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April 2, 2026 Get Citation Alerts Download PDF Add Note

Peo v. McGee

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA2033

• Precedential Status: Non-Precedential

• Opinion

• Authorities (24)

• Cited By (0)

• Summaries (0)

• Similar Cases (16.2K)

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Combined Opinion

23CA2033 Peo v McGee 04-02-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA2033
Mesa County District Court No. 22CR271
Honorable Matthew D. Barrett, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Bobbie Sue McGee,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE SULLIVAN
Fox and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 2, 2026

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Bobbie Sue McGee, appeals the judgment of

conviction entered on a jury verdict finding her guilty of possession

with intent to distribute a controlled substance, following too

closely, and a special offender count for possession with intent to

distribute. We affirm in part, vacate in part, and remand the case

with directions.

I. Background

¶2 In February 2022, Trooper Jeff Vrbas, a member of the

smuggling and trafficking interdiction section of the Colorado State

Patrol, was sitting in his patrol car in the median of I-70 when he

noticed McGee driving an SUV with out-of-state plates. According

to Vrbas, McGee yawned as she drove past him. Vrbas perceived

her yawn as exaggerated or fake.

¶3 After Vrbas began following McGee, he observed her driving in

the left lane for several miles without passing any other vehicles

before merging back into the right lane. Vrbas later observed

McGee come within a one-second following distance behind a

semi-truck before she changed lanes to pass. Vrbas then initiated a

traffic stop.

1
¶4 When Vrbas approached McGee’s passenger-side window, he

smelled “raw marijuana” and the “overwhelming odor of air

fresheners.” He also noticed several air fresheners hanging

throughout the SUV. After asking for McGee’s license, Vrbas

learned that the SUV was a rental. Vrbas directed McGee to exit

the SUV and wait by the passenger-side window of his patrol car

while he checked her information and gave her a warning. McGee’s

passenger, Amber Jackson, remained in the SUV’s passenger seat.

¶5 While McGee waited next to the patrol car, Vrbas asked her

several questions about her trip, which McGee answered. McGee

relayed that she was the president of several motorcycle clubs and

that she and Jackson were driving from New York to California and

back to visit a few of the chapters. She said that they chose to rent

the SUV instead of flying because it was cheaper, that they rented a

large vehicle because she “like[s] big cars,” that they were in

California for about a week, and that they spent a lot of time

shopping on their trip. She also explained that her passenger,

Jackson, was “new in [her] club” and had “just joined.”

¶6 After McGee relayed this information, Vrbas walked back to

the SUV and asked Jackson similar questions. Jackson repeated a

2
similar narrative but told Vrbas that she had “just joined” the

motorcycle club “about a year ago.”

¶7 Once Vrbas finished giving McGee a verbal warning and

returned her documents, he asked if he could “ask [her] a couple

questions.” He first asked whether she or Jackson had a large

amount of cash, weapons, guns, or “anything else in there.” McGee

said no, except for gas money and a taser. Vrbas then asked if he

could search her SUV. McGee agreed.

¶8 During the search, Vrbas found seven bricks of cocaine in the

spare tire under the SUV. The prosecution charged McGee with

possession with intent to distribute a controlled substance,

§ 18-18-405(1), (2)(a)(1)(A), C.R.S. 2025, following too closely,

§ 42-4-1008(1), C.R.S. 2025, and a special offender sentence

enhancement, § 18-18-407(1)(c), C.R.S. 2025.

¶9 Before the trial, McGee moved to suppress the drug evidence,

arguing that Vrbas lacked reasonable suspicion to initiate the traffic

stop, that he unlawfully prolonged the stop, and that her consent to

search was involuntary. After holding an evidentiary hearing, the

district court denied McGee’s motion in a detailed oral ruling.

