23CA2172 Peo v Trevino 07-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2172 Weld County District Court No. 23CR156 Honorable Marcelo A. Kopcow, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
George Olivas Trevino,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE LUM Welling and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 2, 2026
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, George Olivas Trevino, appeals his conviction and
sentence for vehicular eluding. We affirm.
I. Background
¶2 At approximately 11:30 p.m. on January 5, 2023, Officer
Jacob Fischer stopped Trevino for a license plate violation. Officer
Armando Leyva arrived on scene shortly thereafter. Leyva
approached Trevino and asked him to step out of the vehicle, but
Trevino refused and drove away. The two officers followed in their
respective vehicles. Fischer testified that Trevino’s speed eventually
increased such that he “was pulling away from [the officers] rapidly”
and started “swerving between the left and right lanes.” The officers
decided to end the pursuit for safety reasons.
¶3 Trevino was charged with vehicular eluding, disobeying a
police officer, reckless driving, and a license plate violation. Before
trial, the court agreed that it would instruct the jury on reckless
driving as a lesser included offense of vehicular eluding, rather than
as a separate count. At trial, the court granted defense counsel’s
motion for a judgment of acquittal on the license plate violation
charge and dismissed that count. The jury convicted Trevino of
1 vehicular eluding and disobeying a police officer. He was sentenced
to five years in the custody of the Department of Corrections.
¶4 On appeal, Trevino raises several challenges to his vehicular
eluding conviction. First, he argues that there was insufficient
evidence to sustain the conviction. Second, he contends that the
trial court erred by overruling his objections to some of Fischer’s
testimony. Third, he challenges the vehicular eluding jury
instruction, contending that the court failed to adequately define an
element of the offense. Fourth, he argues that cumulative error
warrants reversal. Finally, he challenges his vehicular eluding
sentence.
II. Sufficiency of the Evidence
A. Additional Facts
¶5 Fischer was the only witness at trial. However, the
prosecution also admitted and played Leyva’s body camera footage
for the jury. Fischer testified that, at the start of the pursuit,
Trevino was driving about five to ten miles per hour over the thirty-
five-mile-per-hour speed limit. In the bodycam recording, Levya
similarly said that Trevino was driving between thirty and fifty miles
per hour.
2 ¶6 Fischer also testified that Trevino eventually approached an
intersection and didn’t stop before he turned right at a red light.
Fischer estimated that Trevino took the turn at a little under forty-
five miles per hour.1 Leyva didn’t mention this in the recording.
After the turn, Fischer testified that Trevino didn’t exceed the speed
limit for some time but eventually increased his speed such that he
was “pulling away from [the officers] rapidly” and “began swerving
between the right and left lanes” without signaling. Fischer testified
that Trevino’s speed increased to “at least eighty miles per hour” on
a road with a speed limit of sixty-five miles per hour. In the
recording, Leyva said Trevino was “gaining speed” and “doing about
eighty miles an hour.” At this point, Leyva stated that he was
discontinuing his pursuit, and Fischer explained that he and Leyva
had stopped their pursuit “due to [Trevino’s] increase in speed and
the swerving between lanes” and out of concern for the safety of
other people and property.
1 However, Fischer acknowledged that his car was behind Leyva’s
and Trevino’s cars, so he didn’t always have a clear view of Trevino’s car, and his speed estimates were based on Leyva’s statements.
3 ¶7 On cross-examination, Fischer admitted that he didn’t note in
his report or his sworn affidavit that Trevino failed to stop before
turning right at the red light. Defense counsel also elicited
testimony from Fischer that he didn’t include the failure to stop in
his report because there was no oncoming traffic when Trevino
turned at the light.
B. Standard of Review and Applicable Law
¶8 We review de novo whether there’s sufficient evidence to
support a jury’s verdict. People v. Market, 2020 COA 90, ¶ 47. In
doing so, “[w]e must determine whether the evidence, both direct
and circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is sufficient to support a conclusion by
a rational jury that the defendant is guilty beyond a reasonable
doubt.” Id. We also “give the prosecution the benefit of every
reasonable inference that might fairly be drawn from the evidence.”
