24CA1899 Peo v Wingard 08-20-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1899 Jefferson County District Court No. 23CR2215 Honorable Todd L. Vriesman, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Melinda Wingard, Defendant-Appellant.
JUDGMENT AFFIRMED
Division III
Opinion by JUDGE TAUBMAN* Johnson and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 20, 2026
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Katherine M. Field, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Andrew Vierra, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
¶1 Defendant, Melinda Wingard, appeals her judgment of conviction entered after a jury found her guilty of driving under the influence (DUI), fourth or subsequent offense. We affirm.
I. Background
¶2 On September 7, 2023, Ronald Rogacki called 911 from the house he shared with a friend, reporting a disturbance with Wingard that had just occurred there. Rogacki said that Wingard was intoxicated when she drove away from the house.
¶3 While responding to Rogacki’s 911 call, Officer Raymond Scoggins spotted Wingard’s car traveling at speeds fluctuating from thirty-five miles an hour to forty-five miles an hour and then back to thirty-five. After checking the license plate registration and believing that Wingard’s car was the one identified as having left the disturbance, Scoggins initiated a traffic stop. Scoggins testified that Wingard had slurred speech and bloodshot, watery eyes. After obtaining Wingard’s identification information, Scoggins returned to his vehicle and called Rogacki. Rogacki said that he did not see Wingard drink alcohol and that he was not injured. At this point, Scoggins concluded a crime had not been committed at the house. However, in response to Rogacki’s statements that Wingard was
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intoxicated when she left the house, Scoggins initiated a DUI investigation.
¶4 When Scoggins returned to Wingard’s car, he observed that Wingard still had slurred speech and bloodshot, watery eyes and that her speech was discombobulated. Moreover, Wingard was having difficulty following directions. Scoggins conducted roadside sobriety tests including a horizontal gaze nystagmus (HGN) test during which Wingard showed signs of intoxication.
¶5 Wingard consented to a breath chemical sample. After she provided the sample, the machine said, “[S]eek medical attention immediately.” Scoggins, who had never seen this message before, drove Wingard to the hospital. Once there, Wingard consented to a blood test. Subsequent testing indicated a blood alcohol content (BAC) of 0.108, plus or minus 0.005 grams of ethanol per 100 milliliters.
¶6 The jury convicted Wingard of DUI, fourth or subsequent offense. Wingard was sentenced to 6 years’ probation and 128 days in jail.
¶7 After the jury rendered its verdict, Wingard moved for a new trial, asserting that the trial court had erred in denying her motion
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for a mistrial based on the court’s admission of impermissible character evidence and its answer to the jury’s question during deliberations. The trial court denied Wingard’s motion.
¶8 On appeal, Wingard contends that the trial court erred by (1) admitting unauthenticated BAC evidence when the prosecution failed to establish the chain of custody for the blood sample; (2) responding to a jury deliberation question; and (3) not taking corrective measures after Rogacki’s testimony violated pretrial court orders and introduced prejudicial character evidence. Wingard also asserts cumulative error. We affirm the judgment.
II. Chain of Custody
¶9 Wingard contends that the trial court abused its discretion by admitting unauthenticated BAC evidence because the prosecution failed to establish a chain of custody for the blood sample. We disagree.
A. Additional Background Information
¶ 10 The prosecutor introduced evidence of Wingard’s BAC through a Colorado Bureau of Investigation (CBI) forensic scientist, Ecem Yildiz, and the CBI BAC testing results.
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¶ 11 Although he did not witness the blood draw, Scoggins testified that Wingard had consented to a blood draw and that her blood was taken at the hospital. He filled out the “Toxicology Request for Laboratory Examination” (TRFLE) form and testified that the form is always used when a DUI blood sample is taken. The TRFLE form listed Scoggins as the investigating officer and contained a CBI lab case number. The date and time of the blood draw were also listed. The TRFLE form was signed by Wingard and the person who drew Wingard’s blood.
¶ 12 Scoggins testified that although he did not recall which procedure was followed, there are two ways that TRFLE forms and blood samples are packaged and stored. Either the TRFLE form is folded up, put into the blood kit, and then placed in a refrigerator, or the blood kit is placed in the refrigerator, and the TRFLE form is dropped in an evidence drop box. Scoggins testified that both methods constitute standard operating procedure and that one of the methods would have been used. He said that he could not recall if there was anything “out of the ordinary” in collecting and storing the blood samples.
