19CA0713 Peo v Sanchez 01-27-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA0713
El Paso County District Court No. 18CR1885
Honorable Robert L. Lowrey, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jacob Sanchez,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Navarro and Harris, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 27, 2022
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
1
¶ 1
Defendant, Jacob Sanchez, appeals his convictions of
intimidating a witness or victim and conspiracy to commit the
same. He also appeals his sentence. We affirm.
I. Background
¶ 2
The victim and his wife were sleeping in their bedroom when
they awoke to find Sanchez standing at the foot of their bed. As his
wife left the room, the victim noticed that Sanchez had a knife or
boxcutter. He asked if Sanchez was okay, but Sanchez did not
respond. Sanchez became more and more agitated as the victim
continued to talk to him. The victim’s wife asked Sanchez to leave,
but he refused. The victim then told Sanchez that he and his wife
needed to leave to pick up his kids and they walked out the front
door. Sanchez followed them out of their trailer and, once outside,
he threatened to “snitch” on the victim and to kill him. Sanchez
spit in the victim’s face and said, “let’s do this.” The victim declined
and walked across the street to his father’s trailer, and his father
called 911. Police arrested Sanchez and the State charged him with
burglary.
¶ 3
Sanchez’s girlfriend, Casey Cooper, visited him several times
at the jail. These visitations were audio recorded. During the first
2
visit, Cooper told Sanchez that she had messaged the victim’s wife
and told her not go to court because “Hector said that he saw you
and that you told him to go tell them that.” Cooper then offered to
go to the victim’s house with her cousin “to tell him what the fuck is
up? Like, why are you saying that crazy shit? Stop, you need to fix
it or else.” Sanchez responded, “He better fuckin’ fix it man, ‘cause
that shit ain’t right.”
¶ 4
A few days later, Cooper told Sanchez that she was going to
get the victim’s address and send it to his sister so she could help
him out “however she can.” Cooper also said that “someone needs
to talk to [the victim] and tell him how it’s going down,” and
Sanchez responded, “Exactly.” Sanchez asked Cooper to tell “Oso”
that if he wanted to help Sanchez, he should talk to the victim and
ask him, “why he fuckin’ lying on me like this.” He further directed
Cooper to contact the victim through Facebook and “put him on
blast.”
¶ 5
At the next visit, Cooper told Sanchez that she “hit [the victim]
up and threatened him” and that she told the victim that she would
go over to his house and “start fuckin’ shit up.” She also told
Sanchez that his brothers wanted the victim’s address because they
3
wanted to “handle that” (retrieve Sanchez’s belongings from the
victim’s trailer). Sanchez told Cooper that “[the victim] needs to tell
the fuckin’ truth and not press charges. Tell [the victim] he better
not press charges on me because I didn’t do nothing.” Sanchez
continued to direct Cooper to contact the victim and tell him to drop
the charges throughout the visit and Cooper responded, “I got you.”
¶ 6
During the final visit, Sanchez told Cooper to tell her sister to
“go over there to [the victim’s] and tell [the victim] to drop the
charges today, I’ll get out today.” Cooper responded that the victim
had blocked her on social media and that they had to go over to the
victim’s house to contact him. Again, Sanchez told Cooper to tell
the victim, “I didn’t do nothing. Right now as we speak, I have no
hard feelings, right? And if you drop the charges today, I’ll get out
today with no hard feelings.”
¶ 7
In addition to visiting Sanchez at the jail, Cooper contacted the
victim on Facebook and “explain[ed] why [he] should have never
called the cops.” She also sent him threatening messages.
¶ 8
Additionally, the victim received daily threats at his home.
People drove or walked by his trailer, yelled at him, and said the
threats were for Sanchez. The victim recognized some of these
4
people as Sanchez’s fellow gang members. More than once,
unknown people fired guns at the victim’s trailer, and bullets
passed through the doors and windows. One night, the victim
heard banging on the side of his trailer and discovered a knife
lodged in the side of the trailer. On another occasion, the victim
came home to find three people breaking into his trailer and taking
his property on behalf of Sanchez.
¶ 9
The victim reported these incidents to law enforcement and
Cooper was arrested and charged with witness intimidation. The
threats and harassment ceased after Cooper and Sanchez were both
in custody.
II. Sufficiency
¶ 10
Sanchez first contends that there was insufficient evidence to
support his intimidation of a witness or victim charge because he
did not issue any threats or commit any prohibited acts, due to his
incarceration. He also asserts that insufficient evidence showed
that he intended or agreed to commit witness intimidation to
support his conspiracy conviction. We disagree.
5
A. Standard of Review and Applicable Law
¶ 11
We review sufficiency of the evidence de novo. McCoy v.
People, 2019 CO 44, ¶ 27. In assessing the sufficiency of the
evidence to support a conviction, we employ the substantial
evidence test to determine whether the evidence, viewed as a whole,
and in the light most favorable to the prosecution, is sufficient to
support a conclusion by a reasonable person that the defendant is
guilty of the crimes charged beyond a reasonable doubt. Clark v.
