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March 19, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Duran

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1545

• Precedential Status: Non-Precedential

• Opinion

• Authorities (39)

• Cited By (0)

• Summaries (0)

• Similar Cases (52.3K)

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Combined Opinion

23CA1545 Peo v Duran 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1545
Douglas County District Court No. 22CR89
Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony D. Duran,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE MEIRINK
J. Jones and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 19, 2026

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Zach W. Fitzgerald, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Anthony D. Duran, appeals the district court’s

judgment of conviction entered on a jury verdict finding him guilty

of felony menacing, false imprisonment, and criminal mischief. We

affirm.

I. Background

¶2 Duran and his girlfriend, Heather Ruebush, were staying with

Ruebush’s mother, Katrina Tellus. Duran and Ruebush were

making dinner and got into an argument. Tellus was on the phone

with her therapist when she heard Ruebush call for her. When

Tellus walked into the kitchen, she saw that Duran had pinned

Ruebush by her neck in a corner. Tellus asked Ruebush and

Duran to be quiet while she was on her call, which she continued.

Ruebush testified that she told Tellus that she didn’t want Duran

there and stepped out onto the balcony to smoke a cigarette.

¶3 When Ruebush and Duran continued to make a “ruckus” in

the living room, Tellus told Duran he had two choices — to leave or

Tellus would call police. At trial, Tellus testified that Duran then

picked up a knife and started to chase her. While chasing Tellus,

Duran said, “I’m going to kill you, fucking bitch.” Tellus

demonstrated at trial how Duran was holding the knife, which the

1
prosecution described as “the witness ha[ving] her elbow up[,]

pointing [in an] upwards and downwards fashion.”

¶4 Ruebush testified that she didn’t see the chase occur because

she was smoking a cigarette on the balcony but that she heard

Duran chasing Tellus. Tellus went to her room and called the

police, then went into the bathroom and locked the door. Duran

then started kicking the bathroom door. When Tellus no longer

heard Duran, she grabbed her dog and purse and ran out of the

apartment.

¶5 Shortly after Tellus left, police arrived at the apartment.

According to officer testimony, Duran was still holding the knife;

appeared distressed; and told police that he “didn’t threaten

anybody inside of the apartment, although [he’d] been threatening

[him]self.” After communicating with officers for about forty

minutes, Duran agreed to drop the knife and to peacefully walk

down the stairs. After Duran did so, he was taken into custody.

¶6 Duran was charged with felony menacing under section 18-3-

206, C.R.S. 2025; false imprisonment under section 18-3-

303(2)(a)(I), C.R.S. 2025; violation of a protection order under

section 18-6-803.5(1)(a), C.R.S. 2025; and criminal mischief under

2
section 18-4-501(1), (4)(a), C.R.S. 2025. After a two-day trial,1 a

jury found Duran guilty of felony menacing, false imprisonment,

and criminal mischief. The court sentenced Duran to a controlling

term of thirty-six months in the custody of the Department of

Corrections followed by two years of parole.

II. Analysis

¶7 Duran contends that (1) the 2022 instruction is

unconstitutional; (2) the district court erred by using two different

descriptions of proof beyond a reasonable doubt from two different

model instructions, one from the pre-2022 model jury instruction

(old instruction) and the other from the 2022 model jury instruction

(2022 instruction); (3) the prosecutor engaged in prosecutorial

misconduct during voir dire and closing argument; and (4) the

errors cumulatively require reversal. We disagree with each

contention.

1 Duran’s trial started on a Tuesday but, because of scheduling

conflicts, resumed on a Friday. At the close of trial, the prosecution
moved for dismissal of the violation of a protection order charge,
which the court granted.

3
A. Reasonable Doubt Jury Instructions

¶8 Duran first contends that the 2022 instruction is

unconstitutional and that we must therefore reverse his

convictions. Next, he contends that the court erred by giving both

the old and 2022 reasonable doubt instructions because doing so

confused the jury, lowered the prosecution’s burden of proof, and

created “a substantial risk that the jury overestimated the latitude

it had when applying” the standard for beyond a reasonable doubt.

We disagree with both contentions.

1. Additional Facts

¶9 At the beginning of voir dire, the court discussed the

presumption of innocence and the prosecution’s burden to prove its

case beyond a reasonable doubt, using the old instruction’s

language:

Duran is presumed innocent. Therefore, the
[p]rosecution has the burden of proving the
charges beyond a reasonable doubt.

....

Reasonable doubt means a doubt based upon
reason and common sense which arises from a
fair and rational consideration of all of the
evidence or the lack of evidence in the case. It
is a doubt which is not a vague, speculative, or
imaginary doubt but such a doubt as would

4
cause reasonable people to hesitate to act in
matters of importance to themselves.

¶ 10 The court then asked the jury if there was anyone who did not

understand “these principles.” Although the trial transcript doesn’t

indicate whether any juror raised a hand, there were no comments

in response.