Id. Finally, it is the jury’s role — not ours — to determine witness
credibility, weigh the evidence, and resolve conflicting or
inconsistent evidence. Id.
¶9 Vehicular eluding is defined as follows:
4 Any person who, while operating a motor vehicle, knowingly eludes or attempts to elude a peace officer also operating a motor vehicle, and who knows or reasonably should know that he or she is being pursued by said peace officer, and who operates his or her vehicle in a reckless manner, commits vehicular eluding.
§ 18-9-116.5(1), C.R.S. 2025.
C. Analysis
¶ 10 Trevino contends that the prosecution failed to meet its
burden to prove that he drove in a reckless manner. We aren’t
persuaded.
¶ 11 Taken in the light most favorable to the prosecution, the
evidence showed that Trevino failed to stop before turning at a red
light and then drove at least eighty miles per hour (fifteen miles per
hour over the speed limit) while swerving between lanes without
signaling, all late at night. And Fischer testified that the officers
discontinued their pursuit because they were concerned that
Trevino’s conduct put at risk “the safety of everybody . . . on the
road, the passenger that was in [Trevino’s] car and everyone’s
property that would have been around that area.” From this
evidence, the jury could have reasonably concluded that Trevino
drove in a reckless manner. See K.V. v. A.V., 2019 ND 255, ¶ 24
5 (evidence was sufficient to support reckless driving conviction when
the defendant ran several stop signs, he refused to stop when police
signaled him, “and the officer was unable to continue pursuing the
vehicle due to safety concerns”).
¶ 12 We reject Trevino’s contention that the lack of oncoming traffic
at the light and lack of other cars on the road support the
conclusion that the prosecution failed to prove he drove in a
reckless manner. See People v. Rhodus, 2012 COA 127, ¶ 33
(rejecting a sufficiency challenge to a vehicular eluding conviction
because, “even if the probability of harm to other people was low
because no one happened to be in the vicinity, the magnitude of the
potential harm was undeniably great”). To be sure, the jury could
consider these mitigating facts, among all the attendant
circumstances, in assessing whether Trevino drove in a reckless
manner, but these facts — even if undisputed — don’t render the
totality of the evidence insufficient to sustain a conviction.
Moreover, although Fischer’s report and Leyva’s statements in the
bodycam footage didn’t corroborate every aspect of Fischer’s
testimony — including his testimony about Trevino running the red
light — we must view the evidence in a light most favorable to the
6 prosecution, and we cannot second-guess the jury’s credibility
determinations. See Market, ¶ 47.
¶ 13 Finally, Trevino contends that his conduct, in isolation,
constituted only minor traffic offenses that don’t support the
conclusion that he drove recklessly. But this doesn’t mean that a
jury couldn’t conclude from Trevino’s conduct as a whole that he
drove in a reckless manner. See People v. Paarlberg, 612 N.E.2d
106, 110 (Ill. App. Ct. 1993) (explaining that reckless driving can be
proven by “multiple traffic offenses which together demonstrate the
driver’s willful and wanton disregard”); see also People v. Poindexter,
2013 COA 93, ¶¶ 40-41 (concluding the evidence was sufficient
when the defendant’s speed was five to fifteen miles over the speed
limit, and the defendant engaged in other reckless driving
behaviors).
¶ 14 We emphasize that evidence need not be overwhelming to be
sufficient. And “we ‘may not serve as a thirteenth juror’ by
considering whether we ‘might have reached a different conclusion
than the jury.’” Thomas v. People, 2021 CO 84, ¶ 10 (citation
omitted). For the reasons above, we conclude that the evidence, as
a whole and viewed in a light most favorable to the prosecution, was
7 sufficient to support Trevino’s conviction for vehicular eluding. See
Market, ¶ 47.