People, 232 P.3d 1287, 1291 (Colo. 2010). We must give the
prosecution the benefit of every reasonable inference that may be
fairly drawn from the evidence. People v. Duran, 272 P.3d 1084,
1090 (Colo. App. 2011).
¶ 12
“The pertinent question is whether, after viewing the evidence
in the light most favorable to the prosecution, a rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.” Clark, 232 P.3d at 1291. The jurors are
entrusted with resolving the weight and credibility of the evidence.
People v. McGlotten, 166 P.3d 182, 188 (Colo. App. 2007). And we
do not sit as the thirteenth juror to reassess credibility or to reweigh
the evidence presented to the jury. Clark, 232 P.3d at 1293.
6
¶ 13
As relevant here, a person commits the crime of intimidating a
witness or victim if,
by use of a threat, act of harassment as
defined in section 18-9-111, [C.R.S. 2021,] or
act of harm or injury to any person or property
directed to or committed upon a witness in any
criminal or civil proceeding; a victim of any
crime . . . he or she intentionally attempts to
or does:
(a) Influence the witness or victim to testify
falsely or unlawfully withhold any testimony;
or
(b) Induce the witness or victim to avoid legal
process summoning him to testify; or
(c) Induce the witness or victim to absent
himself or herself from an official proceeding;
or
(d) Inflict such harm or injury prior to such
testimony or expected testimony.
§ 18-8-704(1), C.R.S. 2021. As relevant here, a person commits
harassment if, with the intent to harass, annoy, or alarm another
person, he or she:
(e) [d]irectly or indirectly initiates
communication with a person or directs
language toward another person, anonymously
or otherwise, by telephone, telephone network,
data network, text message, instant message,
computer, computer network, computer
system, or other interactive electronic medium
7
in a manner intended to harass or threaten
bodily injury or property damage . . .; or
. . .
(g) [m]akes repeated communications at
inconvenient hours that invade the privacy of
another and interfere in the use and
enjoyment of another’s home or private
residence or other private property . . . .
§ 18-9-111(1).
¶ 14
A person commits conspiracy to commit a crime if,
with the intent to promote or facilitate its
commission, he agrees with another person or
persons that they, or one or more of them, will
engage in conduct which constitutes a crime or
an attempt to commit a crime, or he agrees to
aid the other person or persons in the
planning or commission of a crime or of an
attempt to commit such crime.
§ 18-2-201(1), C.R.S. 2021.
B. Analysis
¶ 15
Sanchez concedes that a defendant may be convicted of
intimidating a witness or victim where the defendant directs
another person to issue a threat to a witness or victim. See People
v. Rester, 36 P.3d 98, 99 (Colo. App. 2001) (affirming the
intimidation of a victim convictions “related to an incident in which
[the defendant] called his wife’s daughter and indicated that he
8
would take it as a ‘personal threat’ if his wife were to return from
California to testify against him”). He argues, however, that there
was no evidence that he committed a prohibited act or that he
directed Cooper or any other person to threaten and harass the
victim or to damage the victim’s property.
¶ 16
Contrary to his contention, we conclude that the prosecution
presented sufficient evidence that Sanchez indirectly harassed the
victim and that he directed Cooper to threaten and harass the
victim on his behalf, based on the following evidence:
Sanchez repeatedly told Cooper to tell the victim to tell
the truth or to drop the charges. And he told Cooper to
tell other people to do the same.
When Cooper told Sanchez “someone needs to talk to [the
victim] and tell him how it’s going down,” Sanchez
responded, “Exactly.”
Sanchez told Cooper to contact the victim on Facebook
and put him “on blast.” Cooper then sent the victim
threatening messages on Facebook and the victim
eventually blocked her.
9
Cooper told Sanchez that his siblings wanted the victim’s
address to “help” Sanchez get his things. The victim then
found three people breaking into his trailer and taking
his property on Sanchez’s behalf.
After Cooper told Sanchez that the victim had blocked
her, Sanchez instructed Cooper to go the victim’s trailer
with her sister that day and tell the victim to “drop the
charges today, I’ll get out today with no hard feelings.”
The harassment and threats stopped when both Sanchez
and Cooper were incarcerated.
See id.
¶ 17
We similarly conclude that sufficient evidence supports
Sanchez’s conspiracy conviction. Indeed, the record reveals that
Sanchez did more than simply listen to Cooper’s descriptions of
threatening the victim. He told Cooper to use Facebook to contact
the victim, he told her what to say, he told her to go to the victim’s
trailer, and he told her to tell other people to contact the victim.
¶ 18
Viewing this evidence in the light most favorable to the
prosecution, we conclude that the jury could reasonably determine
beyond a reasonable doubt that Sanchez intimidated the victim by
10
the use of threats and acts of harassment, and that he conspired to
commit intimidation of a witness or victim.
III. Evidence of Underlying Burglary Case
¶ 19
Sanchez next contends that the trial court erred by admitting
testimony about the underlying burglary case involving the victim.