3
¶ 10 A jury convicted McGee as charged, and the district court

sentenced her to concurrent terms of sixteen years in the custody of

the Department of Corrections on the possession with intent to

distribute count and the special offender sentence enhancement

count. The court closed out the following too closely charge with

the payment of fees and costs. McGee now appeals, challenging the

district court’s (1) denial of her motion to suppress; (2) admission of

Vrbas’s testimony regarding safe distances for following other

vehicles; and (3) separate conviction and sentence on the special

offender sentence enhancement.

II. Motion to Suppress

¶ 11 McGee contends that the district court erred by denying her

motion to suppress because (1) Vrbas lacked reasonable suspicion

to initiate the traffic stop; (2) the scope, character, and extent of the

stop exceeded its traffic-related justifications; and (3) her consent to

search was involuntary.

A. General Legal Principles and Standard of Review

¶ 12 The United States and Colorado Constitutions protect

individuals from unreasonable searches and seizures. U.S. Const.

amend. IV; Colo. Const. art. II, § 7. Absent an exception, a

4
warrantless search or seizure of a person is presumed unreasonable

and therefore violates these constitutional protections. People v.

Johnson, 2024 CO 47, ¶ 23; People v. McKnight, 2019 CO 36, ¶ 50.

¶ 13 Two exceptions to the warrant requirement are at issue here:

investigatory stops and consensual searches. See People v.

Funez-Paiagua, 2012 CO 37, ¶ 7 (citing Terry v. Ohio, 392 U.S. 1,

30-31 (1968)); People v. Syrie, 101 P.3d 219, 222 (Colo. 2004).

¶ 14 “An investigatory stop is an encounter in which an officer

briefly stops a suspicious person and makes reasonable inquiries to

confirm or dispel these suspicions, such as determining an

individual’s identity or obtaining an explanation of a person’s

behavior.” Funez-Paiagua, ¶ 7. A traffic stop typically falls into this

category because it constitutes a limited, investigatory intrusion.

People v. Chavez-Barragan, 2016 CO 66, ¶ 19 (Chavez-Barragan II)

(citing Rodriguez v. United States, 575 U.S. 348, 354 (2015)). A law

enforcement officer may employ such limited seizures so long as

(1) there is a specific and articulable basis in
fact for suspecting that criminal activity has
taken place, is in progress, or is about to occur
(that is, “reasonable suspicion”); (2) the
purpose of the intrusion is reasonable; and
(3) the scope and character of the intrusion are
reasonably related to its purpose.

5
People v. White, 2023 CO 43, ¶ 32 (quoting People v. Archuleta, 980

P.2d 509, 512 (Colo. 1999)). McGee challenges only the first and

third requirements.

¶ 15 We assess whether an officer had reasonable suspicion by

asking whether the facts known to the officer, when taken together

with rational inferences from those facts, gave rise to a reasonable

and articulable suspicion of criminal activity justifying the intrusion

into the defendant’s personal privacy. People v. Wheeler, 2020 CO

65, ¶ 13. “This is an objective inquiry that requires us to consider

the totality of the circumstances at the time of the intrusion.”

People v. Gamboa-Jimenez, 2022 COA 10, ¶ 40.

¶ 16 A consensual search by law enforcement is constitutionally

permissible if the person’s consent is voluntarily given.

Chavez-Barragan II, ¶ 36. “Consent is voluntary if it is ‘the product

of an essentially free and unconstrained choice by its maker.’” Id.

at ¶ 37 (quoting People v. Munoz-Gutierrez, 2015 CO 9, ¶ 16). By

contrast, consent is involuntary if it results from “duress or

coercion, express or implied, or any other form of undue influence

exercised [by the police] against the defendant.” Id. (alteration in

original) (quoting Munoz-Gutierrez, ¶ 17).

6
¶ 17 A trial court’s suppression order presents a mixed question of

fact and law. Chavez-Barragan II, ¶ 18. We defer to the trial court’s

factual findings if they are supported by competent evidence in the

record, but we assess the legal significance of those facts de novo.

