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March 5, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Torreyson

Colorado Court of Appeals

• Citations: None known
• Docket Number: 22CA0754

• Precedential Status: Non-Precedential

• Opinion

• Authorities (44)

• Cited By (0)

• Summaries (0)

• Similar Cases (13.3K)

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Combined Opinion

22CA0754 Peo v Torreyson 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0754
Garfield County District Court No. 18CR320
Honorable James B. Boyd, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Trevor David Torreyson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE GROVE
Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Casey J. Mulligan, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant
¶1 Defendant, Trevor David Torreyson, appeals his judgment of

conviction entered upon a jury finding him guilty of first degree

murder (after deliberation). We affirm.

I. Background

¶2 Torreyson and Keith Wayne were both members of the

Glenwood Springs homeless community. Torreyson often made

camp under Interstate Highway 70 near a Subaru dealership and a

convenience store.

¶3 On the morning of June 20, 2018, police were called to

investigate a dead body near the convenience store. The deceased,

later identified as Wayne, was found in some bushes near a picnic

table, with blood covering his shirt and back. Wayne’s head and

mouth showed evidence of severe trauma consistent with

“numerous” blunt force blows. An autopsy later revealed that his

neck had been fractured in two places. Police observed bloody

footprints leading away from the scene and found a distinctive

multicolored bandana underneath Wayne’s body that they later

identified as Torreyson’s.

¶4 Investigating officers, familiar with where Torreyson often

stayed, went to his campsite that night. There, they found

1
Torreyson in bed in a bloody shirt, with what appeared to be dried

blood on his arms and hands. Blood-covered hiking boots roughly

matching the observed footprints and blood-soaked jeans were

found nearby. Wayne’s backpack was also at the campsite.

¶5 Forensic analysis later revealed that patterns of dried blood

found on Torreyson’s shirt, boots, and jeans were consistent with

“impact splatter” resulting from blunt force trauma. Testing also

showed that Torreyson and Wayne were very likely the sources of

DNA found on Torreyson’s shirt, bandana, underwear, jeans, and

boots, as well as saliva found on the ground near Wayne’s body. In

addition, surveillance video taken during the evening of June 19,

2018, captured Torreyson and Wayne walking towards the picnic

table near where Wayne’s body was found the next morning.

¶6 Torreyson was charged with first degree murder (after

deliberation). After being represented by several different attorneys,

Torreyson chose to proceed pro se at trial. His theory of defense

was that he did not kill Wayne; rather, an unknown suspect did. A

jury found Torreyson guilty as charged, and the trial court

sentenced him to life in prison without parole.

2
¶7 Torreyson now appeals, arguing that the trial court reversibly

erred when it (1) admitted bad character evidence; (2) did not sua

sponte correct alleged misstatements of the law and improper

arguments by the prosecutor; and (3) failed to instruct the jury on

voluntary intoxication as a defense. He also maintains that he was

denied a fair trial due to the cumulative effect of these alleged

errors. We address each argument in turn below.

II. Threat Evidence

¶8 Torreyson contends that the trial court reversibly erred by

admitting testimony of a violent threat Torreyson made towards two

other homeless individuals not connected to the crime in violation

of CRE 404(b). We disagree.

A. Additional Facts

¶9 Russell Nelson, another member of the Glenwood Springs

homeless community, testified at trial about his interactions with

Torreyson during the evening of June 19, 2018. Nelson described

sitting with others at picnic tables near the convenience store when

3
Torreyson approached and accused Nelson of taking his dry bag.1

Nelson testified that he denied taking Torreyson’s bag and told

Torreyson that he had purchased the bag in his possession from

Paul and Jamie, a couple in the homeless community.

¶ 10 Paul and Jamie then arrived at the picnic tables. Torreyson

accused them of stealing his dry bag and selling it. The argument

escalated, and Torreyson told the couple,

I will find you, I will tie you up, I will rape you
in every single hole, and then I will proceed to
dismember you and spread you around.

¶ 11 Paul and Jamie left shortly after, and Wayne showed up ten to

thirty minutes later. He approached Nelson, excited that he had

just won fifty dollars from a scratch-off lottery ticket. Torreyson

interrupted and told Wayne that Wayne owed him a bottle of liquor.

Torreyson and Wayne then walked away. Nelson described

Torreyson as “still upset” when he left.

¶ 12 Torreyson — who, again, represented himself at trial — did not

contemporaneously object to any of Nelson’s testimony. After

1 According to Nelson, a dry bag is a waterproof bag commonly

carried by those living outdoors to keep electronics and photos from
being destroyed.

