Peo v. Ortega

• Court: Colorado Court of Appeals
• Decided: September 4, 2025
• Docket: 22CA1180
• Status: Unpublished

Opinion

22CA1180 Peo v Ortega 09-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1180 City and County of Denver District Court No. 18CR7901 Honorable Eric M. Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kevin T. Ortega,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE FREYRE Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 4, 2025

Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Gregory Lansky, Alternate Defense Counsel, Aurora, Colorado, for Defendant- Appellant ¶1 Defendant, Kevin T. Ortega, appeals his convictions for first

degree assault, attempted aggravated robbery, and unlawful

discharge of a firearm. He also appeals his habitual criminal

adjudication and sentencing. We affirm the convictions and

sentence.

I. Background

¶2 On July 31, 2017, John David Baker III was driving with

Ortega’s sister, Alicia,1 when she received a call from Ortega. Baker

and Alicia had socialized only a couple of times since meeting in

2013. During the call, Ortega asked Baker to meet up with him

and Baker agreed.

¶3 When Baker arrived at the meeting location, Ortega was with

three men that Baker did not know. Baker texted David

Manzanares, a man from whom he had previously purchased drugs,

to buy more. Ortega testified that he had also purchased drugs

from Manzanares previously, but Manzanares denied ever having

met Ortega before this incident. Ortega asked Baker what

Manzanares could get, and Baker told him “everything.” Ortega

1 Alicia shares the same last name as the defendant. Therefore, we refer to her by her first name. We mean no disrespect in doing so.

1 then told Baker “let’s go.” Baker texted Manzanares that he was

coming to his house, but he did not say that other people were

coming with him.2

¶4 Baker, Ortega, and the other three men then drove to

Manzanares’s house. During the ride, Ortega lifted his shirt and

showed Baker a .45 caliber gun. Baker was not armed. When they

arrived, they parked two blocks from Manzanares’s house.

Manzanares was not yet home.

¶5 After sitting in the car for a few minutes, Baker and Ortega

walked toward Manzanares’s house. Manzanares arrived in Antonia

Perez’s car shortly thereafter. Perez was driving and Manzanares

was in the passenger seat. When Manzanares exited the car, Baker

told Manzanares to give him what he had. Manzanares said that he

did not have anything. Baker then demanded that Manzanares give

him drugs, and Manzanares refused. Ortega then shot Manzanares

three times. When he ran out of bullets, Ortega pistol-whipped

Manzanares in the face.

2 Alicia left separately when the men left and is not part of this case.

2 ¶6 Perez then exited the car and ran down the street. Ortega ran

after her and dragged her back to the car. Ortega pistol-whipped

Perez in the face and took her phone while Baker went through

Manzanares’s pockets. Baker immediately grabbed Perez’s phone

from Ortega. Ortega and Baker then left and threw Perez’s phone

into the sewer as they drove away.

¶7 Manzanares identified Baker as the man who had demanded

money and told police that he was shot by another man. The

following day, the police arrested Baker. While hospitalized,

Manzanares told the police that he found a photo of the shooter on

Facebook. Manzanares identified V.G. as the shooter. He said,

“[T]hat’s the face I remember,” and “you can’t forget something like

that.” Baker was in the photo with V.G., but he later testified that

he did not know V.G.

¶8 The police recovered Ortega’s fingerprints from Perez’s car.

Perez and her sister said that they did not know Ortega and that

there was no reason for his fingerprints to be on the car. Several

months later, Baker identified Ortega as the shooter. The State

charged Ortega with criminal attempt to commit murder in the first

degree, first degree assault, aggravated robbery, second degree

3 assault, bodily injury with a deadly weapon, criminal attempt to

commit aggravated robbery, and illegal discharge of a firearm.

¶9 At trial, defense counsel argued that the shooter was V.G., the

man Manzanares identified at the hospital shortly after the

shooting. Ortega testified, denied all the charges against him, and

argued that he was not present at the shooting.

¶ 10 The jury convicted Ortega of first degree assault, attempted

aggravated robbery, and illegal discharge of a weapon, but it

acquitted him on all other charges. The trial court adjudicated

Ortega a habitual offender and sentenced him to sixty-four years in

the custody of the Department of Corrections.

¶ 11 On appeal, Ortega contends that the trial court (1) violated his

statutory and constitutional speedy trial rights; (2) errantly

permitted prosecutorial misconduct; (3) impermissibly changed the

jury instructions after deliberations had commenced; and (4)

improperly admitted evidence that fingerprint comparison

conclusions were verified by a nontestifying witness. He also

contends that insufficient evidence supports his habitual criminal

adjudication and sentence. We affirm.

4 II. Speedy Trial

¶ 12 Ortega contends that the trial court violated his statutory and

constitutional speedy trial rights. We conclude that Ortega waived

the statutory speedy trial issue by not properly preserving it. We

further conclude that there was no violation of Ortega’s

constitutional right to a speedy trial.

A. Additional Facts

¶ 13 On January 28, 2019, Ortega pleaded not guilty. After both

parties moved for several continuances to try to reach a disposition,

the trial court set a trial date.

¶ 14 Ortega’s original counsel then withdrew, and Ortega waived

his speedy trial rights so that substitute counsel could review the

case.

¶ 15 Substitute counsel withdrew Ortega’s not guilty pleas to reset

the speedy trial deadline. After further unsuccessful attempts to

reach a disposition, the trial court set a trial date for March 10,

2020.

¶ 16 On March 10, 2020, after receiving new evidence, substitute

counsel moved for a continuance. The trial court granted the

5 continuance, reset the trial date to July 27, 2020, and noted a new

speedy trial deadline of September 10, 2020.

¶ 17 On July 17, 2020, the trial court declared a mistrial due to

COVID-19. Ortega objected and asserted his statutory speedy trial

rights. The court overruled his objection, reset the trial to

September 29, 2020, and noted the new speedy trial deadline of

November 13, 2020.

¶ 18 On September 11, 2020, the prosecution moved for a

continuance based on an inability to subpoena two witnesses.

Ortega objected based on his statutory speedy trial rights. The trial

court overruled his objection and reset the trial to January 19,

2021.

¶ 19 On January 19, 2021, the trial court declared a mistrial due to

COVID-19. Ortega objected based on his statutory speedy trial

rights. The court overruled his objection, reset the trial to March

15, 2021, and noted a new speedy trial deadline of May 27, 2021.

¶ 20 On March 19, 2021, the prosecution moved for a second

continuance because Ortega had a conflicting jury trial date in

another jurisdiction. Ortega objected. The trial court overruled his

6 objection, granted the continuance, and reset the trial date within

the existing speedy trial deadline.

¶ 21 Ortega’s trial commenced on May 11, 2021.

B. Statutory Speedy Trial

¶ 22 Colorado’s speedy trial statute requires that a defendant be

brought to trial within six months of entering a plea of not guilty.

