22CA1470 Peo v Montoya 12-05-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1470 Jefferson County District Court No. 21CR1900 Honorable Tamara S. Russell, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Jacob Montoya,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE SCHOCK Fox and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 5, 2024
Philip J. Weiser, Attorney General, William G. Kozeliski, 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, James Jacob Montoya, appeals his conviction for
sexual assault on a child by one in a position of trust. We affirm.
I. Background
¶2 The charge in this case stemmed from a report by Montoya’s
former stepdaughter, B.M., that Montoya sexually assaulted her by
touching her over her clothing when she was in seventh grade.
¶3 According to B.M.’s trial testimony, Montoya picked her up
from school one day after she was sent home because a classmate
reported she had purposefully cut herself the night before. When
the two got home, they sat on the living room couch. As Montoya
initially tried to comfort B.M., he began rubbing her leg, shoulders,
and back. He then moved his hands over her vagina and across her
breasts. B.M. left the couch and went to her sister’s room. She did
not tell anyone what had happened because Montoya threatened
that “he would hurt [her] or [her] siblings or [her] mom” if she did.
¶4 Two years later, when B.M. was in ninth grade and Montoya
and B.M.’s mother had divorced, B.M. disclosed the assault to a
teacher. As part of a school assignment, B.M. wrote that she
identified with a particular political party because she had been
“raped twice.” The teacher spoke with B.M., and B.M. revealed that
1 one incident had involved her mother’s ex-husband. The teacher
reported what B.M. had told him, and the police became involved.
¶5 B.M. agreed to allow a detective to contact Montoya through
an Instagram account in B.M.’s name. The detective, pretending to
be B.M., exchanged a series of messages with Montoya. In that
conversation, Montoya admitted he had been sexually attracted to
B.M. but repeatedly denied any wrongdoing. Eventually, however,
Montoya admitted he touched B.M.’s vagina over her clothes.
¶6 Montoya was charged with sexual assault on a child by one in
a position of trust. A jury convicted him, and he was sentenced to
seven years to life in the custody of the Department of Corrections.
II. Impeachment Evidence
¶7 Montoya first contends that the district court erred by
excluding evidence of B.M.’s inconsistent statements about the
order of the two alleged sexual assaults she had referenced in her
school assignment. We perceive no abuse of discretion.
A. Additional Background
¶8 After B.M. wrote in her school assignment that she had been
“raped twice,” she told a social worker she was “first raped by a
stranger” and later by Montoya. In a subsequent forensic interview,
2 B.M. reported that the assault by Montoya had occurred when she
was twelve years old and that the other had occurred at a sleepover
when she was fourteen years old. As to the latter, B.M. said she
woke up to “an unknown person running his hands up and down
her back and hips and thrusting their pelvis into her backside.”
¶9 Montoya moved before trial to admit these statements under
section 18-3-407, C.R.S. 2022 (the rape shield statute).1 Defense
counsel’s primary argument was that the sleepover incident had
been fabricated and demonstrated a history of false reporting by
B.M.2 But defense counsel also argued that the statements were
relevant to B.M.’s credibility because they showed B.M. had given
inconsistent timelines of the two assaults. She originally said she
was raped by a stranger and then assaulted by Montoya, but later
said she was assaulted by Montoya two years before the sleepover.
¶ 10 The district court denied Montoya’s motion and excluded
B.M.’s statements about the sleepover. The court found that there
1 The rape shield statute has been amended since Montoya’s trial.
See § 18-3-407, C.R.S. 2024. We apply the version of the statute in effect at the time of trial. People v. Ramcharan, 2024 COA 110, ¶ 2. 2 Montoya does not pursue his argument that the sleepover incident
was admissible as a prior incident of false reporting on appeal.
3 was no evidence the report of the sleepover incident was false and
that the incident was “completely irrelevant” if it was true.
¶ 11 As to the timing of the two incidents, the court noted that a
change in the timeline “would be of evidentiary value,” and it asked
defense counsel if it would be possible to bring out the apparent
inconsistency without referring to the sleepover. When defense
counsel said it would not be, the court excluded all evidence of
B.M.’s statements about the second alleged assault. The court
explained: “I do know there’s some value to that information . . .
that she got it out of the wrong timeline, but I think that it is way
more prejudicial than it is probative, so we’re not letting that in.”