Specifically, he argues that the facts of the underlying burglary case
were irrelevant and unfairly prejudicial under CRE 403. He does
not otherwise challenge admissibility under the remaining factors
set forth in Spoto v. People, 795 P.2d 1314 (Colo. 1990). We
perceive no error.
A. Additional Facts
¶ 20
The prosecution filed a pretrial notice of its intent to introduce
evidence of two underlying burglary cases — 18CR963 (involving
the named victim here) and 18CR973 (involving a different victim).1
The prosecutor argued that the evidence was relevant to Sanchez’s
motive to intimidate the victim, his state of mind, and his intent;
and that the evidence was admissible as res gestae. Defense
counsel objected and argued that the evidence was inadmissible
1 Sanchez does not challenge the admissibility of the evidence in
18CR973 so we do not address it.
11
character evidence and that the danger of unfair prejudice
outweighed its probative value.
¶ 21
The trial court ruled that it would allow “evidence of the
[18CR]963 and [18CR]973 cases to the extent that they [were]
necessary to prove a basis for [Sanchez’s] actions in the newly
charged case.” It reasoned that
the information from the [18CR]963 and
[18CR]973 are necessarily presented in some
fashion to provide a basis for even charging the
[present] case. It shows a motive, it shows an
intent, a state of mind, it shows the absence of
any simpl[e] accident or mistake. So, for all
those reasons it’s certainly relevant
information.
They’re relevant to a material fact; that is, his
state of mind, reason for doing what he is
alleged to have done. It’s completely
independent of any inference that he’s simply
acting under bad character. I cannot find that
the probative value is outweighed by the
danger of unfair prejudice because it’s
essentially the essential bits of information
must be provided to even prove the [present]
case.
. . .
It would also come in under res gestae
because, again, these elements would have to
be proven to provide a basis for the underlying
current charge in the [present] case.
Otherwise, that would make no sense to the
12
jury. So to the extent it would provide benefit
to the jury by way of information, that the
charge would make no sense without this
added information, the Court finds that it is
logically related and should be presented.
¶ 22
Before trial, the court ruled that Sanchez’s convictions in the
burglary cases were inadmissible. But it reiterated that there
needed to be “some mention of the prior bad acts . . . because
otherwise there’s no predicate for the intimidation charge.”
¶ 23
During the victim’s direct examination, the prosecution elicited
the facts described above that resulted in Sanchez’s burglary
charge. The victim did not testify about the burglary trial or
Sanchez’s burglary conviction.
¶ 24
At the close of evidence, the trial court instructed the jury:
“You have heard testimony that the defendant was charged with two
prior burglaries. You can consider that evidence only as it relates
to absence of mistake, modus operandi, motive[,] and intent. You
must not consider it for any other purpose.”
B. Standard of Review and Applicable Law
¶ 25
We review the trial court’s evidentiary rulings for an abuse of
discretion. People v. Miranda, 2014 COA 102, ¶ 46. The trial court
abuses its discretion when its evidentiary ruling is manifestly
13
arbitrary, unreasonable, or unfair, or based on a misunderstanding
or misapplication of the law. Id. In assessing the admissibility of
relevant evidence, the evidence should be given its maximum
probative value and minimum prejudicial effect. People v.
Quintana, 882 P.2d 1366, 1375 (Colo. 1994).
¶ 26
Although the parties agree this issue was unpreserved, we
nevertheless conclude that defense counsel preserved this issue by
objecting to the prosecution’s pretrial notice and by arguing against
the admission of the evidence at the hearing. See People v. Zubiate,
2013 COA 69, ¶ 22 (“We are not bound by the parties’ concessions
and may rely on our own legal interpretations . . . .”). Thus, we
review this issue for harmless error. People v. Yachik, 2020 COA
100, ¶ 38. An error is harmless when it does not affect the
substantial rights of the parties. Id.
¶ 27
Only relevant evidence is admissible. CRE 402. Relevant
evidence means evidence that tends “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. “Other act” evidence is relevant when it is admitted for
the purpose of proving “motive, opportunity, intent, preparation,
14
plan, knowledge, identity, absence of mistake, or lack of accident.”
CRE 404(b)(2); see People v. Rath, 44 P.3d 1033, 1038 (Colo. 2002).
¶ 28
Even if relevant, evidence may be inadmissible “if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.” CRE 403.
“Evidence is unfairly prejudicial where it introduces into the trial
considerations extraneous to the merits, such as bias, sympathy,
anger, or shock.” People v. Greenlee, 200 P.3d 363,367 (Colo.
2009).
C. Analysis
¶ 29
Sanchez concedes that some evidence of the burglary charge
was relevant to whether the victim was a witness or victim within
the meaning of the intimidation statute, including (1) the date of the
alleged burglary; (2) the charges against Sanchez; and (3) the
victim’s role as an anticipated witness and named victim in the
case. See § 18-8-704(1). He contends, however, that the facts of
the burglary charge were irrelevant and unfairly prejudicial. We
disagree and conclude, consistent with the trial court, that the facts
of the underlying burglary charge are relevant to the elements of the
crime and to Sanchez’s intent, motive, and state of mind.