§ 18-1-405(1), C.R.S. 2025. The remedy for a violation of a

defendant’s statutory speedy trial rights is dismissal of the charges

with prejudice. People v. Taylor, 2020 COA 79, ¶ 18. But to obtain

relief based on a violation of this statute, a defendant must move for

dismissal before trial. § 18-1-405(5); see also People v. Desantiago,

2014 COA 66M, ¶ 14. “Failure to so move is a waiver of the

defendant’s rights under [the speedy trial statute].” § 18-1-405(5);

see People v. Abdu, 215 P.3d 1265, 1269 (Colo. App. 2009) (noting

the defendant’s statutory speedy trial challenge “is barred because

[the] defendant never moved to dismiss the case on speedy trial

grounds”).

¶ 23 The record shows that neither Ortega nor his counsel moved

to dismiss the case on speedy trial grounds before his trial began.

To the extent Ortega argues in supplemental briefing that an

7 objection is the functional equivalent of a motion to dismiss and

sufficiently preserves the issue for appellate review, we disagree.

The plain language of section 18-1-405(5) requires that the defense

move to dismiss. See Abdu, 215 P.3d at 1269 (appellate challenge

to statutory speedy trial violation barred because defendant never

moved to dismiss the case on speedy trial grounds); People v.

Munoz, 240 P.3d 311, 321 (Colo. App. 2009) (a defendant must

move to dismiss before trial in order to receive relief for a trial

court’s failure to comply with the statutory speedy trial rule, and

failure to do so results in the waiver of this right). Because we

conclude that Ortega waived his statutory speedy trial rights, we do

not address his statutory speedy trial claim on the merits. See

Moody v. Corsentino, 843 P.2d 1355, 1362 (Colo. 1993).

C. Constitutional Speedy Trial

¶ 24 Ortega did not raise his constitutional speedy trial right in the

trial court. However, unpreserved constitutional errors may be

reviewed for the first time on appeal. Reyna-Abarca v. People, 2017

CO 15, ¶ 37. Accordingly, we review Ortega’s constitutional speedy

trial claim for plain error. People v. Rediger, 2018 CO 32, ¶ 47.

8 1. Applicable Law

¶ 25 The United States and Colorado Constitutions guarantee all

criminal defendants the right to a speedy trial. U.S. Const. amend.

VI; Colo. Const. art. II, § 16; Moody, 843 P.2d at 1363. We apply a

four-factor balancing test to assess whether a defendant’s

constitutional speedy trial rights were violated and consider the

following: (1) the length of the delay; (2) the reasons for the delay;

(3) the defendant’s assertion of the right; and (4) the prejudice to

the defendant. Moody, 843 P.2d at 1363 (citing Barker v. Wingo,

407 U.S. 514, 530 (1972)); see also People v. Chavez, 779 P.2d 375,

376 (Colo. 1989) (noting the Barker test also governs the

determination of a speedy trial claim under the Colorado

Constitution). The defendant bears the burden of establishing that

his constitutional speedy trial rights have been denied. Moody, 843

P.2d at 1363.

2. Analysis

¶ 26 Analyzing the four Barker factors, we conclude that the trial

court did not violate Ortega’s constitutional right to a speedy trial.

¶ 27 Here, the length of the delay between Ortega’s not guilty pleas

and his convictions totaled 841 days. The People concede, and we

9 agree, that this is presumptively prejudicial and weighs in favor of

the conclusion that Ortega’s constitutional speedy trial rights were

violated.

¶ 28 Regarding the second Barker factor, Ortega contends that the

reasons for the lengthy delays were not attributable to him and that

the court erroneously granted the prosecution’s trial continuance

motions. We are not persuaded for four reasons. First, on two

occasions, the trial court declared a mistrial due to COVID-19.

Delays caused by the COVID-19 pandemic cannot “fairly be

attributed” to either the government or Ortega. United States v.

Keith, 61 F.4th 839, 853 (10th Cir. 2023). COVID-19 is a “truly

neutral justification — not favoring either side.” Id.

¶ 29 Second, the defense moved for continuances to substitute new

counsel and to provide counsel sufficient time to review the

evidence and prepare for trial. These continuances are attributable

to the defense and weigh against a constitutional violation. See

§ 18-1-405(6) (scheduling delays to accommodate defense counsel

are attributable to the defendant).

¶ 30 Third, the record reveals that both sides requested

continuances in an attempt to reach a disposition but were

10 unsuccessful in reaching one. We conclude that these delays are

neutral and do not weigh for or against either side. See People v.

Bell, 669 P.2d 1381, 1386 (Colo. 1983) (delays resulting from efforts

to negotiate a plea bargain will be charged to the party seeking the

disposition).

¶ 31 Fourth, the remaining delays were due to (1) the unavailability

of the prosecution’s witness and (2) Ortega’s conflicting jury trial in

another jurisdiction. Witness unavailability is a valid reason for

delay. See Barker, 407 U.S. at 531 (a valid reason, such as a

missing witness, should serve to justify appropriate delay).

Moreover, despite the delay due to Ortega’s conflicting jury trial in

another jurisdiction, Ortega’s trial commenced within the speedy

trial deadline. Therefore, this factor weighs against a constitutional

violation.

¶ 32 Concerning the third Barker factor, Ortega asserted his right

to a speedy trial. This factor weighs in Ortega’s favor.

¶ 33 Finally, concerning the fourth Barker factor, we conclude that

Ortega has not shown he was materially prejudiced by the delay.

Prejudice is assessed by weighing three interests that the right to

speedy trial protects: “(i) to prevent oppressive pretrial

11 incarceration; (ii) to minimize anxiety and concern of the accused;

and (iii) to limit the possibility that the defense will be impaired.”

Moody, 843 P.2d at 1367 (quoting Barker, 407 U.S. at 532). “Of

these, the most serious is the last, because the inability of a

defendant adequately to prepare his case skews the fairness of the

entire system.” Barker, 407 U.S. at 532.

¶ 34 Ortega contends that he was prejudiced by the delay because

(1) his lengthy incarceration was dangerous for him due to the high

COVID-19 infection rate at the jail and the fact that he suffered

from serious health and respiratory issues, including life-long

asthma; (2) his wife was struggling at home with child care and

work; (3) he was not able to see or hold his young daughter who

was born just before he was incarcerated; (4) he was very anxious

and suffered great harm waiting for his case to proceed to trial; and

(5) the delay impaired his defense as he had recollection issues

during his trial testimony due to the passage of time.

¶ 35 While we recognize the impact of Ortega’s lengthy

incarceration and the unusual circumstances under which it

occurred, we note that Ortega did not explain how the delay caused

him any more anxiety or concern than the average criminal

12 defendant, and that he failed to provide any specific examples of

how his anxiety, concern, or distress resulted in prejudice. See

People v. Valles, 2013 COA 84, ¶ 50; see also People v. Nelson, 2014

COA 165, ¶ 41 (noting that the defendant “presented no evidence or

offer of proof to establish any such anxiety or concern beyond that

normally to be expected from the fact of a criminal prosecution”).