4
Nelson finished testifying, however, Torreyson raised the following

objection:

[W]hat the prosecution was mentioning this
morning about alternate suspect and defense
theory. They also haven’t presented a specific
theory on manner of death, motive of death,
item of death, motive. Specifically, according
to [CRE] 404(b), Russell Nelson’s testimony
about — about a side issue that was taking
place, preexisting to the night of the incident,
should be stricken from the record.

¶ 13 The prosecutor responded that he believed Torreyson was

objecting to “the back-and-forth discussion” between Torreyson and

the couple and suggested the court issue limiting instructions.

¶ 14 The court asked Torreyson to be more “specific about what

[testimony] you think should be removed.” Torreyson clarified that

the “side issue” he was objecting to was “[t]he backpack.”

Torreyson reasoned that because Nelson had denied during cross-

examination that Wayne had “anything to do with stealing any of

[Torreyson’s] stuff,” “there would be no reason to further relate any

other further testimony about . . . the stolen backpack.”

¶ 15 The prosecutor responded by arguing that the contested

evidence related to Torreyson’s “state of mind.” Citing Rojas v.

People, 2022 CO 8 — which had been issued the day before

5
Torreyson’s trial began and adopted a new framework for the

admission of other acts evidence — the prosecutor argued that the

evidence was “intrinsic to the elements of the offense in relation to

the culpable mental state” and should be admitted on that basis.

¶ 16 Applying the Rojas framework in its ruling the following

morning, the court determined that the contested testimony — “that

[the couple] stole [Torreyson’s] bag and then it ended up getting sold

to [Nelson],” the discussion about the bag, the arrival of the couple,

Torreyson’s increased anger and attributed threat towards the

couple, and then the arrival of Wayne — was extrinsic evidence and

thus subject to CRE 404(b). The court acknowledged that the

prosecution had not provided advance notice of its intent to

introduce the evidence under CRE 404(b) but found good cause for

that oversight based on Rojas’s recent abolition of the res gestae

doctrine.

¶ 17 The court proceeded to consider the admissibility of the

evidence under CRE 404(b) and People v. Spoto, 795 P.2d 1314,

1318-19 (Colo. 1990). It found that the evidence was relevant and

admissible as to “motive . . . and/or intent,” noting that Nelson’s

description of Torreyson’s angry mental state was “independent of

6
just an inference of bad character.” Under CRE 403, the court

determined that the probative value of the testimony substantially

outweighed the danger of unfair prejudice because the testimony

recounted events immediately before Wayne’s death. The court

subsequently instructed the jurors that they could only consider

the interaction between Torreyson and the couple for the purpose of

evaluating intent and motive.

B. Good Cause

¶ 18 We first reject Torreyson’s argument that the trial court erred

when it excused the prosecution’s lack of pretrial notice of the

contested evidence.

¶ 19 CRE 404(b)(3)(A) requires the prosecutor, before introducing

evidence of other crimes, wrongs, or acts in a criminal case, to

“provide reasonable notice of any such evidence that the prosecutor

intends to offer at trial, so that the defendant has a fair opportunity

to meet it.” The notice must be in writing and articulate the

reasoning and purpose for which the prosecutor intends to offer the

evidence. CRE 404(b)(3)(B), (C). But a trial court may excuse a lack

of notice for good cause shown. CRE 404(b)(3)(C).

7
¶ 20 Reviewing the court’s evidentiary ruling for an abuse of

discretion, People v. Abad, 2021 COA 6, ¶ 8, we perceive no error.

The trial court based its finding of good cause on the supreme

court’s recent decision in Rojas — which, the day before trial began,

abolished the doctrine of res gestae in criminal cases. Before Rojas,

the evidence in question likely would have been admissible as res

gestae and thus not subject to the pretrial notice requirements of

CRE 404(b). See Zapata v. People, 2018 CO 82, ¶ 58 (“[R]es gestae

evidence is linked in time and circumstances to the charged crime,

it forms an integral and natural part of the crime, or it is necessary

to complete the story of the crime for the jury.”).

¶ 21 Given that the prosecution had, at best, a single day to provide

pretrial notice of its intent to introduce the statements in question

under CRE 404(b), the trial court did not abuse its discretion by

finding good cause for the prosecution’s noncompliance.