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¶ 13 Yildiz testified that the evidence technicians received the blood samples via hand-to-hand transfer from CBI. The blood samples were sealed and located in a soft inner box that was photographed as received. Yildiz confirmed the photographed blood vials were the ones that she had received. She also confirmed that the TRFLE form she received with the blood samples was the same TRFLE form that Scoggins testified he had completed at the time of the blood draw and had submitted with the blood samples.
¶ 14 When the prosecutor asked Yildiz the amount of alcohol found in the blood sample, Wingard’s counsel objected based on lack of authentication and foundation. Wingard argued that the prosecution did not establish that the blood Yildiz tested was Wingard’s because Scoggins did not witness the blood draw and did not identify the exact procedure he employed to package the blood vials or how he had stored them with the TRFLE form. The trial court overruled Wingard’s objection, finding that sufficient evidence established the chain of custody and that Wingard would have the opportunity to cross-examine Yildiz as to whether the blood samples were Wingard’s.
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¶ 15 The prosecutor resumed questioning Yildiz and introduced CBI’s laboratory report. Yildiz testified that the laboratory report was created for the blood sample tested in this case because it contained the CBI laboratory case number, the name of the investigating officer, and the name and birth date of the subject.
¶ 16 Outside the presence of the jury, Wingard renewed her objection. She argued that while Scoggins and Yildiz testified about how blood samples are collected, stored, and transferred, there was “no testimony whatsoever . . . about . . . getting [the blood sample] from [Wingard’s] arm into evidence, or however the chemist got it.”
¶ 17 In response, the prosecutor argued that because no evidence had been introduced that the blood samples had been tampered with, sufficient foundation had been laid to establish the chain of custody.
¶ 18 The trial court overruled Wingard’s objection, finding in part:
So let me turn to the sample itself. Number one, it’s not being admitted, but more importantly for the purposes of this objection and the chain of custody objection, there is evidence that has been testified to with regard to the taking of the blood with regard to the previous witness, Deputy Scoggins, with regard to his observations and all other matters, at least based upon my notes here
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that he was testifying about the sealing of the blood, and that is then followed up with the testimony by [Yildiz] that after a hand-to-hand transfer and she [sic] picking up that particular sample, that there were two samples in it, they had the — Mr. Scoggins name on it, they were still sealed, and the other things that she testified to, of which I’m not trying to give you a summary here from my notes of all the things that were testified to as to the integrity of the transfer, the taking of the blood and the transfer.
B. Standard of Review and Applicable Law
¶ 19 We review a trial court’s evidentiary rulings for abuse of discretion. People v. Rodriguez, 2022 COA 11, ¶ 11, 508 P.3d 276, 281. A trial court abuses its discretion if its ruling misconstrues or misapplies the law or is manifestly arbitrary, unreasonable or unfair. Id.
¶ 20 Authentication is a condition precedent to the admissibility of evidence. CRE 901(a). The condition is satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id.
¶ 21 Though CRE 901 relates to the admission of evidence, the same standard applies “if a proper identification of an object is required for other purposes, even if the object itself is not offered”
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as evidence. People v. Valencia, 257 P.3d 1203, 1206 (Colo. App. 2011). For example, before an expert can testify about the results of the testing or analysis of an object, “[t]he object must be identified” — that is, “some proof must be presented of a connection between the object tested and the defendant, the victim, or the crime.” Id. The rationale for the rule is that the expert’s testimony is irrelevant unless the object is what its proponent alleges. Id.; see Rodriguez, ¶ 15, 508 P.3d at 281 (unless the prosecution could establish that the substance tested was the same substance recovered from the defendant, the chemist’s testimony that the tested substance was cocaine would be irrelevant).
¶ 22 “[W]hen the evidence, as here, is not readily identifiable and is susceptible to alteration by tampering or contamination, the proponent of the evidence must authenticate it by establishing a chain of custody for the item.” Rodriguez, ¶ 21, 508 P.3d at 282; People v. Sutherland, 683 P.2d 1192, 1197 (Colo. 1984). Accordingly, “[t]he chain of custody of any blood sample must be established, and failure to do so may be excused only where circumstances provide reasonable assurances of identity and unchanged condition of the sample.” Sutherland, 683 P.2d at 1197.
