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Feb. 26, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Graciano

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1483

• Precedential Status: Non-Precedential

• Opinion

• Authorities (46)

• Cited By (0)

• Summaries (0)

• Similar Cases (9.3K)

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Combined Opinion

23CA1483 Peo v Graciano 02-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1483
Adams County District Court No. 21CR3135
Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ricardo Graciano,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Brown and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 26, 2026

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Ricardo Graciano, appeals his conviction of felony

menacing. We affirm.

I. Background

¶2 According to the trial evidence, Graciano encountered his

estranged half-brother, Desiderio Flores, at a convenience store. As

Flores was leaving the store and Graciano was entering, the two

recognized each other. Before Flores could get out the door,

Graciano shoved him, prompting Flores to go back into the

convenience store and walk toward Graciano in a series of

aggressive stutter steps. Graciano then removed a knife from his

belt and held it at his side while the two men continued to exchange

words. Surveillance footage showed Flores backing out of the

store’s entrance.

¶3 Once outside, the two men continued to yell at each other.

Graciano and Flores drew nearer to each other and continued to

argue as if “getting ready to fight.” Flores then backed away and got

into his car while Graciano continued to “hoot[] and holler[]” by the

gas pumps.

¶4 Flores’s wife, who was sitting in the car, called 911 and told

the operator that her brother-in-law had just pulled a knife on her

1
husband. Graciano was arrested and charged with felony

menacing.

¶5 On appeal, Graciano argues that (1) the trial court erred by

failing to suppress a statement he made to police during his arrest

and transport because it was the product of a custodial

interrogation; (2) the trial court violated his constitutional rights to

confrontation and a fair trial when one of the jurors was unable to

hear a portion of Flores’s cross-examination; (3) the prosecution

shifted the burden of proof by arguing in closing that the jury

should “demand” more evidence from the defense to support the

self-defense theory; (4) the trial court erred in admitting evidence

that Graciano habitually carried a knife; (5) the trial court

improperly instructed the jury on the provocation and initial

aggressor exceptions to self-defense; and (6) the cumulative effect of

the trial court’s errors requires reversal. We address each

contention.

II. Interrogation and Personal Knowledge

¶6 Graciano contends that his statement to police that “[he] let

[his] emotions get the better of [him]” should have been excluded

because the prosecution failed to prove it was not the product of

2
custodial interrogation. Alternatively, he contends that the court

should have excluded the statement under CRE 602 because the

deputy who testified to it lacked personal knowledge of the events.

We are not persuaded.

A. Additional Facts

¶7 Defense counsel moved to suppress several statements

Graciano made to the police. The motion however, specifically

referenced only Graciano’s statement, “I know what I did, I put

myself here.”1

¶8 At the motions hearing, Deputy Thompson testified that

Graciano volunteered statements throughout his pat-down and

arrest. Thompson explained that he patted down Graciano, took

his belongings, and put them in a plastic bag. He did not believe he

asked Graciano any questions at the scene or during the car ride to

the police station. Thompson testified that during the pat-down,

Graciano said, “This is just a family issue,” and “I pushed my

brother, but he used to push me . . . ; it’s nothing but a family

1 The court did suppress one statement, not expressly referenced in

the motion, that Graciano made to Deputy Davis at the police
station when Graciano was in a holding cell.

3
problem.” And during the ride to the police station, Graciano again

said, “It was a family issue. I let my emotions get the better of me.”

¶9 Throughout the hearing, Thompson reviewed his report to

refresh his memory of that day. He explained that it was his

general rule not to question suspects during rides to the police

station and that he prepared his report within one hour of the

incident. During cross-examination, defense counsel asked

whether he remembered how many officers were at the scene and

who was there. Thompson responded, “To be honest, I don’t recall

this call at all” because “it was over a year ago,” and he handled a

lot of calls.

¶ 10 Defense counsel objected to Thompson reading directly from

his report rather than using it to refresh his recollection. The trial

court overruled the objection and reasoned that the parties were

there for a motions hearing and not a jury trial.

