23CA1048 Peo v Russell 10-16-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1048 Las Animas County District Court No. 21CR192 Honorable Pierce L. Fowler, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Cynthia Russell,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE BROWN Fox and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 16, 2025
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Cynthia Russell, appeals the judgment of
conviction entered on a jury verdict finding her guilty of felony
menacing and harassment. Russell contends that (1) the district
court erred by admitting certain statements contained in a video
exhibit; (2) the prosecutor committed misconduct throughout trial;
and (3) the court’s reasonable doubt instruction unconstitutionally
lowered and shifted the burden of proof. Russell also contends that
these alleged errors cumulatively deprived her of a fair trial. We
affirm.
I. Background
¶2 Alisha Keyes and her boyfriend live at the end of a long dirt
road on property neighboring that of Russell and her husband,
Floyd Russell.1 The road leading to Keyes’ property partially runs
through land owned by Russell, but a recorded easement grants the
residents living along the road rights to, among other things, use it
for “ingress and egress.”
¶3 One evening in September 2021, Keyes and her boyfriend were
planning to sell a car to Nathan Thompson, a Northglenn police
1 Because Cynthia Russell and Floyd Russell share a last name, we
refer to Floyd by his first name. We mean no disrespect in doing so.
1 officer. In preparation for the sale, Keyes rolled the car down her
driveway and positioned it just outside the gate that connects her
driveway to the road. Thompson, his brother, and another friend
arrived at approximately 10:00 p.m. Thompson’s brother drove the
group in a large truck towing a flatbed trailer. Thompson’s brother
parked the truck in front of Keyes’ gate, and Thompson met Keyes’
boyfriend to examine the car. Satisfied with the condition of the
vehicle, Thompson and his brother tried to turn the truck around
so they could load the car onto the trailer, but the trailer
“jackknifed” and became stuck across the road.
¶4 Around the same time, Floyd emerged from the darkness
carrying a handgun and shouting for the group to get “off [his]
property.” Thompson explained that he was an off-duty police
officer there to buy a car and that nothing suspicious was
happening. Shortly after Thompson calmed Floyd down, Russell
appeared waving a gun and demanding that Thompson and his
brother put their hands up. Thompson showed Russell his badge
and explained that he was there to purchase a car, but Russell
continued to wave her gun and insist that Thompson could not do
anything because he was outside of his jurisdiction.
2 ¶5 Meanwhile, Keyes walked down to the gate to investigate
because she heard “screaming and hollering.” Keyes explained to
Russell and Floyd that she was just selling a car and told them to
“put [their] guns away.” Russell responded by waving her gun,
pointing it at Keyes, and saying she would shoot Keyes “in her
fucking face.” Russell continued shouting things like, “I’m a good
shot,” “I will fucking kill her,” “I can get her from here,” and “I’m
going to shoot this fucking bitch,” all while waving her gun around.
Russell also said that “if she knew the vehicle was there, she would
have went out there and shot the vehicle up.”
¶6 After some time, Thompson was able to de-escalate the
situation, buy the car, load it onto the trailer, and drive away down
the road. Once Thompson returned to an area with cell service, he
called 911 to report what had happened.
¶7 The prosecution charged Russell with felony menacing and
harassment, and a jury convicted her as charged. The district court
sentenced her to two years of supervised probation and twenty-four
hours of useful public service.
3 II. Evidentiary Contentions
¶8 Russell contends that the district court erred by admitting a
video recording that contained (1) Thompson’s opinions on Russell’s
guilt and (2) CRE 404(b) evidence. We discern no basis to reverse.
A. Standard of Review
¶9 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Hard, 2014 COA 132, ¶ 22. A court abuses its
discretion when its ruling is manifestly arbitrary, unreasonable, or
unfair, or when it misapplies the law. People v. Sims, 2019 COA 66,
¶ 44.
¶ 10 If a defendant objected to the admission of evidence at trial, we
review any error under the harmless error standard. Hard, ¶ 23.
But if a defendant failed to object, we review for plain error. Hagos
v. People, 2012 CO 63, ¶ 14. Plain error is error that is both
obvious and substantial, such that it so undermines the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction. Id.
B. Additional Background
¶ 11 Russell filed a pretrial motion in limine to exclude CRE 404(b)
evidence of her prior aggressive conduct, including evidence relating
4 to an “incident between [Keyes] and [Russell] about a year prior”
that involved roofers. At a motions hearing, the prosecutor
indicated that he had no intention of bringing the incident up but
reserved the right to discuss it should it become relevant at trial.