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¶ 23 Whether a complete chain of custody exists is a matter to be resolved by the trial court before admitting the evidence. Valencia, 257 P.3d at 1206. The burden to establish a chain of custody is “not particularly high.” Rodriguez, ¶ 24, 508 P.3d at 283. “Even where there is some confusion about the chain of custody, so long as the evidence was accounted for at all times, the evidence is admissible.” People v. Atencio, 565 P.2d 921, 923 (Colo. 1977). Speculation of tampering is insufficient to establish a break in the chain of custody, People v. LeMasters, 666 P.2d 573, 577 (Colo. App. 1983), aff’d, 678 P.2d 538 (Colo. 1984), and, absent any evidence of tampering or lack of authentication, the proponent of the evidence is not required to call each witness who may have handled the item. Sutherland, 683 P.2d at 1197. If the trial court determines a complete chain of custody exists, any imperfections in the chain go to the weight to be given to the evidence, rather than to its admissibility. Id. at 1198.
C. Analysis
¶ 24 Wingard contends that the prosecution did not establish a chain of custody sufficient to permit the identification of the blood
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tested as hers because the tested blood was not accounted for at any time before Yildiz received it. We disagree.
¶ 25 Wingard’s argument seems to rest on the premise that eyewitness testimony is required for each step in the chain of custody. However, the prosecution’s burden is not so demanding. See Rodriguez, ¶ 24, 508 P.3d at 283. “[I]n the absence of any evidence of tampering or lack of authentication, the proponent of evidence relating to the results of a blood-alcohol test and the supporting exhibits is not required to call each witness who may have handled the exhibit.” Sutherland, 683 P.2d at 1197.
¶ 26 Here, Scoggins’s and Yildiz’s testimony established that the blood vials were sealed after they were collected and remained sealed when they arrived at the laboratory for testing. Wingard provides no evidence to the contrary. Therefore, even though Wingard contends that the chain of custody was insufficient because Scoggins did not personally witness the blood draw, he did not remember whether the vials were stored with the TRFLE form, and there was no testimony regarding how the blood vials were stored or delivered to the laboratory, there was a sufficient link between the collection of the blood and its delivery to CBI. See also
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People v. Mascarenas, 666 P.2d 101, 112 (Colo. 1983) (affirming admission of evidence despite a break in the chain of custody because “[t]here [was] nothing in the record which indicate[d] that the [evidence] had been altered” and “whether any tampering occurred during the ‘break’ would be an issue for the trier of fact to resolve”); People v Brake, 553 P.2d 763, 768 (Colo. 1976) (holding that, although it was unknown who brought the envelope containing the evidence to the forensic laboratory, the seal on the envelope was unbroken so “the chain of custody was not deficient”); People v. Atencio, 529 P.2d 636, 638 (Colo. 1974) (finding the chain of custody sufficient when detective had sealed heroin in envelope and testing chemist testified the envelope had not been opened).
¶ 27 This case is factually different from Vigil in which another division of this court found the prosecution offered inadequate evidence to establish a chain of custody for the underlying buccal swabs. See People v. Vigil, 2024 COA 72, 557 P.3d 805. In Vigil, the tested swabs were not accounted for “at any time before the DNA analyst received them,” when the detective testified only that “someone had ‘obtained’ swabs from Vigil and that the ‘agency’ had sent the swabs to CBI.” Id. at ¶ 24, 557 P.3d at 812. Moreover,
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besides the expert’s testimony tying the swabs to Vigil, “[n]o one described any ‘identifying marks’ placed by a law enforcement officer on the swabs or their packaging, such that the swabs could be traced back to Vigil.” Id. at ¶¶ 24, 26, 557 P.3d at 812. Here, the TRFLE form completed by Scoggins after the blood draw contained Wingard’s signature and Yildiz received it with the blood samples at CBI. Further, Yildiz described the identifying marks placed on the vials containing the blood samples and the TRFLE form, which allowed her to identify the blood samples as Wingard’s.
¶ 28 Accordingly, the court properly admitted the evidence and left “any weakness in the chain of custody” as “a question of weight for the jury.” Atencio, 565 P.2d at 924.
III. Additional Jury Instruction
¶ 29 Next, Wingard argues that the trial court erred by preventing Wingard from arguing her defense, misleading the jury, and unduly highlighting evidence in response to a jury question about BAC inferences. We disagree.