C. Admissibility Under CRE 404(b)

1. Applicable Law and Standard of Review

¶ 22 Under the Rojas framework, the applicability of CRE 404(b) to

other acts evidence turns on whether the evidence is “intrinsic or

extrinsic to the charged offense.” Rojas, ¶ 52. “Intrinsic acts are

8
those (1) that directly prove the charged offense or (2) that occurred

contemporaneously with the charged offense and facilitated the

commission of it.” Id. “Evidence of acts that are intrinsic to the

charged offense are exempt from Rule 404(b) because they are not

‘other’ crimes, wrongs, or acts.” Id.

¶ 23 Other acts evidence is admissible under Spoto and CRE 404(b)

if (1) the evidence relates to a material fact; (2) the evidence is

logically relevant; (3) the logical relevance is independent of the

prohibited intermediate inference that the defendant was acting in

conformity with his bad character; and (4) the probative value of the

evidence is not substantially outweighed by the danger of unfair

prejudice. Bondsteel v. People, 2019 CO 26, ¶ 50.

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

discretion. Abad, ¶ 8. A trial court abuses its discretion if its

ruling is manifestly arbitrary, unreasonable, or unfair, or if it

misapplies the law. Id.

1. Analysis

¶ 25 Torreyson argues that the court should not have admitted

Nelson’s testimony about Torreyson’s “horrific” threat “to tie up,

rape, kill and dismember” the couple because it had no relevance

9
beyond its tendency to show that Torreyson had a “propensity to get

angry and form an intent to kill.”

¶ 26 We conclude that the evidence was properly admitted because,

as the trial court found, it was relevant to Torreyson’s state of mind

prior to the killing as well as a potential motive. Nelson’s testimony

showed that Torreyson was angry immediately before meeting

Wayne, that he turned that anger toward Wayne when he arrived,

and that he was “still upset” when he left with Wayne.

¶ 27 This evidence was logically relevant because it tended to prove

that Torreyson formed the mental state necessary for first degree

murder. Its relevance was also independent of the prohibited

inference that Torreyson committed the charged offense because he

had a “propensity to get angry and form an intent to kill.” See

People v. Snyder, 874 P.2d 1076, 1080 (Colo. 1994) (“The third

prong of the Spoto test does not demand the absence of the

inference but merely requires that the proffered evidence be

logically relevant independent of that inference.”). The logical

relevance was not that Torreyson had a propensity to get angry; it

was that he was in fact angry around the time of the killing. And,

given the incremental probative value of the threat — that is, “what

10
weight the evidence add[ed] to the prosecution’s case,” People v.

Shores, 2016 COA 129, ¶ 44 — we agree with the trial court’s

balancing of the factors under CRE 403. Moreover, the court

reduced the possibility of unfair prejudice by giving the jury a

limiting instruction. See People v. Vialpando, 954 P.2d 617, 623

(Colo. App. 1997) (limiting instructions mitigate the danger of unfair

prejudice).

¶ 28 Accordingly, because we agree with the trial court’s application

of the Spoto factors and CRE 404(b), we perceive no error in its

admission of Nelson’s testimony about the stolen backpack and the

threats Torreyson made to Paul and Jamie.

III. Prosecutorial Misconduct

¶ 29 Torreyson contends that the trial court reversibly erred when

it allowed the prosecution to (1) misstate the mens rea for first

degree murder by blurring the distinction between intentional and

deliberative conduct, and (2) denigrate Torreyson during closing

argument. We are not persuaded.

A. Standard of Review

¶ 30 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct, considering first whether the conduct

11
was improper based on the totality of the circumstances and then

whether any misconduct warrants reversal. People v. Van Meter,

2018 COA 13, ¶ 23. We will only disturb a district court’s

determination of whether a prosecutor engaged in misconduct upon

a showing of “a gross abuse of discretion resulting in prejudice and

a denial of justice.” People v. Payne, 2019 COA 167, ¶ 45 (quoting

People v. Krueger, 2012 COA 80, ¶ 51).

¶ 31 When a defendant does not object to a prosecutor’s

statements, as here, we review alleged prosecutorial misconduct for

plain error. People v. Rhea, 2014 COA 60, ¶ 43. Plain error is an

obvious and substantial error, and we reverse such error when it

“so undermined the fundamental fairness of the trial itself so as to

cast serious doubt on the reliability of the judgment of conviction.”

Hagos v. People, 2012 CO 63, ¶ 14 (quoting People v. Miller, 113

P.3d 743, 750 (Colo. 2005)). To rise to the level of plain error, the

prosecutorial misconduct must be flagrant or glaringly or

tremendously improper. People v. Weinreich, 98 P.3d 920, 924

(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005).