The court ruled that “anything that could go to [Russell’s] state of
mind on the night of [the altercation] will be considered appropriate
as it may be used in an affirmative defense,” but that it did not
want to hear “a witness stating that [Russell] used or engaged in a
use of force previously as a . . . previous act or wrong.”
¶ 12 During Keyes’ direct examination, the prosecutor moved to
admit Exhibit 4, a cell phone recording that Keyes took of a
conversation she had with Thompson immediately following the
altercation. Defense counsel objected to the exhibit as irrelevant
and because it contained hearsay and “improper legal
conclusions.”2 The court overruled Russell’s objections as to
relevance and hearsay but deferred ruling on the objection to
2 Although Russell argued at trial that the recording was irrelevant
and contained inadmissible hearsay, she does not reassert those arguments on appeal. Thus, we deem those arguments abandoned. See People v. Brooks, 250 P.3d 771, 772 (Colo. App. 2010).
5 improper legal conclusions, instructing counsel, “[Y]ou can object if
we start to hear anything that would require legal conclusions.”
¶ 13 The court admitted Exhibit 4 into evidence. The video is
mostly black due to the dark conditions at the time it was recorded,
but the audio includes the following:
• After Thompson asked Keyes if she wanted to press charges,
Keyes asked Thompson what he “would recommend living
so close to” Russell. Thompson replied, “I just had a gun
pointed at me, I think that’s one fucking thousand percent
uncalled for considering that we are backing a car up and
there’s no actual threat here, so one hundred percent she
just committed a felony.”
• Keyes stated that Russell is “horribly violent” and recounted
an instance where “roofers got stuck in the winter and
[Russell] threatened to hurt them, too.”
¶ 14 Before Exhibit 4 was played at trial, the prosecutor asked the
court to instruct the jury to disregard any legal conclusions
contained in the recording. The court instructed the jurors that
they were “the final arbiters of the decisions of law and fact in this
case” and that they should not “put greater weight onto what Officer
6 Thompson may or may not say [i]n this video.” Defense counsel
renewed his hearsay objection “to Officer Thompson’s statements,”
but the court overruled the objection.
¶ 15 The trial transcript reflects that at least a portion of Exhibit 4
was then played for the jury, but we do not know what part. We do
know that the prosecutor asked someone to “rewind it all the way”
and then played sixty-nine seconds of the recording. The only
challenged evidence that can be heard in the first sixty-nine
seconds is Keyes’ statement that Russell is “horribly violent.”
Thompson’s statements and Keyes’ statement about Russell
threatening the roofers are more than two minutes into the
recording. Defense counsel did not object to any statements as the
exhibit was played at trial, nor after.
C. Russell’s Evidentiary Contentions Are Unpreserved
¶ 16 We have “an independent, affirmative duty to determine
whether a claim is preserved and what standard of review should
apply, regardless of the positions taken by the parties.” People v.
Tallent, 2021 CO 68, ¶ 11. Based on our review of the record, we
conclude that Russell failed to preserve her contentions that the
7 district court erred by admitting Thompson’s “legal conclusions” or
any CRE 404(b) evidence contained in Exhibit 4.
¶ 17 To preserve an issue for appeal, the defendant must raise the
issue and provide the district court with “an adequate opportunity
to make findings of fact and conclusions of law.” People v.
Melendez, 102 P.3d 315, 322 (Colo. 2004); see CRE 103(a)(1). And
“it is incumbent on the moving party to see to it that the court rules
on the matter [s]he urges.” Feldstein v. People, 410 P.2d 188, 191
(Colo. 1966), abrogated on other grounds by, Deeds v. People, 747
P.2d 1266, 1269-72 (Colo. 1987). A timely, specific objection
“allows the trial court a meaningful chance to prevent or correct the
error and creates a record for appellate review.” Martinez v. People,
2015 CO 16, ¶ 14.
¶ 18 With respect to the potential “legal conclusions” contained in
Exhibit 4, the district court expressly reserved its ruling and
instructed defense counsel to object when the video was played for
the jury. Because the court did not make a definitive ruling when
counsel first raised the issue, counsel had to object again if any of
Thompson’s statements amounted to improper legal conclusions.