A. Additional Background Information
¶ 30 While the jury was deliberating, the trial court received a jury question asking, “What are the Colorado legal BAC levels for DUI
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versus DWAI [(driving while ability impaired)]?” The prosecutor requested that the court’s response provide the permissive inference instruction for BAC included in COLJI-Crim. 42:11.SP (2025) with a slight modification. Wingard objected to responding to the question, arguing that the jury instructions had already been read, the BAC number was not an element of the offense the jury was considering, and an additional instruction would unduly highlight the BAC evidence. The trial court overruled Wingard’s objection and gave the modified COLJI-Crim. 42:11.SP, as Instruction No. 22, with further guidance that it should be read with Instruction No. 6, the general permissible inference instruction.
¶ 31 Instruction No. 6 read:
A permissible inference allows, but does not require, you to find a fact from proof of another fact or facts, if that conclusion is justified by the evidence as a whole. It is entirely your decision to determine what weight shall be given to the evidence.
You must bear in mind that the prosecution always has the burden of proving each element of the offense beyond a reasonable doubt, and that a permissible inference does not shift that burden to the defendant.
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¶ 32 In answering the jury’s question, the court added Instruction No. 22 to be read in conjunction with Instruction No. 6:
As to the charge of [DUI] or the lesser included offense of [DWAI], the amount of alcohol in the defendant’s blood or breath at the time of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant’s blood or breath, gives rise to the following:
(a) Presumption:
It shall be presumed that the defendant was not under the influence of alcohol if there was at such time 0.05 or less grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.05 or less grams of alcohol per two hundred ten liters of breath.
A presumption requires you to find a fact, as if it had been established by evidence, unless the presumption is rebutted by evidence to the contrary.
(b) Permissible inference:
A permissible inference that the defendant’s ability to operate a motor vehicle or vehicle was impaired by the consumption of alcohol may be drawn if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood, or if there was at such time in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath, and such fact may also be considered with other competent evidence in determining whether or not the defendant was under the influence of alcohol.
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A permissible inference that the defendant was under the influence of alcohol may be drawn if there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.08 or more grams of alcohol per two hundred liters of breath.
B. Standard of Review and Applicable Law
¶ 33 “We review de novo whether a particular jury instruction correctly states the law.” People v. Nerud, 2015 COA 27, ¶ 35, 360 P.3d 201, 207. However, we review the court’s “response to a jury question for an abuse of discretion.” People v. Cox, 2023 COA 1, ¶ 16, 528 P.3d 204, 210. “A court abuses its discretion where its decision is manifestly arbitrary, unreasonable, or unfair, or it applies an incorrect legal standard.” People v. Rodriguez, 2022 COA 98, ¶ 12, 521 P.3d 678, 681. In assessing whether a court’s “decision is manifestly unreasonable, arbitrary, or unfair, we ask not whether we would have reached a different result” but whether the court’s “decision fell within the range of reasonable options.” People v. Archer, 2022 COA 71, ¶ 23, 518 P.3d 1143, 1149-50 (quoting Hall v. Moreno, 2012 CO 14, ¶ 54, 270 P.3d 961, 973).
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¶ 34 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 must correct erroneous instructions. Id. 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). However, if the jury’s question demonstrates that it 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
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in formulating closing arguments or prevented from arguing a meritorious defense to the jury. Bastin, 937 P.2d at 764.
¶ 35 When a jury asks a question during deliberations, an additional instruction is “often appropriate” unless
(1) the jurors can be adequately informed by directing their attention to some portion of the original instructions; (2) the request concerns matters not in evidence or does not pertain to the law of the case; or (3) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.
People v. Frye, 2014 COA 141, ¶ 26, 356 P.3d 1000, 1005 (quoting Copeland v. People, 2 P.3d 1283, 1288 (Colo. 2000)).
¶ 36 A permissive inference does not shift the burden to the defendant but instead allows the trier of fact to find an inferred fact from the proof of the predicate fact. People v. Felgar, 58 P.3d 1122, 1124 (Colo. App. 2002).
C. Analysis
¶ 37 Wingard provides four arguments to support her assertion of error. We address and reject each argument in turn.
¶ 38 First, Wingard contends that the trial court’s answer was not responsive to the jury question and therefore misled the jury into
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believing that 0.08 and 0.05 were the “legal BAC levels,” unduly highlighting the BAC evidence. We disagree for four reasons.