¶ 11 The prosecutor then asked jurors about the reasonable doubt

standard during voir dire. The prosecutor used the wording from

the 2022 instruction, saying,

the Court is going to tell you that it’s our
burden to prove the charges beyond a
reasonable doubt. He’s going to read you an
instruction that tells you that that means
you’re more than highly — it’s more than
highly probable, you’re firmly convinced, but
not absolute certainty. Okay? Only if there is
a real possibility the [d]efendant didn’t commit
the crime, then (indiscernible).

¶ 12 After the prosecution rested its case, the court asked the

attorneys whether they needed time to confer on or make changes

to the jury instructions. Defense counsel responded as follows:

Your Honor, I will tell the Court that I am
pretty much in agreement. I mean, I don’t
have any objection. There’s some that need to
be pulled just based upon there wasn’t any
limited evidence, there wasn’t [sic] any felony
convictions, things like that. But, otherwise,

5
I — I believe that all the elementals are correct
and that we have the correct definitions.

Three days later, the court again asked the attorneys if they had

any issues with the jury instructions. Both sides verbally approved

the instructions, and the court gave the jury the 2022 instruction:

The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
than proof that something is highly probable,
but it does not require proof with absolute
certainty.

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of [Duran’s]
guilt, then the prosecution has proven the
crime charged beyond a reasonable doubt.
But if you think there is a real possibility that
[Duran] is not guilty, then the prosecution has
failed to prove the crime charged beyond a
reasonable doubt.

After considering all of the evidence, if you
decide the prosecution has proven each of the
elements of a crime charged beyond a
reasonable doubt, you will find [Duran] guilty
of that crime.

After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements of a crime charged
beyond a reasonable doubt, you will find
[Duran] not guilty of that crime.

6
2. Standard of Review and Applicable Law

¶ 13 We review de novo whether the “trial court accurately

instructed the jury on the law.” Tibbels v. People, 2022 CO 1, ¶ 22.

We also review de novo whether an instruction impermissibly

lowered the prosecution’s burden of proof. People v. Schlehuber,

2025 COA 50, ¶ 15.

¶ 14 A court must properly instruct the jury on the controlling law,

People v. Melara, 2025 COA 48, ¶ 16, but as long as the

instructions properly inform the jury of the law, the trial court has

broad discretion to determine their form and style, McDonald v.

People, 2021 CO 64, ¶ 54. We therefore review a trial court’s

decision to give a particular jury instruction for an abuse of

discretion. Id. A court abuses its discretion when it acts in a

manner that is manifestly arbitrary, unreasonable, or unfair or

when it misconstrues or misapplies the law. Melara, ¶ 16.

¶ 15 “[T]he instructions, taken as a whole, must correctly convey

the concept of reasonable doubt to the jury.” Tibbels, ¶ 35. “[A]s

long as a trial court instructs the jury that the defendant’s guilt

must be proved beyond a reasonable doubt, the Constitution does

not require that any particular words be used in advising the jury of

7
the prosecution’s burden of proof.” Id. However, a trial court’s

instructions that lower the burden of proof below the reasonable

doubt standard “constitute[] structural error and require[]

automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8.

¶ 16 When reviewing jury instructions, we consider whether the

instructions accurately conveyed the law and whether the

instructions were confusing or could have misled the jury. Garcia

v. People, 2022 CO 6, ¶ 16. “[W]e presume that juries understand

and heed jury instructions.” People v. Dunlap, 975 P.2d 723, 744

(Colo. 1999).

¶ 17 Reviewing courts apply a functional test to determine whether

a court incorrectly instructed the jury on the reasonable doubt

standard. Pettigrew v. People, 2022 CO 2, ¶ 36. The functional test

requires us to “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.

This test applies to statements outside of the formal instructions.

Tibbels, ¶ 43.

8
3. 2022 Reasonable Doubt Instruction

¶ 18 Duran argues that the 2022 instruction is unconstitutional

because it lowers the prosecution’s burden of proof, shifts the

burden of proof, and provides incompatible definitions of reasonable

doubt. We are unpersuaded by his assertions.

¶ 19 First, Duran contends that the phrase “firmly convinced” as

used in the 2022 instruction lowers the prosecution’s burden of

proof and invites the jury to convict on guilt generally, rather than

to weigh whether the prosecution proved each element of the

charges beyond a reasonable doubt.

¶ 20 In Schlehuber, a division of our court rejected a similar

argument. The appellant in that case argued that “‘firmly

convinced’ [wa]s more akin to the lesser standard of clear and

convincing evidence than to proof beyond a reasonable doubt.”