III. Fischer’s Testimony
¶ 15 Next, Trevino challenges testimony that the prosecutor elicited
from Fischer on redirect examination about whether Trevino’s
conduct satisfied elements of vehicular eluding. We conclude that,
although the trial court erroneously admitted this testimony, the
error was harmless.
¶ 16 On cross-examination, defense counsel sought to impeach
Fischer by highlighting several facts that he testified to but didn’t
include in his report or sworn affidavit. For example, Fischer
admitted that the affidavit and report didn’t mention Trevino failing
to stop at a red light or failing to use his turn signal when changing
lanes. Defense counsel then elicited several responses that
suggested Fischer omitted this information because he thought it
had marginal significance. The remaining cross-examination
largely involved defense counsel’s attempts to impeach the accuracy
of Fischer’s recollection and elicit other inconsistencies between his
report and his testimony.
8 ¶ 17 On redirect, the prosecutor asked Fisher if he listed eluding as
a charge in his affidavit, which he filled out around the same time
that he wrote his report. Fischer said that he had. The prosecutor
then asked, “And the definition of eluding, which [the court] will
give later, includes [that] the [d]efendant knew or reasonably should
have known that he was being pursued by a peace officer and
operated his vehicle in a reckless manner?” Defense counsel
objected, but before counsel could explain the basis for the
objection, the court asked if the objection was to leading. Defense
counsel agreed the question was leading, but said, “[I]t’s also in the
purview of the jury.” The court sustained the objection on leading
grounds. The prosecutor rephrased, “Can you tell me what eluding
is?” Fischer responded, “[E]luding is when somebody who is being
stopped by the police . . . does not stop and continues to drive
without stopping.” The court interjected and explained that it
would give the jury “the written legal definition of eluding.”
¶ 18 The prosector next asked if “the failure to use a turn signal
and stopping at a red light qualif[ied] as reckless,” and defense
counsel raised a “purview of the jury” objection again. The court
overruled the objection, concluding that the defense opened the
9 door “as to why [Fischer] didn’t include [the red light or turn signal]
language but included vehicular eluding.” The prosecutor
rephrased, “[D]oes the lack of turn signal and running the red light
qualify, is that a part of what you encompassed in your eluding?”
Fischer responded affirmatively.
¶ 19 Finally, during closing argument, the prosecutor said, “Why
wasn’t it included in the report and arrest affidavit . . . ? Because,
as the officer testified, all of those things, the running the red light,
the swerving, the reckless disregard [are] encompassed in that
charge.” Defense counsel didn’t object.
¶ 20 We review preserved evidentiary challenges for an abuse of
discretion. People v. Owens, 2024 CO 10, ¶ 105. “[A] trial court
abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, unfair, or based on an incorrect understanding of the
law.” Id. If the court erred, we review for harmless error and
reverse only “if the error ‘substantially influenced the verdict or
affected the fairness of the trial proceedings.’” Hagos v. People,
2012 CO 63, ¶ 12 (citation omitted).
10 ¶ 21 Under CRE 704, otherwise admissible testimony isn’t rendered
inadmissible “because it embraces an ultimate issue to be decided
by the trier of fact.” However, “[w]hile Rule 704 does not prohibit a
lay witness from testifying to an issue of ultimate fact, obviously, it
does not mean a witness may testify that a particular legal standard
has or has not been met.” People v. Collins, 730 P.2d 293, 306
(Colo. 1986). Nor may a witness “express[] an opinion on the
applicable law or legal standards,” People v. Grant, 174 P.3d 798,
808 (Colo. App. 2007), or define the law for the jury, People v.
Prendergast, 87 P.3d 175, 182 (Colo. App. 2003). See United States
v. Messner, 107 F.3d 1448, 1454 (10th Cir. 1997) (“In no instance
can a witness be permitted to define the law of the case.” (citation
omitted)).