See Feldstein, 410 P.2d at 191; cf. People v. Dinapoli, 2015 COA 9,
8 ¶ 20 (“A pretrial motion may preserve an evidentiary objection for
appellate review if the moving party fairly presents the issue to the
court and the court issues a definitive ruling.” (emphasis added));
CRE 103(a) (“Once the court makes a definitive ruling on the record
admitting or excluding evidence, either at or before trial, a party
need not renew an objection or offer of proof to preserve a claim of
error for appeal.” (emphasis added)). But counsel did not
contemporaneously object to any statement in Exhibit 4 on the
ground that it amounted to an improper legal conclusion. Absent
such an objection, the court was deprived of a meaningful
opportunity to correct the error. See Martinez, ¶ 14.
¶ 19 With respect to the CRE 404(b) evidence, although the court
partially granted Russell’s pretrial motion to exclude that evidence,
“when a party violates the court’s pretrial order at trial, the
opposing party must contemporaneously object to preserve the
issue for appeal.” Dinapoli, ¶ 19; see People v. Richardson, 2019
COA 120, ¶ 64. Such an objection “allows the court to determine,
at the relevant time, whether the admission of evidence . . . actually
violates the pretrial order.” Caylao-Do v. Logue, 2025 COA 42, ¶ 30.
Defense counsel did not contemporaneously object to any statement
9 in Exhibit 4 on the grounds that it was inadmissible under CRE
404(b) or violated the court’s pretrial ruling. Absent such an
objection, the court was deprived of an opportunity to determine in
real time whether admission of the statements violated its pretrial
order or CRE 404(b). See Caylao-Do, ¶ 30.
¶ 20 We conclude that Russell failed to preserve her evidentiary
contentions. As a result, we review them only for plain error.
Hagos, ¶ 14.
D. The District Court Did Not Plainly Err by Admitting the Challenged Statements
¶ 21 Russell argues that Thompson’s statements — namely, that
Russell’s conduct was “one . . . thousand percent uncalled for” and
that she “one hundred percent . . . just committed a felony” — were
inadmissible because they amounted to an improper opinion on
whether a legal standard had been met in the case. See People v.
Beilke, 232 P.3d 146, 152 (Colo. App. 2009) (“[A] witness may not
testify that a particular legal standard has or has not been met.”).
She further argues that Keyes’ statements that Russell was
“horribly violent” and previously threatened roofers were
inadmissible under CRE 404(b) and precluded by the court’s
10 pretrial ruling. See CRE 404(b)(1) (“Evidence of any other crime,
wrong, or act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in
conformity with the character.”).
¶ 22 Even assuming that the court erred by admitting the
challenged statements when it admitted Exhibit 4, we conclude that
any error was not plain because it did not so undermine the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. Hagos, ¶ 14. We reach
this conclusion for three reasons.
¶ 23 First, we are unable to determine whether the jury even heard
the challenged statements. As noted, the record does not establish,
and neither party is able to clarify, what part of Exhibit 4 was
played during trial. If the first sixty-nine seconds of the video were
played, which is the most likely inference drawn from the trial
transcript, the jury heard only Keyes’ statement that Russell is
“horribly violent” — which Keyes said after Russell had just pointed
a gun at her and repeatedly threatened to shoot her in the face.
¶ 24 In addition, despite the court’s earlier rulings (1) instructing
defense counsel to contemporaneously object to any improper legal
11 conclusions and (2) precluding CRE 404(b) evidence, counsel did
not object while the exhibit was played at trial or after. The lack of
any objection suggests that the portions of the video containing
Thompson’s opinions on Russell’s guilt or Keyes’ reference to the
incident involving roofers were not played in open court. And
although the district court admitted Exhibit 4 in its entirety,
nothing in the record indicates that the jury asked to view the
exhibit during deliberations or had the exhibit and the necessary
technology required to play it in the jury room. We cannot conclude
that the admission of the challenged evidence undermined the
fundamental fairness of Russell’s trial without knowing whether the
jury was even exposed to it.
¶ 25 Second, the district court contemporaneously instructed the
jury not to give greater weight to any statements Thompson made in
the video and instructed the jury in its final written instructions to
disregard any conclusions of law it may have heard from witnesses
at trial. Absent evidence to the contrary, we presume that the jury
understood and followed the court’s instructions. People v. Chase,
2013 COA 27, ¶ 37.
12 ¶ 26 Third, the prosecution presented overwhelming evidence that
Russell committed felony menacing and harassment. See People v.