12
B. Intentional and Deliberate Conduct

¶ 32 Torreyson argues that the prosecutor misstated the law and

misled the jury as to the elements of first degree murder by making

improper analogies during voir dire and by “blurring the distinction”

between “after deliberation” and “intentionality.” He contends that

the prosecutor’s mischaracterization of the elements of the charged

offense continued throughout trial, including during opening

statements and closing arguments.

1. Applicable Law

¶ 33 As relevant here, a person commits first degree murder if,

“[a]fter deliberation and with the intent to cause the death of a

person other than himself, he causes the death of that person or of

another person.” § 18-3-102(1)(a), C.R.S. 2025. “‘After deliberation’

and ‘intent’ are two distinct elements, which together constitute the

specific intent mental state of first-degree murder.” Miller, 113 P.3d

at 750 (citing § 18-3-102(1)(a)).

¶ 34 Here, the jury instructions described the “applicable states of

mind” as follows.

The term “after deliberation” means not only
intentionally but also that the decision to
commit the act has been made after the

13
exercise of reflection and judgment concerning
the act. An act committed after deliberation is
never one which has been committed in a
hasty or impulsive manner.

A person acts “intentionally” or “with intent”
when the person’s “conscious objective is to
cause the specific result proscribed by the
statute defining the offense. It is immaterial
whether or not the result actually occurred.”

1. Additional Facts

¶ 35 During voir dire, the prosecutor asked jurors what they

thought it looked like to act intentionally. He then began

analogizing intentionality to speeding up to catch a yellow light at a

traffic intersection:

Prosecutor: [H]ave you ever been in a scenario
where you were driving up to a red light or a
green light, and it’s going yellow, and you’re
like, “I can make it”?

Prospective Juror: I speed up.

¶ 36 Then, the prosecution introduced a hypothetical where the

driver is the second person to go through a red light:

Prosecutor: Do you think that the decision to
go through [a] red light was an intentional
one?

Prospective Juror: Absolutely.

¶ 37 Continuing the colloquy, the prosecutor asked:

14
Prosecutor: [L]et me sort of switch it up here a
little bit and think, are — as you’re making
that decision to go through the red light, are
there things that you factor into — or — or is
it —

Prospective Juror: Oh, yeah.

Prosecutor: — “hold on, baby, here we go,” or
are there things that you’re doing?

Prospective Juror: It’s depending on how busy
it is. I look — you know, I might have a
moment where I think about where I am, how
much of a hurry I’m in.

¶ 38 Shortly thereafter, the prosecutor turned to another juror,

asking about how much “thought goes into that decision before you

ultimately decide to gas or brake” at a yellow light. After the

prospective juror described what factors would go into that

decision, the prosecutor asked, “How much time does it take for you

to do that process?” The juror responded, “[T]wo to three seconds.”

¶ 39 During his opening statement, the prosecutor described the

elements of first degree murder as follows: “[Torreyson], in the State

of Colorado, on or about the place charged, on approximately June

18th . . . deliberately killed Keith Wayne.”

¶ 40 Then, in closing argument, when suggesting that Torreyson

might have bludgeoned Wayne with a rock, the prosecutor said,

15
“[Torreyson] decided to pick [the rock] up and bend over and hit

Keith Wayne. Deliberation can take place in seconds. You may

conclude that when [Torreyson] stooped to pick up the rock, he

formed the requisite mental state of deliberation.”

1. Analysis

¶ 41 Torreyson argues that the prosecutor’s traffic-light analogy in

voir dire misled the jury as to the meaning of “after deliberation.”

He further asserts that the prosecutor’s misstatements continued

throughout opening statements and closing arguments, and that he

“sought to harvest the fruits of seeds planted during voir dire,”

People v. McBride, 228 P.3d 216, 224 (Colo. App. 2009), by

repeatedly omitting the intentionality element and using the word

“deliberately” instead of “after deliberation” to describe the required

mental state for first degree murder.

¶ 42 In McBride, a division of this court held that the trial court

committed plain error requiring reversal by allowing the prosecutor

to make a yellow-light analogy during voir dire as a basis for

suggesting that deliberation could occur “as ‘fast’ as ‘[a] second.’”

Id. at 224-25. The division held that the prosecutor’s position

“contradicted Colorado law requiring that some ‘appreciable length

16
of time must have elapsed to allow deliberation, reflection[,] and

judgment,” id. at 225 (quoting Key v. People, 715 P.2d 319, 322

(Colo. 1986)), and thereby “obliterat[ed] any distinction between

intentional and deliberative acts,” id.