¶ 22 First, we reject the People’s contention that we shouldn’t
consider Trevino’s evidentiary challenge because he doesn’t
explicitly challenge the court’s conclusion that defense counsel
opened the door to Fischer’s testimony. By asserting that the
testimony was within the jury’s purview, Trevino preserved an
argument that it was inadmissible under CRE 704, and he raises
11 that same argument in his appellate briefing. See People v.
Coughlin, 304 P.3d 575, 582 (Colo. App. 2011) (a party need not
identify the specific rule of evidence if they alert the court to the
error); People v. Springsted, 2016 COA 188, ¶ 10 (to preserve an
issue for appeal, a party must give the court “an adequate
opportunity to make findings of fact and conclusions of law”).
¶ 23 Next, we reject the People’s contention that the court correctly
held that defense counsel opened the door to the challenged
testimony. See People v. Heredia-Cobos, 2017 COA 130, ¶ 20 (“A
party may open the door to otherwise inadmissible evidence by
presenting incomplete evidence on a subject.”). Although the
defense sought to impeach Fisher by emphasizing inconsistencies
between his testimony and his earlier statements, counsel never
mentioned recklessness or eluding, nor did he suggest that Fischer
didn’t include those terms in his report or affidavit. The tenor of
defense counsel’s cross-examination appeared to be general
impeachment seeking to cast doubt on Fischer’s recollection. This
didn’t open the door to the officer’s opinion about whether Trevino’s
conduct fit the legal definition of recklessness or eluding.
12 ¶ 24 Additionally, we agree with Trevino that Fischer’s testimony
was inadmissible under CRE 704.2 Defense counsel’s question
asking whether Trevino’s conduct qualified as reckless or eluding
improperly elicited Fischer’s opinion about whether a legal standard
had been met. See Collins, 730 P.2d at 306. And Fischer
improperly defined the law when he defined eluding. See
Prendergast, 87 P.3d at 182. Therefore, the trial court erred by
overruling Trevino’s objections.
¶ 25 However, for several reasons, we conclude that the error was
harmless. First, after Fischer defined eluding, the court
immediately informed the jury that it would receive an instruction
with the legal definition. This significantly mitigated any potential
prejudice. See People v. Ellis, 30 P.3d 774, 778 (Colo. App. 2001)
(“[W]e presume that the jury followed the curative instruction and
that the instruction cured any prejudice . . . .”). The court also
instructed the jury that it was the court’s role to give instructions
2 Trevino also raises an unpreserved challenge to Fischer’s
testimony under CRE 701, arguing that it was improper lay opinion. We don’t address this argument because we conclude that the evidence was inadmissible under CRE 704, and the harmless error analysis is the same regardless of whether the testimony was improper under one or both rules of evidence.
13 on the law and the jury’s duty to follow those instructions. See
People v. Dominguez-Castor, 2020 COA 1, ¶ 91 (“[W]e presume that
the jury followed [the court’s] instruction[s].”).
¶ 26 Next, Fischer didn’t answer the question about whether
Trevino’s conduct was reckless, and the prosecutor’s rephrased
question was ambiguous. The prosecutor asked whether Trevino’s
conduct qualified as or was “part of what [Fischer] encompassed in
[his] eluding” determination. Fischer’s affirmative response could
be interpreted as a factual statement about what conduct led
Fischer to charge Trevino with eluding, rather than a statement
about whether Trevino’s conduct satisfied the legal elements of
eluding. See People v. Vigil, 718 P.2d 496, 505 (Colo. 1986)
(improper testimony that was “fleeting and ambiguous” was
minimally prejudicial). And although the prosecutor referenced the
improper testimony in closing, the testimony itself and the
prosecutor’s statement were isolated and brief. See Dominguez-
Castor, ¶ 80 (explaining that isolated impropriety is often harmless).
