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March 5, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Monte

Colorado Court of Appeals

• Citations: None known
• Docket Number: 22CA2252

• Precedential Status: Non-Precedential

• Opinion

• Authorities (27)

• Cited By (0)

• Summaries (0)

• Similar Cases (2.1K)

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Combined Opinion

22CA2252 Peo v Monte 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2252
Jefferson County District Court No. 21CR716
Honorable Russell Klein, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lorenzo Owen Monte,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE KUHN
Fox and Sullivan, JJ., concur

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

Philip J. Weiser, Attorney General, Patrick A. Withers, Assistant Solicitor
General & Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-
Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Lorenzo Owen Monte, was convicted of attempted

first degree murder as a crime of violence, first degree assault, and

second degree kidnapping. He now appeals the attempted first-

degree murder and first degree assault convictions and sentences.

We affirm.

I. Background

¶2 Heather Tallant first met Monte in March 2020. The two

became friends, and the friendship soon progressed into a romantic

relationship. Monte moved into Tallant’s home later that year.

¶3 One morning about a year later, Tallant woke up around 3:48

a.m. and headed upstairs for a glass of water. As she headed back

towards the stairs, she noticed Monte sitting on the couch with

“Fireball shooters all over the table.” Tallant continued towards the

stairs and Monte followed her. As Tallant started down the stairs,

Monte grabbed her by her hair and pulled her back up the stairs.

He “slammed” her against the wall on one side of the kitchen and

again into a wall on the other side of the kitchen where Tallant

“smacked [her] head” and fell to the floor. Tallant tried to fight back

against Monte and get away, but previous nerve damage to her back

made trying to defend herself difficult and painful.

1
¶4 After Tallant fell to the floor, Monte got on top of her and

began to strangle her with his hands. She “blacked out a couple

times, . . . couldn’t breathe[,] and . . . started seeing stars.” This

went on for a couple minutes. Throughout the encounter, Monte

repeatedly threatened to kill Tallant and called her “worthless.”

Monte also threatened to kill Tallant’s mom and “go after [her] dog”

if she “told anybody anything.”

¶5 Monte then got off of Tallant and asked her to sit down on the

couch. The two started having a conversation. But Monte “flipped

out” on Tallant, and she ended up in the corner of her living room.

Monte was convinced that Tallant was a “snitch for the DEA” and

that she was wearing a wire, so he “ripped” off all of her clothes.

Monte then started “whipping” Tallant on the back with a phone

cord.

¶6 As Tallant tried to get away and run back downstairs towards

her bedroom, Monte pushed Tallant down the stairs and into the

bathroom wall. Monte came down the stairs, grabbed Tallant, and

again “slammed” her onto the “hardwood floor.” Tallant once again

lost consciousness. When she came to, Tallant was inside of the

bathtub. She was on her back and underneath the open faucet,

2
while Monte was on top of her “trying to drown [her].” Monte made

sure that Tallant’s “nose was closed[,] and . . . [her] mouth was

open.” This went on for five to ten minutes.

¶7 Monte then dragged Tallant to her bedroom, where he pushed

her to the floor and sat on top of her. Tallant started screaming

and Monte “beat” her on the left side of her face with his fists.

Tallant lost consciousness and woke up a few hours later with

“blood all over [her] face.” She went to the bathroom to wash the

blood off of her face, and Monte professed his love for her multiple

times.

¶8 Later that day, police arrived at Tallant’s home to arrest Monte

on an unrelated matter. Officers asked Tallant about the injuries

on her face and neck, and Tallant claimed that she had gotten into

a fight at a bar with another woman. Despite this interaction,

Tallant called 911 later that night and reported the incident.

Tallant’s mom later joined her at her home. They agreed to go to

the hospital “just in case [Tallant] had a concussion.”