15
¶ 30
The victim’s description of the burglary demonstrated the
gravity of the underlying offense and provided a motive for
Sanchez’s desire to persuade the victim not to cooperate in its
prosecution. It also showed Sanchez’s knowledge of the victim’s
involvement in the criminal proceedings and in particular, the
importance of the victim’s testimony in identifying him as the
perpetrator. Finally, it informed the jury of Sanchez’s state of mind
when discussing the burglary case with Cooper. Accordingly, the
evidence was relevant to prove Sanchez’s state of mind, his motive
to commit witness intimidation, and his motive to direct Cooper to
threaten and harass the victim. See People v. Cousins, 181 P.3d
365, 372 (Colo. App. 2007) (finding that evidence of the defendant’s
prior actions established the “defendant’s animus toward women as
a motive for his attack on the victim”).
¶ 31
As well, the facts of the burglary case were relevant to prove
that Sanchez attempted to influence the victim to testify falsely.
See § 18-8-704(1)(a); see also People v. Thomeczek, 284 P.3d 110,
114 (Colo. App. 2011) (finding that evidence of a prior incident and
the parties’ actions thereafter was probative of the defendant’s
intent). At trial, Sanchez challenged the credibility of the victim’s
16
account of the burglary, arguing that he only wanted the victim to
tell the truth. Evidence about the underlying burglary case
rebutted this defense theory by showing that Sanchez intended to
influence the victim’s testimony.
¶ 32
Furthermore, we agree with the trial court that the probative
value of the evidence was not substantially outweighed by the
danger of unfair prejudice. See CRE 403. In any event, the
potential for unfair prejudice was diminished by the limiting
instruction which precluded the jury’s use of the burglary facts for
any purpose other than absence of mistake, modus operandi,
motive, and intent. And we presume the jury understood and
followed this limiting instruction. See People v. Garcia, 2012 COA
79, ¶ 20.
¶ 33
Accordingly, the trial court did not abuse its discretion by
admitting testimony about the facts of the underlying burglary case.
IV. Prosecutorial Misconduct
¶ 34
Sanchez next contends the prosecutor engaged in four
instances of misconduct: (1) misstating the law in rebuttal closing
argument by arguing that Sanchez was guilty because he directed
Cooper to commit a crime and by suggesting he should have told
17
Cooper not to commit a crime; (2) telling the jury he was convicted
of the underlying burglary in rebuttal closing argument; (3)
appealing to the jury’s sympathy; and (4) arguing the irrelevant
facts of the underlying burglary case. He further contends that the
misconduct requires reversal independently and cumulatively. We
disagree.
A. Standard of Review and Applicable Law
¶ 35
We review claims of prosecutorial misconduct using a two-step
analysis. Wend v. People, 235 P.3d1089, 1096 (Colo. 2010). First,
we determine whether the prosecutor’s conduct was improper based
on the totality of the circumstances. Id. If so, we determine
whether such conduct warrants reversal under the proper standard
of review. Id.
¶ 36
We evaluate claims of improper argument in the context of the
argument as a whole and in light of the evidence before the jury.
People v. Samson, 2012 COA 167, ¶ 30. “In doing so, we recognize
that prosecutors have wide latitude in the language and style they
choose to employ, as well as in replying to an argument by opposing
counsel.” Id.
18
¶ 37
Where a defendant does not object to the prosecutor’s
statements, we review only for plain error. Hagos v. People, 2012
CO 63, ¶ 14. Prosecutorial misconduct constitutes plain error only
when it was obvious and “seriously affected the fairness or integrity
of the trial.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.
2005). “Only prosecutorial misconduct which is ‘flagrantly,
glaringly, or tremendously improper’ warrants reversal.’” Id.
(citation omitted).
¶ 38
Because the right to a fair trial includes the right to an
impartial jury, prosecutorial misconduct that misleads a jury may
warrant reversal. Harris v. People, 888 P.2d 259, 264 (Colo. 1995).
But a prosecutor’s use of rhetorical devices to argue record evidence
or to respond to the defense’s arguments is not misconduct.
Samson, ¶ 31 (prosecutors may “employ rhetorical devices and
engage in oratorical embellishment”). And prosecutorial
misconduct in closing argument rarely constitutes plain error.
People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119
P.3d 1073 (Colo. 2005).
19
B. Misstatement of the Law
¶ 39
Sanchez first contends that the prosecutor misstated the law
when he told the jury it could find him guilty for directing Cooper to
commit a crime.
¶ 40
During closing argument, defense counsel argued that the
prosecution did not meet its burden of proving the element “by use
of a threat, an act of harassment, or by committing an act of harm
or injury upon any person or property.” She asserted that Sanchez
did not “direct anyone to harass, didn’t direct anyone to do any of
these things to [the victim], to [the victim’s] home.” Sanchez only
wanted the victim to tell the truth and Cooper went “rogue.”
¶ 41
In rebuttal, the prosecutor argued,
Defense counsel says I can’t prove this charge.