¶ 11 The court acknowledged Thompson’s waning memory and

found it “not surprising given the length of time here.” The court

nonetheless found Thompson’s testimony credible “on balance” and

determined that the statements Graciano made at the scene during

the pat-down were not in response to any questioning or other

4
actions that would be reasonably likely to elicit an incriminating

response. The court further found that any statements Graciano

made during the ride to the substation were spontaneous.

Therefore, it found no violation under Miranda v. Arizona, 384 U.S.

436 (1966), and denied Graciano’s motion as to those statements.

¶ 12 Before trial, defense counsel moved to preclude Thompson’s

testimony because he had “absolutely no personal knowledge of

what happened.” The court overruled the objection stating, “The

fact that he may not have remembered much or almost all of what

happened” was not “a basis to categorically exclude his testimony.”

Thompson testified consistently with his description of events at the

motions hearing. He admitted that he had no specific memory of

what occurred and was relying on his report. During cross-

examination, defense counsel elicited testimony that Thompson

could not recall the details of the day of the incident without

reading his report.

B. Standard of Review and Applicable Law

¶ 13 Whether the district court erred by failing to suppress

evidence presents a mixed question of fact and law. People v.

Kutlak, 2016 CO 1, ¶ 13. We defer to the district court’s factual

5
findings that are supported by the record, but we review the district

court’s legal conclusions de novo. Id.

¶ 14 Both the United States Constitution and Colorado

Constitution guarantee individuals the privilege against self-

incrimination. U.S. Const. amend. V; Colo. Const. art. II, §18;

People v. Sanders, 2023 CO 62, ¶11. To safeguard this privilege,

statements procured by custodial interrogation are generally

inadmissible unless officers precede their interrogation with certain

warnings. People v. Davis, 2019 CO 84, ¶ 16. Before undergoing a

custodial interrogation, a suspect must be advised of his Miranda

rights, which include the Fifth Amendment right to remain silent in

the face of questioning, as well as the right to counsel. People v.

Arroya, 988 P.2d 1124, 1129-30 (Colo. 1999). However, these

warnings are required “only ‘when a suspect is subject to both

custody and interrogation.’” Davis, ¶ 16 (quoting Effland v. People,

240 P.3d 868, 873 (Colo. 2010)).

¶ 15 In this context, “‘[i]nterrogation’ refers to express questioning

by a police officer as well as to ‘words or actions . . . that the officer

“should know are reasonably likely to elicit an incriminating

response from the suspect.”’” People v. Gonzales, 987 P.2d 239,

6
241 (Colo. 1999) (quoting People v. Trujillo, 784 P.2d 788, 790 (Colo.

1990)). In determining whether a suspect was interrogated, we

consider the totality of the circumstances, focusing on “whether the

officer reasonably should have known that [their] words or actions

would cause the suspect to perceive that [they were] being

interrogated, and whether those words or actions, like express

questioning, could compel the defendant to overcome [their] desire

to remain silent.” People v. Madrid, 179 P.3d 1010, 1014 (Colo.

2008).

¶ 16 “Under the due process clauses of the United States and

Colorado Constitutions, a defendant’s statements must be

voluntary to be admissible as evidence.” People v. Ramadon, 2013

CO 68, ¶¶ 18-19 (“To be voluntary, a statement must be the

product of an essentially free and unconstrained choice by its

maker.”).

¶ 17 We review a court’s evidentiary rulings for an abuse of

discretion. People v. Miller, 2024 COA 66, ¶ 40. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair. Id.

¶ 18 CRE 602 provides:

7
A witness may not testify to a matter unless
evidence is introduced sufficient to support a
finding that [he] has personal knowledge of the
matter. Evidence to prove personal knowledge
may, but need not, consist of the testimony of
the witness [himself].

C. Analysis

¶ 19 We discern no error in the court’s ruling denying the

suppression motion, for two reasons.

¶ 20 First, the court found Deputy Thompson’s testimony credible,

including his testimony that he prepared his report within an hour

of the incident, and we must defer to that finding. See People in

Interest of R.C., 2019 COA 99M, ¶ 7 (deferring to the district court’s

resolution of evidentiary conflicts and its determinations of witness

credibility, the weight of the evidence, and the inferences to be

drawn from it). Therefore, we reject Graciano’s argument that the

record does not support the court’s findings due to Thompson’s

inability to recall the events without referring to his report.