Gamboa-Jimenez, ¶ 35. When a stop is captured on an audio or

video recording and no disputed facts outside the recording control

the suppression issue, we sit in a similar position as the trial court

and therefore may independently review the recording. See People

v. Furness, 2025 CO 16, ¶ 3 n.1 (citing People v. Kutlak, 2016 CO 1,

¶ 13).

B. Reasonable Suspicion

¶ 18 McGee contends that Vrbas lacked reasonable suspicion to

initiate the traffic stop. But Vrbas testified that he observed McGee

driving in the left lane for several miles without passing another

vehicle. The district court found his testimony credible. Absent

exceptions not relevant here, Colorado law prohibits driving in a

highway’s passing lane unless the driver is passing other vehicles.

§ 42-4-1013(1), C.R.S. 2025. Based on the district court’s findings,

which McGee doesn’t contest on appeal, we conclude that Vrbas

had reasonable suspicion to initiate the traffic stop. See People v.

7
Chavez-Barragan, 2016 CO 16, ¶ 10 (Chavez-Barragan I)

(“Suspicion of even a minor traffic offense can provide the basis for

a stop.”).

¶ 19 McGee nonetheless argues that the district court applied an

incorrect standard by considering events that arose after Vrbas

initiated the traffic stop — specifically, that she didn’t contest

Vrbas’s assertion that she had committed traffic violations. But the

court’s ruling that reasonable suspicion supported Vrbas’s decision

to stop McGee didn’t turn on her lack of dispute. Instead, the court

found that reasonable suspicion existed “even putting [the lack of

dispute] aside and even if [the court] were to not consider it at all.”

And regardless, Vrbas had reasonable suspicion to stop McGee

based solely on her passing lane violation, which Vrbas observed

before he initiated the stop.

¶ 20 McGee also argues that the court failed to resolve a conflict in

its findings regarding her violation of the following too closely

statute. § 42-4-1008(1). But again, McGee’s passing lane violation

alone provided reasonable suspicion for the stop. So we need not

decide whether the court made conflicting findings regarding the

following too closely violation.

8
C. Scope, Character, and Extension of the Stop

¶ 21 McGee next contends that the scope and character of the stop

unlawfully exceeded the intrusion required for Vrbas to complete

his traffic-related objectives. She also asserts that Vrbas illegally

extended the stop after returning her documents.

1. Additional Applicable Law

¶ 22 Once a law enforcement officer accomplishes the purpose of an

investigatory stop and no further reasonable suspicion exists to

support additional investigation, the officer generally may no longer

detain the vehicle’s driver or passengers. Gamboa-Jimenez, ¶ 38.

During the stop, however, an officer may discover additional

information giving rise to a new reasonable suspicion that may

permit further investigation. Chavez-Barragan II, ¶ 21. If the

underlying detention remains lawful, a “shift” in investigatory

purpose isn’t improper. Id. at ¶ 26.

¶ 23 When deciding whether an officer has unreasonably extended

a lawful traffic stop, we must consider the facts and circumstances

that gave rise to the initial stop plus any additional information the

officer learned before issuing a warning or citation.

Gamboa-Jimenez, ¶ 39. “[B]ecause an officer is entitled to draw

9
rational inferences from all the circumstantial evidence, we may not

dismiss or discount acts simply because in isolation they may each

have plausible innocent explanations.” Id. at ¶ 40.

1. Analysis

¶ 24 In its oral ruling, the district court determined that Vrbas

didn’t violate McGee’s constitutional rights because he credibly

suspected her of drug trafficking. In support of this determination,

the court made the following factual findings: (1) McGee drove a

large, rented SUV from New York to California to visit motorcycle

clubs and go shopping; (2) the SUV smelled strongly of raw

marijuana; (3) the SUV contained several air fresheners; (4) McGee

and Jackson had driven all night from California; (5) the SUV rental

was due back “the very next day,” which would have been a “long

haul” from western Colorado; and (6) McGee and Jackson gave

conflicting statements about the length of time that Jackson had

been in the motorcycle club.

¶ 25 On appeal, McGee doesn’t contest the court’s factual findings.