Intimidating a witness or a victim, look at
[instruction number four]. Directed to or
committed upon a witness. There’s only one of
those ors. Mr. Sanchez directed this to
happen. He thinks because he’s in jail and we
know where he was that he has the perfect
alibi, hands are clean. He knows he’s got
Cooper in his pocket. We all know she would
do anything for him because she says that to
him, no matter what it is . . . . He knows that.
He’s a smart guy. He has the control. He
directed her to do this.
20
¶ 42
For the reasons set forth in Part II, we conclude that the
prosecutor did not misstate the law when he argued that Sanchez
could be guilty of committing intimidation of a witness or victim by
directing Cooper to threaten and harass the victim. In addition, the
prosecutor’s comments were a fair response to defense counsel’s
argument that Sanchez did not direct Cooper or anyone else to
threaten or harass the victim or cause damage to the victim’s
property. See People v. Vialpando, 804 P.2d 219, 225 (Colo. App.
1990) (“A prosecutor is afforded considerable latitude in the right to
reply to an argument by opposing counsel.”).
¶ 43
Sanchez also contends that the prosecutor misstated the law
when he suggested that Sanchez was guilty because he failed to tell
Cooper not to hurt the victim.
¶ 44
In rebuttal, the prosecutor argued,
Tell [the victim] to drop the charges. Defense
counsel hit the nail right on the head . . . .
Let’s talk about what the defendant doesn’t say
in those video visitations. Cooper says I don’t
know what else to do beside hurt these people.
Nothing. No, no, stop, don’t, I don’t want any
part of this. Casey, you’re crazy. None of that.
¶ 45
We acknowledge that Sanchez did not have a duty to dissuade
Cooper from committing witness intimidation. See § 18-1-501(7),
21
C.R.S. 2021 (defining “omission” as “a failure to perform an act as
to which a duty of performance is imposed by law”); see also People
v. Madison, 176 P.3d 793, 802 (Colo. App. 2007) (assuming that the
prosecution must prove the existence of a duty imposed by law that
a defendant breached in order to prove criminal liability for an
omission). But we must evaluate the prosecutor’s remarks in the
context of the entire argument and the evidence presented. Doing
so, we conclude that the prosecutor legitimately commented on the
recorded conversations between Sanchez and Cooper and made
reasonable inferences about Sanchez’s intent by not dissuading
Cooper from hurting the victim. See Domingo-Gomez, 125 P.3d at
1048 (final arguments may properly refer to the facts in evidence
and any reasonable inferences drawn therefrom).
C. Facts Not in Evidence
¶ 46
Sanchez also contends the prosecutor violated the trial court’s
order when she informed the jury that he was convicted in the
underlying burglary case, contrary to the court’s order. See People
v. Denhartog, 2019 COA 23, ¶ 58 (“[A] prosecutor may not refer to
facts not in evidence, which, we assume, would include facts
22
excluded from evidence.”) (citation omitted). We discern no
violation.
¶ 47
In rebuttal, the prosecutor argued,
The defendant thinks because he was in jail he
cannot be held responsible for this, but he
made a mistake because of motive. You want
to know why we talked about those other
burglaries? Because Mr. Sanchez has the
motive to keep [the victim] from testifying. He
has all the motive in the world. There were no
other criminal actions where [the victim] was
the victim in that you heard. Just this one.
And it stopped at least for the time when both
the defendant and co-conspirator were in jail.
That’s not a coincidence. There’s only one
person on this planet with that type of motive,
and that is Mr. Sanchez.
Look at [the victim’s] motive. Maybe it’s
revenge. Did that look like somebody that was
after revenge? That was a broken man. He’s
here because the most sacred place to him had
been violated time and time again, and he
wanted it to stop. That’s why he’s here, not
because he’s out to get Mr. Sanchez. He got
that on the burglary case. What would be the
point? [The victim] admitted to you that he
was in fear of his life. Think about how hard
that would be to admit in front of the person
who is intending to inflict that fear upon you.
Think how hard it would be to tell that person
face to face you won, you intimidated me, I
was afraid for my life. Was he scared up here?
Absolutely. That’s human. That’s real. That’s
how you know whether or not he’s telling the
truth.
23
(Emphasis added.)
¶ 48
We do not view the italicized language above as telling the jury
that Sanchez was convicted in the burglary case. Instead, we
conclude that the prosecutor properly argued that the burglary
facts established Sanchez’s motive to intimidate the victim. Id. at ¶
59 (finding that the prosecutor’s comment argued that the facts in
evidence established the defendant’s intent). The prosecutor did
not tell the jury that Sanchez was convicted in the underlying
burglary case, nor did she imply that he was convicted. Instead,
the prosecutor contrasted Sanchez’s motive to intimidate the victim
with the victim’s motive, arguing that the victim did not have an
ulterior motive in testifying about the intimidation because any
motive for revenge was “got . . . on the burglary case.” And the jury
heard testimony about the underlying burglary case. Thus, we
discern no misconduct.