Schlehuber, ¶ 32. The division disagreed, pointing out that the

2022 instruction “require[d] more than proof that something [wa]s

highly probable.” Id. (quoting COLJI-Crim. E:03 (2025)); see People

v. Berumen, 2025 COA 93, ¶ 25 (“[E]ven assuming that a jury in a

criminal case somehow becomes aware of how this civil standard of

proof is defined under Colorado law, the ‘firmly convinced’ language

9
can’t be confused with the lower clear and convincing evidence

standard.”). The Schlehuber division noted that federal courts have

consistently approved the phrase “firmly convinced” as an accurate

expression of the reasonable doubt standard that doesn’t lessen the

prosecution’s burden. See, e.g., United States v. Petty, 856 F.3d

1306, 1310 (10th Cir. 2017) (“[T]he court’s ‘firmly convinced’

formulation of the reasonable doubt standard did not understate

the degree of certainty a jury must reach to find a criminal

defendant guilty.”); United States v. Velasquez, 980 F.2d 1275, 1278

(9th Cir. 1992) (“Considering the instruction given as a whole, the

use of the ‘firmly convinced’ language did not indicate to the jury

that the prosecutor had a lesser burden than that implied by the

use of the term ‘reasonable doubt’ standing alone.”); see also

Berumen, ¶ 22 (“While some of the language included in the 2022

model instruction has faced criticism in some jurisdictions, it has

been accepted by divisions of this court, with support from federal

courts.”). We agree with Schlehuber and Berumen.

¶ 21 Second, Duran contends that by requiring the jury to weigh

whether there was a “real possibility that [Duran] [wa]s not guilty,”

the 2022 instruction incorrectly invited the jury to consider whether

10
he presented sufficient evidence to disprove the prosecution’s case,

thereby improperly shifting the burden. But as the Schlehuber

division and federal courts examining the language have held, the

phrase doesn’t shift the burden, nor does it “suggest[] that the

defendant must be ‘the source of the “real possibility”’” of

innocence. Schlehuber, ¶ 34 (quoting United States v. Taylor, 997

F.2d 1551, 1557 (D.C. Cir. 1993)). Rather, the phrase “real

possibility” describes the threshold the prosecution must overcome

to prove the charges beyond a reasonable doubt and “the

consequences if a reasonable doubt does arise” and the prosecution

fails to meet its burden. Taylor, 997 F.2d at 1557; see also COLJI-

Crim. E:03 (“But if you think there is a real possibility that the

defendant is not guilty, then the prosecution has failed to prove the

crime charged beyond a reasonable doubt.”); Schlehuber, ¶ 32 (“And

it requires the prosecution to dispel any ‘real possibility’ the

defendant is not guilty, not just a serious or substantial one.”).

¶ 22 Third, Duran asserts that the 2022 instruction allows a jury to

convict under two distinct yet incompatible definitions of reasonable

doubt. Duran contends that the jury may convict the defendant if

11
it’s “firmly convinced” of his guilt, and it may also convict if it

doesn’t believe there’s a “real possibility” that he’s not guilty.

¶ 23 As Schlehuber explained, however, the “juxtaposition” between

these two phrases “has been consistently approved by federal

courts as an accurate expression of the reasonable doubt

standard.” Schlehuber, ¶ 30; see United States v. Conway, 73 F.3d

975, 980 (10th Cir. 1995) (“We agree that the ‘firmly convinced’

language, juxtaposed with the insistence that a jury must acquit in

the presence of a ‘real possibility’ that the defendant is not guilty, is

a correct and comprehensible statement of the reasonable doubt

standard.”); Victor v. Nebraska, 511 U.S. 1, 27 (1994) (Ginsburg, J.,

concurring in part and concurring in the judgment) (“The ‘firmly

convinced’ standard for conviction, repeated for emphasis, is

further enhanced by the juxtaposed prescription that the jury must

acquit if there is a ‘real possibility’ that the defendant is innocent.”).

Simply put, the phrases “work together to give the jury a complete

picture of the reasonable doubt standard.” Schlehuber, ¶ 33. Here,

the jury could have either been “firmly convinced” of Duran’s guilt,

or it could have thought “there [wa]s a real possibility” that Duran

is wasn’t guilty. Id. It determined the former.

12
¶ 24 We conclude that the 2022 instruction does not

unconstitutionally lower the prosecution’s burden of proof or shift

the burden of proof to the defendant. Therefore, we discern no

error with the district court’s instruction.

1. Use of the 2022 Instruction’s and the Old Instruction’s Language

¶ 25 Duran argues that the court’s use of both the 2022 and old

instructions encouraged the jury to use a wide variety of standards

for beyond a reasonable doubt, lowering the prosecution’s burden

and confusing the jury. We disagree for a few reasons.

¶ 26 First, the old instruction has been widely approved and

upheld. See People v. Alvarado-Juarez, 252 P.3d 1135, 1137 (Colo.