¶9 The prosecution charged Monte with attempted first degree

murder as a crime of violence, first degree assault by strangulation,

second degree kidnapping, third degree assault, and a crime of

3
violence sentence enhancer. See §§ 18-3-102(1)(a), 18-2-101,

18-3-202(1)(g), 18-3-302(1), 18-3-204(1)(a), 18-1.3-406(2)(a)(I)(B),

C.R.S. 2025. A jury convicted him of attempted first degree murder

as a crime of violence, first degree assault by strangulation, and

second degree kidnapping.

¶ 10 Monte now appeals the attempted first degree murder and first

degree assault convictions and sentences.

II. Analysis

¶ 11 Monte contends that (1) insufficient evidence supported the

jury’s serious bodily injury finding for the crime of violence finding

and the first degree assault conviction. He also contends that the

court reversibly erred by (2) improperly instructing the jury on the

law governing serious bodily injuries; (3) admitting into evidence an

“incomplete and misleading legal definition of serious bodily injury”;

and (4) permitting “pervasive prosecutorial misconduct.” Finally,

Monte contends that (5) the trial court should have granted him a

mistrial and (6) cumulative error requires reversal.

A. Sufficiency of the Evidence

¶ 12 Monte contends that the prosecution presented insufficient

evidence to prove that he caused serious bodily injury to Tallant,

4
which is an essential element of both first degree assault and the

crime of violence sentence enhancer.

1. Applicable Law and Standard of Review

¶ 13 We apply the substantial evidence test to determine if the

prosecution introduced evidence “sufficient both in quantity and

quality to sustain the defendant’s conviction.” Clark v. People, 232

P.3d 1287, 1291 (Colo. 2010). In doing so, we review the record de

novo and consider “whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.” Id. (quoting People v.

Bennett, 515 P.2d 466, 469 (Colo. 1973)); see also McCoy v. People,

2019 CO 44, ¶ 17.

¶ 14 A person commits first degree murder if “[a]fter deliberation

and with the intent to cause the death of a[nother] person . . .

[they] cause[] the death of that person or of another person.”

§ 18-3-102. Attempted first degree murder requires that a person

take a “substantial step” towards committing first degree murder.

§ 18-2-101. When a person “[c]aused serious bodily injury or death

5
to any other person except another participant” during an

attempted first degree murder, they are subject to mandatory

sentencing under the crime of violence statute. § 18-1.3-406(1)(a),

(2)(a)(I)(B), (2)(a)(II)(B).

¶ 15 A person commits first degree assault by strangulation when

“[w]ith the intent to cause serious bodily injury, he or she applies

sufficient pressure to impede or restrict the breathing or circulation

of the blood of another person by applying such pressure to the

neck or by blocking the nose or mouth of the other person and

thereby causes serious bodily injury.” § 18-3-202(1)(g).

¶ 16 Bodily injury is “physical pain, illness, or any impairment of

physical or mental condition.” § 18-1-901(3)(c). And serious bodily

injury is

bodily injury that, either at the time of the
actual injury or at a later time, involves a
substantial risk of death; a substantial risk of
serious permanent disfigurement; a
substantial risk of protracted loss or
impairment of the function of any part or the
organ of the body; or breaks, fractures, a
penetrating knife or penetrating wound, or
burns of the second or third degree.

§ 18-1-901(3)(p).

6
2. Sufficient Evidence Supported
the SBI Finding

¶ 17 The foundation of Monte’s argument that insufficient evidence

supported the jury’s serious bodily injury determination is People v.

Vigil, 2021 CO 46. In Vigil, the victim was stabbed in the neck. Id.

at ¶ 5. He sustained minor injuries and the serious bodily injury

form (SBI form) indicated “that the stab wound to the neck did not

constitute serious bodily injury.” Id. at ¶ 6. However, at a

preliminary hearing, the doctor who signed off on the SBI form had

a “change of heart” and testified that the stab wound itself, knowing

nothing else, constituted a substantial risk of death because “a stab

wound to the neck could create certain risks with respect to blood

vessels, lungs, esophagus, and other critical components of the

body.” Id. at ¶¶ 8-9 (alteration in original).