D. Sympathy
¶ 49
Sanchez next contends the prosecutor improperly appealed to
the jury’s sympathies by describing the victim as a broken man and
by explaining why the victim had difficulty testifying. We disagree
and conclude the prosecutor’s comment was a reasonable inference
24
from the evidence of the victim’s credibility. See People v. Wilson,
2014 COA 114, ¶ 52 (“A prosecutor may, however, draw reasonable
inferences from the evidence as to the credibility of witnesses.”).
¶ 50
During his testimony, the victim had a hard time keeping
track of timelines and could not recall the dates of specific events.
He testified that “he was going through a lot” when he was being
threatened and harassed, and that he had been “under a lot of
stress.” The prosecutor drew reasonable inferences from this
testimony by arguing that the victim was afraid during the
intimidation and during his testimony and to rebut the defense
argument that the victim was not credible. Thus, we discern no
error.
E. Underlying Burglary Case
¶ 51
Sanchez last contends that the prosecutor improperly argued
the facts of the underlying burglary case in violation of the trial
court’s pretrial ruling. However, the court only excluded evidence of
Sanchez’s conviction, not the facts of the underlying burglary case.
For the reasons stated in Part III, we conclude the prosecutor
properly argued admissible evidence.
25
F. Cumulative Error
¶ 52
Because we have concluded that no prosecutorial misconduct
occurred, we necessarily reject Sanchez’s contention that
cumulative prosecutorial misconduct requires reversal. Howard-
Walker v. People, 2019 CO 69, ¶ 24.
V. Trial Court’s Illustration of Reasonable Doubt
¶ 53
Sanchez next contends that the trial court’s illustration of
reasonable doubt during voir dire impermissibly lowered the
prosecutor’s burden of proof and requires reversal. While we do not
condone such illustrations, we conclude that the illustration here
was so unclear that reversal is not required.
A. Additional Facts
¶ 54
Before voir dire, the trial court instructed the jury that the
prosecution had to prove each element of the crimes charged
beyond a reasonable doubt. The court then instructed the jury on
the meaning of reasonable doubt by reading the model jury
instruction.
¶ 55
The court then described the prosecution’s burden with an
illustration:
26
THE COURT: It will be up to you as a juror to
determine what that is to you based upon that
definition. One thing reasonable doubt is not,
though, is beyond all doubt. It is not beyond a
shadow of a doubt or any doubt. Because
almost nothing can be proven to that level.
But it does need to be beyond a reasonable
doubt.
Let me give a simple example that I
occasionally use. How many people in this
room think that I’m a district judge? Anyone?
We have a couple. Everyone pretty much
thinks I’m a district judge. Why do you think
that?
PROSPECTIVE JUROR: It says so right there.
THE COURT: My name is on the front of this.
That’s sort of a giveaway, isn’t it? I’m wearing
this nice attire that the State has given me to
wear. Not everybody wears a robe like this.
That’s another hint. I have thinning white
hair. That’s also probably another clue that
I’ve been around for a while. So everybody
thinks that I’m a district judge. Do you think
that beyond a reasonable doubt? Do you have
any doubt? You might have some doubt. How
many of you have heard on television stories
over the years on Dateline and things like that
about people impersonating people in other
vocations or professions. Some of them do it
for almost a lifetime. They hold themselves out
as doctors or medical professionals or
insurance agents or attorneys or judges or
whatever, and they pull it off for years and
years and years and nothing ever questions it.
That could be me. You probably think that’s
not true. You probably think I really am a
27
judge, at least the State of Colorado thinks
that. But is that proof beyond all doubt?
There’s always that lingering doubt. Maybe
this guy is one of those imposters that’s pulled
it off for [twenty] or [thirty] years.
So that’s what I mean. You can’t prove
anything just sitting here beyond all doubt,
but it must be beyond a reasonable doubt.
Not a vague, speculative, or imaginary doubt,
but such a doubt as would cause reasonable
people to hesitate to act in matters of
importance to themselves. That’s what the
trial is all about. We’ll have [thirteen] of you
sit and listen to this evidence, and [twelve] of
you will then go back and determine whether
or not the People have met that particular
burden.
B. Standard of Review and Applicable Law
¶ 56
We review de novo whether jury instructions as a whole
accurately informed the jury of the law. Johnson v. People, 2019
CO 17, ¶ 8. A court’s decision to provide a particular instruction is
reviewed for an abuse of discretion. People v. Sandoval, 2018 COA
156, ¶ 11. A court abuses its discretion when its decision is
manifestly arbitrary, unreasonable, unfair, or contrary to law. Id. at
¶ 26.
¶ 57
The prosecution bears the burden to prove every element of
the crime charged beyond a reasonable doubt. Johnson, ¶ 10. Any
28
instruction or illustration on reasonable doubt that lowers this
burden of proof violates a defendant’s constitutional right to due
process. People v. Garcia, 113 P.3d 775, 784 (Colo. 2005). And,
“[a]n instruction that lowers the prosecution’s burden of proof below
reasonable doubt constitutes structural error and requires
automatic reversal.” Johnson, ¶ 8.