¶ 21 Second, Thompson described Graciano’s statements during

the pat-down process and the ride to the substation and explained

that neither of the statements was preceded by any questioning. He

further explained that it was his general rule not to question

8
suspects during pat-downs and rides to the substation. Because

the court considered all these circumstances when it found that

Graciano’s statements were not the product of interrogation, we

discern no error in its ruling. See Arizona v. Mauro, 481 U.S. 520,

529 (1987) (a defendant’s volunteered statements do not implicate

the Fifth Amendment); People v. Wood, 135 P.3d 744, 749 (Colo.

2006) (“[P]urely spontaneous or volunteered statements made in the

absence of counsel are admissible as ‘[t]he Fifth Amendment

protects defendants from improper forms of police interrogation, not

from their own impulses to speak.’” (quoting Gonzales, 987 P.2d at

243)). Accordingly, we conclude that Graciano’s statements were

not the product of interrogation and affirm the court’s ruling.

¶ 22 We also reject Graciano’s contention that the court should

have precluded Thompson’s trial testimony for lack of personal

knowledge. The “threshold for satisfying the personal-knowledge

requirement is not very high and may be inferable” from the “total

circumstances surrounding the matter.” Curry v. Brewer, 2025

COA 28, ¶ 52 (quoting Murray v. Just In Case Bus. Lighthouse, LLC,

2016 CO 47M, ¶ 33).

¶ 23 The threshold is met

9
as long as there is evidence before the trial
court that the jury, as the trier of fact, could
reasonably find that the witness has personal
knowledge of the event to which the witness is
about to testify, the witness should be
permitted to testify, and the questions of
credibility and weight should be left for the
jury to resolve.

People v. Garcia, 826 P.2d 1259, 1264 (Colo. 1992) (quoting

Burlington N. R.R. Co. v. Hood, 802 P.2d 458, 469 (Colo. 1990)).

¶ 24 Here, Thompson testified that he prepared his report

documenting the statements and the events that occurred within an

hour of the incident. Thus, he possessed personal knowledge at the

time he prepared the report and subsequently relied on that report

to recall what had occurred. In our view, this constitutes sufficient

evidence from which the jury could reasonably determine that

Thompson had personal knowledge of the incident. See Garcia, 826

P.2d at 1264. Accordingly, we discern no violation of CRE 602 or

abuse of discretion in the court’s admission of Thompson’s trial

testimony.

III. Confrontation and Jury Trial Rights

¶ 25 Graciano next contends that his constitutional rights of

confrontation and to a twelve-person jury were violated when one of

10
the jurors advised the court that she had trouble hearing all of

Flores’s cross-examination answers. We discern no abuse of

discretion in the court’s decision to remedy the issue by reading the

cross-examination aloud from a transcript.

A. Additional Facts

¶ 26 On the second day of trial, a juror told the court she had not

fully heard Flores’s cross-examination testimony. She said she

“was having some trouble hearing when [Flores] was on the stand”

because she was “a little bit hard of hearing and [didn’t] have

hearing aids or anything” and asked if Flores “could speak more

into the microphone.”

¶ 27 She thought she “did hear most of it” and “didn’t really have

any questions about what he said,” but had “a little bit of trouble

understanding some of the words.” The trial court asked the juror

what she meant by “most of it,” and the juror responded that “some

of the words were just a little bit mumbled for [her]” but that she

“heard his testimony” and “didn’t really have any questions about

what he said.” She explained that she could hear fine when the

witnesses spoke into the microphone and that she missed some of

11
defense counsel’s objections, but she could hear the court’s rulings

and knew what was going on.

¶ 28 When the prosecutor asked what she missed, the juror

responded, “[W]hat words were exchanged.” She summarized her

understanding by saying she thought Flores said that Graciano was

“hem hawing.” Defense counsel then asked the juror if she knew

how much she was unable to hear from Flores. The juror

responded:

It wasn’t a lot. It was when . . . you were
asking him what [Graciano] was, like, saying,
what words were exchanged. And I could kind
of hear him just say, oh, he was just kind of
. . . hem hawing, going back and forth. So . . .
I heard what he said but it just — that was
really the most part that I was like I had to
really, like, listen.