¶ 27 Finally, although not overwhelming, there was other evidence
of Trevino’s guilt. First, it is uncontested that he drove away from
the officers and refused to stop when they pursued him. Next, as
14 discussed above, the jury heard evidence that he was driving at
least eighty miles per hour late at night with multiple officers
pursuing him, he was swerving between lanes without signaling,
and he failed to stop before turning at a red light. The jury also
heard that the officers ended their pursuit due to safety concerns.
Therefore, there was ample admissible evidence for the jury to rely
on to find Trevino guilty of vehicular eluding. Accordingly, Fischer’s
improper testimony didn’t substantially influence the jury’s verdict
and was therefore harmless. See Hagos, ¶ 12.
IV. Challenged Jury Instruction
¶ 28 Next, Trevino argues that the trial court erred by failing to
specify which definition of recklessness — the definition from the
reckless driving statute or the definition applicable to all crimes
with a recklessness mental state — applied to the reckless manner
element of vehicular eluding. We disagree.
¶ 29 The jury received elemental instructions for vehicular eluding
and reckless driving. The vehicular eluding instruction included as
an element that Trevino “operated his vehicle in a reckless manner.”
That instruction didn’t define “reckless manner.” However, the jury
15 received a general instruction about recklessness: “A person acts
‘recklessly’ when he consciously disregards a substantial and
unjustifiable risk that a result will occur or that a circumstance
exists.”
¶ 30 The elemental reckless driving instruction informed the jury
that “Vehicular Eluding as charged in . . . this case necessarily
include[d] the lesser offense of Reckless Driving” and that the
elements of reckless driving were that “Mr. Trevino . . . drove a
motor vehicle . . . in such a manner as to indicate either a wanton
or willful disregard for the safety of persons or property.”
¶ 31 Before trial, Trevino tendered the following jury instruction:
A person acts “recklessly” when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists. Vehicular eluding and reckless driving require proof beyond a reasonable doubt that Mr. Trevino acted with a wanton or a willful disregard for the safety of persons or property.
The court rejected the tendered instruction because it deviated from
the “approved definition of recklessly” and because the reckless
driving language in the proposed instruction was already contained
in the reckless driving instruction.
16 B. Standard of Review and Applicable Law
¶ 32 We first reject the People’s assertion that Trevino didn’t
preserve his argument that the court should have clarified which
recklessness definition applied to the reckless manner element of
vehicular eluding. Trevino’s tendered instruction stated that the
jury had to find that he acted with “a willful and wanton disregard
for the safety of persons or property” to be guilty of vehicular
eluding. See § 42-4-1401(1), C.R.S. 2025 (a person commits
reckless driving when they “drive[] a motor vehicle . . . in such a
manner as to indicate either a wanton or a willful disregard for the
safety of persons or property”). Thus, the tendered instruction
clarified which definition applied to vehicular eluding by applying
both the general recklessness definition and the reckless driving
statute’s definition to the vehicular eluding count. See People v.
Tardif, 2017 COA 136, ¶ 10 (explaining that instructional
challenges are preserved “if the defendant tenders the desired
relevant instruction”). And, contrary to the People’s suggestion,
Trevino did argue that failing to adequately define reckless manner
could confuse the jury.
17 ¶ 33 We review de novo whether jury instructions accurately state
the law. Garcia v. People, 2022 CO 6, ¶ 16. We consider not only
whether the instructions are legally accurate “but also whether
[they] are confusing or may mislead the jury.” Id. In doing so, we
consider the applicable criminal statutes. Id. If the jury
instructions correctly state the law, “we review a trial court’s
decision to give those instructions for an abuse of discretion.” Id. at
¶ 18. It’s also within the trial court’s discretion to determine
whether to give additional instructions that properly state the law.
People v. Esparza-Treto, 282 P.3d 471, 480 (Colo. App. 2011).
¶ 34 Reckless driving is a lesser included offense of vehicular
eluding. Id. at 479. And “the element of recklessness is the same
in each offense, despite the applicable statutes[] being worded
differently.” Id. at 478-79. Thus, although vehicular eluding
requires a person to drive “in a reckless manner,” § 18-9-116.5(1),
while reckless driving requires a person to drive with “a wanton or a
willful disregard for the safety of persons or property,” § 42-4-
1401(1), both statutes require the same conduct — recklessness.