¶ 58
To determine whether a trial court’s illustration of beyond a
reasonable doubt lowered the prosecution’s burden of proof, we
apply a functional test. Tibbels v. People, 2022 CO 1, ¶ 2. 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.
“In this way, even statements made to the venire during voir dire
can, in context, have the effect of instructing the jury on the law to
be applied, and the reviewing court must determine whether such
statements operated to reduce the prosecution’s burden of proof.”
Pettigrew v. People, 2022 CO 2, ¶ 36.
29
C. Analysis
¶ 59
The United States Supreme Court and our supreme court have
both cautioned trial courts and attorneys against further defining
the standard for reasonable doubt. See, e.g., Holland v. United
States, 348 U.S 121, 139-40 (1954); Tibbels, ¶ 25; Johnson, ¶ 13.
While we also discourage the use of illustrations to further explain
the reasonable doubt standard, we discern no reversible error here
for two reasons.
¶ 60
First, in the context of the instructions as a whole, the trial
court properly instructed the jury on reasonable doubt in
accordance with the model jury instructions before providing the
illustration. And unlike the court in Tibbels, the court here never
criticized or undermined the model instruction. See Tibbels, ¶ 50
(finding the court’s crack-in-the-foundation example significant
because the court gave the example immediately after undermining
the model instruction on reasonable doubt). As well, the court
repeated the model “hesitate to act” language immediately following
the illustration. See Pettigrew, ¶ 42; Johnson, ¶ 16; see also COLJI-
Crim. E:03 (2020). The court then repeated the model reasonable
doubt instructions at the close of evidence. See Pettigrew, ¶ 42.
30
Because the jury never indicated confusion about the reasonable
doubt instruction, we presume that the jury understood and
followed the court’s instructions. Leonardo v. People, 728 P.2d
1252, 1255 (Colo. 1986).
¶ 61
Second, like the court’s “hesitate to act” instruction in
Johnson, ¶ 15, the trial court’s illustration here was “too
nonsensical” for the jury to understand. The judge rhetorically
asked the jury whether it thought he was a district court judge
beyond a reasonable doubt without providing concrete examples or
answers. Did they have “any doubt” based on the surrounding
circumstances (i.e., the judge’s name plate, his black robe, and his
“thinning white hair”) that he was a district court judge? In an
attempt to explain the difference between beyond a reasonable
doubt and beyond all doubt, he then told the jury that it may have
some doubt that he is a judge because there had been stories on
Dateline and other media sources of people impersonating
professionals for years. And even if the jury probably thought he
was a district court judge, it may have a “lingering doubt” that he
was an imposter. In our view, the court’s series of rhetorical
questions and references to imposters in other professions left the
31
jury with no concrete example that it might have used in assessing
the prosecution’s burden of proof. Compare Tibbels, ¶ 55 (“[T]he
[court’s] crack-in-the-foundation example was a clear, real-world
scenario that we believe the jurors would readily have understood
and relied on . . . .”), with Pettigrew, ¶¶ 42, 45 (the trial court’s
confusing birth certificate example, read in context, did not warrant
reversal).
¶ 62
Accordingly, we conclude that the court’s confusing
illustration did not impermissibly lower the prosecution’s burden of
proof, did not prejudice Sanchez, and thus, does not require
reversal. Pettigrew, ¶ 46. But again, we discourage the use of
examples and illustrations to define “reasonable doubt” because
“[t]hese efforts, at best, provide no additional clarity and, at worst,
create needless litigation that jeopardizes otherwise valid
convictions.” Id. at ¶ 47.
VI. Jury Nullification
¶ 63
Sanchez next contends the trial court denied his right to a jury
trial by instructing the jury that it must follow the law as the court
instructed. We disagree and discern no error in the court’s
instruction.
32
A. Additional Facts
¶ 64
Before voir dire, the trial court instructed the jury on its duty
to follow the law provided by the court:
You must follow the instructions of law if you
are on this jury. You don’t get to decide what
the law might be, what you wish it could be,
but you must follow the law as I instruct it to
you. Does anybody have any trouble with that
basic concept in our law?
Let me give you a simple example I use from
time to time. Suppose you’re up the street on
Bijou or Kiowa where the municipal court sits
up there. Let’s suppose you were on a small
jury and you were tasked with deciding
whether someone was speeding on I-25 or not.
Let us suppose the evidence in that case
showed that someone was doing 100 miles per
hour on I-25 through Colorado Springs. Let us
suppose the judge told you that if you find
they were doing more than [sixty-five] miles per
hour you would find them guilty of that
charge. If you didn’t find that proof, you would
find them not guilty. But let us suppose the
evidence showed they were, in fact, doing 100
miles per hour. Let us also suppose you drive
a Porsche or Corvette and you think it’s just
fine to drive 100 miles per hour on I-25
through Colorado Springs. It’s easy for you,
it’s easy for your car, it handles well, so you
think that’s just fine. But do you understand
you cannot substitute your judgment for what
would be the appropriate law? You can’t make
it up and say because I can do that, I think it’s
okay, so I’m not going to find the person guilty
in that case for doing 100 miles per hour.