¶ 29 Because the juror did not hear the complete testimony,

defense counsel moved for a mistrial or, in the alternative, to recall

Flores. The court disagreed with defense counsel’s characterization

of the juror’s explanation and found that the juror did not hear

Flores because he was mumbling and that she did not “identify

anything with specificity.” The prosecutor agreed with the court

and said the juror “heard most of everything [Flores] was saying,

12
there was just one part where he was asked a question about what

was said and she heard more or less the gist of it.” The prosecutor

further argued that the juror did not miss any material portion of

Flores’s testimony.

¶ 30 The court denied both of the defense’s requests, finding that a

mistrial was too drastic a remedy and that the less severe option of

allowing the jury to listen to a reading of the transcribed testimony

of Flores’s cross-examination was more appropriate. Defense

counsel lodged a constitutional due process objection and argued

that he should be allowed to recross-examine Flores before the jury.

The court overruled the objection and read Flores’s cross-

examination transcript to the jury twice in open court — once

before the jury instruction conference and again before

deliberations began.

B. Standard of Review and Applicable Law

¶ 31 We review the district court’s ruling involving jury irregularity

for an abuse of discretion. People v. Mollaun, 194 P.3d 411, 416

(Colo. App. 2008). A district court abuses its discretion when its

decision or action “is manifestly arbitrary, unreasonable, or unfair,

or based on an erroneous view of the law.” Id. “When confronted

13
with allegations of irregularity in the jury’s proceedings, the trial

judge has broad discretion ‘to determine what manner of hearing, if

any, is warranted.’” Id. (quoting United States v. Campbell, 684

F.2d 141, 151 (D.C. Cir. 1982)).

¶ 32 The parties dispute the preservation of the confrontation

clause and jury-of-twelve issues. Although the defense objected on

due process grounds, counsel did not articulate objections based on

the confrontation clause or the right to a jury of twelve. Therefore,

we conclude these arguments are unpreserved because counsel

objected on grounds different from those raised on appeal. Thus,

we review these contentions for plain error. See People v. Ujaama,

2012 COA 36, ¶ 37 (an issue is unpreserved for appeal when an

objection at trial was made on grounds different from those raised

on appeal). Under this standard, we will reverse only if the error is

obvious and substantial and so undermines the fundamental

fairness of the trial itself as to cast serious doubt on the judgment

of conviction. Hagos v. People, 2012 CO 63, ¶ 14.

¶ 33 The right of a criminal defendant to confront an adverse

witness is guaranteed by the Confrontation Clause of the Sixth

Amendment and article II, section 16, of the Colorado Constitution.

14
The Colorado Constitution’s provision is more protective and states,

“In criminal prosecutions the accused shall have the right . . . to

meet the witnesses against him face to face . . . .” Colo. Const. art.

II, § 16. Generally, the right to confrontation requires a witness to

testify under oath, in open court, and face-to-face with the

defendant. People v. Collins, 2021 COA 18, ¶ 39.

¶ 34 Although a criminal defendant is not entitled to a jury of

twelve under the Sixth Amendment, they are guaranteed a “right to

a jury of twelve in felony cases” under the Colorado Constitution.

People v. Rodriguez, 112 P.3d 693, 698, 703 (Colo. 2005); see Colo.

Const. art II, §§ 16, 23. Colorado’s constitutional provisions are

independent of, and may extend beyond, the Federal Constitution to

offer greater protection for the people of Colorado. People v. Young,

814 P.2d 834, 842 (Colo. 1991), superseded by statute on other

grounds, Ch. 292, sec. 8, § 16-12-102(1), 1993 Colo. Sess. Laws

1728 -29.

C. Analysis

¶ 35 We discern no constitutional violations stemming from the

trial court’s ruling, for four reasons.

15
¶ 36 First, while we recognize the state constitution’s language

concerns face-to-face confrontation, we conclude that face-to-face

confrontation occurred here. The record shows that the juror had

no problems seeing Flores during cross-examination, so she was

able to observe his demeanor throughout his testimony, even

though she may not have heard a few mumbled words. Thus, this

case is distinguishable from People v. Boykins, 140 P.3d 87, 93

(Colo. App. 2005), on that basis.