¶ 18 The supreme court clarified the definition of a “substantial risk

of death.” The court concluded that there is a nexus between the

facts of the actual injury and the substantial risk of death. Id. at

¶ 32. Accordingly, the court held that “the facts of the actual injury

control the substantial risk of death determination under section

7
18-1-901(3)(p), not the risk generally associated with the type of

conduct or injury in question.” Id. at ¶ 16 (alteration in original).

¶ 19 Monte argues that insufficient evidence supports his

conviction because the evidence didn’t show that Tallant had

suffered one of “four general risks that can lead to death” from the

strangulation or drowning: (1) damage to neck bones or spinal cord;

(2) damage to blood vessels or arteries; (3) damage to the brain; or

(4) cardiac arrest. We are not convinced.

¶ 20 When Tallant arrived at the hospital, she was “immediately

taken into a room[,]” where hospital personnel began evaluating

her. Dr. Bartholomew Paull ordered a CT scan and a CTA scan to

image Tallant’s head and cervical spine. As Monte points out, Dr.

Paull testified at trial that the CT scan was “unremarkable,”

showing that Tallant did not have any broken bones in her neck

and the bones were in “normal alignment.” Likewise, the CTA scan

also came back “unremarkable.” He testified that the “blood vessels

that were imaged showed normal blood flow, and there wasn’t

damage done to the . . . linings of the arteries.” Dr. Paull also

testified that Tallant’s lungs sounded normal, and the neurological

exam revealed that Tallant could “move all her extremities” and feel

8
her arms and legs. Accordingly, he eventually discharged Tallant to

self-care at home.

¶ 21 While it’s true that this evidence doesn’t support the four risks

that Monte identifies, we don’t think those risks properly frame the

issue. We must determine whether there was sufficient evidence

from which a reasonable juror could have concluded that Tallant

suffered “physical pain, illness, or any impairment of physical or

mental condition,” which “at the time of the actual injury or at a

later time, involves a substantial risk of death[] . . . [or] a

substantial risk of protracted loss or impairment.” § 18-1-901(3)(b),

(p).

¶ 22 The prosecution presented evidence showing that Tallant had

suffered “physical pain, illness, or any impairment of physical or

mental condition.” Id. Tallant testified that when she arrived at the

hospital, she was still in pain, she was seeing stars, and she had a

raspy voice. Dr. Paull testified that he saw bruising on Tallant’s

“legs, her buttocks, [and] the side of her neck[,]” along with cuts on

her lips. He also saw petechiae — small purple and red spots that

indicate bleeding from small blood vessels — on Tallant’s neck.

Those suggested that Tallant’s “neck was under a high degree of

9
pressure.” Dr. Paull’s primary diagnosis for Tallant was “assault by

manual strangulation.”

¶ 23 Forensic Nurse Examiner (FNE) Tanya Hunsaker also testified

at trial. During her examination, FNE Hunsaker noticed Tallant’s

raspy voice and “petechiae on her neck and her face, under her

eyes, her eyelid, and the whites of her eyes.” She testified that

during strangulation, when pressure is applied to the neck, blood

cannot drain back down from the brain resulting in the petechiae.

She also testified to “the bruising on [Tallant’s] face and neck.” FNE

Hunsaker testified that Tallant’s “throat was very red and very sore”

and that Tallant “had a hard time swallowing.” FNE Hunsaker

testified that Tallant reported losing consciousness more than once

during the incident. FNE Hunsaker also testified that during the

examination, she observed, or Tallant reported, that Tallant had

experienced the following in connection with the assault: neck pain,

sore throat, memory loss, weakness or numbness in the

extremities, nausea, dizziness, headache, lightheadedness, loss of

consciousness, vision changes, difficulty swallowing, hoarse or

raspy voice, coughing more than normal, and neck swelling.