¶ 36 Additionally, the record shows that none of the delays were

attributable to Ortega’s incarceration or health-related issues (like

the contraction of the COVID-19 virus). It also shows that Ortega

was able to review the evidence in the case and to refresh his

memory in preparation for his trial testimony. On balance, we

conclude that while the delay was presumptively prejudicial, Ortega

has not demonstrated prejudice because of the delay.

¶ 37 Accordingly, Ortega’s constitutional right to a speedy trial was

not violated.

III. Prosecutorial Misconduct

¶ 38 Ortega next contends that the prosecutor committed

misconduct during his rebuttal closing argument. We disagree.

13 A. Standard of Review and Applicable Law

¶ 39 Whether a prosecutor’s statement constitutes misconduct is

left to the trial court’s discretion. Domingo-Gomez v. People, 125

P.3d 1043, 1049 (Colo. 2005). We will not disturb the court’s

rulings regarding such statements absent a showing of an abuse of

that discretion. People v. Strock, 252 P.3d 1148, 1152 (Colo. App.

2010). A trial court abuses its discretion only when its ruling is

manifestly arbitrary, unreasonable, or unfair or misapplies the law.

People v. Muniz, 190 P.3d 774, 781 (Colo. App. 2008).

¶ 40 Ortega preserved one prosecutorial misconduct argument by

lodging a contemporaneous objection during the prosecutor’s

rebuttal argument. We review this preserved contention for

nonconstitutional harmless error. See People v. Ortega, 2015 COA

38, ¶ 51. But we review Ortega’s remaining contentions for plain

error. See Hagos v. People, 2012 CO 63, ¶ 14. Reversal under this

standard requires that the prosecutorial misconduct be so obvious

and so undermine the fundamental fairness of the trial as to cast

serious doubt on the reliability of the judgment of conviction.

People v. Walker, 2022 COA 15, ¶ 28.

14 ¶ 41 We conduct a two-step analysis when reviewing a claim of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s

challenged conduct was improper under the totality of the

circumstances. Id. Second, if the prosecutor’s comments were

improper, we evaluate whether they warrant reversal according to

the proper standard of reversal. See id.

¶ 42 We evaluate claims of improper argument in the context of the

argument as a whole and consider the evidence before the jury.

Strock, 252 P.3d at 1153. A prosecutor enjoys “wide latitude in the

language and presentation style used to obtain justice.”

Domingo-Gomez, 125 P.3d at 1048. Because closing arguments

delivered in the heat of trial are not always perfectly scripted, we

accord prosecutors the benefit of the doubt when their remarks are

ambiguous or simply inartful. People v. Samson, 2012 COA 167,

¶ 30. Even so, prosecutors may not state or imply that defense

counsel has presented the defendant’s case in bad faith or

otherwise make remarks for the purpose of denigrating defense

counsel. People v. Jones, 832 P.2d 1036, 1039 (Colo. App. 1991).

The prosecutor may not attempt to shift the burden of proof to the

15 defendant. See People v. Santana, 255 P.3d 1126, 1130 (Colo.

2011). Nor may counsel misstate or misinterpret the law in closing

argument. People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004),

aff’d, 119 P.3d 1073 (Colo. 2005).

B. Analysis

¶ 43 Ortega contends the prosecutor (1) denigrated defense

counsel; (2) shifted the burden of proof; (3) inferred Ortega lied; and

(4) misstated the law. We are not persuaded.

1. Denigrating Defense Counsel

¶ 44 We begin with Ortega’s preserved contention.

¶ 45 During closing argument, defense counsel argued that the

police stopped investigating V.G. after they found Ortega’s

fingerprints on Perez’s car, despite Manzanares’s identification of

V.G. Counsel argued:

We don’t have to prove that [V.G.] did it, but, boy, it sure looked like it, and they stopped. They got the fingerprints, and they quit investigating him.

....

The prosecution says, “Oh, he was cleared.” Not – he was not cleared. The investigation into – what did she say the investigation was? Looking at Facebook, trying to find out who his confederates were?

16 ¶ 46 Ortega asserts the prosecutor denigrated defense counsel by

arguing the following on rebuttal:

When the evidence is strong, good defense attorneys don’t lay down in closing arguments. They do what [defense counsel] did: they make powerful, loud arguments, and they pound the podium. Remember that? It’s the police, we’re coming in, blah, blah, blah. Started before the opening of evidence.

Defense would have you believe that this was a case about police brutality, about police bias, about police, police, police. And you’ve got to prove yourself to the police. A week later, is that what this case was about? Are we to believe that [defense counsel] didn’t know what this case was about until opening statements?

Are we to believe that defense counsel didn’t know what this was about until opening statements? “That’s the face I remember. You don’t forget that face.” The statement from David Manzanares six days after being shot in the face, on his kneecaps, in his wrist.

And when you choose to recollect those in the terms suggested to you by the defense, it’s that he was completely lucid. And that’s the information that defense wants you to rely on.

He said it explicitly. That alone is reasonable doubt. The identification of a man who has been in the hospital room for six days, who they would like you to believe is not on any painkillers . . . that because of that, any other

17 evidence tying Kevin Ortega to this case doesn’t matter.

(Emphasis added.)

¶ 47 A prosecutor may not denigrate defense counsel. People v.

Welsh, 176 P.3d 781, 788 (Colo. App. 2007). Yet a prosecutor also

has considerable latitude in replying to defense counsel’s

arguments, id., and in choosing what language to employ, People v.

Robles, 302 P.3d 269, 279 (Colo. App. 2011), aff’d, 2013 CO 24.

We must take into account “defense counsel’s opening salvo.”

People v. Vialpando, 804 P.2d 219, 225 (Colo. App. 1990) (quoting

Wilson v. People, 743 P.2d 415, 420 (Colo. 1987)).

¶ 48 While the prosecutor’s comments were perhaps inartful, when

read in context, we conclude that they did not constitute a personal

attack on defense counsel. See Samson, ¶ 30. Instead, they were a

permissible response to defense counsel’s argument that V.G. was

the shooter and an effort to refocus the jury’s attention on evidence

that Manzanares was on painkillers following surgery when he

identified V.G. as the shooter. Prosecutors may comment on the

evidence admitted at trial and the reasonable inferences that can be

drawn from the evidence. Welsh, 176 P.3d at 788; see also People

18 v. Allee, 77 P.3d 831, 836 (Colo. App. 2003) (prosecutor’s remark

that the jury should not be distracted by defense tactics was not

improper considering the prosecutor was attempting to draw the

jury’s focus to relevant evidence and did not intend to denigrate

defense counsel).

¶ 49 Ortega’s remaining denigration arguments were unpreserved.

¶ 50 During closing, defense counsel argued:

• The prosecution withheld video evidence because it

harmed the prosecution’s case.

• Police ended their investigation into V.G. when they

found Ortega’s fingerprints on Perez’s car. Their

subsequent lack of investigation into V.G. showed that

the police and the prosecution were biased.

• Baker’s recollection of the shooting was inconsistent and

established that Ortega was not the shooter.

¶ 51 Ortega alleges the following comments in the prosecutor’s

rebuttal argument constituted misconduct.