¶ 37 Second, the court credited the juror’s testimony that she did

not miss much of Flores’s testimony and that only a few words were

mumbled. Moreover, she was able to summarize the meaning of

what she missed. Therefore, this case is unlike People v. Trevino,

826 P.2d 399, 401 (Colo. App. 1991), cited by Graciano, when a

division of this court found a violation of the right to twelve jurors

because a juror forgot to wear her hearing aids and missed a

substantial portion of the trial testimony. And to the extent the

juror here missed mumbled words, the court remedied that by

allowing Flores’s testimony to be read back on two separate

occasions. Thus, we disagree with Graciano that the juror was

unable to assess the credibility of his defense due to a few missed

16
words. See Forgette v. People, 2023 CO 4, ¶¶ 16-18 (holding that

possible juror misconduct, like sleeping or inattentiveness, does not

implicate a defendant’s right to a jury of twelve); People v. Daley,

2021 COA 85, ¶ 67 (allegation of inattentive or drowsy jurors did

not rise to the level of constitutional juror misconduct).

¶ 38 Third, while we agree that a cold record is a poor substitute for

live testimony, the juror here did not rely solely on a cold record to

assess Flores’s credibility because she was able to assess Flores’s

demeanor throughout his testimony. Indeed, nothing in the record

suggests otherwise. Additionally, the juror had the surveillance

video, which captured the incident, to evaluate the witnesses’

descriptions and Graciano’s defense.

¶ 39 Finally, to the extent Graciano challenges the court’s remedy

of reading the transcript of Flores’s cross-examination to the jury,

we discern no abuse of discretion. “A mistrial is a drastic remedy

that is warranted only when the prejudice to the accused is so

substantial that its effect on the jury cannot be remedied by other

means.” People v. Cousins, 181 P.3d 365, 373 (Colo. App. 2007)

(quoting People v. Dore, 997 P.2d 1214, 1221 (Colo. App. 1999)).

The court stated that the brief portion of cross-examination that the

17
juror missed did not contain any substantial testimony. We agree

and note that Graciano has not identified any specific responses

that were not heard by the juror either during testimony or in the

read-back transcript that demonstrate prejudice. Accordingly, we

discern no obvious or substantial constitutional violation in the

court’s remedy.

IV. Closing Arguments

¶ 40 Graciano next contends that the prosecution

unconstitutionally shifted the burden of proof to him by telling the

jury to “demand” more evidence of self-defense during closing

arguments. We conclude reversal is not warranted.

A. Applicable Law and Standard of Review

¶ 41 “Whether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.” Domingo-

Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We will not

disturb the trial court’s rulings regarding such statements absent

an abuse of that discretion. People v. Strock, 252 P.3d 1148, 1152

(Colo. App. 2010), overruled in part by, People v. Kennedy, 2025 CO

63.

18
¶ 42 When reviewing claims of prosecutorial misconduct, such as

whether the prosecutor’s statement lowered the burden of proof, we

conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, if the comments were improper, we evaluate whether they

warrant reversal according to the proper standard of review. Id. In

conducting this analysis, we consider the prosecutor’s statement(s)

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.

¶ 43 Closing arguments cannot be used to mislead or unduly

influence the jury. Domingo-Gomez, 125 P.3d at 1049. A

prosecutor may not, for example, intentionally misstate the

evidence, attempt to inflame the jurors’ passions, or offer a personal

opinion as to the defendant’s guilt. See id.

¶ 44 We determine if reversal is necessary under the

nonconstitutional harmless error standard. See Hagos, ¶ 12

(reversal required if the error substantially influenced the verdict or

affected the fairness of the trial proceedings).

19
B. Analysis

¶ 45 During closing, the prosecutor told the jury the following:

Let me be clear, the burden is ours. The
burden is mine to prove this charge beyond a
reasonable doubt and I embrace that burden
and I’ve met that burden. But if the defense is
going to give you a theory of defense, which
they have in their instructions, you should
demand more evidence from them.

Defense counsel objected to the statement and argued that it

violated Graciano’s due process rights by shifting the burden to the

defense. The trial court overruled the objection without discussion.

¶ 46 We agree with Graciano that the argument was improper.