¶ 39 First, Instruction No. 22 does not state that BACs of 0.08 and 0.05 are the “legal BAC levels.” The instruction clearly indicates that the law allows a “permissible inference.” The trial court directed the jury to read Instruction No. 22 with Instruction No. 6, which defined a permissible inference. Moreover, Wingard does not argue that the additional jury instruction was legally incorrect, and she does not provide any evidence that the jury was misled by misapplying the permissible inference or improperly assessing the BAC evidence. In the absence of a contrary showing, we presume that the jury understands and applies the given instructions. People v. Abdulla, 2020 COA 109M, ¶ 58, 486 P.3d 380, 392.
¶ 40 Second, we disagree that the court’s response violated Wingard’s constitutional right to have defense counsel properly argue the law with respect to permissible inferences and related law under Crim. P. 30, as well as to have the instructions read before closing arguments.
¶ 41 Our review of the record shows that defense counsel referenced the “BAC number” multiple times in voir dire and in
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opening and closing statements. In one instance, defense counsel argued,
[W]hen it comes to this number, this is the number that the [prosecutor] will rest their case on because there isn’t much else here to say. They are hoping the permissive inference gets them there . . . . At the start of this trial, I told you that is not a number behind a wheel but a person.”
¶ 42 Moreover, Wingard has not specified in her briefs or oral argument what she would have argued differently had the permissible inference been instructed before closing arguments. Accordingly, we discern no abuse of discretion. See People v. Nichols, 920 P.2d 901, 903 (Colo. App. 1996) (The court concluded there was no prejudice when the defendant failed to “specify what he would have argued differently, and a review of closing arguments show[ed] that he did in fact cover the issue.”).
¶ 43 Third, Wingard contends that the trial court misunderstood its obligation to respond to jury questions. While we agree that Wingard’s charge did not turn on the BAC level, the jury heard testimony of her BAC level, and such evidence can lead to a permissible inference regarding guilt or innocence under section 42-4-1301(6)(a), C.R.S. 2025. The jury’s question, therefore,
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indicated that it did not understand “some other matter of law central to [Wingard’s] guilt or innocence.” Leonardo, 728 P.2d at 1256. Accordingly, the trial court had an obligation to “clarify that matter for the jury in a concrete and unambiguous manner.” Id.
¶ 44 Fourth and finally, Wingard’s contention that the trial court erred when it did not provide her with a copy of the final written Instruction No. 22 is unpersuasive. Wingard made no request to review the proposed jury instruction during the discussion on how to answer the jury question and had no objection to the language in COLJI-Crim. 42.11.SP. Moreover, Wingard does not dispute that the court’s answer was a correct statement of the law.
¶ 45 Therefore, we discern no abuse of discretion in the trial court’s response to the jury question after deliberations had begun.
IV. Rogacki’s Testimony
¶ 46 Wingard next contends that the trial court erred by failing to take any corrective action when Rogacki’s testimony violated pretrial orders and improperly introduced character evidence. We disagree.
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A. Additional Background Information
¶ 47 The trial court granted Wingard’s motion in limine preventing the prosecution from introducing “any mention of the Public Defender’s Office and its representation of Wingard.”
¶ 48 During Rogacki’s testimony, when the prosecutor asked him to identify Wingard, Rogacki responded that she was “[o]ver there at the public defender’s desk.” Wingard requested the trial court strike the statement from the record. The trial court responded, “She’s over there with defense counsel; is that right? Defense counsel?” Rogacki responded, “Yes. I said the public defender.” The trial court granted Wingard’s motion to strike, and Rogacki identified Wingard by the color of her clothing and her location in the courtroom. Wingard declined the trial court’s proposal to further instruct the jury to disregard the reference.
¶ 49 Responding to the prosecution’s question on what happened on the day in question, Rogacki answered that Wingard “showed up at the house and was drunk and was disruptive and did like she always does when she shows up at our house. She goes through our fridge.” When Wingard objected, the trial court instructed Rogacki to answer the prosecutor’s question.
