¶ 22.

¶ 20 Noting the majority’s statement in Melara, ¶ 28, that the “lack

of evidence” language “provides a defendant with an express legal

foundation to encourage the jury to look at the absence of evidence

in considering whether reasonable doubt exists,” Montgomery

9 argues that the court’s failure to include the “lack of evidence”

language was reversible error. We aren’t persuaded.

¶ 21 While inclusion of that language might have been better, see

id., the court’s failure to include it here didn’t amount to error. We

agree with the Schlehuber division that “a court does not err by

omitting that language” because “the concept of reasonable doubt

inherently invites jurors to consider what evidence is missing” and

“if the prosecution fails to present sufficient evidence of guilt, it will

not have met its burden.” Schlehuber, ¶¶ 20-22; accord Berumen,

¶ 33. And, in any event, so long as a jury instruction correctly

articulates the applicable law, no one particular phrasing is

preferred over another. Schlehuber, ¶ 28; see Victor, 511 U.S. at 5

(“[S]o long as the court instructs the jury on the necessity that the

defendant’s guilt be proved beyond a reasonable doubt, the

Constitution does not require that any particular form of words be

used in advising the jury of the government’s burden of proof.”

(citation omitted)).

¶ 22 Accordingly, we discern no error in the court’s decision to

instruct the jury on reasonable doubt using the 2022 model

instruction.

10 III. Jury Question

¶ 23 Montgomery argues the court plainly erred by failing to

provide additional instructions to the jurors that a BB gun isn’t a

firearm in response to their question. The People contend that

Montgomery waived this argument. We agree with the People.

¶ 24 The court instructed the jury that to find Montgomery guilty of

POWPO, he must have “possessed, used, or carried upon his person

a firearm.” The court also instructed that “firearm” means “any

handgun, automatic, revolver, pistol, rifle, shotgun, or other

instrument or device capable or intended to be capable of

discharging bullets, cartridges, or other explosive charges.” This

definition mirrored the statutory definition of “firearm” in section

18-1-901(3)(h), C.R.S. 2025.

¶ 25 Montgomery’s theory of defense at trial was that the boys’

friend found his fiancee’s BB gun and Montgomery showed her how

to properly hold it. Consistent with this theory, Montgomery’s

counsel argued that although he had a BB gun, he never had a

“real gun,” and therefore he couldn’t be convicted of POWPO for

possession of a firearm. The prosecution countered that

11 Montgomery did have a real gun — his fiancee’s nine millimeter —

not a BB gun.

¶ 26 After deliberating for an hour, the jury asked the court: “Is a

pellet gun or BB gun a legal firearm?”2 The court proposed

responding to the jury’s question by informing the jury that it

“w[ould] not receive further instructions in this regard.”

Montgomery’s counsel didn’t object to the court’s proposed

response.

¶ 27 “The United States and Colorado Constitutions guarantee the

defendant in a criminal case both the right to have a jury decide his

case and the right to have the prosecutor prove to that jury, beyond

a reasonable doubt, every element of the charged offense.” Griego v.

People, 19 P.3d 1, 7 (Colo. 2001) (first citing U.S. Const. art. III, § 2,

cl. 3; then citing U.S. Const. amend. VI; then citing U.S. Const.

amend. XIV, § 1; and then citing Colo. Const. art. II, §§ 16, 23, 25).

2 Although the jury asked whether a pellet gun is a legal firearm,

there is no reference in the record of Montgomery possessing a “pellet gun.” Instead, the defense only argued Montgomery had a “BB gun.” Accordingly, our analysis only discusses BB guns.

12 “[A] trial court is under an obligation to instruct the jury properly,

and a failure to do so as to every element of a crime charged is plain

error.” Chambers v. People, 682 P.2d 1173, 1176 (Colo. 1984)

(citation omitted).

¶ 28 However, even fundamental rights can be waived. Phillips v.

People, 2019 CO 72, ¶¶ 16, 21; Stackhouse v. People, 2015 CO 48,

¶ 8 (“[E]ven fundamental rights can be waived, regardless of

whether the deprivation thereof would otherwise constitute

structural error.”). A waiver is “the intentional relinquishment of a

known right or privilege.” People v. Rediger, 2018 CO 32, ¶ 39

(quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.

1984)). A waiver may be explicit, such as “when a party expressly

abandons an existing right or privilege,” or implied, such as “when

a party engages in conduct that manifests an intent to relinquish a

right or privilege or acts inconsistently with its assertion.” Forgette

v. People, 2023 CO 4, ¶ 28. Reviewing courts “indulge every

reasonable presumption against waiver.” Rediger, ¶ 39 (quoting

People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)).