¶ 52 First, the prosecutor stated:

It’s sad. It’s sad when it’s suggested to you that defense doesn’t have the ability to introduce a video at trial. And how do you

19 know that’s not right? Because they introduced a video at trial. Defense A is a video submitted by the defense.”[3]

¶ 53 Later, the prosecutor continued:

The suggestion that you should listen to the parts of the previous statements of the videos, which were introduced, and then just fill in the gaps yourself, and that all those gaps lie in Mr. Ortega’s favor, and that’s the only reason we weren’t introducing them, and that they were not presented to you at all.

It wasn’t presented to me by either side, so I guess that must be in Kevin Ortega’s favor. There’s nothing to suggest that. Defense wants you to speculate. The People don’t ask jurors to speculate, because it’s our burden to provide that. You shouldn’t have to speculate.

Defense wants you to speculate because there’s a million reasons which might exist. If you don’t understand the universe of possibilities of evidence that we’re working in, and they want you to think that that universe is bigger than what’s in this courtroom. It’s not.

That universe is there, and that universe is here. And when you’re done fulfilling your duties, you absolutely will ask questions. You

3 At trial, Ortega objected to this statement, arguing that the

prosecution was shifting the burden. However, he raises it on appeal as denigrating defense counsel. To preserve an argument, a defendant must object on that ground. People v. Short, 2018 COA 47, ¶ 53. Therefore, we consider this contention unpreserved.

20 will find lawyers that say why did this happen, or why did that happen, that was my experience. And you’re welcome to do that. But until that verdict is rendered, this is your universe.

¶ 54 Second, the prosecutor argued:

Defense wants you to believe that we have bias. And did you catch the argument that he made about that? “They want to find the person that did this.” That’s not bias. That’s just static, that’s just using the word “bias” and “prosecution” over and over and over again to convince you that this is the case that isn’t. That Detective Chavez is framing Kevin Ortega. And you’ve seen nothing to suggest that’s the case.

¶ 55 Third, the prosecutor said:

And so when he comes up and when an excellent defense attorney does as [defense counsel] does, and constantly is moving the target, asking about, well, that’s what you said in the proffer, is that what you said in this interview, is that what you said this time? What about when we rolled the tape back three seconds ago? Constantly moving. He don’t [sic] know who – which statements he’s agreeing with.

Now, maybe in the moment that’s lost on the jury, because you guys don’t have transcripts and flipping back and forth from and say, oh,

21 we’re on page 14 now, or we’re on this, oh, we’re on that now, all you hear is what a skilled attorney wants you to hear, which is that the witness is confused, doesn’t remember what he said last time, doesn’t even know which time he’s been asked about. And all he can do is generally agree or not agree.

¶ 56 In all three instances, when read in context, the prosecutor’s

comments did not denigrate defense counsel but provided a direct

response to defense counsel’s closing argument. See People v.

Ramirez, 997 P.2d 1200, 1211 (Colo. App. 1999), aff’d, 43 P.3d 611

(Colo. 2001). Here, the prosecutor responded to defense counsel’s

arguments about (1) the prosecutor’s introduction of certain videos

and not others; (2) police and prosecutorial bias; and (3) Baker’s

inconsistencies between the proffer and his trial testimony. See

Vialpando, 804 P.2d at 225 (prosecutors are allowed considerable

latitude in responding to defense counsel’s arguments). Moreover,

the prosecutor did not appeal to the prejudices of the jury or divert

the jury from its duty to decide the case based on the evidence. See

People v. Walters, 148 P.3d 331, 335 (Colo. App. 2006). Therefore,

we conclude that these comments fall within the considerable

latitude afforded to prosecutors in replying to arguments by defense

22 counsel and thus perceive no misconduct. See Ramirez, 997 P.2d

at 1211.

2. Burden Shifting

¶ 57 Ortega next contends that the prosecutor impermissibly

shifted the burden of proof to the defense. In rebuttal the

prosecutor argued:

We have the burden to prove this, but Kevin Ortega is not insulated in terms of how you are able to judge his credibility versus any other witness. Once he’s on that stand, you get to use all the questions that [defense counsel] asked against Mr. Ortega. Why – what’s this gap because of? Why doesn’t he have a better answer for that? How come we didn’t explain this?

It was explained over and over again that [Baker] had 14 months to come up with this. You heard Mr. Ortega volunteer to his attorney on the stand he had three years to come up with this.

Three years. And of all the statements that defense tries to murky the water with Mr. Baker, do you notice when the first one comes in? It’s the proffer.

At no point between his arrest and the proffer do you have a statement from [Baker]. But once he gets that far, you have this comparative, all right? And some of these witnesses that you heard today made multiple

23 statements, and they have those reasons for that.

And everyone that you heard from who could be impeached with a prior statement you heard at least some impeachment from. But the protections that Mr. Baker enjoyed between his arrest and his proffer were not individual to Mr. Baker.

Defense counsel pointed out that it wasn’t just Mr. Baker who was able to facilitate his story, right? He had an attorney. His attorney was talking to the DA. When it comes to credibility and credibility only, you can ask those same questions for Mr. Ortega.

And you know it’s not just him during those three years that can come up with this information. He’s got an attorney; he’s got an investigator; he’s got a paralegal; he’s got Alicia Ortega; he’s got his boss, his friends, his family; the power of the court and [defense counsel] to subpoena records.

And to sit for three years and not be able to find that information, I agree, has got to be frustrating, but it’s the reason. Because viewing those things requires evidence, requires information which does not exist.

Why can’t [Ortega] find someone to say that he was with – or that person was with him that night? You could believe Mr. Ortega, which I just can’t remember, and there’s no way for me [to] backtrack that. And again, this is only for credibility, because we have the burden.

24 Or that information doesn’t exist for another reason. Because he’d have to get someone to come up here and perjure themselves in order to have that witness available, because we’d have to create evidence that made that.

¶ 58 A prosecutor is allowed considerable latitude in responding to

arguments made by opposing counsel. Ramirez, 997 P.2d at 1211.

However, a prosecutor may not attempt to shift the burden of proof

to the defendant. People v. Marko, 2015 COA 139, ¶ 225, aff’d on

other grounds, 2018 CO 97. A prosecutor may comment on the lack

of evidence supporting a defense theory. Walker, ¶ 41.

¶ 59 In determining whether the prosecution’s argument

impermissibly shifted the burden of proof, courts primarily consider

whether (1) the prosecutor specifically argued or intended to

establish that the defendant carried the burden of proof; (2) the

prosecutor’s actions constituted a fair response to the questioning

and comments of defense counsel; and (3) the jury was informed by

counsel and the court about the defendant’s presumption of

innocence and the prosecution’s burden of proof. Santana, 255

P.3d at 1131-32.

25 ¶ 60 Here, considering the Santana factors, we disagree that the

burden was shifted. First, the prosecutor never specifically argued

that Ortega carried the burden of proof. See id. at 1133 (finding no

burden shifting where “the prosecutor never explicitly argued that

the defendant [had] the burden of proof”). Conversely, the

prosecutor said that the prosecution carried the burden of proof at

the beginning of the challenged comments.