B. Applicable Law and Standard of Review
¶ 12 The rape shield statute deems most evidence of a victim’s prior
or subsequent sexual conduct presumptively irrelevant. See § 18-3-
407(1); People v. Weiss, 133 P.3d 1180, 1185 (Colo. 2006). Before
such evidence may be offered at trial, it must go through a pretrial
procedure that requires a written motion, an affidavit, an offer of
proof, and if necessary, an in camera hearing on disputed facts.
§ 18-3-407(2). Such evidence is admissible only if the court finds
that it is “relevant to a material issue to the case.” § 18-3-407(2)(e).
4 ¶ 13 Evidence proffered under the rape shield statute is “subject to
relevancy and prejudice limitations under CRE 401 and 403.”
People v. Sims, 2019 COA 66, ¶ 45. Evidence is relevant if it has
“any tendency to make the existence of a fact of consequence more
or less probable.” People v. Hood, 2024 COA 27, ¶ 19; see also CRE
401. Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, issue
confusion, or misleading the jury. CRE 403; see also Hood, ¶ 19.
¶ 14 The district court has broad discretion to determine the
admissibility of evidence based on its relevance, probative value,
and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. In
particular, the district court exercises broad discretion in balancing
the probative value of the evidence against the danger of unfair
prejudice. People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995).
¶ 15 We review a district court’s evidentiary rulings, including
under the rape shield statute, for an abuse of discretion. Hood, ¶ 6.
A district court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or when it misapplies the law.
Id. In reviewing a district court’s ruling under CRE 403, we afford
5 the evidence its maximum reasonable probative value and its
minimum reasonable prejudicial effect. Gibbens, 905 P.2d at 607.
C. Analysis
¶ 16 Montoya acknowledges that the rape shield statute applies to
B.M.’s statements. But he argues that the district court erred by
excluding the statements because they were relevant and material
impeachment evidence and their relevance was not substantially
outweighed by the danger of unfair prejudice. We disagree.
¶ 17 We agree with the People that the probative value of the
inconsistent statements was low. It is true that a witness’s
credibility is always relevant, particularly in a case like this one that
turned on B.M.’s account. Margerum v. People, 2019 CO 100, ¶ 12.
And one way to challenge a witness’s credibility is by impeaching
the witness with prior inconsistent statements. CRE 613. But the
statements in question do not evince any inconsistency in B.M.’s
account of the charged assault, or even when it occurred. At most,
they concern a potential inconsistency in the timing of a different
assault — one the court found no reason to believe was fabricated
based on information presented by the prosecution — in relation to
6 the charged assault. Such an inconsistency would have done little
to undermine B.M.’s credibility as to the charged assault.
¶ 18 Indeed, any inconsistency in the timing of a different assault
would have been less probative than the arguable inconsistencies in
B.M.’s account of the charged assault itself, on which defense
counsel did cross-examine B.M. For example, defense counsel
elicited that B.M. (1) did not state in her interview that Montoya had
threatened her; (2) initially described the assault as a “rape”;
(3) said in her statement that Montoya “had just brushed against
[her]”; and (4) indicated in her interview that Montoya had touched
the back of her thigh, even though they were sitting down at the
time. In light of these and other subjects of cross-examination, any
incremental probative value of showing B.M. might have mixed up
the sequence of another assault would have been marginal at best.
¶ 19 On the other hand, the prejudicial effect on B.M., including
the unnecessary invasion of her privacy, would have been
substantial. See People v. Melillo, 25 P.3d 769, 776-77 (Colo. 2001)
(holding that the CRE 403 balancing test may take into account the
policy concerns underlying the rape shield statute, including “the
unnecessary invasion of privacy and emotional abuse” of the
7 victim). Defense counsel conceded that, if the statements in
question were admitted, B.M.’s account of the sleepover assault
would also need to be admitted. In other words, B.M. would be
required to testify about an entirely unrelated assault as the price
of testifying about this one. That is exactly the kind of prejudice the
rape shield statute was designed to protect against. Id.; see also
People v. McKenna, 585 P.2d 275, 278 (Colo. 1978) (noting that rape
shield statute reflects policy that “victims of sexual assaults should
not be subjected to psychological or emotional abuse in court as the
price of their cooperation in prosecuting sex offenders”).