10
¶ 24 FNE Hunsaker completed an SBI form after examining Tallant.

On the form, FNE Hunsaker indicated that, at the time of

examination, Tallant had petechiae in the face, neck, and eyes;

neck pain; numbness in her right thumb and hand; and that she

reported difficulty swallowing. She indicated that Tallant’s injuries

involved “a substantial risk of death.” She indicated that her

reason for this opinion was that Tallant “was strangled multiple

times [with loss of consciousness with] the intent to impede or

restrict circulation/oxygenation to the brain.”

¶ 25 FNE Hunsaker also explained why these details were

important. She testified that it is “very important” to know that

Tallant had lost consciousness multiple times “because that is

indicative of the . . . lethality of the strangulation. If you lose

consciousness, you’re losing blood flow to your brain, which means

you’re losing brain cells.” She testified that it only takes eleven

pounds of pressure to cut off oxygenated blood flow to the brain,

while it takes twenty pounds of pressure to open a soda can. Under

these circumstances, she testified, it takes about ten seconds for

someone to lose consciousness. And while FNE Hunsaker testified

about the injuries that could follow a strangulation, she also

11
testified that Tallant’s loss of consciousness indicated that she had

lost blood flow to her brain, which she said informed her expert

opinion that there was a risk of death in this case. Moreover, the

prosecutor and FNE Hunsaker engaged in the following exchange:

Q: I want to talk to you specifically about the
types of injuries that you were talking about,
which is . . . the blood restriction at the time of
that injury. At the time of that injury, was the
blood restriction, in your opinion, and the
things that were going on a substantial risk of
death to Ms. Tallant?

A: Yes.

¶ 26 We therefore disagree with Monte’s argument. Viewing the

record in the light most favorable to the prosecution, there was

ample evidence before the jury for it to conclude that when Monte

repeatedly strangled Tallant into unconsciousness, she suffered

“physical pain, illness, or an[] impairment of physical or mental

condition.” See § 18-1-901(3)(b). And there was ample evidence

from which the jury could conclude that the strangulation cut off

the flow of blood to Tallant’s brain, depriving her brain of oxygen,

and causing a substantial risk of death at that time. See

§ 18-1-901(3)(p). The fact that Tallant didn’t die or suffer other

potential consequences of strangulation doesn’t change this

12
analysis. As the supreme court noted, an injury “which involves

substantial risk of death does not become any less of a serious

bodily injury because the victim recovers.” Vigil, ¶ 32.

¶ 27 Thus, we conclude that there was sufficient and substantial

evidence from which a reasonable juror could have concluded that

Monte caused serious bodily injury to Tallant by repeatedly

strangling her.

B. Jury Instruction

¶ 28 Monte contends that the trial court erred when it refused to

incorporate Vigil’s holding into the jury instruction defining serious

bodily injury. More specifically, Monte argues that the “Vigil

instruction was crucial here because reasonable people of common

intelligence have routinely misunderstood the [serious bodily injury]

statutory definition.” We are not convinced.

1. Applicable Law and Standard of Review

¶ 29 A trial court must properly instruct the jury on the applicable

law. People v. Zukowski, 260 P.3d 339, 343 (Colo. App. 2010). “We

review jury instructions de novo to determine whether the

instructions accurately informed the jury of the governing law.” Id.

However, as long as they are correct statements of the law, the trial

13
court has substantial discretion in formulating the jury

instructions. Id. “We review a court’s decision to give a particular

jury instruction for an abuse of discretion. A court abuses its

discretion if it bases its ruling on an erroneous understanding or

application of the law.” People v. Coahran, 2019 COA 6, ¶ 14

(citation omitted).

¶ 30 “[I]f a statutory definition does not adequately inform the jury

of the governing law, additional instructions are required.” People

v. Perez, 2024 COA 94, ¶ 36 (alteration in original) (quoting People

v. Mendenhall, 2015 COA 107M, ¶ 24). However, “when ‘a term,

word, or phrase in a jury instruction is one with which reasonable

persons of common intelligence would be familiar, and its meaning

is not so technical or mysterious as to create confusion in jurors’

minds as to its meaning, an instruction defining it is not required.’”