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¶ 50 Rogacki testified that he had not seen Wingard drink alcohol while at the house but that she always carried her “big cup.” The trial court overruled Wingard’s objection. Rogacki followed up that while he did not smell any alcohol on Wingard, “[w]hat she drinks you can’t smell.” Again, the trial court overruled Wingard’s objection. Rogacki then testified that, based on his experiences interacting with Wingard when she was sober, he thought that she was drunk on the day in question because she slurred her words and was argumentative. In addition, Rogacki described how Wingard “always acted” including that she was stomping her feet, looking at food in the refrigerator, and being nosy.
¶ 51 Rogacki then testified about his criminal history, including his convictions of attempted aggravated assault, assault, menacing, and felony menacing.
¶ 52 Wingard moved twice for a mistrial, arguing that the reference to the public defender was prejudicial and that the jury had heard cumulative prejudicial, impermissible character evidence. The trial court denied both motions, finding that the references to the public defender were not prejudicial and that Rogacki’s testimony was
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relevant because his perception that Wingard was intoxicated led to Scoggins’ DUI investigation. Specifically, the trial court found:
So with regard to his testimony, it doesn’t go central to the issue that’s being — or the charge that’s being done here, and, frankly, I think it gives the jury the nature of their relationship and, in fact, is not helpful to that particular witness, not even the prosecution . . . . I think it shows that this witness, instead, had it out for your client, and that is important for the jury to consider.
¶ 53 After the jury verdict, Wingard moved for a new trial, asserting Rogacki had testified to a “litany of prejudicial character evidence . . . including . . . calling Ms. Wingard a thief and alleging that Ms. Wingard is intoxicated most of the times that he sees her.”
¶ 54 The trial court denied Wingard’s motion, finding that Rogacki’s hatred or other personal animosity against Wingard was an insufficient basis for a new trial because Rogacki was allowed to call law enforcement officers for assistance and relate his perception of events at the house at the time. Further, Rogacki’s testimony was offered as the instigating event for what occurred later. Scoggins testified that Rogacki’s complaints during his disagreement with Wingard were unsubstantiated and that no crime was committed in the house.
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B. Standard of Review and Controlling Law
¶ 55 The trial court exercises discretion in determining the admissibility of evidence based on its relevance, probative value, and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20, 351 P.3d 431, 437. We review a trial court’s evidentiary rulings for an abuse of discretion. Rodriguez, ¶ 15, 508 P.3d at 281. A trial court abuses its discretion if its ruling misconstrues or misapplies the law or is manifestly arbitrary, unreasonable, or unfair. Id.
¶ 56 Evidence must be relevant to be admissible. CRE 402. That means the evidence must have a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401. Even if relevant, evidence may be excluded if “its probative value is substantially outweighed by,” among other things, “unfair prejudice, confusion of the issues, or misleading the jury.” CRE 403. Under CRE 404(b)(1), “[e]vidence 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.” If admission of the evidence was error, a harmless error standard of review applies. Masters v.
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People, 58 P.3d 979, 1002-03 (Colo. 2002). “If a reviewing court can say with fair assurance that, in light of the entire record of the trial, the error did not substantially influence the verdict or impair the fairness of the trial, the error may properly be deemed harmless.” Id. (citation omitted).
¶ 57 A mistrial is a drastic remedy, and a trial court has broad discretion to grant to deny a mistrial motion. People v. Owens, 2024 CO 10, ¶ 125, 544 P.3d 1202, 1229. We reverse only if we find a “gross abuse of discretion” that caused “prejudice to the defendant [that was] too substantial to be remedied by other means.” Id. (citation omitted). “A trial court can better evaluate any adverse effect that improper testimony might have upon a jury than can a reviewing court. Thus, absent an abuse of discretion, the trial court’s denial of a motion for mistrial will not be disturbed on review.” People v. Ned, 923 P.2d 271, 274 (Colo. App. 1996). In determining whether a mistrial is warranted, a court considers “the nature of the inadmissible evidence, the weight of the admissible evidence of the defendant’s guilt, and the value of a cautionary instruction.” People v. Van Meter, 2018 COA 13, ¶ 11, 421 P.3d 1222, 1225-26. Fleeting or ambiguous references to a defendant’s
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prior bad acts are minimally prejudicial and typically do not warrant a mistrial. People v. Salas, 2017 COA 63, ¶ 12, 405 P.3d 446, 450.