¶ 20 Montoya contends that embarrassment to the victim is not a
proper consideration under CRE 403. But Melillo held that it is.3
25 P.3d at 776 (“The substantive policy concerns underlying the
rape shield statute speak to the prejudicial nature of evidence of a
rape victim’s prior sexual conduct.”). And Pierson v. People, 2012
CO 47, does not suggest otherwise. That case simply confirms that
3 Montoya incorrectly suggests that the discussion of prejudice in
People v. Melillo, 25 P.3d 769, 776-77 (Colo. 2001), was dicta. It was not. The court held that the defendant’s offer of proof was insufficient under the rape shield statute precisely because “the probative value of the proffered evidence [was] substantially outweighed by the risk of prejudice to the victim.” Id. at 777.
8 the rape shield statute does not “alter[] the required balancing of
probativeness and countervailing considerations enumerated in
CRE 403.” Id. at ¶ 14. It does nothing to call into question Melillo’s
discussion of what those countervailing considerations are.4
¶ 21 Montoya also asserts that the statements should have been
admitted under the rule of completeness to avoid giving the jury a
misleading impression of B.M.’s allegations. See CRE 106. But the
rule of completeness has limited applicability in the rape shield
context “in light of the highly prejudicial nature of evidence relating
to a rape victim’s prior sexual conduct.” Melillo, 25 P.3d at 776; see
also People v. Villa, 240 P.3d 343, 356 (Colo. App. 2009) (“The rule
of completeness does not establish in and of itself the admissibility
of evidence that is protected by the rape shield statute.”). That is
because the rule of completeness is subject to “the same
considerations of relevancy and potential prejudice” that govern
4 We note that the recent amendment to the rape shield statute
makes this point explicit, providing that evidence may be introduced only if the court finds “that the probative value of the evidence is not substantially outweighed by the probability that its admission will create unfair prejudice, confusion of the issues, misleading of the jury, or unfair invasion of the privacy of the victim or witness.” § 18-3-407(2)(e), C.R.S. 2024 (emphasis added).
9 other evidence. Melillo, 25 P.3d at 775. Thus, because the record
supports that the probative value of the proffered evidence was
substantially outweighed by the risk of prejudice to the victim, that
evidence could not be saved by the rule of completeness. Id. at 777.
¶ 22 The district court therefore did not abuse its discretion in
excluding evidence of B.M.’s purportedly inconsistent statements
concerning the order of the two alleged sexual assaults.
III. Victim Impact Evidence
¶ 23 Montoya next contends that the district court reversibly erred
by admitting a portion of the Instagram conversation between him
and the detective pretending to be B.M., in which the detective said
she had “cut a lot more” the night of the incident. Montoya argues
that this statement was irrelevant victim impact evidence and was
unfairly prejudicial because it suggested that B.M. had engaged in
self-harm as a result of the sexual assault. We again disagree.
¶ 24 Before trial, the prosecution moved to admit the entirety of the
Instagram conversation between Montoya and the detective posing
as B.M. The prosecution argued that the messages included several
admissions by Montoya that were intrinsic to the charged offense,
10 as well as statements about other acts that were admissible under
CRE 404(b) and section 16-10-301, C.R.S. 2024.
¶ 25 Defense counsel objected to the entire exhibit as “overly
prejudicial” and not sufficiently probative “to overcome the
prejudicial factor.” The district court opted to walk through the
conversation page by page, allowing the parties to make objections
or arguments concerning the admissibility of particular statements.
¶ 26 At one point in the conversation, the detective (acting as B.M.)
said to Montoya, “After you touched my boob I cut a lot more that
night because it was so confusing.” Montoya responded: “If I did
anything to harm you I’m very sorry it was unintentional and I
never intentionally did anything wrong to you girls.” Defense
counsel objected to the detective’s statement as follows:
[DEFENSE COUNSEL]: [I]t may be a limiting instruction would be appropriate, if this is going to come in. But it does make comments like, “assuming that he had touched her boob” or that “she had been cutting herself.”