Nevertheless, we conclude that the error was harmless and did not

ultimately shift the burden of proof, for two reasons.

¶ 47 First, immediately preceding the misstatement, the prosecutor

told the jury she had the burden of proof beyond a reasonable

doubt. This comported with the written jury instructions reiterating

that burden and instructing the jury that the prosecution had the

burden of disproving the element of self-defense. When considered

together, we conclude the written and oral jury instructions

concerning the burden of proof rendered the court’s error in failing

to sustain the objection to the improper argument harmless. We

20
assume, absent contrary evidence, that the jury understood and

correctly applied the court’s instructions. People v. Abdulla, 2020

COA 109M, ¶ 58.

¶ 48 Second, the statement occurred only once during closing

arguments, so this fleeting statement did not prejudice Graciano,

nor does the record evidence any bad faith. Cf. People v. Kern, 2020

COA 96, ¶ 16 (relatively brief and vague references were harmless).

Accordingly, we conclude that any error was harmless. See People

v. Delsordo, 2014 COA 174, ¶ 7.

V. Habit Evidence

¶ 49 Graciano next contends that the court violated his right to a

fair trial by admitting evidence that he always carried a knife. We

are not persuaded.

A. Additional Facts

¶ 50 Before trial, the prosecution informed defense counsel that it

intended to introduce evidence that Graciano habitually carried a

knife, under CRE 406, and argued that it was “neither a bad act

[n]or a good act. It’s just something he does out of habit. . . [, and]

it’s not implicitly a bad act.” Defense counsel objected, and the trial

21
court ordered defense counsel to file a written motion with

supporting case law and argument.

¶ 51 Defense counsel never filed a motion and instead orally argued

in limine that the evidence was irrelevant. The trial court then

asked the prosecution to lay a foundation for the habit evidence.

The prosecution responded that Flores had personal knowledge that

Graciano habitually carried a knife by virtue of being his family

member. The trial court found that Flores’s personal knowledge

was a sufficient foundation and admitted the evidence of Graciano’s

habitual carrying of a knife under CRE 406. The court also told

defense counsel that they could object to the evidence during trial.

¶ 52 On direct examination, the prosecution asked Flores whether

he had “any personal knowledge as to whether or not the defendant

ha[d] particular habits as far as carrying any weapons?” Defense

counsel objected and argued lack of foundation, and the trial court

overruled the objection. Flores said he knew that Graciano “always

carr[ied] a knife with him.” Flores also stated that Graciano was

“somebody that don’t have no kind of integrity, loyalty, respect.”

The prosecutor interrupted Flores and stated, “Let me stop you

22
right there.” The court struck Flores’s statement and instructed the

jury to disregard it.

B. Standard of Review and Applicable Law

¶ 53 We review a trial court’s evidentiary rulings for abuse of

discretion. Nicholls v. People, 2017 CO 71, ¶ 17. A trial court

abuses its discretion only when its ruling is manifestly arbitrary,

unreasonable, or unfair. Id.

¶ 54 To be admissible, evidence must be relevant. CRE 401.

Evidence is relevant when it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” Id.

¶ 55 Habit evidence is admissible to prove that a person’s conduct

on a particular occasion was in conformity with their habit or

routine practice. CRE 406; People v. T.R., 860 P.2d 559, 562 (Colo.

App. 1993). CRE 406 provides that “[e]vidence of the habit of a

person . . . , whether corroborated or not and regardless of the

presence of eyewitnesses, is relevant to prove that the conduct of

the person . . . on a particular occasion was in conformity with the

habit or routine practice.” A habit “‘denotes one’s regular response

23
to a repeated situation’ and ‘is the person’s regular practice of

responding to a particular kind of situation with a specific type of

conduct.’” People v. Trujillo, 2015 COA 22, ¶ 10 (citation omitted).

For example, “a person may be in the habit of bounding down a

certain stairway two or three steps at a time, of patronizing a

particular pub after each day’s work, or of driving his automobile

without using a seatbelt.” 1 Kenneth S. Broun et al., McCormick On

Evidence § 195, Westlaw (Robert P. Mosteller ed., 9th ed. database

updated Feb. 2025) (McCormick On Evidence). The “doing of the

habitual act may become semi-automatic, as with a driver who

invariably signals before changing lanes.” Id.