¶ 29 To determine whether a defendant has waived a claim, we

consider the record as a whole. See id. at ¶¶ 42-44. Whether a

13 defendant has waived a claim of error is a question of law that we

review de novo. Id.

¶ 30 Montgomery says that his claim that the court should have

instructed the jury that a BB gun isn’t a firearm is subject to plain

error review. He thus acknowledges that this claim isn’t preserved;

however, he disputes the People’s assertion that he waived this

claim.

¶ 31 Montgomery argues that, at most, he merely forfeited the

issue. In support of this argument, he compares the circumstances

here to those in Rediger, where the supreme court noted that a rote

statement that counsel is not objecting to an instruction is

insufficient to demonstrate waiver. Rediger, ¶ 45 (“[T]here must be

some evidence that the waiver is ‘knowing and voluntary,’ beyond

counsel’s rote statement that she is not objecting . . . .” (quoting

United States v. Zubia-Torres, 550 F.3d 1202, 1207 (10th Cir.

2008))). But this case is different than Rediger.

¶ 32 Rediger involved a defendant’s challenge to a jury instruction

that he claimed constructively amended the charges in the

complaint. Id. at ¶ 12. Defense counsel in Rediger only indicated

14 generally that he was satisfied with an entire set of jury

instructions. Id. at ¶¶ 8, 10. There was no indication that anyone

had discussed the particular instruction that the defendant

challenged on appeal as having constructively amended the

charging document. Id. at ¶ 43. Indeed, the supreme court

observed that “nothing in the record suggests that . . . [the defense],

the prosecution, or the trial court even noticed” the error in the

instruction. Id. at ¶ 35. In that context, the court determined that

the defendant hadn’t waived the instructional error because there

was “no evidence, either express or implied, that [he] intended to

relinquish his right to be tried in conformity with the charges set

forth in his charging document when he generally acquiesced to the

jury instructions.” Id. at ¶¶ 42, 44.

¶ 33 Here, by contrast, Montgomery was aware of, and the parties

specifically addressed, the very issue Montgomery now raises on

appeal. As noted above, Montgomery’s theory of defense was that

he only possessed a BB gun — which he contends is not a firearm

as contemplated by the POWPO statute. Unlike the situation in

Rediger, Montgomery’s defense counsel wasn’t simply presented

with a packet of instructions to which she lodged no objection.

15 Instead, the court reviewed the jury’s question with the parties and

indicated its intent to respond that it wouldn’t instruct the jury

further. Defense counsel didn’t ask the court to provide the jury

with an additional instruction stating that a BB gun isn’t a firearm.

Indeed, defense counsel expressly stated that she didn’t object to

the court’s proposed course of action.

¶ 34 In other words, Montgomery’s defense counsel was presented

with — and rejected — the opportunity to address the instructional

error he now asserts requires reversal. We thus conclude that he

waived his assertion of error on this issue. See People v. Hoover,

165 P.3d 784, 796 (Colo. App. 2006) (“Active participation in the

preparation of a response to a jury question, or express agreement

with it, bars the participant from arguing that the response

constitutes error.”).

IV. Child’s Testimony

¶ 35 Montgomery also contends the trial court abused its discretion

and violated his constitutional due process rights by allowing one of

the boys, who was thirteen years old at the time, to testify that the

gun Montgomery had during the incident was “a SIG” or “a nine

16 millimeter or a .45 ACP.”3 He contends that the testimony

amounted to unendorsed and unqualified expert testimony related

to a key dispute in the case. We aren’t persuaded.

¶ 36 After the prosecutor elicited testimony from the child that he

was “pretty familiar with firearms,” the prosecutor asked him, “How

so?” Montgomery’s counsel objected: “[A]sk[s] for foundation for

expert testimony and no expert’s been endorsed.” The court

overruled the objection, stating, “He can testify . . . to how he’s

familiar.” The boy testified:

I like to watch videos on them, I research them, I always am just — I’ve loved a gun since the day I was born. I’ve been trying to buy my own gun. I love hunting, I go up in the mountains with my friends and I hunt with him, so I’m very familiar with guns and I know how to be safe with them . . . .

3 Presumably, the child was referring to SIG Sauer, a brand of

firearms, and Automatic Colt Pistol, a type of firearm cartridge. See generally SIG SAUER, Firearms, https://perma.cc/44NU-L8F2; D.L. Hawley, Firearms Forensics — Firearms Identification at Trial, 60 Am. Jur. Proof of Facts 3d 1, § 2, Westlaw (database updated June 2026).

17 ¶ 37 The prosecutor then asked if the boy could “tell the difference

between a BB gun and an actual firearm.” When the boy answered,

“Yes,” the prosecutor continued: “If you had to narrow it down,

could you say what kind of gun this was, maybe?” The boy

responded: “It could have been a SIG, it could have been something

different, I’m not a hundred percent sure, but I’m pretty sure it was

a SIG, could have been chambered a nine millimeter or a .45 ACP.”