THE COURT: “After you touched my boob.”
[DEFENSE COUNSEL]: Yeah. It almost implies that those are factual –
THE COURT: Implies it happened.
11 [DEFENSE COUNSEL]: Yes. So that is a concern.
¶ 27 In a written order, the district court ruled that this statement
was admissible, concluding that it was (1) intrinsic to the charged
crime because it was a direct allegation regarding the charged crime
and (2) not more prejudicial than probative because Montoya denied
the accusation. The statement was included in the copy of the
Instagram conversation that was admitted as an exhibit at trial.
B. Preservation and Standard of Review
¶ 28 We first note that Montoya did not preserve his argument that
the challenged statement constituted inadmissible victim impact
evidence. See People v. Martinez, 2020 COA 141, ¶ 33. He objected
to the entirety of the conversation as “overly prejudicial” for several
reasons, none of which included the apparent impact of the crime
on B.M. Then, he objected to the specific statement only on the
ground that it implied the embedded factual assertions — including
the assertion that Montoya had “touched her boob” — were true.
¶ 29 Montoya did not argue, as he does on appeal, that the
statement was inadmissible because it described the impact of the
crime on the victim. Thus, while Montoya preserved his general
12 objections to relevancy and unfair prejudice, he did not preserve the
specific argument that the statement in question was victim impact
evidence.5 See People v. Tallent, 2021 CO 68, ¶ 12 (“When a party
presents a new argument or alters the grounds for an objection on
appeal, the issue is forfeited and reviewable only for plain error.”).
¶ 30 We review the district court’s evidentiary rulings for an abuse
of discretion. Martinez, ¶ 25. When an evidentiary argument is
unpreserved, we will reverse only for plain error. People v. Snelling,
2022 COA 116M, ¶ 33. Plain error is “obvious and substantial”
error that “so undermined the fundamental fairness of the trial
itself as to cast serious doubt on the reliability of the judgment of
conviction.” Hagos v. People, 2012 CO 63, ¶ 18 (citation omitted).
¶ 31 We first reject Montoya’s characterization of the message sent
by the detective, posing as B.M., as victim impact evidence. Victim
impact evidence is evidence that relates to “the victim’s personal
5 Because we conclude that the district court did not abuse its
discretion in admitting the statement, the result would be the same even if the argument was preserved. See Hagos v. People, 2012 CO 63, ¶¶ 9, 14 (explaining that preservation only affects the “standard[] to determine whether an error in criminal proceedings necessitates reversal of the judgment of conviction”).
13 characteristics and to the physical, emotional, or social impact of a
crime on its victim and the victim’s family.” Martinez, ¶ 29 (citation
omitted). Such evidence is generally inadmissible at trial because
“the effect of a crime on a victim or the victim’s family often has no
tendency to prove whether a particular defendant committed a
particular criminal act against a particular victim.” Id. at ¶ 33
(citation omitted). The admissibility of such evidence “turns on
whether the evidence is relevant to determining whether the
defendant committed the crime for which he or she is charged.” Id.
¶ 32 The message in question said that B.M. “cut a lot more [the
night of the charged assault] because it was so confusing.” If the
statement had been made by B.M., it might be victim impact
evidence. See id. at ¶ 39 (noting that testimony was victim impact
evidence because it described the physical and emotional toll that
the alleged sexual assault took on the victim). But the evidence at
trial was unequivocal that it was not. Before the messages were
admitted, the detective explained that she was the one
communicating with Montoya, that B.M. was not involved, and that
B.M. was not privy to what was said. B.M. similarly testified that
she had never accessed the account or seen any of the messages.
14 ¶ 33 Nor did the evidence otherwise suggest that B.M. had in fact
cut herself the night of the assault. Although the detective testified
that she drew certain details for the conversation from B.M.’s
forensic interview — including that someone “saw all [her] cuts from
school” before the assault — she never suggested that this
statement had come from B.M. Indeed, while the statement was
included in the admitted exhibit, neither the detective nor the
prosecution ever mentioned it at all. Thus, the statement cannot
fairly be construed as describing the actual effect on the victim.