App. 2010) (“Colorado’s [old] instruction accurately describes proof

beyond a reasonable doubt.”); see Johnson, ¶ 16 (holding that the

court had properly instructed the jury on reasonable doubt when,

in context of the entire record, the court used the exact language

from the model jury instructions and properly instructed the jury

on the prosecution’s burden and presumption of innocence); see

also Tibbels, ¶ 25 (urging courts to adhere to “long-established

[model] instructions”).

13
¶ 27 Second, while Duran contends the use of two instructions

created an “obfuscating thicket,” he fails to explain how the jury

was confused by the two instructions. See People v. Phillips, 91

P.3d 476, 484 (Colo. App. 2004) (The presumption that a jury

understood and heeded instructions “is rebutted where a jury

affirmatively indicates it has a fundamental misunderstanding of an

instruction it was given.”). Rather, when counsel asked jurors

during voir dire if they understood different aspects of the

reasonable doubt standard, they consistently indicated that they

did. We therefore presume that the jury understood the reasonable

doubt instructions provided by the court.

¶ 28 Third, the district court’s reference to the old instruction’s

reasonable doubt standard occurred once during voir dire. Its

reference to the 2022 instruction’s reasonable doubt standard

occurred three days later after the presentation of the evidence. See

Johnson, ¶ 18 (trial court did not err when it verbally provided an

incorrect reasonable doubt instruction only once, didn’t mention or

reference the instruction again, and also gave a proper instruction).

14
¶ 29 Because both the old and 2022 instructions’ reasonable doubt

standards are correct and have been approved by courts, and there

is no indication that the jury was confused, we discern no error.

B. Prosecutorial Misconduct

¶ 30 Duran contends the prosecutor committed prosecutorial

misconduct by (1) lowering the prosecution’s burden by discussing

the 2022 instruction’s reasonable doubt standard after the court

read the jury the old instruction during voir dire; (2) shifting the

burden to Duran; (3) denigrating the defense; (4) creating an

inference of guilt; and (5) encouraging the jury to convict based on

sympathy. We disagree with each contention.

1. Standard of Review and Applicable Law

¶ 31 We apply a two-step analysis to claims of prosecutorial

misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

First, we determine whether, based on the totality of the

circumstances, the prosecutor’s conduct was improper. People v.

Leyba, 2019 COA 144, ¶ 55, aff’d, 2021 CO 54. If the conduct was

improper, we apply the appropriate standard of review to determine

whether reversal is warranted. Id.

15
¶ 32 We review unpreserved claims of prosecutorial misconduct for

plain error. Id. (Duran concedes that his trial counsel didn’t object

to any of the statements at issue.) “Prosecutorial misconduct rarely

constitutes plain error,” People v. Estes, 2012 COA 41, ¶ 19, and

only does when the conduct is “flagrantly, glaringly, or

tremendously improper,” People v. Walker, 2022 COA 15, ¶ 28

(quoting People v. Dominguez-Castor, 2020 COA 1, ¶ 86).

¶ 33 A prosecutor “may employ rhetorical devices and engage in

oratorical embellishment and metaphorical nuance,” so long as they

do not “induce the jury to determine guilt on the basis of passion or

prejudice,” inject irrelevant issues, or seek to accomplish an

improper purpose. People v. Allee, 77 P.3d 831, 837 (Colo. App.

2003). Nor may the prosecutor misstate the law. People v. Van

Meter, 2018 COA 13, ¶ 24. A prosecutor’s expression of personal

opinions or knowledge or use of inflammatory comments or

arguments that are calculated to mislead the jury or appeal to

prejudices violates ethical boundaries established by the Colorado

Supreme Court. Domingo-Gomez v. People, 125 P.3d 1043, 1048-49

(Colo. 2005).

16
2. Discussing the 2022 Instruction After the Court Discussed the
Old Instruction

¶ 34 Duran argues that prosecutor lowered the prosecution’s

burden of proof by using language from the 2022 instruction after

the court had used language from the old instruction during voir

dire and by broadening the jury’s understanding of reasonable

doubt with the phrases “beyond a shadow of a doubt or beyond all

doubt” and “absolute certainty.” We disagree.

¶ 35 During voir dire, the prosecutor discussed the reasonable

doubt standard with the prospective jurors, saying, “[The court] is

going to read you an instruction that tells you that [beyond a

reasonable doubt] means you’re more than highly — it’s more than

highly probable, you’re firmly convinced, but not absolute

certainty.” The court ultimately gave the jury the 2022 instruction

defining reasonable doubt, which states that the term requires

“more than proof that something is highly probable, but it does not

require proof with absolute certainty.” The prosecutor used the

same standard as the court’s formal written instructions and

defined reasonable doubt in a manner that state and federal courts

have determined to be correct statements of the law. Cf. Van Meter,

17
¶ 24 (“A prosecutor may not misstate the evidence or the law.”).

Thus, the prosecutor’s use of 2022 instruction’s language wasn’t

improper.