Rather, she asserts that such facts didn’t amount to reasonable

suspicion of criminal activity justifying the expanded scope and

character of the stop, nor did they support Vrbas’s decision to

10
extend the stop after he had completed his traffic-related objectives.

Specifically, McGee asserts that Vrbas impermissibly “detour[ed]”

from the traffic-related “mission” of the stop by asking McGee and

Jackson detailed questions about their trip.

¶ 26 We conclude that the record supports the district court’s

determination that Vrbas had reasonable suspicion of criminal

activity to justify the stop’s expanded scope and character and its

time extension. Vrbas had reasonable suspicion of criminal activity

beyond the minor traffic violations even before he told McGee to exit

her SUV — the earliest point that McGee says he began conducting

investigatory tasks unrelated to her traffic violations. By that time,

Vrbas had already noticed the smell of raw marijuana and the

overwhelming odor of air fresheners. Viewed together, these facts

provided Vrbas with reasonable suspicion of illegal drug activity

that justified brief, additional investigation beyond McGee’s traffic

violations. See People v. Brown, 2022 CO 11, ¶ 26 (odor of burnt

marijuana emanating from the defendant’s car provided reasonable

suspicion of criminal activity); People v. Cervantes-Arredondo, 17

P.3d 141, 149 (Colo. 2001) (“[T]he presence of a scent-masking

11
agent, coupled with other indicia of criminal activity, can support a

reasonably brief inquiry.”).

¶ 27 Upon further inquiry, Vrbas discovered more information that

added to his reasonable suspicion. In particular, he learned that

the SUV was rented, that McGee was driving across the country

and back within a short time, and that she and Jackson had

conflicting stories about Jackson’s motorcycle club membership.

See People v. Bailey, 2018 CO 84, ¶¶ 31-32 (driver providing

“inconsistent information” and trooper’s belief that “it was almost

impossible” for the driver to travel “from Iowa to Las Vegas and then

to Colorado” in three days, coupled with other circumstances,

provided a “legitimate inference of criminal activity”); see also

United States v. Bracamontes, 614 F.3d 813, 816 (8th Cir. 2010)

(driver’s and passenger’s conflicting stories established requisite

reasonable suspicion for further investigation).

¶ 28 Viewing the totality of these circumstances together,

Gamboa-Jimenz, ¶ 40, we perceive no error in the district court’s

conclusion that Vrbas didn’t unlawfully expand the scope and

character of the stop or illegally extend its duration.

12
¶ 29 Even so, McGee argues that the district court erred by failing

to make specific findings under the Chavez-Barragan II factors:

(1) the length of the detention; (2) whether the officer diligently

pursued the basis for the initial stop; (3) whether the suspect was

required to move from one location to another; and (4) whether

alternative, less intrusive means were available.

Chavez-Barragan II, ¶ 22. But McGee doesn’t point us to the

location in the record where she made this argument to the district

court. See C.A.R. 28(a)(7)(A). Moreover, the Chavez-Barragan II

factors are “non-exhaustive,” White, ¶ 43, and we’re not permitted

to reweigh the evidence on appeal. See, e.g., People in Interest of

S.Z.S., 2022 COA 133, ¶ 29.

¶ 30 Even if we considered the Chavez-Barragan II factors based on

the undisputed facts, they wouldn’t change our conclusion. First,

“‘[t]he length of a valid investigatory stop is properly measured,’ in

part, by ‘the time required . . . to diligently complete the

investigation given the complexity of the situation.’” White, ¶ 44

(quoting People v. Garcia, 11 P.3d 449, 455 (Colo. 2000)). The

district court found that the stop lasted eleven minutes before

Vrbas asked for McGee’s consent to search the SUV. Given the

13
investigatory tasks facing Vrbas, eleven minutes wasn’t an

unreasonable length of time. Moreover, as mentioned, Vrbas

already had reasonable suspicion of drug trafficking by the earliest

point that McGee says he detoured from traffic-related tasks. In

short, Vrbas’s questions unrelated to the traffic violations didn’t

“transform the traffic stop into a seizure of unreasonable duration.”