¶ 61 Second, the prosecutor’s comments were a fair response to

defense counsel’s arguments. In the defense’s closing, counsel

emphasized that Baker waited fourteen months to implicate Ortega

and emphasized the differences between Baker’s proffer and his

trial testimony. The prosecutor’s comment was a fair response to

this argument.

¶ 62 Third, the jury was correctly instructed on the burden of proof

by the trial court and reminded of it several times throughout the

trial. Absent evidence to the contrary, we must assume that the

jury understood and followed the court’s instructions. See People v.

Villa, 240 P.3d 343, 352 (Colo. App. 2009).

¶ 63 Accordingly, we discern no misconduct.

26 3. Accusations of Lying

¶ 64 Ortega next contends the prosecutor, through the following

statements, suggested that he lied to the jury4:

• “Why can’t [Ortega] find someone to say that he was with

– or that person was with him that night? You could

believe Mr. Ortega, which I just can’t remember, and

there’s no way for me to . . . backtrack that. And, again,

this is only for credibility, because we have the burden.

Or that information doesn’t exist for another reason.

Because he’d have to get someone to come up here and

perjure themselves in order to have that witness available

because we’d have to create evidence that made that.”

• “Mr. Ortega had no choice but to get on that stand and to

admit to everything he could not deny and to deny to

everything he could not admit.”

4 At trial, Ortega objected to both statements as improper burden

shifting. However, on appeal, he argues that this statement inferred that he was lying. To preserve an argument, a defendant must object on that ground. Short, ¶ 53. Therefore, we consider these contentions as unpreserved.

27 ¶ 65 Accusations that the opposing parties or counsel are lying are

inappropriate. See Domingo-Gomez, 125 P.3d at 1050 (“The word

‘lie’ is such a strong expression that it necessarily reflects the

personal opinion of the speaker.”). The prosecutor’s comments were

not improper because the prosecutor never stated that Ortega was

“lying,” nor did the prosecutor use any form of the word “lie.” See

id. at 1050-51 (holding that a prosecutor’s use of the word “lie” or

its various forms is categorically improper).

¶ 66 Additionally, while it is improper for counsel to express his

opinion about the veracity of the testimony during closing

arguments, Wilson, 743 P.2d at 418, we do not perceive the

prosecutor’s statements as improper expressions of personal

opinion when viewed in their full context. See Domingo-Gomez, 125

P.3d at 1051 (stating that to determine whether a statement was

improper opinion, a reviewing court must consider the language

used, the context of the statement, and other relevant factors). A

prosecutor may point to circumstances that cast doubt on a

witness’s story or draw reasonable inferences about a witness’s

credibility from the evidence. Wilson, 743 P.2d at 418. Here, the

prosecutor referenced Ortega’s testimony that he did not remember

28 where he was the night of the shooting to cast doubt on his

credibility.

4. Misstating the Law

¶ 67 Finally, Ortega contends that the prosecutor misstated the law

and thereby lowered the prosecution’s burden of proof. In closing

argument, defense counsel argued:

When you put it all together, ladies and gentlemen, when you’ve looked at it from this definition of reasonable doubt, a doubt which is not vague, speculative, or imaginary doubt, but would cause reasonable people to hesitate to act in matters of importance to themselves. You’re sitting in the driveway going to the mountains, wondering if the oven is on. In this case, the house is on fire there’s so much reasonable doubt. It’s not a hesitation. We don’t have to prove to you anything, ladies and gentlemen, but they have utterly failed to prove beyond a reasonable doubt.

¶ 68 In rebuttal, the prosecutor argued:

We have to prove this case beyond a reasonable doubt. But when you start hearing metaphors, that’s where it get’s [sic] dicey. And it’s been suggested that you should replace your eyes and your ability to read what are the jury instructions, which explain to you what is reasonable doubt, and that is not

29 speculative, with have you ever thought you maybe left an iron[5] on?

Would any organization be able to prove the guilt of criminals if all a juror had to say was, I have – I think he just – there’s a possibility he might not have done it, right? Because that’s what you think when there might have been an iron on. I might not have turned the iron off.

And that’s vague. Why is it vague? Because you can’t articulate to yourself why he might not have done it or why he might have left the iron on. Can you articulate why Kevin Ortega isn’t the one who did this?

¶ 69 The prosecutor’s remark was in direct response to defense

counsel’s analogy. The prosecutor did not misstate the reasonable

doubt standard but commented on the flaws in defense counsel’s

analogy. Accordingly, we perceive no misconduct.

IV. Jury Instruction

¶ 70 Ortega next contends that the trial court erred when it

changed Jury Instruction 26 for attempted aggravated robbery to

correctly identify Manzanares as the victim, instead of Perez, after

5 Defense counsel’s analogy involved an oven, but it is clear that the

prosecutor was referring to this analogy.

30 the jury had already commenced its deliberations. We discern no

error.

¶ 71 During trial, the prosecution argued that Ortega never robbed

Manzanares but instead stole Perez’s cell phone.

¶ 72 The court instructed the jury on complicity to commit

attempted aggravated robbery in Jury Instruction 26, which read:

Complicity is not a separate crime. Rather, it is a legal theory by which the defendant may be found guilty of a crime that was committed by another person.

For the defendant to be guilty as a complicitor of the crime of attempted aggravated robbery, as defined at the end of this Instruction, the prosecution must prove each of the following conditions beyond a reasonable doubt:

1. Another person committed the crime of Criminal Attempt to Commit Aggravated Robbery as defined at the end of this Instruction . . . .

For purposes of this instruction, another person committed the crime of Criminal Attempt to Commit Aggravated Robbery if the prosecution proves each of the following elements beyond a reasonable doubt:

1. That the other person,

31 2. in the State of Colorado, at or about the date and place at issue,

3. knowingly,

4. engaged in conduct constituting a substantial step toward the commission of aggravated robbery.

The elements of the crime of aggravated robbery are:

1. That the defendant,

2. in the State of Colorado, at our about the date and place charged,

4. took anything of value,

5. from the person or presence of another, to wit, Antonia Perez,

6. by the use of force, threats, or intimidation, and

7. during the act of robbery or immediate flight therefrom,

8. knowingly,

9. by the use of force, threats, or intimidation,

10. with a deadly weapon,

11. put any person in reasonable fear of death or bodily injury.

32 ¶ 73 During the jury instruction conference, Ortega did not object

to the tendered instruction. The court read the instruction to the

jury before closing arguments.

¶ 74 During closing arguments, the prosecution argued that Ortega

was guilty of aggravated robbery because he took Perez’s cell phone

by force. It further argued:

Now, the attempt to commit the aggravated robbery is for Mr. Manzanares, and it’s only an attempt because he didn’t have anything with him. Certainly the intent was there, the effort was there, but Mr. Manzanares had 30 bucks in his pocket, and he’s still got it in his shorts that the paramedics cut off. Otherwise, the elements are the same.