The boy later testified that he never handled or inspected the gun.

¶ 38 A trial court’s determination of whether a witness’s testimony

is lay (under CRE 701) or expert (under CRE 702) is a fact-specific

inquiry and depends on the circumstances of the case. Venalonzo

v. People, 2017 CO 9, ¶¶ 17-18, 24. To make this determination, a

trial court must look to the basis for the witness’s opinion. Id. at

¶ 2. “If the witness provides testimony that could be expected to be

based on an ordinary person’s experiences or knowledge, then the

witness is offering lay testimony.” Id. But if the witness provides

testimony that couldn’t be offered “without specialized experiences,

knowledge, or training, then the witness is offering expert

testimony.” Id.

18 ¶ 39 “We review a [trial] court’s decision allowing testimony for an

abuse of discretion.” People v. Robles-Sierra, 2018 COA 28, ¶ 23. A

trial court abuses its discretion if it allows a witness to offer expert

testimony in the guise of lay opinion testimony. Venalonzo, ¶¶ 29-

31. If we conclude that the trial court abused its discretion in

allowing testimony to which a defendant failed to

contemporaneously object, we determine whether the court’s error

constitutes plain error. Robles-Sierra, ¶ 23. “An error is plain only

if it was obvious and so undermined the fundamental fairness of

the trial as to cast serious doubt on the reliability of the conviction.”

Id.; see also Hagos v. People, 2012 CO 63, ¶ 18 (to constitute plain

error, an error must be both obvious and substantial); Campbell v.

People, 2020 CO 49, ¶ 25 (“obvious” error is that which contravenes

“clear statutory prescription, a well-settled legal principle, or

established Colorado case law”); Hagos, ¶ 14 (“substantial” error is

that which “so undermine[s] the fundamental fairness of the trial

itself so as to cast serious doubt on the reliability of the judgment of

conviction” (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005))).

19 C. Application

¶ 40 As an initial matter, we disagree with Montgomery that he

preserved this argument for appeal. When the prosecutor asked the

child on direct examination how he was familiar with firearms,

defense counsel objected, arguing that the question called for expert

testimony. The court properly overruled the objection, explaining

that the child could “testify to how he’s familiar,” because at that

point the child was only addressing his own firearms experience

and wasn’t offering an opinion about anything. See Venalonzo, ¶ 27

(“[An] interviewer’s testimony describing her professional

background, including the number of interviews she has conducted

and the number of times she has testified in court, is not expert

testimony because any ordinary person is capable of describing her

own credentials.”).

¶ 41 When the child went on to testify that he could tell the

difference between a BB gun and “an actual firearm” and that he

was “pretty sure” the gun Montgomery pointed at him was “a SIG”

or “a nine millimeter or a .45 ACP,” defense counsel didn’t lodge any

additional objections. Thus, Montgomery didn’t object to the

testimony he now challenges on appeal. See People v. Van Meter,

20 2018 COA 13, ¶ 59 (unless the court has made a definitive ruling at

or before trial on the admissibility of particular evidence, a party

must lodge a contemporaneous objection to preserve an objection to

that evidence). Accordingly, we consider Montgomery’s challenge

under the plain error standard. See id. at ¶ 60.

¶ 42 We don’t discern any plain error in the court’s admission of

the challenged testimony. First, assuming without deciding that

the court abused its discretion in allowing the testimony, we

conclude that any error wasn’t obvious. There is no published case

law in Colorado addressing whether the particular testimony at

issue in this case — a witness’s opinion, based on their observation

of a firearm, that it is real and is a particular type or brand of

firearm — constitutes an expert opinion.

¶ 43 In support of his assertion that the child’s testimony was

expert rather than lay, Montgomery cites People v. Howard-Walker,

in which a division of this court determined that a police detective

offered expert testimony when he opined that a handgun shown in

a surveillance video was real because of the size of the barrel. 2017

COA 81M, ¶¶ 55-57 (holding that the admission of the testimony by

21 a lay witness was error but that it didn’t amount to plain error),

rev’d on other grounds, 2019 CO 69, ¶¶ 29, 48.

¶ 44 But the testimony at issue in Howard-Walker was quite

different than the testimony at issue in this case. There, the

witness was a police detective who “presumably had familiarity with

guns” based on his specialized job experience, id. at ¶ 51; here, the

witness was a young teenager who said he loved guns and going

hunting with friends. There, the witness viewed the gun on a

surveillance video, while here, the witness observed the gun in

person and said the gun had been pointed at him. See id. at ¶¶ 47,

55. And there, the witness based his conclusion on details about

the gun’s barrel, explaining that it was an “open barrel” and “a large

barrel for a large projectile to exit the weapon” whereas “[a]ir soft

guns [sic] their muzzles have a red tip and small barrel for the little

air soft pellet to come out” — leading the division to “strongly doubt

that a witness lacking specialized knowledge can determine whether

a gun depicted in a video was real or fake based on its barrel size.”