Chavez-Barragan II, ¶ 26.

¶ 31 Second, nothing in the court’s findings or the dash cam

footage suggests that Vrbas was less than diligent in pursuing the

investigative purposes that justified the stop. See White, ¶ 48. He

promptly explained the traffic violations to McGee and requested

her license after approaching the SUV. And, as discussed, Vrbas

obtained additional reasonable suspicion after approaching the

SUV, beyond the minor traffic violations, based on the smell of raw

marijuana and air fresheners.

¶ 32 Third, Vrbas’s instruction that McGee move to the passenger

side of his patrol car didn’t render the stop unreasonable. See

Chavez-Barragan II, ¶ 29 (police officer during a valid traffic stop

may order the driver to exit their vehicle).

14
¶ 33 Finally, we agree with McGee that Vrbas had less-intrusive

means available to investigate the traffic violations — for example,

he could have asked McGee to remain in the SUV while he checked

her driver’s license. But after he approached the SUV, Vrbas was

no longer investigating only traffic violations; he also had

reasonable suspicion of drug trafficking based on the smell of raw

marijuana and air fresheners. Under these circumstances, we fail

to see any alternative, less intrusive means that were available to

Vrbas. Regardless, the supreme court’s precedent doesn’t “require

the police to choose the least intrusive means of detention.” White,

¶ 53 (quoting Garcia, 11 P.3d at 455).

¶ 34 Accordingly, we detect no error in the district court’s

conclusion that Vrbas didn’t unlawfully expand the scope and

character of the stop or illegally extend its duration.

D. Consent

¶ 35 McGee also contends that her consent to search was

involuntary because (1) Vrbas had ordered her out of her SUV;

(2) she was being detained in a traffic stop; (3) a person in her

situation wouldn’t believe she could refuse Vrbas’s search request,

15
in part because she knew the stop was pretextual; and (4) Vrbas

failed to inform her that she could refuse consent.

1. Additional Applicable Law

¶ 36 A law enforcement officer may conduct a consensual search

only after informing the person subject to the search that they are

being asked to voluntarily consent to the search and have the right

to refuse the request. § 16-3-310(1)(b), C.R.S. 2025. But an

officer’s failure to give this advisement is only one factor a court

considers in determining the voluntariness of consent.

§ 16-3-310(3); Chavez-Barragan II, ¶ 38. The key question is

whether law enforcement’s intrusive conduct critically impaired the

defendant’s judgment. Id. at ¶ 39. Law enforcement’s conduct

must not overbear the defendant’s will. Id. At the same time, the

“fact of custody alone has never been enough in itself to

demonstrate a coerced confession or consent to search.” Id. at ¶ 43

(quoting United States v. Watson, 423 U.S. 411, 424 (1976)).

1. Analysis

¶ 37 We conclude that McGee’s consent to search her SUV was

voluntary. Though Vrbas should have given McGee the statutory

advisement, no evidence suggested — and our independent review

16
of the dash cam footage doesn’t reveal — that Vrbas used duress,

coercion (express or implied), or any form of undue influence to

induce McGee’s consent. See Chavez-Barragan II, ¶ 37. To the

contrary, the district court found that the interaction between

Vrbas and McGee was “conversational” throughout the stop, that

McGee was “extremely relaxed,” and that Vrbas didn’t make any

threats or promises. See id. at ¶¶ 51-54. Moreover, McGee

reaffirmed her consent to search after she informed Vrbas that she

had marijuana gummies in the SUV. See id. at ¶ 54 (explaining the

defendant “demonstrated his ongoing consent by volunteering to

obtain the keys for officers to search the trailer”).

¶ 38 We aren’t persuaded otherwise by McGee’s four contentions on

appeal. We resolve her contentions as follows:

• Absent coercion not present here, an officer’s order to

exit the vehicle during a traffic stop doesn’t render the

driver’s later consent to search involuntary. See id. at

¶ 54 (consent voluntary even though deputy moved the

defendant to the interior of her patrol car).