¶ 56 In contrast, character evidence is a “generalized description of

a person’s disposition, or of the disposition in respect to a general

trait, such as honesty.” Trujillo, ¶ 11 (quoting McCormick On

Evidence § 195).

C. Analysis

¶ 57 As best we can discern, Graciano argues that habit evidence

must constitute a response to a certain stimulus, and the fact there

was no stimulus renders Graciano’s habit of always carrying knife

24
as improper character evidence. We reject this argument for two

reasons.

¶ 58 First, the plain language of CRE 406 does not require that

habitual conduct be in response to a particular stimulus but,

instead, simply requires that a person’s conduct on a particular

occasion conform with their habit. Moreover, Graciano has not

cited any authority stating that the absence of such a stimulus

transforms the conduct into character evidence. For example, one’s

habit of driving the same route home from work every day occurs

without a particular stimulus and does not constitute character

evidence. See McCormick On Evidence § 195. We also note that

before trial, the trial court denied the prosecution’s motion to

introduce evidence of two prior violent incidents involving Graciano

and Flores, under CRE 404(b).

¶ 59 Second, habit evidence is admissible to prove that the conduct

of a person on a particular occasion was in conformity with the

habit. Character evidence, however, is not admissible for the

purpose of proving that a person acted in conformity with his or her

character on a particular occasion. CRE 404(a); see People v.

Ayala, 919 P.2d 830, 832 (Colo. App. 1995). We conclude that the

25
act of carrying a knife does not in and of itself constitute a bad act

or describe any general character trait. Indeed, many people of

good character regularly carry knives. Here, the prosecutor laid a

proper foundation and offered the evidence to rebut Graciano’s self-

defense theory, not to prove Flores’s state of mind or to impugn

Graciano’s character. While minimally relevant, the fact that Flores

knew Graciano always carried a knife made it less likely that Flores

used unlawful physical force against Graciano.

¶ 60 Further, we note that defense counsel made a foundation

objection, not a character evidence or relevance objection. And this

evidence is distinguishable from the prior acts of Graciano’s

aggressiveness that the court excluded under CRE 404(b). Absent

those facts, it is far less likely that the jury perceived Graciano as a

bad person, particularly when the evidence showed that an

argument preceded the showing of the knife.

¶ 61 To the extent that Graciano argues that Flores crossed the line

and testified about his character when he blurted out that he did

not want to be around people like Graciano, we conclude any

prejudice was cured because the trial court instructed the jury to

disregard the statement. Absent contrary evidence, we presume the

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jury understood and followed this instruction. See Abdulla, ¶ 58

(“[W]e employ the presumption that the jury understands and

applies the given instructions unless a contrary showing is made

. . . .”)

VI. Jury Instruction

¶ 62 Graciano next contends that the trial court plainly erred by

instructing the jury on the provocation and initial aggressor

exceptions to self-defense. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 63 We review jury instructions de novo to determine whether the

instructions accurately informed the jury of the governing law.

People v. Theus-Roberts, 2015 COA 32, ¶ 18. If they do, the trial

court enjoys substantial discretion in formulating the instructions

and deciding whether additional instructions are required. Id. We

also review de novo whether sufficient evidence exists to support a

requested jury instruction, reviewing the evidence in the light most

favorable to giving the instruction. Castillo v. People, 2018 CO 62,

¶ 32; People v. Silva, 987 P.2d 909, 914 (Colo. App. 1999).

¶ 64 Because the issue is unpreserved, we review for plain error.

See People v. Leyba, 2019 COA 144, ¶ 55, aff’d, 2021 CO 54.

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Reversal under this standard requires that the error be obvious and

so undermine the fundamental fairness of the trial as to cast

serious doubt on the reliability of the judgment of conviction. See

Hagos, ¶ 14.

¶ 65 A trial court has a duty to correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving instructions. People v. Knapp, 2020 COA 107, ¶ 20.

However, a court shouldn’t instruct the jury “on abstract principles

of law unrelated to the issues in controversy, nor . . . on doctrines

or principles which are based upon fanciful interpretations of the

facts unsupported by the record.” Castillo, ¶ 34 (quoting People v.