¶ 36 Duran also argues that the prosecutor broadened the jury’s

understanding of reasonable doubt during voir dire by calling

attention to inapplicable standards. For instance, when addressing

a prospective juror, the prosecutor said, “[S]ometimes the term

[used is] beyond a shadow of a doubt or beyond all doubt. Does it

make sense to you that my burden is beyond a reasonable doubt

but not all doubt?” and “it’s not absolute certainty. . . . Does that

make sense to you?” But the prosecutor’s use of the 2022

instruction’s language and the statements comparing “beyond a

reasonable doubt” to “beyond a shadow of a doubt,” “beyond all

doubt,” and “absolute certainty” were not improper. See People v.

Knobee, 2020 COA 7, ¶ 37 (recognizing there was nothing wrong

with distinguishing the “beyond a reasonable doubt” standard from

the phrase “beyond a shadow of a doubt”).

1. Prosecutor’s Statements Regarding “Real Possibility”

¶ 37 Duran next contends that, during voir dire and closing, the

prosecutor lowered the burden of proof and shifted it to the defense

18
by telling the jury that it could “only” acquit if there was a “real

possibility” that Duran wasn’t guilty.

a. Standard of Review and Applicable Law

¶ 38 As mentioned above, we review unpreserved claims of

prosecutorial misconduct for plain error. Leyba, ¶ 55. In

determining whether prosecutorial misconduct constitutes plain

error, we look to the totality of the circumstances, including “the

exact language used, the nature of the misconduct, the

surrounding context, and the strength of the other evidence of

guilt.” Dominguez-Castor, ¶ 86. Improper closing argument rises to

the level of plain error “if the probable effect is a verdict based on

bias and prejudice rather than on the relevant facts and applicable

law.” People v. Conyac, 2014 COA 8M, ¶ 130.

¶ 39 “[T]he prosecution cannot place upon a criminal defendant the

burden of proving innocence,” nor can it shift the burden to the

defendant. People v. Clark, 214 P.3d 531, 540 (Colo. App. 2009),

aff’d on other grounds, 232 P.3d 1287 (Colo. 2010). In determining

whether the burden was shifted to a defendant, we “evaluate the

strength of the prosecution’s burden-shifting . . . comment in light

of the entire record.” People v. Santana, 255 P.3d 1126, 1131 (Colo.

19
2011). We consider whether (1) the prosecutor intended to

establish or argued that the defendant carries the burden; (2) the

comments were a fair response to comments or questions by

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

court about the presumption of innocence and the prosecution’s

burden. Id. at 1131-32.

b. Analysis

¶ 40 The prosecutor told the jury during voir dire that the

prosecution would fail to meet its burden “[o]nly if there [wa]s a real

possibility [Duran] didn’t commit the crime.” Duran argues that

this statement improperly shifted the burden to him by asking the

jury to assess whether Duran “didn’t commit the crime” instead of

determining whether the prosecution met its burden. We aren’t

persuaded.

¶ 41 The record shows that the prosecutor repeatedly told the jury

that the prosecution had the burden of proof and that the court

would also instruct the jurors that the prosecution had the burden

of proof beyond a reasonable doubt. For instance, immediately

before making the challenged statements, the prosecutor asked a

prospective juror if it made sense that the burden was on the

20
prosecution. Likewise, the court told the jurors multiple times,

both during voir dire and after the jury was impaneled, that Duran

was presumed innocent and that the prosecution had the burden of

proof. The court also clarified that Duran didn’t have to prove his

innocence, call witnesses, or produce evidence. In its written

instructions at the close of the evidence, the court again instructed

the jury on the presumption of innocence, including that Duran

was presumed innocent and that the prosecution had the burden of

proof. Accordingly, we conclude that the prosecutor’s statement

during voir dire didn’t shift the burden to Duran because the

prosecution and the court repeatedly conveyed that the prosecution

had the burden.

¶ 42 Duran contends that the following statements, which the

prosecutor made during closing argument, improperly described the

reasonable doubt standard:

As we talked about in voir dire, the burden is
that you have to be — it’s more than highly
probable. You must be firmly convinced. But
it does not require proof of absolute certainty,
and we talked about that difference, right?
Again, it’s what leaves you firmly convinced of
the [d]efendant’s guilt and only if there’s a real
possibility can you acquit this defendant.

21
Although the prosecutor’s statements didn’t mirror the exact

language of the 2022 instruction, there was no misconduct. The

prosecutor’s statement that reasonable doubt is “what leaves you

firmly convinced of the [d]efendant’s guilt and only if there is a real

possibility can you acquit this defendant” followed the 2022

instruction’s language that the jury could be firmly convinced of the

defendant’s guilt or believe there was a real possibility the

defendant was not guilty, but not both. The court’s instructions,

which also tracked the 2022 instruction, provided, in relevant part,

“But if you think there is a real possibility that the defendant is not

guilty, then the prosecution has failed to prove the crime charged

beyond a reasonable doubt.” COLJI-Crim. E:03. As discussed, this

language didn’t shift the burden to Duran and accurately stated the

law. See Schlehuber, ¶ 34.