¶ 43 While the prosecutor’s decision to employ a traffic-light

analogy was perhaps unwise, see People v. Vialpando, 2022 CO 28,

¶ 41, we conclude that the circumstances here are distinguishable

from McBride. Although the prosecutor’s colloquy — which began

as a discussion of intentionality and then seemingly morphed into a

discussion of deliberation — suggested that deliberation can occur

in a short period of time, comments from several prospective jurors

made it clear that they understood that an instantaneous decision

is incompatible with a decision made after deliberation. Indeed, as

the conversation drifted from intentionality towards deliberation,

one juror pushed back on the prosecutor’s line of questioning,

explaining that “in the traffic-light scenario, sometimes . . . the

decision has to come quick enough that there is not premeditation,

making it instead ‘a snap judgment.’” The juror explained that “in

some scenarios you may not have the time needed to go through

some sort of cognitive exercise” to make a logical, objective decision.

17
¶ 44 Other comments during voir dire support the conclusion that,

even if the prosecutor blurred the line between intentional conduct

and conduct occurring after deliberation, the jurors understood the

difference between the two concepts. For example, responding to

the traffic-light analogy, one juror said that the decision to speed up

or slow down involves “a lot of decisions” and “planning.” Another

juror explained that the prosecutor’s analogy was wholly inapt,

pointing out that the time pressure associated with the decision to

go through a traffic light just as it changes is precisely what

prevents a driver from “hav[ing] the opportunity to take other

factors into consideration and weigh them and make a decision.”

As the juror put it, “[I]n some scenarios you may not have the time

needed to go through some sort of cognitive exercise to judge the

situation objectively and make a decision that feels like it’s logical

or sensible.”

¶ 45 Under these circumstances — where nothing in the record

suggests that the prosecutor’s inartful comments confused the

prospective jurors — we cannot conclude that the trial court erred

by failing to intervene sua sponte. Even if the prosecutor could

have done a better job of distinguishing “between intentional and

18
deliberative acts,” McBride, 228 P.3d at 225, his failure to do so

does not convince us that the court plainly erred by declining to

intervene.

¶ 46 Still, Torreyson argues that the voir dire discussion at least

confused the distinction between intentional and deliberative acts,

and that the prosecution further collapsed the two concepts during

his opening statement and closing argument. In particular, during

his opening statement, the prosecutor told the jurors that “the

elements of the crime of first degree murder” include a requirement

that Torreyson “deliberately killed” Wayne. And during closing

argument, the prosecutor told the jurors that “[d]eliberation can

take place in seconds.” While neither statement was entirely

accurate, they did not amount to plain error.

¶ 47 To the extent that Torreyson argues that the prosecutor’s

statements were an attempt to build on the traffic-light analogy, the

record does not reveal an obvious connection between those

statements and the voir dire discussion. Indeed, unlike the

prosecutor in McBride, here, the prosecutor never mentioned the

traffic-light analogy again after voir dire. See McBride, 228 P.3d at

224-25.

19
¶ 48 The remaining challenged statements appear to be more

inartful than an attempt to mislead the jurors or alter the

prosecution’s burden of proof. See People v. Samson, 2012 COA

167, ¶ 30 (“[B]ecause arguments delivered in the heat of trial are

not always perfectly scripted, reviewing courts accord prosecutors

the benefit of the doubt when their remarks are ambiguous or

simply inartful.”). For example, while the prosecutor did substitute

“deliberately” for “after deliberation” at one point, he ended his

rebuttal closing with an accurate statement of the law, asking the

jury to consider whether “[Torreyson] act[ed] intentionally and after

deliberation? . . . The question is, did he do [the alleged crime]

intentionally, and did he do it after deliberation?” And, while the

prosecutor’s assertion that “deliberation can take place in seconds”

came perilously close to the bright line drawn in McBride, any

impropriety was tempered by the argument immediately following

the statement, which focused on how many times Torreyson needed

to hit Wayne with a rock for it to be considered intentional and

pointed out that Torreyson would have had multiple opportunities

during the lengthy attack to pause, reflect, and stop the attack, but

he deliberately continued.

20
¶ 49 Moreover, the trial court repeatedly provided the jurors with

accurate statements of the law. It prefaced the voir dire discussion

and the prosecution’s opening statement by explaining that first

degree murder required a defendant to act “after deliberation, and

with the intent to cause the death of a person other than himself.”