¶ 58 A trial court “may grant a defendant a new trial if required in the interests of justice.” Crim. P. 33(c). We review a trial court’s decision to grant or to deny a motion for a new trial for an abuse of discretion. Abeyta v. People, 358 P.2d 12, 12 (Colo. 1960); People v. Munsey, 232 P.3d 113, 120 (Colo. App. 2009).
C. Analysis
¶ 59 Rogacki contends that both Rogacki’s references to the public defender and his comments about how Wingard “always” acted were impermissible character evidence. We disagree.
¶ 60 Like the trial court, we disagree with Wingard that Rogacki’s references to the public defender prejudiced Wingard. In drawing this conclusion, we rely on People v. James, 117 P.3d 91 (Colo. App. 2004). In that case , a witness testified that the defendant was “over there with the public defender.” Id. at 95. Another division of this court concluded that the witness’s fleeting reference to the public defender did not substantially prejudice the defendant. Id. at 96. Moreover, the division concluded that while generally
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informing a jury that a defendant is represented by court-appointed counsel should be avoided, there was no realistic likelihood that jurors would penalize a defendant’s indigency by “(1) equating it with criminality, (2) assuming a lawyer would not have undertaken the case willingly, or (3) resenting the use of taxpayer money to provide legal assistance.” Id. Like in James, Wingard proffered no evidence that Rogacki’s references to the public defender or being represented by the public defender in general were prejudicial. See Ned, 923 P.2d at 275 (“Speculation of prejudice is insufficient to warrant reversal of a trial court’s denial of a motion for [a] mistrial.”).
¶ 61 We also disagree with Wingard’s assertion that Rogacki’s references were equivalent to directly pointing out a defendant’s indigency. Moreover, Rogacki’s first reference was immediately stricken by the court, and Wingard did not request further relief following the second reference.
¶ 62 While we disagree with the trial court and People that the character testimony about Wingard does not constitute CRE 404(b) evidence, we conclude that its admission is not reversible error for three reasons.
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In assessing the effect of improperly admitted bad acts evidence, an appellate court considers a number of factors, namely, “the overall strength of the state’s case, the impact of the improperly admitted or excluded evidence on the trier of fact, whether the proffered evidence was cumulative, and the presence of other evidence corroborating or contradicting the point for which [it] was offered.”
People v. Casias, 2012 COA 117, ¶ 64, 312 P.3d 208, 220-21.
¶ 63 First, Rogacki’s testimony was not related to the DUI charge. As the trial court found, Rogacki’s testimony was offered as proof of the instigating event for Scoggins’s subsequent contact with Wingard. Scoggins testified that Rogacki’s complaints about Wingard were unfounded, and his characterizations of the events inside the house were not evidence of the crime charged.
¶ 64 Second, apart from Rogacki’s testimony of how Wingard “always acted,” there was substantial evidence indicating that Wingard was intoxicated, including Scoggins testimony of Wingard’s slurred speech, her performance on the roadside sobriety tests, and the BAC testing results. See Casias, ¶ 81, 312 P.3d at 224 (finding the erroneous admission of CRE 404(b) evidence harmless, “[g]iven the few . . . references to the inadmissible evidence, and the
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legitimate strength of the prosecution’s case against [the] defendant”).
¶ 65 Third, Rogacki’s credibility was thoroughly challenged during direct- and cross-examination. Overall, Rogacki’s testimony demonstrated that he was biased against Wingard. It is the sole province of the jury to determine the credibility of witnesses and weigh the evidence. Butler v. People, 2019 CO 87, ¶ 20, 450 P.3d 714, 718.
¶ 66 For these reasons, we conclude that the trial court did not abuse its discretion in denying the motions for a mistrial and the motion for a new trial.
¶ 67 Accordingly, we discern no abuse of discretion.
V. Cumulative Error
¶ 68 We reverse for cumulative error only when a trial court’s errors, viewed in the aggregate, deprived the defendant of a fair trial. Howard-Walker v. People, 2019 CO 69, ¶ 40, 443 P.3d 1007, 1014. Wingard’s cumulative error claim fails because we conclude that the trial court did not commit any errors, except for its harmless error in allowing CRE 404(b) testimony. See People v.
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Villa, 240 P.3d 343, 359 (Colo. App. 2009) (cumulative error analysis is required only when multiple errors have been identified).
VI. Disposition
¶ 69 The judgment is affirmed.
JUDGE JOHNSON and JUDGE KUHN concur.