Alexander, 663 P.2d 1024, 1032 (Colo. 1983)). Thus, a trial court

must determine whether there is sufficient evidence to warrant a

jury instruction as to a defense and any exceptions to that defense.

Id.

¶ 66 A person is justified in using physical force upon another

person “in order to defend himself . . . from what he reasonably

believes to be the use or imminent use of unlawful physical force by

that other person.” § 18-1-704(1), C.R.S. 2025.

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¶ 67 When properly raised, the prosecution must disprove beyond a

reasonable doubt the existence of self-defense. Castillo, ¶ 39. One

way for the prosecution to meet that burden is to prove that an

exception to self-defense applies. Id. at ¶ 40. Initial aggressor and

provocation are two such exceptions.

¶ 68 A defendant may be the initial aggressor if they “initiated the

physical conflict by using or threatening the imminent use of

unlawful physical force.” Id. at ¶ 41 (citation omitted). A court may

give an initial aggressor instruction “if the evidence will support a

reasonable inference that the defendant initiated the physical

conflict by using or threatening the imminent use of unlawful

physical force.” People v. Griffin, 224 P.3d 292, 300 (Colo. App.

2009).

¶ 69 Under the provocation exception to self-defense, a defendant is

“not justified in using physical force” against another person if the

defendant, “[w]ith intent to cause bodily injury or death to another

person, . . . provokes the use of unlawful physical force by that

other person.” § 18-1-704(3)(a).

¶ 70 When a court instructs the jury on an exception to self-

defense, that exception must be “supported by some evidence.”

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Galvan v. People, 2020 CO 82, ¶ 25. This is a low burden that

requires the proponent to produce a scintilla or small quantum of

evidence. Id. at ¶ 24.

B. Analysis

¶ 71 We discern no error in the court’s instructions, for two

reasons.

¶ 72 First, some evidence supported the prosecution’s theory that

Graciano was the initial aggressor. Flores testified that Graciano

was the initial aggressor. The surveillance footage also shows that

Graciano pushed Flores first as Flores was exiting the store.

Therefore, the video evidence alone provides more than a scintilla of

evidence that Graciano was the initial aggressor. See People v.

Newell, 2017 COA 27, ¶ 28 (If “the prosecution has offered evidence

that the defendant was the initial aggressor, the jury should be

provided with the . . . initial aggressor exception[] and be permitted

to weigh the evidence to decide whether self-defense has been

disproved.”).

¶ 73 Second, we reach the same conclusion as to provocation. See

Knapp, ¶ 23; see also Silva, 987 P.2d at 914 (“In order to warrant

the giving of [a provocation] instruction, the prosecution has the

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burden of establishing that the defendant intended to harm the

victim and that he . . . intended the provocation to goad the victim

into attacking him . . . as a pretext for injuring or killing the

victim.”). Here, viewing the evidence in the light most favorable to

giving the provocation instruction, see Silva, 987 P.2d at 914, we

conclude some evidence supported the provocation exception.

Flores’s testimony and the video evidence show that Graciano

provoked Flores by shoving him as Flores was walking out the door

and that the two argued outside the store before Flores attempted

to kick Graciano. The prosecution argued that if a kick occurred, it

was provoked by Graciano’s shove and verbal threats, and we

cannot say at what point the jury concluded that Graciano had

menaced Flores. See Galvan, ¶ 25 (The court “should instruct the

jury on the provocation exception or any other exception to that

defense if the exception is supported by some evidence.”).

¶ 74 Accordingly, we discern no error in the court’s self-defense

instruction and conclude it is supported by the evidence.

VII. Cumulative Error

¶ 75 The cumulative error doctrine applies when “the cumulative

effect of [multiple] errors and defects substantially affected the

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fairness of the trial proceedings and the integrity of the fact-finding

process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting

People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).

¶ 76 However, because we have found only one error and have

concluded that error was harmless, we necessarily conclude the

cumulative error doctrine does not apply. See People v. Villa, 240

P.3d 343, 359 (Colo. App. 2009) (cumulative error analysis is

required only when multiple errors have been identified).

VIII. Disposition

¶ 77 The judgment is affirmed.

JUDGE BROWN and JUDGE SCHUTZ concur.

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