• While we agree with McGee that the return of a driver’s

documents is necessary but not sufficient to establish

17
that an investigatory stop has ended, see id. at ¶ 41, the

officer need not complete the stop for the driver’s consent

to be voluntary. See id. at ¶ 52 (consent voluntary even

though officer asked for consent before completing

traffic-related tasks). In any event, Vrbas had already

returned McGee’s documents when he asked for her

consent to search. See id. at ¶ 41.

• Although some drivers may hesitate to decline an officer’s

request to search (because they subjectively believe the

stop is pretextual or for other reasons), we must

objectively assess whether, under the totality of the

circumstances, the police conduct could have reasonably

appeared coercive to a person with the defendant’s

knowledge and particular characteristics. See

Munoz-Gutierrez, ¶ 23. Applying that standard, we see

nothing coercive in Vrbas’s interaction with McGee that

would have rendered her consent involuntary. The

district court found that (1) McGee’s consent contained

no hesitation or reluctance and (2) Vrbas applied no

pressure, trickery, or coercion. We won’t disturb these

18
findings because competent record evidence supports

them. See Gamboa-Jimenez, ¶ 35.

• McGee is correct that Vrbas failed to inform her that she

could legally refuse his request to search her SUV,

contrary to Colorado law. See § 16-3-310(1)(b). But

Vrbas’s failure to provide this advisement is only one

factor in the voluntariness analysis. See § 16-3-310(3);

Munoz-Gutierrez, ¶¶ 26, 37 (consent voluntary even

though troopers failed to inform driver they could refuse

consent to search). Considering the totality of the

circumstances, nothing suggests that Vrbas overbore

McGee’s will when seeking her consent. See id. at ¶ 37.

¶ 39 Accordingly, the district court didn’t err by denying McGee’s

motion to suppress the drug evidence collected from her SUV.

III. Opinion Evidence

¶ 40 McGee contends that Vrbas gave improper opinion testimony

about safe following distances and that this testimony misled the

jury on the law. We disagree.

19
A. Additional Background

¶ 41 In the dash cam footage, which the prosecution played for the

jury, Vrbas explained to McGee that she followed the semi-truck too

closely before she passed it because she came as close as one

second away from the back of the truck. McGee asked, “So what’s

the rule for that?” Vrbas responded that she “can’t be closer than

three seconds cause [sic] it takes the average person a second and a

half to respond to something.” Later, by the patrol car, McGee

again sought clarification by asking, “So if I’m behind a truck does

that mean I gotta stay how many feet away?” Vrbas replied, “You

gotta be three seconds behind another vehicle, so you got as close

as a second . . . you got up to at least a second behind the semi.”

¶ 42 At trial, Vrbas testified consistently with the explanation that

he provided to McGee during the traffic stop. He told the jury that

McGee’s SUV “got as close as a second behind [the] semi before it

decided to change lanes and go to — to start safely passing that

semi.” When the prosecutor asked why he was concerned about

that distance, Vrbas explained that

the distances [sic] is — was concerning.
Because, you know, through the accident
reconstruction stuff that we do, it takes the

20
average person a second-and-a-half to perceive
and react of — of something happening, like
somebody putting on their brakes or
something like that.

So if they’re a second, then they’ve already run
into the back of that semi before they’ve even
had a chance to react. And that’s a person
who isn’t under the influence of anything or
tired. So that’s concerning that it’s — it’s a
safety issue they could run into the back of
that semi if it — something was to happen.

B. Standard of Review and Applicable Law

¶ 43 We review a trial court’s decision on the admissibility of

evidence for an abuse of discretion. People v. Baker, 2021 CO 29,

¶ 29. “A trial court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law.” Id. Because McGee didn’t object at trial to Vrbas’s

testimony or the dash cam footage, our review is limited to plain

error. Hagos v. People, 2012 CO 63, ¶ 14. Plain error is error that

is both obvious and substantial. People v. Burdette, 2024 COA 38,

¶ 32. To satisfy this standard, the error must so undermine the

trial’s fundamental fairness as to cast serious doubt on the

reliability of the judgment of conviction. Hoggard v. People, 2020

CO 54, ¶ 13.