Now, I want to talk a little bit about the aggravated – the robbery charges, aggravated robbery charges, and the complicity theory. Mr. Ortega is responsible for those robberies because they were his idea. He had the plan, he told Mr. Baker that’s what’s going to happen, and once you show up at a place to rob somebody, you don’t get to evade liability just because you’re not the person who reached into the pocket or you’re not the person who took the phone from the hand. Once you’re in that robbery, you’re in it.

If you have the desire to help somebody else with an aggravated robbery, and the aggravated robbery either happens or the attempt happens, you’re responsible for that.

33 You can find Mr. Ortega guilty under both theories if you want to.

¶ 75 During deliberations, the jury asked the following questions:

1. Does Count 3[6] apply to [Perez’s] phone?

2. Does Count 5[7] apply to both [Manzanares] and [Perez]?

3. Does Count 5 apply only to [Manzanares]?

¶ 76 In discussing the questions, the trial court stated:

The problem with this is that the instructions provided by the People as to these elementals are internally inconsistent.

Instructions 22 and 23, which deal with attempted aggravated robbery, which is the Count 5, specifically list [Manzanares] as the victim. The People then wanted Instructions 24, 25, and 26 provided as to complicity on the attempt[ed] [aggravated] robbery, yet in Instruction 26 when reciting the elements of the crime of aggravated robbery, it refers to Antonia Perez.

So as to Count 5, the attempted aggravated robbery, the applicable jury instructions are 22, 23, 24, 25, 26, and 27. Instruction 26 should say [Manzanares], but it says [Perez].

As much as the Court would like to correct that, because this is just a scrivener’s error, the Court itself questioned why [Perez’s] name

6 Count 3 charged aggravated robbery naming Perez as the victim. 7 Count 5 charged criminal attempt to commit aggravated robbery

naming Manzanares as the victim.

34 was there, but I did not bring it to the People’s attention. I thought they had a different theory, different philosophy. I thought they were going a different direction.

And we had the weekend to review these instructions again before they were read. We finalized them on Friday, and then they were read to the jury today. No corrections were made, so I figured they were the way the People wanted them, but the fact of the matter is they’re inconsistent and they’re causing the jury confusion.

As much as the Court would like to correct it, given that the defense has relied on these, prepared their closing arguments, and actually made their closing arguments . . . I don’t know that I can.

Off the record People suggested that in answering these two questions the Court– should refer the Jury to Instructions 22 and 23. [Defense counsel] objected to that, and the Court agrees with [defense counsel], because 22, 23, although they do not apply to the attempted [aggravated robbery], so do 24, 25, 26, and 27, and by pointing the jury – or sending a response back to the jury telling them to look at 22 and 23, with an added emphasis on those two instructions over the others that also apply and that are causing the problems, so I think the Court just has to say the Court can give you no further instructions – the Court can give you no further instruction as to your questions regarding Count 5.

¶ 77 Defense counsel objected:

35 I would ask – my preference would be that the Court give the same answer that you’re giving to Question 1 for Questions 2 and 3. I think it’s substantively the same, and it looks much more uniform, doesn’t draw any – doesn’t shine the light anymore – make – differentiate this problem.

I just want to make a record that I – I was of the same mind the Court was that I thought they were going in a different direction when the – when I – when I saw the – what – what now is a mistake, so I guess for the record I have to move for a mistrial. I don’t want any argument, and we can deal with it later, but just want to make that record at this point in – in the proceedings.

¶ 78 The trial court responded to all three jury questions: “As to all

questions: you have all the evidence. You have all the law you are

to apply. Your job is to apply the facts as you find them to be to the

law I have provided to you.”

¶ 79 Thirty-nine minutes later, the court stated:

The Court has reconsidered its answer to Questions 2 and 3, and the reason is this: The bottom line is the Court has misinstructed the jury on the law. The attempted aggravated robbery count as to [Manzanares] . . . , Instruction 26, had a typo in it. It said [Perez].

Apparently those were cut and paste from the aggravated robbery elements as to Ms. Perez. They were inserted by the People into 26 and nobody caught it – well, the jury caught it.

36 So I have instructed the jury to stop deliberating, and my intention is to provide this updated answer to the Jury Deliberation Questions 2 and 3 indicating Jury Instruction 26 is replaced with the attached revised instruction. You should use the attached Jury Instruction 26 for your deliberations, and also maintain the original Jury Instruction 26 with the original instructions.

¶ 80 Ortega objected:

Your Honor, I object. I’ll incorporate the basis that I made previously. I understand the situation we’re in. I move for mistrial again. This was based – the reason we – I didn’t object to it, I had the same impression that the Court did, this – this was what my argument was, this is what . . . my case was based on, and it was a mistake, and so we object.

¶ 81 The trial court responded:

And I will continue to take that motion under consideration. I guess what I’m thinking of right now, we’re asking them to deal with the legal impossibility, attempted aggravated robbery was the only charge as to [Manzanares], and the Court has misinstructed them.

What – if they were to come back with a conviction on this and what the Court could do about that – well, we’ll deal – we’ll deal with that afterwards, but I – I feel the need to correct and at least instruct them on the law correctly, and what they have is patently incorrect on the law.

So objection noted. Thank you.

37 B. Standard of Review and Applicable Law

¶ 82 It is the duty of the trial court to instruct the jury correctly on

all matters of law. People v. Garcia, 28 P.3d 340, 343 (Colo. 2001).

“We review de novo whether the jury instructions as a whole

accurately informed the jury of the governing law.” People v.

Manyik, 2016 COA 42, ¶ 65. “However, we review the trial court’s

decision regarding whether to give a particular jury instruction for

an abuse of discretion.” Id.; see also People v. Burnell, 2019 COA

142, ¶ 36 (“Whether to provide additional instructions in response

to a question from the jury is left to the sound discretion of the trial

court.”). A trial court abuses its discretion if its ruling is manifestly

arbitrary, unreasonable, or unfair, or if the court misapplies the

law.

¶ 83 Crim. P. 30 provides that jury instructions shall be read to the

jury before closing arguments and that counsel may comment on

the instructions during closing arguments. This procedure affords

counsel the opportunity to structure closing arguments based on

the instructions that will govern the jury’s deliberations. People v.

Bastin, 937 P.2d 761, 764 (Colo. App. 1996). However, a trial court

has the duty to correct erroneous instructions. Id. (concluding that

38 the court did not reversibly err in correcting a felony murder

instruction, after charging the jury, where the instruction did not

accurately state the law). If the jury asks a question during its

deliberations, the court should refer the jury to the original

instructions “when it is apparent that the jury has overlooked some

portion of the instructions or when the instructions clearly answer

the jury’s inquiry.” Leonardo v. People, 728 P.2d 1252, 1255 (Colo.

1986). But if the jury’s question demonstrates that the jury has

considered the relevant instruction and has a fundamental

misunderstanding, or when the instructions provide no clear

answer to the jury’s question, the court must clarify the matter for

the jury in a concrete and unambiguous manner. See id. at

1255-56. When circumstances require that a change in the

instructions be made after closing arguments, reversible error

occurs only if defense counsel was unfairly misled in formulating

closing arguments or prevented from arguing a meritorious defense

to the jury. Bastin, 937 P.2d at 764.