¶ 34 Instead, the statement was relevant to provide context for
Montoya’s denial — and eventual admission — of the charged
offense. Although Montoya focuses on appeal on the second part of
the statement — “I cut a lot more that night” — the primary focus
in the district court was on the first part — “[a]fter you touched my
boob.” The district court properly exercised its discretion in
concluding that this statement as a whole, together with Montoya’s
response, was relevant as direct evidence of the charged offense.
¶ 35 The district court also did not abuse its discretion by
concluding that the probative value of the statement was not
substantially outweighed by the danger of unfair prejudice. See
15 Gibbens, 905 P.2d at 607. Without some factual basis for the
statement — either that B.M. had made the statement or that she
had in fact engaged in cutting after the assault — we see no reason
why it would have provoked outrage against Montoya or elicited
sympathy for B.M. See Martinez, ¶ 37. The potential prejudice
would come from the fact that B.M. had cut herself, not that a
detective told Montoya she had. And even if the statement could
somehow be construed to suggest that B.M. had engaged in self-
harm after the assault, there was other evidence — elicited by
defense counsel — that she had been doing so before the assault,
thus “blunt[ing] the prejudicial force” of the evidence. Id. at ¶ 44.
¶ 36 Finally, even if we were to conclude that the challenged
portion of the statement should have been excised, any error would
be harmless (and to the extent unpreserved, not substantial). See
Snelling, ¶¶ 32-33. The statement was one part of one message in a
sixty-six-page exhibit consisting of hundreds of messages. It was
never mentioned at trial — not in the testimony itself and not in
opening or closing. And there was no other evidence that B.M.
engaged in self-harm after the assault. See Martinez, ¶¶ 43-44
(holding that erroneous admission of victim impact evidence was
16 harmless where it “constituted, at most, a few minutes of [the]
three-day trial,” “the prosecutor did not unduly highlight the victim
impact evidence,” and the victim’s history of depression and alcohol
use indicated that her “close suicidal scare” could have been caused
by factors other than the alleged sexual assault). We also “assume
the jury heeded the court’s instruction not to be influenced by
sympathy, bias, or prejudice in reaching its decision.” Id. at ¶ 44.
¶ 37 Thus, we conclude that the district court did not abuse its
discretion by admitting the challenged statement as part of the
Instagram conversation between the detective and Montoya. And in
any event, the purported error would not be a basis for reversal.
IV. Jury Instruction
¶ 38 Montoya also argues that the district court’s reasonable doubt
and elemental instructions impermissibly lowered the prosecution’s
burden of proof by telling the jury that if the prosecution failed to
prove the elements of the offense, the jury should — rather than
must — find the defendant not guilty. We are not persuaded.
¶ 39 Before trial, the prosecution submitted a proposed jury
instruction on the burden of proof that was consistent with
17 Colorado’s model jury instructions. It provided, in relevant part: “If
you find from the evidence that the prosecution has failed to prove
any one or more elements of a crime beyond a reasonable doubt,
you should find the defendant not guilty of that crime.”
¶ 40 Defense counsel objected to the instruction on the ground that
it misstated the law by suggesting that “it’s up to [the jury] if [the
People] haven’t proved the case, that they may or may not choose to
find him not guilty.” She requested that the word “should” be
changed to “must” to clarify that “[i]f the jury finds the elements
have not been proven beyond a reasonable doubt, they must return
a verdict of not guilty.” Defense counsel made the same objection to
the elemental instruction, which contained similar language.
¶ 41 The district court denied the objections, declining to depart
from the language of the model jury instructions. The court
instructed the jury regarding the burden of proof as follows:
If you find from the evidence that each and every element of a crime has been proven beyond a reasonable doubt, you should find the defendant guilty of that crime. If you find from the evidence that the prosecution has failed to prove any one or more of the elements of a crime beyond a reasonable doubt, you should find the defendant not guilty of that crime.
18 ¶ 42 In the elemental instruction, the district court instructed the
jury as follows:
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 sexual assault on a child by one in a position of trust.