33
Does everyone understand that simple
example? You don’t get to substitute your
judgment for the law that you will be
instructed by the Court. Does anyone have a
problem with that concept?
B. Standard of Review
¶ 65
The parties agree that this alleged error was not preserved, but
they dispute the proper standard of reversal if we find an error
occurred. Sanchez contends that the court’s instruction denied
him his right to a jury trial and constitutes structural error. See
Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). Specifically, he
argues that the trial court’s instruction infringed on the jury’s
power to acquit and that it abolished the jury’s nullification power.
The People argue that plain error applies. We need not resolve this
dispute, however, because we discern no error.
¶ 66
Whether a trial court’s instruction accurately states the law is
a legal question we review de novo. Johnson, ¶ 8.
C. Analysis
¶ 67
Jury nullification is a juror’s “knowing and deliberate rejection
of the evidence or refusal to apply the law because the result
dictated by law is contrary to [each] juror’s sense of justice,
morality, or fairness.” People v. Waller, 2016 COA 115, ¶ 57
34
(quoting State v. Nicholas, 341 P.3d 1013, 1015 (Wash. Ct. App.
2014)). Jury nullification occurs in a trial when a jury acquits a
defendant even though the members of the jury believe the
defendant is guilty. Id.
¶ 68
Although the jury has the inherent power to nullify, this power
is in conflict with the jury’s duty to follow the court’s instructions
on the law and apply that law to the evidence. See Sparf v. United
States, 156 U.S. 51, 74 (1895); People v. Wilson, 972 P.2d 701, 706
(Colo. App. 1998). A jury is required to follow the law as the court
instructs even if it disagrees with the instruction on the law.
Alvarez v. People, 653 P.2d 1127, 1131 (Colo. 1982); see also Sparf,
156 U.S. at 102 (“[I]t is the duty of juries in criminal cases to take
the law from the court, and apply that law to the facts as they find
them to be from the evidence.”). Because of this conflict, both the
federal circuit courts and divisions of this court have consistently
held that trial courts should not instruct a jury that it may nullify a
guilty verdict and that courts should not promote nullification. See
Wilson, 972 P.2d at 706; Waller, ¶ 76; People v. Scott, 2021 COA 71,
¶¶ 17, 19-20.
35
¶ 69
Here, the court’s instructions to the jury that it must follow
the law provided by the court is not only consistent with a jury’s
duty to follow the law as instructed, but it is consistent with the
model jury instructions. The model jury instructions direct the
court to provide the following instruction at the close of the
evidence in every case: “It is my job to decide what rules of law
apply to the case. . . . [Y]ou must follow the instructions I give you.
Even if you disagree with or do not understand the reasons for
some of the rules of law, you must follow them.” COLJI-Crim. E:01
(2020). And jurors who disregard the court’s instructions or the
evidence violate their sworn oaths to “well and truly try the matter
before the court, and render a true verdict, according to the
evidence and the law.” COLJI-Crim. B:01 (2020).
¶ 70
For these reasons, we conclude that the trial court properly
instructed the jury on its duty to follow the law and that the
instruction did not abolish the jury’s power to nullify.
VII. Sentencing
¶ 71
Sanchez last contends that the trial court’s sentences were not
within the presumptive sentencing range. Specifically, he argues
36
that there is no evidence in the record of aggravating factors to
support the increased sentences.
¶ 72
Whether a sentence is authorized by law is a question that we
review de novo. Yeadon v. People, 2020 CO 38, ¶ 6.
¶ 73
The jury convicted Sanchez of a class 4 and a class 5 felony.
The presumptive sentencing range for a class 4 felony is two to six
years and the presumptive sentencing range for a class 5 felony is
one to three years. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2021. But, the
court is required to sentence a “defendant to a term of at least the
minimum in the presumptive range but not more than twice the
maximum term authorized in the presumptive range for the
punishment of a felony” if, “[a]t the time of the commission of the
felony, the defendant was charged with or was on bond for a felony
in a previous case and the defendant was convicted of any felony in
the previous case.” § 18-1.3-401(9)(a).
¶ 74
At the time Sanchez committed intimidation of a witness or
victim and conspiracy, he was charged with multiple felonies in two
separate cases — 18CR963 and 18CR973. Before the jury
convicted him here, he had been convicted of felonies in those
cases. Therefore, when the court sentenced him in all cases, the
37
aggravated sentencing range for Sanchez’s class 4 felony conviction
here was two to twelve years and the aggravated range for his class
five felony conviction was one to six years. The trial court
sentenced Sanchez to eight years imprisonment for the class 4
felony intimidation of witness or victim conviction and to six years
imprisonment for the class 5 conspiracy conviction. Because the
court was required by statute to increase the sentencing ranges
based on the sentence-enhancing circumstance, it did not need to
make additional findings to support the sentences.
¶ 75
Accordingly, we discern no error in the court’s sentence.
VIII. Conclusion
¶ 76
The judgment and sentence are affirmed.
JUDGE NAVARRO and JUDGE HARRIS concur.