Before closing arguments, the court told the jurors that they “must

follow the instructions” it gave them and that their decision “must

be made by applying the rules of law” it provided. The court then

defined and delineated the concepts of “after deliberation” and

“intentionally” as elements of first degree murder verbally and in its

written instructions to the jury. See People v. Carian, 2017 COA

106, ¶ 45 (“Without contrary evidence, ‘we presume that a jury

follows a trial court’s instructions.’” (citation omitted)).

¶ 50 Given the totality of the circumstances, we cannot conclude

that the trial court obviously erred by failing to redirect the

prosecution away from the traffic-light analogy or otherwise

intervene when the prosecutor’s statements blurred the line

between intentional and deliberative conduct. See Van Meter, ¶ 23;

People v. Sauser, 2020 COA 174, ¶¶ 86-97 (holding that a

prosecutor’s use of a puzzle analogy to illustrate reasonable doubt

21
during voir dire and closing argument did not constitute plain error

given the isolated usage and the trial court’s correct verbal and

written instructions); People v. Carter, 2015 COA 24M -2, ¶¶ 57-61.

C. Denigrating Statements

¶ 51 Torreyson contends that the prosecutor made multiple

demeaning comments during closing arguments that created

animosity against him and thus deprived him of a fair trial.

Torreyson argues that the prosecutor’s comments calling his

version of events “ludicrous,” “absurd,” “fantastical,” and “offensive

to common sense,” among other things, along with his claim that

Torreyson was “cowardly” for not asking certain questions of Nelson

on cross-examination, amounts to plain error requiring reversal.

1. Additional Facts

¶ 52 During closing arguments, the prosecutor did the following.

• He reviewed the evidence and Torreyson’s defense and

told the jury that there were two plausible explanations

for Wayne’s murder: either Torreyson committed it or

someone framed him. He then said that the “latter

answer is ludicrous.”

22
• He recounted the multiple inconsistent versions of

Torreyson’s story and remarked that his explanations

were “absolutely nonsensical when you consider the

overwhelming” forensics evidence on Torreyson’s

clothing.

• He asked the jurors if their “common sense” would allow

them to accept Torreyson’s “fantastical story” that

“someone framed him by smearing and spattering Keith

Wayne’s blood” on his clothing while he was asleep.

• He compared the forensic evidence and blood spatter

found on Torreyson’s clothing to Torreyson’s theory of

defense and, again, called Torreyson’s account “offensive

to common sense” and designed “to throw [the jurors] the

wildest pitch possible, hoping [they]’ll swing.”

• He summarized Nelson’s testimony and recounted that

Torreyson told the jury that Nelson’s account was

incorrect on several issues. The prosecutor then pointed

out that, instead of cross-examining Nelson about the

inaccuracies, Torreyson “wait[ed] cowardly” for Nelson’s

23
testimony to conclude before testifying himself and

contradicting Nelson’s alleged misrepresentations.

1. Applicable Law

¶ 53 “[A] prosecutor, while free to strike hard blows, is not at liberty

to strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048

(Colo. 2005) (quoting Wilson v. People, 743 P.2d 415, 418 (Colo.

1987)). A prosecutor has wide latitude to make arguments based

on the facts in evidence and reasonable inferences drawn from

those facts. People v. Maloy, 2020 COA 71, ¶ 61. Still, a

prosecutor’s arguments must stay within ethical boundaries to

ensure that closing arguments do not mislead or unduly influence

the jury. Domingo-Gomez, 125 P.3d at 1049. Thus, as relevant

here, a prosecutor may not denigrate the defense, People v. Welsh,

176 P.3d 781, 788 (Colo. App. 2007), or make arguments calculated

to inflame the jury’s passions or prejudice, People v. Dunlap, 975

P.2d 723, 758 (Colo. 1999). In determining whether a closing

argument was improper, we may consider the language used, the

context of the statements, the strength of the evidence, and whether

the prosecutor repeated the misconduct. People v. Lovato, 2014

COA 113, ¶ 64.