¶ 43 Even if the prosecutor misstated the law, however, there was

no plain error for a few reasons. First, the prosecutor made the

statement only once. Second, prior to the challenged comment, the

prosecutor correctly defined reasonable doubt. The prosecutor

returned to the reasonable doubt standard in her rebuttal closing

argument when she referred to the 2022 instruction defining

22
reasonable doubt as “proof that leave[s] you firmly convinced of

Duran’s guilt. What does firmly convinced mean? It means there’s

not a real possibility.” And third, the court’s formal jury

instructions properly conveyed the reasonable doubt standard

using the correct “real possibility” language.

1. Denigration of the Defense

¶ 44 Duran contends that the prosecutor’s comments regarding

Snuffleupagus,2 hypothetical about identification, and rebuttal

closing argument denigrated the defense because the prosecutor

primed the jurors to view Duran’s case as “not real.” We disagree.

a. Applicable Law

¶ 45 A prosecutor may not use arguments that are calculated to

denigrate defense counsel or imply that defense counsel’s argument

is not being asserted in good faith. People v. Carter, 2015 COA

24M -2, ¶ 70. A prosecutor may not assert that defense counsel

knows that the defendant’s case is not meritorious, People v.

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

2 Snuffleupagus is a fictional character on the children’s show

Sesame Street. See Sesame Workshop, Snuffleupagus (“Snuffy”),
https://perma.cc/AL9A-BS36.

23
(Colo. 2001), but “[a p]rosecutor[] may ‘suggest to the jury that

defendant’s theory . . . was so unlikely as to strain credibility,’”

People v. Herold, 2024 COA 53, ¶ 97 (quoting People v. Collins, 250

P.3d 668, 678 (Colo. App. 2010)). “[A] prosecutor has considerable

latitude in replying to opposing counsel’s argument,” People v.

Iversen, 2013 COA 40, ¶ 37, and may argue “that the evidence in

support of defendant’s innocence lacked substance,” People v.

Trujillo, 2018 COA 12, ¶ 39 (quoting Ramirez, 997 P.2d at 1211).

b. Analysis

¶ 46 Duran argues that the prosecutor’s reference to Snuffleupagus

primed the jury to view Duran’s case as not real. After saying that

the court would instruct the jury on the prosecution’s burden and

the “beyond a reasonable doubt” standard, the prosecutor had the

following exchange with a prospective juror:

Prosecutor: Prospective Juror, can you think
of something that’s not real? Some words for
something that’s not real.

Prosecutor: What are those?

Prosecutor: Okay. Snuffleupagus. Okay.
And so —

24
The Court: Are you sure?

Prosecutor: — if the evidence was presented
and they said, he didn’t do it, it was
Snuffleupagus, can you agree with me that
that’s probably not a real possibility he didn’t
do it (indiscernible)?

¶ 47 The prosecution then returned to this analogy during closing

argument, saying,

So what’s real? We talked again about this in
voir dire. It’s not a maybe, not a what if, a
possibility, it’s possible, a Snuffleupagus . . . .
It’s unreal, it’s fake, it’s false, it’s made up, or
it’s not supported by the evidence.

¶ 48 The prosecutor again returned to Snuffleupagus in rebuttal

closing:

Reasonable doubt also requires that the proof
leave you firmly convinced of [Duran’s] guilt.
What does firmly convinced mean? It means
that there’s not a real possibility. [The other
prosecutor] talked to you about what real
possibility means.

It’s not something that’s made up, not
something that’s speculative, not something
that’s imagined, it’s not Snuffleupagus. It’s
not that [Tellus] didn’t call 911 after the first
bad action. It’s not that [Ruebush] went
outside to smoke after that initial fight had
broken up. It’s not that [Ruebush] makes no
mention of seeing the stabbing motion that
[Tellus] describes. It’s not that [Ruebush]

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didn’t think [Duran] was actually going to hurt
them.

And the reason that all of these things are not
reasonable doubt that could lead you to acquit
[Duran] is because they are not real
possibilities he is not guilty.

¶ 49 The prosecutor’s reference to Snuffleupagus (first mentioned

by a prospective juror) during voir dire was used as a metaphor to

illustrate the concept of a vague, speculative, or imaginary doubt

that doesn’t equate to reasonable doubt. While the prosecutor

analogized Snuffleupagus again during closing argument to explain

what was not a “real possibility” or what was “imagined” and

“speculative,” these statements didn’t denigrate the defense. The

analogy didn’t discuss defense counsel or suggest that defense

counsel’s argument was asserted in bad faith. Rather, these

statements were merely a response to the testimony defense

counsel highlighted in closing argument and were, again, used as a

rhetorical device. Even if, however, the comments were ambiguous

or questionable, they weren’t “flagrantly, glaringly, or tremendously

improper.” Walker, ¶ 28 (citation omitted).