21
¶ 44 A driver may not “follow another vehicle more closely than is

reasonable and prudent, having due regard for the speed of such

vehicles and the traffic upon and the condition of the highway.”

§ 42-4-1008(1).

¶ 45 “Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact.” CRE 704. However, a

witness may not testify that they believe the defendant committed

the crime at issue. People v. Penn, 2016 CO 32, ¶ 31. But in some

circumstances, a law enforcement officer “may testify about the

reasons they took certain investigative steps, even where this

testimony touches upon prohibited subjects.” Id. at ¶ 32.

¶ 46 As relevant here, the trial court may exclude relevant evidence

if the danger of misleading the jury substantially outweighs its

probative value. CRE 403. In reviewing the trial court’s decision,

we assume the maximum probative value that a reasonable fact

finder might give the evidence and the minimum unfair prejudice to

be reasonably expected. People v. Hood, 2024 COA 27, ¶ 19.

22
C. Analysis

¶ 47 We perceive no abuse of discretion in the district court’s

admission of Vrbas’s statements regarding safe following distances.

At trial, Vrbas testified about safe following distances and accident

reconstruction to help explain to the jury why he was concerned

about the close distance between McGee’s SUV and the semi-truck.

Vrbas’s explanation of safe following distances to McGee in the dash

cam footage, which the prosecution played for the jury, served the

same purpose. In both instances, Vrbas’s statements provided

relevant and material context for his investigative actions. See

Penn, ¶ 32.

¶ 48 Further, Vrbas never mentioned section 42-4-1008(1)’s

“reasonable and prudent” legal standard, nor did he opine that

McGee had violated that standard. Cf. Baker, ¶ 32 (identifying

factors that courts consider in determining whether expert opinion

testimony is admissible under CRE 704). In addition, the district

court properly instructed the jury (1) on the applicable law; (2) that

the court alone would instruct the jury on the applicable law; and

(3) that the jury could accept or reject any part of a witness’s

testimony. See id.; Washington v. People, 2024 CO 26, ¶ 31

23
(“Absent evidence to the contrary, we presume the jury understood

and followed the court’s instructions.”).

¶ 49 We also aren’t persuaded that the district court abused its

discretion under CRE 403 by admitting this evidence. Vrbas’s

testimony and his statements on the dash cam footage were highly

probative for the following too closely charge. Affording Vrbas’s

statements their maximum probative value and the minimum

unfair prejudice to be reasonably expected, we perceive no abuse of

discretion in the court’s decision admitting this evidence. See

Hood, ¶ 19.

¶ 50 Moreover, even if Vrbas’s testimony or statements on the video

crept close to the line, we can’t say their admission so undermined

the fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction. See Hoggard, ¶ 13.

¶ 51 We aren’t convinced otherwise by McGee’s reliance on People

v. Barrera, 2022 CO 44. There, the supreme court explained that a

driver’s violation of the three-second rule1 for following another

1 The three-second rule, included in the Colorado Driver’s

Handbook, states that “a driver should follow another vehicle at a
distance of at least three seconds.” People v. Barrera, 2022 CO 44,
¶ 6.

24
vehicle — a “regulatory” rule — didn’t supply reasonable suspicion

that the driver had violated the lane-change statute, section

42-4-1007(1)(a), C.R.S. 2025. See Barrera, ¶ 16. The court

reasoned that the lane-change statute “contains no such rule.” Id.

But here, Vrbas didn’t rely on the three-second rule when testifying

about his reasonable suspicion that prompted the traffic stop.