Id. at ¶¶ 47, 55. Here, though, the witness simply said, based on

his perception of the gun’s appearance, that he was “pretty sure” it

was “a SIG” or “a nine millimeter or a .45 ACP.”

22 ¶ 45 Other cases from Colorado and elsewhere suggest that lay

witnesses who have recreational gun experience may well be able to

identify what type or brand a firearm might be, without delving into

specialized training or knowledge. See People v. Williams, 2025

COA 26, ¶ 35 (“[S]omeone with recreational gun experience [could]

identify the caliber of ammunition that certain guns take without

specialized training or knowledge.”); United States v. Holloway, 621

F. App’x 155, 157 (4th Cir. 2015) (a trial court didn’t err by

admitting a lay witness’s testimony that he believed a gun was real

because that “did not require specialized or technical knowledge or

training”); United States v. Martinez-Armestica, 846 F.3d 436, 441

(1st Cir. 2017) (“[A] witness need not be familiar with firearms . . .

to testify that [a firearm] was real.”).

¶ 46 In the absence of case law more directly on point signifying

that the court abused its discretion by allowing the child’s

testimony, we can’t conclude that any error in the admission of the

testimony was so clear cut that the court “should have been able to

avoid it without the benefit of an objection.” People v. Rojas, 2025

COA 25, ¶ 44; see Campbell, ¶ 25; Venalonzo, ¶ 24 (The distinction

between lay and expert testimony “can be a difficult one.”).

23 ¶ 47 Second, we conclude that the alleged error, if an error at all,

wasn’t substantial. Even if the child’s testimony about the

particular type of firearm he believed Montgomery had veered into

expert opinion territory, the child’s overall assessment that it was

“an actual firearm,” and not a BB gun, likely did not. See Williams,

¶ 35; Holloway, 621 F. App’x at 157; Martinez-Armestica, 846 F.3d

at 441. And the relevant question here wasn’t what type of firearm

Montgomery had but, rather, whether he had a firearm at all.

Thus, even if the trial court erred by allowing the child to report his

belief about the specific type of firearm, any error was harmless.

See Hagos, ¶ 14.

¶ 48 Moreover, there was substantial other evidence that, if

believed by the jury, demonstrated that the gun Montgomery had

wasn’t a BB gun. One of the other boys testified that while pointing

the gun, Montgomery said something like, “I got the real strap,”

which the child took to mean that Montgomery had “a real gun.”

The boy further testified that Montgomery took out the magazine

that held the bullets, suggesting it was a real gun.

¶ 49 An investigator testified that when questioned after the

incident, Montgomery said he’d been holding his fiancee’s “nine

24 millimeter” and never “ma[d]e any claims that it was a BB gun or

anything other than an actual firearm.” And when the father of two

of the boys confronted Montgomery a week after the incident,

accusing him of having “pulled a gun on [the boys],” Montgomery

didn’t deny having a gun or suggest that he merely had a BB gun.

Instead, he responded that “[t]hey asked me if I have one and I said

yes,” insisted that he was “teaching [one of the children] how to

properly hold one,” and stated that the “[b]arrel never got pointed at

anyone.” Given all the evidence that Montgomery possessed a

firearm, we can’t conclude that any error in admitting the child’s

testimony “so undermined the fundamental fairness of the trial . . .

as to cast serious doubt on the reliability of the judgment of

conviction.” Id. (quoting Miller, 113 P.3d at 750).

V. Disposition

¶ 50 The judgment is affirmed.

JUDGE GOMEZ concurs.

JUDGE BERGER concurs in part and dissents in part.

25 JUDGE BERGER, concurring in part and dissenting in part.

¶ 51 I agree with the majority’s analysis and conclusion that

Montgomery waived his challenge regarding the trial court’s

response to the jury question about whether a BB gun is a firearm.

I also agree with the majority’s analysis and conclusion that any

error in admitting the child’s testimony regarding the gun was

harmless and does not warrant reversal.

¶ 52 However, I adhere to my views set forth in People v. Berumen,

2025 COA 93, ¶¶ 60-79 (Berger, J., concurring in part and

dissenting in part), and conclude that the jury in this case was

improperly instructed on the definition of reasonable doubt.

Therefore, I believe Montgomery is entitled to a new trial before a

jury properly instructed on the meaning of reasonable doubt.

¶ 53 Accordingly, I respectfully dissent from the portion of the

majority’s opinion concluding that the jury instruction defining

reasonable doubt did not constitute structural error.