¶ 50 Next, Duran challenges the prosecutor’s statements used to

flesh out the concept of beyond a reasonable doubt.

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Prosecutor: How do I prove to you beyond a
reasonable doubt that I am who I say I am?

Prospective juror: Through ID, passports —

Prospective juror: — recognition.

Prosecutor: Okay. So you want some
documentation. Prospective Juror, what else
would you like to prove that I am who I say I
am?

Prospective juror: Probably some other
referrals, people that know you, things like
that (indiscernible).

Prosecutor: Okay. Prospective Juror, can I
ever prove to you beyond all doubt that I am
who I say I am? Beyond any doubt?

Prosecutor: Is it possible that maybe I faked
the documents, faked some witnesses, maybe
I’m an alien. Is that all possible?

Prospective juror: Yeah, it is.

Prosecutor: Is it reasonable?

Prosecutor: Does that make sense to you,
Prospective Juror, that you have to have a
reasonable doubt? It has to be based on your
reason and —

27
¶ 51 These statements did not address defense counsel or the

defense’s theory of the case. These statements — like the

Snuffleupagus statements — were rhetorical flourishes used to

discuss the concept of reasonable doubt and the prosecution’s

burden of proof.

¶ 52 Finally, Duran challenges the prosecutor’s statement that

“everything we just heard” and the questions asked during trial

were not elements that the prosecutor needed to prove beyond a

reasonable doubt. During rebuttal closing the prosecutor made the

following statements:

[A]s you heard the Judge tell you at the very
beginning during jury selection, reasonable
doubt applies to the elements of a crime.

It’s not a question about something else. It’s a
question just about the list of things that I set
out to prove to you and [that the other
prosecutor] set out to prove to you at the
beginning of this trial on Tuesday. It’s just
about those pieces, and it’s only those pieces
that we need to prove to you beyond a
reasonable doubt.

So let’s talk about those elements. [The other
prosecutor] already walked you through them.
But, more importantly, let’s talk about what is
not an element. And that’s everything that
[defense counsel] just stood up here before you
and talked about. That the questioning that

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we heard during the evidence presentation on
Tuesday was talking about. That is not an
element. But we don’t have any video of
[Duran] kicking down the bathroom door that,
hypothetically, that could have been caused on
some other day.

....

What makes more sense? That [Tellus] hated
[Duran] so much that she kicked in her own
door to frame him for putting her in fear for
her life? Does it make more sense that
[Duran] had that knife on him solely to inflict
injuries on himself even though he sustained
none? Does it make more sense that
[Ruebush] came to court and made up a story
that corroborates [Tellus’s] account and the
physical evidence?

Or does it make more sense that [Duran] got
intensely angry because he was being asked to
leave a place?

¶ 53 These statements, while addressing defense counsel’s closing

argument and line of questioning, didn’t denigrate the defense.

They addressed what the prosecution didn’t have to prove. See

Allee, 77 P.3d at 836 (“Because the prosecutor’s brief comment

[that the jury should not be distracted by defense counsel’s ‘tactics’]

was made in the context of attempting to draw the jury’s focus to

relevant evidence and was not intended to denigrate opposing

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counsel, we find no abuse of discretion in the trial court’s

[over]ruling” the objection to the comment.).

¶ 54 Moreover, these statements responded to defense counsel’s

closing argument. In closing, when discussing the altercation and

Ruebush’s testimony, defense counsel said,

[Tellus] comes to the balcony and proceeds to
grab [Ruebush] to use her as a human shield
between her and [Duran], who’s been chasing
[Tellus] over — around the apartment with a
knife raised, who moments ago had [Ruebush]
cornered in the kitchen with his hand on her
neck? Think about that. Does that make
sense? That she’s going to use her as a
human shield?

¶ 55 The prosecutor’s statements therefore were a direct response

to the defense’s closing argument regarding “what makes more

sense” and focused the jurors on the elements that the prosecution

was required to prove.

¶ 56 In sum, the prosecutor’s statements during voir dire and

closing didn’t denigrate the defense.

1. Comment on the Right to Trial and Implication That Evidence Was Significant

¶ 57 Duran contends that the prosecutor committed misconduct

when discussing Duran’s right to trial by using an analogy that

30
created an inference of guilt and an inference that the evidence was

overwhelming. We disagree.

a. Applicable Law

¶ 58 The right to trial by jury is a paramount constitutional right

guaranteed to criminal defendants. People v. Evans, 612 P.2d

1153, 1155 (Colo. App. 1980). A prosecutor may not make

comments that “ha[ve] the effect of creating an inference of guilt by

referenc[ing]” an individual’s exercise of his right to a jury trial.

People v. Rodgers, 756 P.2d 980, 983 (Colo. 1988) (quoting People v.