“A person acts recklessly when he consciously disregards a
18 substantial and unjustifiable risk that a result will occur or that a
circumstance exists.” § 18-1-501(8), C.R.S. 2025.
¶ 35 Trevino contends, as he did below, that the jury should have
received an instruction explaining whether to assess vehicular
eluding’s reckless manner element using either (1) the “consciously
disregards a substantial and unjustifiable risk” definition from
section 18-1-501(8) or (2) the “wanton or . . . willful disregard for
the safety of persons or property” definition from section 42-4-
1401(1). It’s unclear, however, if he’s arguing that the court should
have instructed the jury to apply (1) both definitions (as his
proffered instruction suggested); (2) only the reckless driving
statute’s definition; or (3) either definition, so long as the court tied
the definition to the vehicular eluding count. For example, he
asserts that we must resolve which definition applies, but he
doesn’t explicitly suggest an answer to that question. And although
he contends that the trial court erred by failing to instruct the jury
on which definition to apply, he doesn’t argue that the court should
have applied one definition over the other.
19 ¶ 36 We conclude that the court didn’t abuse its discretion by
simply giving the standard definition of recklessness without
explicitly instructing the jury on how to assess the reckless manner
element. In doing so, we reject any argument that the court erred
by failing to give an instruction applying the reckless driving
statute’s language to the vehicular eluding count.
¶ 37 First, the trial court’s instruction mirrored the vehicular
eluding statute and the model instruction. See § 18-9-116.5(1);
COLJI-Crim. 9-1:54 (2025). Similarly, the instruction defining
recklessness was identical to the statutory definition and the model
instruction. See § 18-1-501(8); COLJI-Crim. F:308 (2025).
Therefore, we conclude that the instructions were legally accurate.
See Garcia, ¶ 16; see also People v. Claycomb, 2025 COA 36, ¶ 26
(“Generally, instructions that accurately track the language of
applicable statutes and pattern instructions are sufficient.”). And
Trevino doesn’t cite any authority requiring an explicit instruction
on how to assess the reckless manner element for the crime of
vehicular eluding.
¶ 38 Second, Trevino doesn’t cite any authority requiring courts to
use the reckless driving statute’s language in vehicular eluding
20 instructions. Indeed, a division of this court rejected a nearly
identical argument in which the defendant argued that the trial
court should have used the reckless driving statute’s definition of
recklessness to define the reckless manner element of vehicular
homicide. See People v. Scarlett, 985 P.2d 36, 42-43 (Colo. App.
1998). The division reasoned that section 18-1-501 applies to
offenses in the Colorado Criminal Code (title 18), so “the definition
of ‘recklessly’ in [section] 18–1–501(8) is plainly intended to be used
in interpreting other statutory sections contained within the
Criminal Code.” Id. at 43. Unlike reckless driving, vehicular
eluding is a title 18 offense. See § 18-9-116.5.
¶ 39 Third, our cases have consistently applied the general
recklessness definition to vehicular eluding. For example, a
division of this court explained that vehicular eluding requires proof
that the defendant “recklessly operated a motor vehicle” and quoted
section 18-1-501(8)’s recklessness definition. Poindexter, ¶¶ 38-39;
see also Rhodus, ¶¶ 30-31 (using the section 18-1-501(8) definition
to consider whether there was sufficient evidence of the reckless
manner element); People v. Sherwood, 5 P.3d 956, 959 (Colo. App.
2000) (“[T]he statute merely requires proof that defendant both
21 eluded or attempted to elude a police officer, and that he operated
his car recklessly.”).