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 sexual assault on a child by one in a position of trust.
¶ 43 The United States Constitution “protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged.” In
re Winship, 397 U.S. 358, 364 (1970). Thus, the jury must be
instructed that “it may return a guilty verdict only if sufficient proof
has been submitted to satisfy the [beyond a reasonable doubt]
standard.” People v. Munoz, 240 P.3d 311, 316 (Colo. App. 2009).
An instruction that lowers the prosecution’s burden of proof
constitutes structural error. Tibbels v. People, 2022 CO 1, ¶ 22.
19 ¶ 44 We review de novo whether the district court correctly
instructed the jury, including whether its instructions lowered the
prosecution’s burden of proof. Id. In conducting this review, “we
ask whether there is a reasonable likelihood that the jury applied
the contested instruction in an unconstitutional manner.” Johnson
v. People, 2019 CO 17, ¶ 14. We do not consider jury instructions
in isolation but in the context of the instructions as a whole. Id.
¶ 45 A division of this court has previously rejected the argument
Montoya makes in this case. Munoz, 240 P.3d at 317-19. In
Munoz, the defendant argued, as Montoya does here, that the word
“should” in the reasonable doubt and elemental instructions
lowered the prosecution’s burden of proof by leaving a not guilty
verdict to the jury’s discretion. Id. at 317. The division rejected
that argument, concluding that “the common meaning of ‘should’
conveys an obligatory command and not a permissive request and
. . . adequately informed the jury of its obligation to adhere to the
reasonable doubt standard in deciding defendant’s guilt.” Id.
¶ 46 We find Munoz persuasive and see no reason to depart from it.
Montoya argues that Munoz is wrong because (1) its conclusion that
20 the word “should” conveys an obligatory duty was grammatically
incorrect; (2) the out-of-state cases on which it relied were
unpersuasive; and (3) its rationale for distinguishing sentencing
guideline cases construing “should” as permissive was misplaced.
We have considered these arguments but conclude they do not
undermine Munoz’s overarching holding that the word “should” in
this context “properly instructed the jury that it was obligated to
find defendant not guilty if the prosecution failed to prove
defendant’s guilt beyond a reasonable doubt.” Id. at 318.
¶ 47 Montoya also argues that Munoz is distinguishable because
the jury in that case received a separate instruction that it “will find
the defendant not guilty” if the prosecution did not meet its burden
of proof. Id. But that instruction was not essential to the division’s
conclusion; it was simply one additional factor to support that
conclusion. Id.; see also People v. Waller, 2016 COA 115, ¶ 72
(holding that “use of the term ‘should’ . . . is no less obligatory than
the use of the word ‘will’ in the reasonable doubt instruction”). And
another instruction the Munoz division cited as support — that the
jurors “must follow all of the rules” as explained by the court —
was given in this case when the jury was told that its “decision
21 must be made by applying the rules of law that [the court] give[s] it
to the evidence presented at trial.” See Munoz, 240 P.3d at 318.
¶ 48 Moreover, the jury in this case was instructed that “[e]very
person charged with a crime is presumed innocent” and that “this
presumption of innocence remains with the defendant throughout
the trial and should be given effect by you unless, after considering
all of the evidence, you are then convinced that the defendant is
guilty beyond a reasonable doubt.” The necessary corollary of this
instruction is that if the jury was not convinced the defendant was
guilty beyond a reasonable doubt, he would be presumed innocent
and, consequently, must be found not guilty.
¶ 49 Thus, reading the challenged jury instructions in the context
of the instructions as a whole, we conclude that there is no
reasonable likelihood that the jurors “interpreted the word ‘should’
to mean that they could base their decision on their own discretion
or that they were free to find defendant guilty even if the
prosecution did not meet its burden of proof.” Id. at 318-19.
22 V. Cumulative Error
¶ 50 Finally, because we have concluded there was no error at trial,
we reject Montoya’s argument that cumulative error deprived him of
a fair trial. See Howard-Walker v. People, 2019 CO 69, ¶ 25.
VI. Disposition
¶ 51 The judgment is affirmed.
JUDGE FOX and JUDGE JOHNSON concur.