Ortega, 597 P.2d 1034, 1036 (Colo. 1979)), overruled on other

grounds by, People v. Miller, 113 P.3d 743 (Colo. 2005). Statements

referencing a “screening” process are improper because they have

“the potential to convey that the prosecution had additional

inculpatory evidence unknown to the jury.” Domingo-Gomez, 125

P.3d at 1052.

b. Analysis

¶ 59 During voir dire, the prosecutor questioned prospective jurors

using the following analogies:

I’m really hungry. I go to the convenience
store. I want a Snickers. That’s my thing. I’m
going in there. I grab a Snickers and walk out

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that store. Do I have the right to go to jury
trial?

....

I go to that convenience store. I take that
candy bar. I walk out. There’s two officers
there. They see me with the candy bar in
hand. They see someone chasing after me
saying, “She didn’t pay. She didn’t pay.” Do I
have the right to go to trial?

....

[D]oes it makes sense to you in those same
scenarios, no matter what the evidence is, no
matter how weak or how strong it is, everybody
has a right to go to trial?

....

Let’s say I’m on video, there’s drone video, they
bring out the SWAT team, everybody
(indiscernible) I had that Snickers, I did not
pay for it, I have no money on me, there’s no
way I was going to pay for it. Do I still have
the right to go to trial?

After each question, prospective jurors engaged and answered.

¶ 60 Duran argues that these statements improperly referenced a

screening process or the prosecution’s charging decision, but they

didn’t. Nor did these comments convey to the jury that the

prosecutor had personal knowledge about additional evidence.

Additionally, while the analogies discussed only situations where an

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individual had clearly committed a crime, they didn’t comment on

Duran’s right to a trial in a manner that inferred his guilt from

exercising that right. Cf. Rodgers, 756 P.2d at 982 (The

prosecutor’s remarks impermissibly violated the defendant’s

constitutional right when the prosecutor said, “As far as attorneys,

some attorneys at least, there is a feeling which I will share with

you that . . . if you are guilty, you would want to request a jury

because they just may not convict you and if you are innocent you

never want to request a jury because they just might convict you.”).

¶ 61 These statements instead reinforced the principle that

everyone charged with a crime is entitled to a jury trial. Each juror

who was asked about whether the hypothetical defendant in the

analogy had a right to a trial said the defendant did. Unlike

references to a screening process that hint that the prosecution has

some additional knowledge, the analogy used by the prosecutor was

unrelated to the case type or specific facts of the case and did not

involve any of the parties to the case.

¶ 62 Accordingly, we conclude that the statements didn’t

improperly refer to a screening procedure or imply that the evidence

against Duran was significant.

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6. Encouraging the Jury to Convict Based on Sympathy

¶ 63 Duran contends that the prosecutor committed misconduct by

encouraging the jury to convict based on sympathy. We disagree.

a. Applicable Law

¶ 64 “[A] prosecutor may not ‘encourag[e] the jury to depart from its

duty to decide the case on the evidence’ by appealing to sympathy

for the victim,” Leyba, ¶ 58 (quoting Dunlap, 975 P.2d at 759), or by

appealing to the jurors’ emotions, People in Interest of J.R., 2021

COA 81, ¶ 47.

b. Analysis

¶ 65 Duran argues that the prosecutor’s statements during rebuttal

closing argument, “[O]nly you, ladies and gentlemen, can hold the

guilty accountable for their actions. I can’t do it. The Judge can’t

do it. Only you can do it,” encouraged the jury to convict him based

on sympathy.

¶ 66 However, Duran does not develop his argument. Moreover,

prior to making the challenged statements, the prosecutor reminded

the jury that Duran was presumed innocent and that the jury had

to give that presumption effect unless it was convinced of Duran’s

guilt beyond a reasonable doubt after considering the evidence. The

34
prosecutor’s comments didn’t urge the jury to convict Duran

regardless of the evidence and solely for the sake of justice or

community safety but, instead, led the jury to find Duran guilty

based on the evidence presented at trial. See People v. Tran, 2020

COA 99, ¶ 68 (holding that the prosecutor’s statement that the jury

“need[ed] to hold [the defendant] accountable” was not improper

because the statement was made immediately after the prosecutor

argued that the evidence established guilt).

¶ 67 Accordingly, the prosecutor’s statements were not improper.

C. Cumulative Error

¶ 68 We reverse for cumulative error when multiple errors

collectively prejudiced a defendant’s substantial rights and

“numerous errors in the aggregate show the absence of a fair trial.”

Howard-Walker v. People, 2019 CO 69, ¶ 26. For cumulative error

to apply, numerous errors must have occurred. People v. Daley,

2021 COA 85, ¶ 141.

¶ 69 Because we have not identified multiple errors, the cumulative

error doctrine does not apply.

III. Disposition

¶ 70 We affirm the judgment of conviction.

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JUDGE J. JONES and JUDGE LUM concur.

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