Munoz-Casteneda, 2012 COA 109, ¶ 39 (unpreserved evidentiary
errors will not be reversed under the plain error standard if the jury
was presented with overwhelming evidence of the defendant’s guilt).
As relevant here, “[a] person commits the crime of [felony] menacing
if, by any threat or physical action, he or she knowingly places or
attempts to place another person in fear of imminent serious bodily
injury . . . by the use of a deadly weapon.” § 18-3-206, C.R.S.
2021.3 “A person commits harassment if, with intent to harass,
annoy, or alarm another person, the person . . . [r]epeatedly insults,
taunts, challenges, or makes communications in offensively coarse
language to another in a manner likely to provoke a violent or
disorderly response . . . .” § 18-9-111(1)(h), C.R.S. 2025. The
evidence at trial established that Keyes, Thompson, and the others
involved in the car sale were on an access road when Russell
emerged from her property, pointed a gun at Keyes, and threated to
shoot her.
3 We cite the 2021 version of the menacing statute because it was in
effect when the altercation occurred and has since been amended.
13 ¶ 27 True, Russell asserted the affirmative defenses of (1) defense of
a person, § 18-1-704, C.R.S. 2025; (2) defense of premises,
§ 18-1-705, C.R.S. 2025; and (3) defense of property, § 18-1-706,
C.R.S. 2025. But for her conduct to be legally justified, Russell
must have reasonably believed that her use of force was necessary
to prevent Keyes from (1) using unlawful physical force on Russell
or Floyd, § 18-1-704(1); (2) unlawfully trespassing, § 18-1-705; or
(3) committing theft, criminal mischief, or tampering with Russell’s
property, § 18-1-706. Even if Russell initially believed she needed
to defend herself or her property, the evidence established that after
Thompson identified himself as an off-duty police officer and
explained his presence on the access road, Russell continued to
erratically wave her handgun and hurl threats at Keyes.
¶ 28 On this record, we conclude that any error by the district
court in admitting Thompson’s statements that Russell’s behavior
was “uncalled for” and “a felony” or Keyes’ statements that Russell
was “horribly violent” and had previously threated roofers did not
result in the level of prejudice required to reverse under the plain
error standard. Hagos, ¶ 14.
14 III. Prosecutorial Misconduct
¶ 29 Russell contends that the prosecutor committed misconduct
by (1) misstating the evidence; (2) asking a question that elicited an
inadmissible legal opinion; and (3) repeatedly discussing the access
easement, which misled the jury and confused the issues at trial.
We perceive no error.
A. Applicable Law and Standard of Review
¶ 30 We engage in a two-step analysis when reviewing claims of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id. We
will not disturb a trial court’s rulings on alleged instances of
misconduct absent “a showing of gross abuse of discretion resulting
in prejudice and a denial of justice.” People v. Strock, 252 P.3d
1148, 1152 (Colo. App. 2010). Second, if the conduct was
improper, we decide whether it warrants reversal under the proper
standard of review. Wend, 235 P.3d at 1096.
¶ 31 While prosecutors can use every legitimate means to bring
about a just conviction, they have a duty to avoid using improper
methods intended to obtain an unjust result. Domingo-Gomez v.
15 People, 125 P.3d 1043, 1048 (Colo. 2005). When determining
whether a prosecutor’s statements were improper and whether
reversal is warranted, we may consider the language used, the
context of the statements, the strength of the evidence, whether the
prosecutor improperly appealed to the jurors’ sentiments, whether
the misconduct was repeated, and any other relevant factors.
People v. Walters, 148 P.3d 331, 335 (Colo. App. 2006).
B. The Prosecutor’s Misstatement During Closing Argument Does Not Amount to Misconduct
¶ 32 At trial, Floyd testified that Thompson’s brother was “in front
of the truck peeing, whenever [Russell] came up” and disrupted
Thompson’s purchase of Keyes’ car. During closing argument, the
prosecutor stated that “when [Russell] came down with her
pistol[,] . . . Thompson’s brother went over to pee, because that’s
what we do in our common experience in life when two armed
people come from the darkness.” Russell’s counsel objected to the
prosecutor’s argument as a misstatement of the evidence, but the
district court overruled his objection.