Id. (quoting Garcia v. People, 2023 CO 30, ¶ 20).

1. The Court Did Not Improperly Instruct the Jury

¶ 31 During the jury instruction conference, defense counsel

proposed adding language to the statutory definition. Instead of

using section 18-1-901(3)(p)’s definition of serious bodily injury,

14
counsel proposed the following supplemental language: “The facts of

the actual injury control the substantial risk of death determination

for ‘serious bodily injury’, not the risk generally associated with the

type of conduct or injury in question.”

¶ 32 The trial court acknowledged that the proposed language

accurately represented Vigil’s holding. But the court was hesitant

to include Monte’s proposed instruction because it couldn’t figure

out how to “mesh” the two definitions together without running the

“risk of seriously confusing these definitions.”

¶ 33 The court instructed the jury as follows:

Serious bodily injury means bodily injury
which, either at the time of the actual injury or
at a later time, involves a substantial risk of
death, a substantial risk of serious permanent
disfigurement, a substantial risk of protracted
loss or impairment of the function of any part
or organ of the body, or breaks, fractures, or
burns of the second or third degree.

¶ 34 To start, the jury instruction is almost identical to the

definition of serious bodily injury in section 18-1-901(3)(p). The

given instruction omits only a few words, which do not significantly

alter the statutory definition. As a general rule, “jury instructions

15
framed in the language of statutes are usually adequate and

proper.” Zukowski, 260 P.3d at 343.

¶ 35 Next, we agree with the People that while the Vigil court

clarified that “the facts of the actual injury” determine whether

there was a substantial risk of death rather than the “risk generally

associated with the type of conduct or injury in question[,]” it did

not conclude that the statute was ambiguous. Vigil, ¶ 16. “A

statute is ambiguous when it is reasonably susceptible of multiple

interpretations.” McCoy, ¶ 38. Monte does not argue that the

definition of serious bodily injury is susceptible to multiple

interpretations. He instead argues that the language “at the time of

actual injury or at a later time” in the serious bodily injury definition

allowed the jury to consider the general risks of strangulation

rather than Tallant’s actual injuries. But we think the instruction

properly states the law. The instruction doesn’t suggest that the

jury can make its decision based on generalized risks. Instead, the

instruction correctly states that the jury must consider the bodily

injury and whether that injury posed a substantial risk of death.

We therefore conclude that the jury instruction properly stated the

applicable law.

16
¶ 36 Given this conclusion, we see no abuse of discretion in the

trial court’s decision not to incorporate Vigil’s holding into the

instruction that followed the statutory definition. Given the trial

court’s “substantial discretion in formulating the jury

instructions[,]” Zukowski, 260 P.3d at 343, we perceive no error in

this decision.

C. SBI Form

¶ 37 Monte contends that the trial court reversibly erred when it

admitted FNE Hunsaker’s SBI form. At trial, defense counsel

objected to the form as containing hearsay and argued that it

“contained an incomplete and inaccurate statement of the law on

SBI.” The court overruled the objection, noting that “these

documents are typically admitted in these cases.” On appeal,

Monte argues that the ruling should be reversed under CRE 403

because “evidence must be excluded if its probative value is

substantially outweighed by the danger of misleading the jury.”

Specifically, Monte argues that the SBI form had no probative value

because (1) the court should have instructed the jury instead of

permitting the form to do so and (2) FNE Hunsaker could have

testified to the other information in the form. We are not convinced.

17
¶ 38 Relevant evidence may be excluded under CRE 403 if “its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury.” “We

review a trial court’s evidentiary decisions for an abuse of

discretion.” People v. Ramos, 2017 CO 6, ¶ 5.