24
3. Analysis

¶ 54 The prosecutor’s statements that Torreyson’s version of events

was “ludicrous,” “absurd,” “fantastical,” “offensive to common

sense,” and trying to “throw [the jurors] the wildest pitch possible,

hoping [they]’ll swing,” do not require reversal. People v. Allee, 77

P.3d 831, 837 (Colo. App. 2003) (a prosecutor may employ

rhetorical devices and engage in oratorical embellishment and

metaphorical nuance, so long as he or she does not thereby induce

the jury to determine guilt based on passion or prejudice, attempt

to inject irrelevant issues into the case, or accomplish some other

improper purpose). Each of these statements characterized the

evidence or otherwise responded directly to Torreyson’s theory of

defense. See People v. Perea, 126 P.3d 241, 247 (Colo. App. 2005)

(explaining that during closing remarks, prosecutors have wide

latitude in the language and style they choose to employ, especially

in responding to an argument by the defense); People v. Estes, 2012

COA 41, ¶ 28 (a prosecutor may comment on the strength of the

defense’s theories and, in doing so, does not shift the burden to the

defense).

25
¶ 55 The prosecutor’s comment that Torreyson “wait[ed] cowardly”

to contradict Nelson’s testimony is more troubling because

prosecutors should avoid pejoratives and name calling. McBride,

228 P.3d at 222-23. Depending on the context, calling a defendant

a “coward” is not “always error, much less obvious error.” Id. at

222. But it is improper if it serves only to erroneously divert jurors’

attention from factual issues concerning the defendant’s guilt or

innocence. Id.; see People v. Jones, 832 P.2d 1036, 1039 (Colo.

App. 1991).

¶ 56 Here, the prosecutor’s comment served both a proper and

improper purpose. On one hand, it suggested to the jurors that it

would have been more effective for Torreyson to cross-examine

Nelson about his allegedly false statements than it was for him to

simply contradict them when he testified on his own behalf. Cf.

Samson, ¶ 31 (noting that a prosecutor may “comment on the

absence of evidence to support a defendant’s contentions”). On the

other hand, the prosecutor’s choice of words — particularly in a

case involving a self-represented defendant — implied that

Torreyson had “a bad character” and thereby improperly shifted the

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focus of the jury’s attention from the evidence in the case. People v.

Serra, 2015 COA 130, ¶ 88.

¶ 57 Given the remark’s dual implication and fleeting nature, and

considering it in the context of the prosecutor’s closing argument as

a whole, we cannot conclude that it so undermines the fundamental

fairness of the trial as to cast serious doubt upon the reliability of

the judgment of conviction. Hagos, ¶ 14; see People v. McMinn,

2013 COA 94, ¶ 70 (no plain error when improper comments “made

up a small part of the prosecutor’s closing argument, during which

he generally and fairly summarized the evidence and provided

reasons, based on the evidence,” to convict the defendant).

IV. Voluntary Intoxication

¶ 58 Torreyson maintains the trial court should have sua sponte

instructed the jury on a voluntary intoxication defense given the

evidence at trial, and that its failure to do so constituted reversible

error. We disagree.

A. Applicable Law and Standard of Review

¶ 59 Voluntary intoxication is not a defense against a criminal

charge. § 18-1-804(1), C.R.S. 2025. However, evidence of

intoxication may be offered by a defendant to negate the specific

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intent necessary for certain offenses, including first degree murder

after deliberation. Id.; Brown v. People, 239 P.3d 764, 769 (Colo.

2010).

¶ 60 We review de novo whether the trial court correctly instructed

the jury regarding the law applicable to the case. Hoggard v.

People, 2020 CO 54, ¶ 12. However, because Torreyson did not

object to the jury instructions given at trial or request the voluntary

intoxication instruction that he now argues should have been

included, our review is limited to whether the omitted instruction

constituted plain error. Espinoza v. People, 712 P.2d 476, 478

(Colo. 1985).

¶ 61 Plain error is obvious and substantial, and we reverse only if

the error “so undermined the fundamental fairness of the trial itself

so as to cast serious doubt on the reliability of the judgment of

conviction.” Hagos, ¶ 14 (citation omitted). The defendant has the

burden of establishing plain error. People v. Boykins, 140 P.3d 87,

95 (Colo. App. 2005); People v. Cowden, 735 P.2d 199, 202 (Colo.

1987) (“Failure to instruct properly on an element of a crime does

not constitute plain error where that element is not contested at

trial, or where evidence of the defendant’s guilt is overwhelming.”).

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B. Analysis

¶ 62 Torreyson relies heavily on Martinez v. People, 470 P.2d 26, 28

(Colo. 1970), for the proposition that the trial court should have sua

sponte instructed the jury on voluntary intoxication. In Martinez,

the supreme court held that the trial court erred by failing to

“instruct[] the jury on the matter of voluntary drunkenness” in a

case where a self-represented defendant who was charged with a

specific intent offense did not request such an instruction and

“clearly . . . did not know what it was.” Id.