¶ 33 Russell argues that the prosecutor misstated Floyd’s testimony
to discredit him by making his story sound ridiculous. She also
16 argues that “Floyd’s testimony was the only evidence the jury had to
support the defense’s theory that [Russell] acted in defense of Floyd
and her property,” so the misconduct likely contributed to Russell’s
conviction. We are not persuaded.
¶ 34 To be sure, a prosecutor may not misstate the evidence.
People v. Payne, 2019 COA 167, ¶ 46; see Domingo-Gomez, 125
P.3d at 1049 (“The prosecutor should not intentionally misstate the
evidence or mislead the jury as to the inferences it may draw.”).
And the prosecutor’s argument here could be seen as a slight
misstatement as to when Floyd said Thompson’s brother
purportedly urinated — Floyd’s testimony suggested it happened
shortly before Russell approached while the prosecutor’s statement
suggested it happened shortly after Russell approached. But the
thrust of the prosecutor’s argument was that Floyd’s testimony was
not credible because no one would feel comfortable urinating in the
middle of a stressful conflict where guns had been drawn —
regardless of the timing. In context, the prosecutor’s argument
appears to be an inartful attempt to discredit a defense witness
rather than an intentional misstatement intended to mislead the
jury. See Domingo-Gomez, 125 P.3d at 1049.
17 ¶ 35 Moreover, the prosecutor’s statement related to an ancillary
issue; when Thompson’s brother may have urinated implicates
none of the elements of the charged offenses or asserted affirmative
defenses. See §§ 18-1-704, 18-1-705, 18-1-706, 18-3-206(1)(a)-
(b), 18-9-111(1)(h). Thus, we conclude that the court did not
grossly abuse its discretion by determining that the prosecutor’s
slight misstatement did not amount to prosecutorial misconduct.
See Wend, 235 P.3d at 1096; Strock, 252 P.3d at 1152.
C. The Prosecutor Could Not Have Foreseen that His Question Would Elicit an Inadmissible Response
¶ 36 During direct examination, the prosecutor asked Thompson
why he called 911 following the incident. Thompson responded,
“Because . . . a felony event had just occurred.” Defense counsel
objected to Thompson’s answer as an improper legal conclusion,
and the district court sustained the objection. Even so, Russell
argues that the prosecutor committed misconduct by asking
Thompson a question the prosecutor knew would elicit an
inadmissible response. We disagree.
¶ 37 Nothing about how the prosecutor phrased the question
suggested Thompson should respond by opining that Russell had
18 committed a felony. There are several other relevant and admissible
reasons that Thompson could have given for why he called 911. In
other words, the question did not elicit a prohibited response. That
Thompson offered an improper opinion does not mean that the
prosecutor committed misconduct. See Wend, 235 P.3d at 1096.
D. The Prosecutor’s Questions About Russell’s Easement Do Not Amount to Prosecutorial Misconduct
¶ 38 Russell contends that the prosecutor committed misconduct
by repeatedly asking potential jurors and witnesses questions about
easements that were misleading and confused the issues. She
notes that four out of the nine exhibits the prosecutor admitted at
trial related to the access easement,4 the prosecutor had Keyes read
the easement descriptions out loud, and the prosecutor asked
Keyes and Thompson numerous questions about the easement’s
scope. She argues that questions about the easement were so
pervasive that “the jurors were likely to believe that whether anyone
went past the easement boundaries was a determining factor in
4 People’s Exhibits 5-8 provided the jury with information about
Keyes’ and Russell’s properties and the easement that provided ingress and egress to Keyes’ property. When the prosecution introduced the exhibits, defense counsel objected only to Exhibit 8, a certified property record, on the basis that it was irrelevant.
19 whether [Russell’s] conduct was reasonable.” We discern no
misconduct.
¶ 39 Evidence relating to the access easement across Russell’s
property was relevant because she asserted the use of physical
force in defense of premises as an affirmative defense. See
§ 18-1-705. Whether Russell was “in possession or control of
any . . . realty” and whether she reasonably believed Keyes was
committing or attempting to commit “unlawful trespass” were
squarely at issue based on that affirmative defense. Id.
Consequently, the prosecutor was free to ask questions and make
arguments about the easement and to respond to the theory of
defense. See Strock, 252 P.3d at 1153 (“A prosecutor has wide
latitude to make arguments based on facts in evidence and
reasonable inferences drawn from those facts.”).