¶ 40 But Trevino seems to argue that — even if legally accurate —
the vehicular eluding instruction could have confused the jury
because the reckless driving instruction had its own definition of
recklessness (willful and wanton disregard) that differed from 18-1-
501(8)’s definition (consciously disregarding a substantial and
unjustifiable risk). However, because Trevino doesn’t explain how
the two standards are materially different, we can’t discern why it
would matter which definition the jury applied. See Esparza-Treto,
282 P.3d at 478-79; Commonwealth v. Bullick, 2003 PA Super 285,
¶ 14 (“[W]illful or wanton disregard” is the same standard as
“‘conscious disregard’ of a substantial and unjustifiable risk.”
(citations omitted)). And, as Trevino points out, the jury shouldn’t
have reached the reckless driving instruction because it found him
guilty of vehicular eluding. This reduces any risk that the reckless
22 driving instruction confused the jury.3 Moreover, Trevino doesn’t
explain, and we can’t discern, how applying one definition instead
of the other could have affected the jury’s verdict.
¶ 41 Finally, a division of this court rejected a similar challenge in
which the defendant asked the trial court to give an instruction
defining an element of careless driving. See Claycomb, ¶¶ 17-33. A
person commits careless driving when they drive “in a careless and
imprudent manner, without due regard for” certain conditions.
§ 42-4-1402(1), C.R.S. 2025. The division rejected the defendant’s
argument that the trial court erred by refusing to give his tendered
instruction defining “due regard.” Claycomb, ¶¶ 18-19, 21, 28. It
reasoned that “although ‘reckless’ was the only culpable mental
state defined in the jury instructions, the provided careless driving
instruction tracked the statutory language and the model criminal
jury instruction.” Id. at ¶ 29. And it emphasized that there was no
3 Trevino argues that the instructions weren’t duplicative — as the
trial court found — because the jury would reach the reckless driving instruction only if it found Trevino not guilty of vehicular eluding. But this undermines his argument that the reckless driving instruction confused the jury.
23 binding authority “requir[ing] a separate instruction for the culpable
mental state of careless driving.” Id.
¶ 42 This reasoning is persuasive. The vehicular eluding
instruction tracked both the statute and the model instruction.
Additionally, no binding precedent requires courts to define
“reckless manner.” And unlike in Claycomb, the jury was
instructed on the definition of recklessness and could apply that
definition to the reckless manner element. Thus, the trial court
didn’t err by declining to give Trevino’s tendered instruction.
V. Cumulative Error
¶ 43 Finally, we reject Trevino’s contention that cumulative error
warrants reversal.
¶ 44 To reverse based on cumulative error, “a reviewing court must
identify multiple errors that collectively prejudice the substantial
rights of the defendant, even if any single error does not. Stated
simply, cumulative error involves cumulative prejudice.” Howard-
Walker v. People, 2019 CO 69, ¶ 25 (citation omitted).
¶ 45 We agreed with Trevino that the court erred by overruling two
objections to Fischer’s testimony. First, Fischer improperly defined
vehicular eluding. Second, he responded affirmatively to the
24 following improper question: “[D]oes the lack of turn signal and
running the red light qualify, is that a part of what you
encompassed in your eluding?” We conclude that this doesn’t
amount to cumulative error. The errors occurred at effectively the
same time, the improper testimony was brief, the jury was properly
instructed, and there was other evidence of Trevino’s guilt.
Therefore, we can’t say that cumulative error requires reversal.
VI. Vehicular Eluding Sentence
¶ 46 Finally, we address and reject Fischer’s challenge to his
vehicular eluding sentence.
A. Standard of Review and Applicable Law
¶ 47 “We review de novo constitutional challenges to the trial
court’s sentencing determination[].” People v. Kirby, 2024 COA 20,
¶ 55. Because Trevino didn’t preserve this issue, we will affirm his
sentence unless the trial court plainly erred by imposing a sentence
above the maximum presumptive range. See id.