Rather, he mentioned the rule during the stop when responding to

McGee’s questions. We discern nothing improper in a law

enforcement officer mentioning a regulatory rule, even if not

codified in statute, when answering a driver’s question during a

traffic stop. In addition, Vrbas had other reasonable suspicion (the

passing lane violation) unrelated to the three-second rule that

justified the traffic stop, rendering Barrera even further afield.

¶ 52 Accordingly, we discern no error in the district court’s

admission of Vrbas’s statements about safe following distances.

IV. Hearsay

¶ 53 McGee contends that Vrbas’s testimony and statements in the

dash cam footage about driver response times, quoted above,

constituted inadmissible hearsay. We see no reversible error.

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A. Standard of Review and Applicable Law

¶ 54 Although we review a trial court’s evidentiary rulings for an

abuse of discretion, whether a statement constitutes hearsay is a

legal conclusion that we review de novo. People v. Schnorenberg,

2023 COA 82, ¶ 10. Because McGee didn’t object to Vrbas’s

testimony or statements, our review is again limited to plain error.

Hagos, ¶ 14.

¶ 55 Hearsay generally isn’t admissible except as provided by rule

or statute. CRE 802. Hearsay is “a statement other than one made

by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” CRE 801(c). A

declarant is “a person who makes a statement.” CRE 801(b). A

statement is “(1) an oral or written assertion or (2) nonverbal

conduct of a person, if it is intended by the person to be

communicative.” CRE 801(a).

B. Analysis

¶ 56 We perceive no reversible error in the district court’s

admission of Vrbas’s testimony about driver response times or his

related statements in the dash cam footage.

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¶ 57 Although McGee points to Vrbas’s testimony about “accident

reconstruction stuff,” she doesn’t identify any declarant or

out-of-court statement within the meaning of CRE 801. Instead,

Vrbas generally described information about driver response times

and accident reconstruction that he directly observed or learned

firsthand through his experience and training. Such personal

perceptions aren’t hearsay. See, e.g., People v. Abad, 2021 COA 6,

¶ 62.

¶ 58 To the extent McGee argues that Vrbas’s related statements in

the dash cam footage about driver response times constitute

hearsay because he made them out of court, that presents a closer

question. But even if we assume that his recorded statements were

inadmissible hearsay, we can’t say that their admission so

undermined the trial’s fundamental fairness as to cast serious

doubt on the reliability of the judgment of conviction. Hoggard,

¶ 13. Before the court admitted the video, Vrbas had already

testified that the average person takes one and a half seconds to

react to something on the road. Thus, even if hearsay, Vrbas’s

statements on the video were “cumulative of other properly

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admitted evidence.” People v. Caldwell, 43 P.3d 663, 669 (Colo.

App. 2001).

V. Sentence Enhancement

¶ 59 McGee contends, the People concede, and we agree that the

district court erred by imposing a separate conviction and sentence

on the special offender count. As relevant here, the special offender

statute, section 18-18-407(1)(c), increases the drug felony

classification level when a defendant is found guilty of importing

fourteen or more grams of cocaine into Colorado. “[T]he special

offender statute is a sentence enhancing provision, not a

substantive offense.” People v. Martinez, 36 P.3d 201, 204 (Colo.

App. 2001). “Trial courts may not enter a separate conviction or

sentence on a count that is only a sentence enhancer.” People v.

Torrez, 2013 COA 37, ¶ 23.

¶ 60 Because the district court erred by entering the special

offender sentence enhancement as a separate conviction, we vacate

McGee’s separate conviction and sentence on the special offender

count and remand for the district court to correct the mittimus.

See Martinez, 36 P.3d at 204 (where the mittimus reflects a

conviction and separate sentence imposed on the special offender

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charge as a substantive offense, the conviction and sentence must

be vacated).

VI. Disposition

¶ 61 We affirm the judgment as to McGee’s convictions for

possession with intent to distribute a controlled substance and

following too closely. We vacate the separate conviction and

sentence on the special offender count and remand the case to the

district court with instructions to correct the mittimus.

JUDGE FOX and JUDGE KUHN concur.

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