¶ 40 On appeal, Russell does not contend that the evidence was
inadmissible, only that the amount of time the prosecutor spent
discussing it had the effect of misleading and confusing the jury.
But based on our review of the record, we disagree with Russell’s
characterization of this evidence as having “pervaded the trial from
voir dire through closing argument.” Although the easement was a
20 feature of the prosecution’s evidence, it did not dominate the
narrative so as to mislead or confuse the jury. And no one
suggested to the jury that the reasonableness of Russell’s conduct
hinged on the precise contours of the easement. Thus, we conclude
the prosecutor did not commit misconduct by admitting evidence
and asking questions about the easement. See Wend, 235 P.3d
at 1096.
IV. Reasonable Doubt Instruction
¶ 41 Russell contends that the district court erred by using a
reasonable doubt instruction that unconstitutionally lowered and
shifted the burden of proof. We disagree.
A. Additional Background
¶ 42 Over Russell’s objection, the district court gave the jury a
reasonable doubt instruction that tracks the 2022 model criminal
instruction:
Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.
21 The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.
After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.
After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.
COLJI-Crim. E:03 (2022).
B. Applicable Law and Standard of Review
¶ 43 The Due Process Clause of the United States Constitution
“protects the accused against conviction except upon proof beyond
22 a reasonable doubt of every fact necessary to constitute the crime
with which [s]he is charged.” Tibbels v. People, 2022 CO 1, ¶ 23
(quoting In re Winship, 397 U.S. 358, 364 (1970)). Accordingly, trial
courts “must properly instruct the jury on . . . the reasonable doubt
standard.” Id. at ¶ 25. Instructions that lower the prosecution’s
burden of proof constitute structural error and require automatic
reversal. Id. at ¶ 22. To determine whether a court’s instruction
lowered the burden of proof, we “must ask whether there is a
reasonable likelihood that the jury understood the court’s
statements, in the context of the instructions as a whole and the
trial record, to allow a conviction based on a standard lower than
beyond a reasonable doubt.” Id. at ¶ 43.
¶ 44 We review de novo whether a trial court’s instructions
improperly lowered the prosecution’s burden of proof. Id. at ¶ 22;
Johnson v. People, 2019 CO 17, ¶ 8.
C. The District Court’s Instruction on Reasonable Doubt Did Not Lower or Shift the Prosecution’s Burden of Proof
¶ 45 Russell challenges three aspects of the district court’s
reasonable doubt instruction, contending that it (1) failed to inform
the jury that it can consider the “lack of evidence” when making its
23 decision; (2) instructed the jurors that the prosecution does not
meet its burden if they think there is “a real possibility that the
defendant is not guilty”; and (3) failed to instruct the jury that a
reasonable doubt is a doubt that would cause a reasonable person
to “hesitate to act.” As Russell concedes in her reply brief, however,
at least two divisions of this court have now rejected these
contentions. See People v. Melara, 2025 COA 48, ¶¶ 10-32; People
v. Schlehuber, 2025 COA 50, ¶¶ 7-34. For the reasons articulated
by those divisions, with which we agree, we reject Russell’s
contention that the district court’s reasonable doubt instruction
impermissibly lowered and shifted the burden of proof. See Melara,
¶ 32; Schlehuber, ¶ 7.
V. Cumulative Error
¶ 46 Russell contends that, even if the alleged errors individually do
not warrant reversal, their cumulative prejudice does. When
reviewing for cumulative error, we ask whether “numerous formal
irregularities, each of which in itself might be deemed harmless,
may in the aggregate show the absence of a fair trial.”
Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting Oaks v.
People, 371 P.2d 443, 446 (Colo. 1962)). For the doctrine to apply,
24 numerous errors must have been committed, not merely alleged.
People v. Shanks, 2019 COA 160, ¶ 76.
¶ 47 Although we have assumed for purposes of efficiently resolving
this appeal that the district court erred by admitting certain
statements contained in Exhibit 4, for the same reasons we have
concluded that the assumed errors were not plain, we also conclude
that they “did not substantially prejudice the defendant’s right to a
fair trial.” People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007);
see Hagos, ¶ 14 (Plain error so undermine[s] the fundamental
fairness of the trial itself as to cast serious doubt on the reliability
of the judgment of conviction.).
VI. Deposition
¶ 48 We affirm the judgment of conviction.
JUDGE FOX and JUDGE MEIRINK concur.