¶ 63 The circumstances here are distinguishable from those in

Martinez. For one thing, in contrast to Martinez, nothing in the

record suggests that Torreyson was wholly incapable of mounting a

defense at trial. See id. (holding that it was incumbent upon the

trial court to instruct the jury on involuntary intoxication once “it

became apparent that defendant was not competent to defend

himself”). The defendant in Martinez proceeded pro se during trial

and also rejected advisory counsel. Id. And while the opinion does

not provide specific examples, the supreme court described him as

“so inept” that the trial “resulted in a lack of due process.” Id. at

29.

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¶ 64 Torreyson, in contrast, benefited from two public defenders

acting as advisory counsel. With their assistance and on his own

accord, he submitted numerous pretrial motions, including motions

to include specific jury instructions, to hire an investigator, to hire

a paralegal to catalog discovery, to provide notice of his “general

denial” defense, and to submit a witness list. Torreyson

meaningfully participated in voir dire, cross-examined more than

twenty witnesses, and directly examined six witnesses, including

himself, at trial. During one of his direct examinations, Torreyson

questioned a police officer present during the collection of crime

scene evidence about his collection methods and published exhibits

to the jury. Torreyson made multiple, at times successful,

objections during trial, including objections regarding hearsay and

character evidence, challenged the credentials and qualifications of

expert witnesses, and challenged the relevance of photographic

evidence to his theory of defense. In light of this record, we would

not describe Torreyson as inept.

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¶ 65 But even if we were to assume for the sake of argument that

the trial court erred, reversal would not be required.2 The lack of

voluntary intoxication instruction does not cast serious doubt on

the reliability of the judgment of conviction. Hagos, ¶ 14. There

was certainly evidence presented at trial suggesting that Torreyson

had been drinking in the hours before the murder took place. But

the jury was instructed on the lesser included offenses of second

degree murder and manslaughter, which require a mens rea of

“knowing” and “reckless,” respectively. Brown, 239 P.3d at 769 (“[A]

voluntary intoxication instruction . . . , while legally distinct from a

lesser included offense instruction, serves substantially the same

purpose under the law and facts of this case.”); see also Thornburg

v. Mullin, 422 F.3d 1113, 1126 (10th Cir. 2005) (explaining that the

trial court’s failure to sua sponte instruct the jury on voluntary

intoxication did not deny the defendant a fundamentally fair trial

2 The parties agree that Torreyson was present when his initial

counsel argued that “voluntary intoxication is relevant” to the mens
rea elements of first degree murder for the purposes of probable
cause to charge him with first degree murder. However, because
Torreyson later changed counsel and there is no record of him
affirmatively acknowledging his understanding, we, given his pro se
status, cannot conclude that he waived this issue. See People v.
Rediger, 2018 CO 32, ¶ 12.

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because the jury was alerted it could only convict the defendant if it

found the prosecution had proved all the elements of first degree

murder beyond a reasonable doubt, including the specific intent

element). In view of the lesser included instructions, the manner of

the murder, and the overwhelming forensic evidence presented at

trial, the record does not reveal a reasonable possibility that the

lack of an instruction on voluntary intoxication contributed to the

conviction. See Espinoza, 712 P.2d at 478-79; People v.

Rubanowitz, 688 P.2d 231, 240 (Colo. 1984).

V. Cumulative Error

¶ 66 Finally, Torreyson contends that the cumulative effect of the

alleged errors deprived him of a fair trial and therefore requires

reversal. We disagree.

¶ 67 “For reversal to occur based on cumulative error, a reviewing

court must identify multiple errors that collectively prejudice the

substantial rights of the defendant, even if any single error does

not.” Howard-Walker v. People, 2019 CO 69, ¶ 25. When we review

for cumulative error, “the ultimate question is whether the errors

deprived the defendant of a fair trial.” People v. Vialpando, 2020

COA 42, ¶ 67 (citing Howard-Walker, ¶ 40), rev’d on other grounds,

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2022 CO 28; see also Howard-Walker, ¶ 25 (“Stated simply,

cumulative error involves cumulative prejudice.”).

¶ 68 Although we conclude that the prosecutor made an improper

comment about Torreyson’s “cowardly” decision not to cross-

examine Nelson, “a single error is insufficient to reverse under the

cumulative error standard.” People v. Thames, 2019 COA 124,

¶ 69.

VI. Disposition

¶ 69 We affirm the judgment of conviction.

JUDGE YUN and JUDGE SCHOCK concur.

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