¶ 48 A trial court may impose a sentence that exceeds the
presumptive statutory range if it finds that extraordinary
aggravating circumstances warrant an aggravated sentence. Id. at
¶ 53; § 18-1.3-401(6)-(7), C.R.S. 2025. However, except for the fact
25 that a defendant was previously convicted of a crime, “any fact that
increases a defendant’s sentence beyond the maximum presumptive
range must be submitted to a jury and proved beyond a reasonable
doubt.” Kirby, ¶ 53 (first citing Apprendi v. New Jersey, 530 U.S.
466, 490; and then citing Blakely v. Washington, 542 U.S. 296, 301
(2004)). In Colorado, there are four types of facts that a trial court
may use to aggravate a sentence: “(1) facts found by a jury beyond a
reasonable doubt; (2) facts admitted by the defendant; (3) facts
found by a judge after the defendant stipulated to judicial
factfinding; and (4) facts regarding the defendant’s prior
convictions.” Id. at ¶ 54.
¶ 49 “[T]he existence of a prior conviction opens the aggravated
sentencing range,” and a sentencing court may choose to impose an
aggravated sentence based on a defendant’s prior convictions.
DeHerrera v. People, 122 P.3d 992, 994 (Colo. 2005); see also § 18-
1.3-401(8)(c) (allowing courts to consider additional aggravating
circumstances not listed in subsection 18-1.3-401(8)(a) when
deciding whether to impose an aggravated sentence). If a
sentencing court relied on prior convictions to aggravate a sentence,
it doesn’t matter if the court also considered other factors outside
26 the four permissible types of facts courts may use to aggravate
sentences. People v. Elie, 148 P.3d 359, 367 (Colo. App. 2006).
B. Analysis
¶ 50 The presumptive sentencing range for vehicular eluding, a
class 5 felony, is one to three years. § 18-1.3-401(1)(a)(V.5)(A);
§ 18-9-116.5(2)(a). Trevino argues that the trial court erroneously
aggravated his sentence based on the fact that, at the time of the
offense, he was on parole. He argues that a jury had to find beyond
a reasonable doubt that he was on parole before the court could use
that fact to aggravate his sentence. But even assuming, without
deciding, that the court obviously erred by considering Trevino’s
parole status in the absence of a jury finding, we conclude that the
court didn’t plainly err by aggravating his sentence because the
aggravation was, at least in part, based on his prior convictions.
See Elie, 148 P.3d at 367.
¶ 51 The court opened its sentencing determination with a
discussion of Trevino’s extensive criminal history. It then listed
twelve of his prior convictions. It also noted that Trevino was on
parole for an earlier vehicular eluding conviction. The court
explained that it was imposing a five-year sentence because the new
27 vehicular eluding conviction was “[Trevino’s] eleventh felony
conviction and because [he was] on parole for the identical crime
that [he] w[as] convicted of.” (Emphasis added.)
¶ 52 The court made clear that its sentencing decision was based
largely on Trevino’s extensive criminal history and numerous prior
convictions. See DeHerrera, 122 P.3d at 994; Elie, 148 P.3d at 367.
The court could consider those convictions without a jury finding,
see Kirby, ¶ 53, and prior convictions are a proper basis for
aggravating a sentence, Elie, 148 P.3d at 367. Therefore, it doesn’t
matter that the court also considered Trevino’s parole status. See
Elie, 148 P.3d at 367.
¶ 53 We reject as misplaced Trevino’s reliance on Elie, in which a
division of this court concluded that the trial court improperly used
its own findings to aggravate a sentence. See id. at 366-67. There,
the trial court merely mentioned the defendant’s prior convictions
and aggravated the sentence for one felony menacing conviction but
not the other. Id. at 366. The division reasoned that the trial court
would have aggravated both sentences if it were truly relying on the
prior convictions. Id. Here, by contrast, the court emphasized
28 Trevino’s prior convictions and made clear that it was relying on
them to aggravate his sentence.
VII. Disposition
¶ 54 We affirm Trevino’s judgment of conviction and sentence for
JUDGE WELLING and JUDGE SCHOCK concur.