C. Analysis

¶ 84 Ortega does not argue that any of the jury instructions were

legally incorrect. Rather, he contends that the trial court violated

39 Crim. P. 30 and denied him an opportunity to structure his closing

arguments based on the instructions that governed the jury’s

deliberations. We disagree.

¶ 85 It is well established that “the trial court has a duty to instruct

the jury properly on all of the elements of the offenses charged.”

Bastin, 937 P.2d at 764. Here, Jury Instruction 26 did not properly

state the elements of the crime because it incorrectly identified

Perez as the victim. Further, the answer to the jury’s question

could not be found in the instructions. Therefore, the trial court

had a duty to correct it. See Leonardo, 728 P.2d at 1255-56.

¶ 86 Moreover, the complaint named Manzanares as the victim of

the attempted aggravated robbery, and the prosecution never

suggested during the trial that the charge related to Perez. Further,

Ortega’s defense centered on identity and him not being the

shooter. He did not argue that the shooter’s actions toward

Manzanares did not constitute attempted aggravated robbery.

Therefore, we conclude that defense counsel was not unfairly misled

in formulating closing argument or unfairly prejudiced from arguing

any meritorious defense and, thus, that the trial court did not

abuse its discretion in correcting Jury Instruction 26.

40 V. Fingerprint Evidence

¶ 87 Ortega next contends that the trial court erred in admitting

evidence that the fingerprint comparison conclusions were verified

by a nontestifying witness in both the trial on the charges and the

habitual criminal trial. He argues that this evidence violated his

confrontation rights. We conclude that this argument is waived.

A. Additional Background Information

¶ 88 Before trial, Ortega filed a demand for any laboratory

technicians to testify in person in accordance with section

16-3-309(5), C.R.S. 2025.

¶ 89 At trial, Michael Odom, a forensic scientist at the Denver

Crime Laboratory was qualified as an expert in fingerprint analysis.

He explained that when comparing fingerprints to determine if they

are from the same person, he uses the Analysis, Comparison,

Evaluation, and Verification (ACE-V) methodology. In describing

the verification aspect of this process, Odom stated:

During the verification phase another qualified competently-trained examiner will go through the same process. They’ll go through their own analysis, their own comparison, their own evaluation, and they’ll reach their own independent conclusion.

41 This is essentially like a peer review process of our methodology to see if the data substantiates the conclusion and if the results are reproducible.

¶ 90 Odom later testified: “At that point the – those comparisons

were given to another examiner to go through that process for them

to do their own verification process.”

¶ 91 The prosecution admitted the “Denver Crime Laboratory

Latent Print Unit Examination Report.” The report concluded that

the fingerprints lifted from Perez’s car had been identified to the

known exemplars for Ortega. Under “Additional Examinations,” the

report stated, “The identifications were verified by Certified Latent

Print Examiner Amy Williams.” Ortega did not object.

¶ 92 During cross-examination, defense counsel questioned Odom

on the comparison process and specifically asked how many points

he looked at when making a comparison. Odom testified that there

is no point comparison standard, and that he did not remember

how many comparison points he used in his determination.

¶ 93 At the habitual criminal trial, Ryan Huber was qualified as an

expert in fingerprint comparison and identification. Huber testified

that he compared Ortega’s fingerprints taken from his three prior

42 convictions to the fingerprints taken from him in this case and

concluded the fingerprints were from the same person. Over

defense counsel’s foundation objection, the prosecution introduced

Huber’s report that memorialized his findings and noted that they

were peer verified. During voir dire, Huber testified that he was

trained in the ACE-V techniques.

¶ 94 On cross-examination the following colloquy occurred:

DEFENSE COUNSEL: Who was the verifier?

HUBER: The verifier was Melissa Brandt.

DEFENSE COUNSEL: How many times has somebody checked your work and said it wasn’t correct?

HUBER: Not that many. Not recently.

DEFENSE COUNSEL: You don’t know how many though, can you?

HUBER: I don’t recall. Probably only a handful of times, and that’s why we do the double verification.

¶ 95 During redirect examination, Huber testified that he

previously performed a comparison involving Ortega in 2021 where

he was the verifier of the fingerprint comparison. The following

colloquy ensued:

43 PROSECUTION: Were there any disagreement[s] in the conclusions from this week?

HUBER: There were no differences.

PROSECUTION: Was it verified by another –

HUBER: It was verified by a lead analyst, Melis[s]a Brandt.

PROSECUTION: Was there any disagreement in that verification?

HUBER: There was no disagreement.

¶ 96 The prosecution admitted the 2021 comparison verified by

Huber.

¶ 97 The trial court found Ortega’s identity had been proved by the

certified court records, which included matching birthdays,

identification numbers, and physical appearances in prior

photographs, as well as by Huber’s findings.

B. Standard of Review and Applicable Law

¶ 98 We review de novo whether a defendant’s confrontation rights

were violated. People v. Merritt, 2014 COA 124, ¶ 25.

¶ 99 The Confrontation Clauses in the United States and Colorado

Constitutions guarantee criminal defendants the right to confront

the witnesses against them. U.S. Const. amend. VI; Colo. Const.

44 art. II, § 16. The right provided under both Confrontation Clauses

is identical. People v. Garcia, 2021 CO 7, ¶ 7 n.2. That right is

violated by the introduction of testimonial hearsay evidence, unless

the declarant is unavailable and the defendant had a previous

opportunity to cross-examine the declarant. People v. Jaeb, 2018

COA 179, ¶ 13; Bullcoming v. New Mexico, 564 U.S. 647, 657

(2011). A hearsay assertion is testimonial if it “was made ‘with a

primary purpose of creating an out-of-court substitute for trial

testimony.’” People v. McFee, 2016 COA 97, ¶ 34 (quoting Ohio v.

Clark, 576 U.S. 237, 245 (2015)); see also Merritt, ¶ 44 (in

determining whether hearsay is testimonial, “courts rely heavily on

the purpose for which it was given”).

¶ 100 We conclude this contention was waived.

¶ 101 Waiver is the intentional relinquishment of a known right, and

defense counsel may waive the right to confrontation. Cropper v.

People, 251 P.3d 434, 435 (Colo. 2011). Indeed, in some instances,

“defense counsel’s inaction alone is sufficient to constitute a

waiver.” Id. (citing Melendez-Diaz v. Massachusetts, 557 U.S 305,

313 n.3 (2009)). “If [we] can infer that a defense counsel

45 intentionally did not exercise the defendant’s confrontation rights,

this can be an effective waiver.” People v. Rogers, 2012 COA 192,

¶ 20.

¶ 102 A waiver may be explicit, as when a defendant “expressly

abandons an existing right or privilege,” or it may be implied, as

when a defendant “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. Although a mere

failure to object does not in all cases constitute a waiver, Rediger,

¶ 44, agreeing to a proposed course of action with full knowledge of

the surrounding facts and circumstances does. Forgette, ¶ 34

(defendant intentionally relinquished his right to object to a

sleeping juror and therefore waived any such objection for appellate

review where counsel was fully aware of the sleeping juror but did

not ask the court to take any action to address the issue). A waived

claim of error presents nothing for an appellate court to review.

People v. Kessler, 2018 COA 60, ¶ 68.

¶ 103 Before trial, Ortega filed a motion under section 16-3-309(5)

requesting the in-person testimony of all analysts. Such filing

constituted an invocation of Ortega’s right of confrontation. See

46 Cropper, 251 P.3d at 436. But contrary to that motion, at trial, he

did not object to the challenged testimony and never mentioned his

pretrial motion demanding in-person testimony. Instead, defense

counsel used cross-examination to undermine Odom’s expert

opinion. Again, at the habitual trial, Ortega did not object to the

challenged testimony based on the pretrial motion and instead used

cross-examination to undermine Huber’s credibility.

¶ 104 Because Ortega filed the pretrial motion invoking his

confrontation rights, we cannot say that defense counsel’s failure to

object was an oversight. Whether to make an objection at trial is

often a strategic decision. See People v. Washington, 2014 COA 41,

¶ 43; see also People v. Bondsteel, 2015 COA 165, ¶ 134 (listing

examples of cases where divisions of this court have recognized that

failing to object can be a strategic decision), aff’d, 2019 CO 26. In

other words, Ortega’s pretrial motion shows that he knew of the

error he now complains of on appeal; therefore, we conclude that

his use of cross-examination to attack the experts’ opinions

constitutes a strategic explanation for the lack of a

contemporaneous objection. See Cropper, 251 P.3d at 438 (“[W]e

assume that when an attorney fails to comply with the procedural

47 rules set forth in section 16-3-309(5) the attorney has made a

decision to waive defendant’s right of confrontation regardless of

whether the attorney knew of or understood the statute or its

requirements.”). Accordingly, we conclude that defense counsel

intentionally chose not to object and thereby waived any argument

on appeal.

VI. Habitual Adjudication and Sentence

¶ 105 Ortega last contends that insufficient evidence supports his

habitual criminal adjudication because the prosecution failed to

prove beyond a reasonable doubt that two of his three felony

convictions arose out of separate and distinct criminal episodes.

We disagree.

¶ 106 At the habitual trial, the prosecution introduced certified court

records of Ortega’s prior guilty pleas to second degree assault in

Jefferson County Case No. 14CR2032 and to second degree assault

in Jefferson County Case No. 14CR2054.

¶ 107 In Case No. 14CR2032, the arrest warrant showed that on

July 2, 2014, Ortega hit a man outside a 7-Eleven store while he

and an accomplice robbed him. In Case No. 14CR2054, the arrest

48 warrant showed that, on the same night, twenty minutes later,

Ortega and an accomplice shoplifted from the same 7-Eleven store

and that Ortega shoved an employee to help his accomplice escape.

Ortega pleaded guilty to second degree assault in both cases. The

prosecution did not join the cases, but the cases were resolved at

the same dispositional hearing.

¶ 108 The trial court found that the prosecution presented sufficient

evidence connecting Ortega to his three prior felonies, adjudicated

him a habitual criminal, and sentenced him in accordance with the

habitual criminal statute.

¶ 109 Because Ortega challenges the sufficiency of the evidence, we

review the record to determine “whether the evidence, viewed as a

whole, and in the light most favorable to the prosecution, is

sufficient to support a conclusion by a reasonable person that the

defendant is guilty of the crimes charged beyond a reasonable

doubt.” People v. Copeland, 976 P.2d 334, 341 (Colo. App. 1998),

aff’d, 2 P.3d 1283 (Colo. 2000).

¶ 110 For a defendant to be adjudged a habitual criminal under

section 18-1.3-801(2)(a)(I), C.R.S. 2025, the prosecution must prove

49 beyond a reasonable doubt that the defendant, having been

convicted of a felony, “has been three times previously convicted,

upon charges separately brought and tried, and arising out of

separate and distinct criminal episodes.”

¶ 111 Entry of guilty pleas to multiple offenses during the same

proceeding satisfies the requirement of “charges separately brought

and tried” where the “predicate convictions arose from charges

which, had they not been adjudicated through the entry of guilty

pleas, would have been tried separately.” Gimmy v. People , 645

P.2d 262, 267 (Colo. 1982).

¶ 112 The term “criminal episode” has the same meaning for

habitual offender laws as it does under the compulsory joinder

statute. People v. Jones, 967 P.2d 166, 169 (Colo. App. 1997).

Crimes that stem from the same criminal episode include “physical

acts that are committed simultaneously or in close sequence, that

occur in the same place or closely related places, and that form part

of a schematic whole.” Id. (quoting Jeffrey v. Dist. Ct., 626 P.2d

631, 639 (Colo. 1981)). Charges that must be prosecuted in a

single case under the compulsory joinder statute, section

18-1-408(2), C.R.S. 2025, cannot qualify as separate convictions for

50 habitual offender purposes. See Jones, 967 P.2d at 169 (allowing a

defendant to be prosecuted as a habitual offender for offenses that

were subject to mandatory joinder would be “inconsistent with the

General Assembly’s intent to reserve habitual criminal sentencing

for serious recidivists”).

¶ 113 We conclude that Ortega’s two convictions did not arise from

the same criminal episode.

¶ 114 In Marquez v. People, the defendant was convicted at a single

trial of attempted aggravated robbery and second degree assault.

2013 CO 58, ¶ 3. Marquez struck a man in the jaw at a bar after

the man refused to give him money or drugs. Id. at ¶ 4. Within the

next forty minutes, and two blocks away, Marquez robbed a second

man at gunpoint. Id. Eight hours later, and ten blocks away,

Marquez knocked on the door of a house and accosted the

homeowner with a gun. Id. After three more hours, and several

more blocks away, Marquez entered a home and attempted to rob a

man inside at gunpoint. Id. The supreme court concluded that the

two crimes of violence did not arise from the same criminal episode.

Id. at ¶ 20. The court found that the two crimes involved a different

51 act, were separated by twelve hours, and involved different methods

of commission (one with a fist and one with a gun), different

victims, and different locations. Id. Further, the two crimes shared

no act, mental state, result, circumstance, or defense as to which

proof of one would form a substantial portion of the proof of the

other. Id.

¶ 115 We conclude that the facts in this case are like those in

Marquez. While both crimes occurred at the same location

(7-Eleven), one crime occurred outside of the building while the

other inside the building as Ortega exited. Further, twenty minutes

elapsed between the two crimes.

¶ 116 Additionally, in the first crime, Ortega hit the victim while

attempting to rob him. In the second, Ortega pushed a different

victim out of the way to aid his accomplice’s escape.

¶ 117 Finally, the record contains no evidence linking the two

crimes, or the two victims, nor does it show any relationship

between the two crimes other than them having occurred at the

same location. Under these circumstances, we conclude sufficient

evidence supports the court’s finding that the two crimes were

52 separately brought and tried and, thus, that sufficient evidence

supports Ortega’s habitual criminal adjudication and sentence.

VII. Disposition

¶ 118 The judgment is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.