¶ 39 While it’s true that the SBI form contained the statutory

definition of serious bodily injury, that doesn’t make it an

instruction. The court properly instructed the jury that the court

would decide what law applies to the case and that the jurors must

apply that law as stated in the instructions. We presume that the

jurors followed that instruction. People v. McKeel, 246 P.3d 638,

641 (Colo. 2010). Regardless, the serious bodily injury definition on

the SBI form tracked the statutory definition, which, as we conclude

above, correctly stated the law.

¶ 40 As for FNE Hunsaker’s testimony, the contents of the form

summarized her opinion at the time of the examination about

whether Tallant’s injuries constituted serious bodily injury, which

was ultimately a fact question for the jury. See People v. Baker, 178

P.3d 1225, 1233 (Colo. App. 2007). The form’s contents therefore

had probative value. See CRE 401. And even if the form was

18
cumulative of FNE Hunsaker’s trial testimony, that doesn’t make it

inadmissible. See People v. Salas, 902 P.2d 398, 401 (Colo. App.

1994).

¶ 41 Accordingly, the court did not abuse its discretion when it

admitted the SBI form into evidence.

D. Prosecutorial Misconduct

¶ 42 Monte contends that the trial court permitted “pervasive

prosecutorial” misconduct on numerous occasions requiring

reversal. He argues that the challenged statements (1) misstated

the law; (2) misled the jury by referring to facts not in evidence;

(3) shifted the burden of proof to Monte; or (4) appealed to the jury’s

sympathies and prejudices. We consider each prosecutorial claim

in turn.

1. Applicable Law and Standard of Review

¶ 43 We conduct a two-step analysis to review prosecutorial

misconduct claims. People v. Robinson, 2019 CO 102, ¶ 18. “First,

we must determine whether the prosecutor’s conduct was improper

‘based on the totality of the circumstances.’” Id. (quoting Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010)). If we determine that the

19
conduct was improper, then “we must decide whether such actions

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

¶ 44 “We review preserved claims of prosecutorial misconduct

under the nonconstitutional harmless error standard.” People v.

Walker, 2022 COA 15, ¶ 28. We reverse under this standard “only

if the error substantially influenced the verdict or affected the

fairness of the trial.” Id. However, if the defendant doesn’t object at

trial, the prosecutorial misconduct claim is unpreserved, and we

apply the plain error standard. Robinson, ¶ 19. Plain error is “error

that was obvious and substantial and that so undermined the

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

the reliability of the judgment of conviction.” Id. We only reverse

plain error for prosecutorial misconduct when it was “flagrantly,

glaringly, or tremendously improper.” Id. (quoting Domingo-Gomez

v. People, 125 P.3d 1043, 1053 (Colo. 2005)). Prosecutorial

misconduct during closing arguments is rarely “so egregious as to

constitute plain error.” People v. Constant, 645 P.2d 843, 847 (Colo.

1982) (quoting People v. Sepeda, 581 P.2d 723, 732 (Colo. 1978)).

20
2. Misstating the Law

¶ 45 Monte contends that the prosecutor misstated the law of

serious bodily injury during closing arguments. “Although a

prosecutor may argue all reasonable inferences from the evidence in

the record, he or she may not misstate or misinterpret the law.”

People v. McMinn, 2013 COA 94, ¶ 62.

¶ 46 The prosecutor stated “[t]he defendant wants you to believe

that there’s no serious bodily injury because Ms. Tallant did not

suffer a stroke, blood clot, or have an abnormal CT scan. Ladies

and gentlemen, that’s not what serious bodily injury is. The end

result is not what matters.” After the court overruled a defense

objection, the prosecutor continued, “What matters is that loss of

consciousness is the beginning of death. That’s a basic concept.”

¶ 47 We don’t perceive this as a misstatement of the law. Instead,

the prosecutor was appealing to the jury to focus on Tallant’s loss of

consciousness rather than the negative test results. In context, the

prosecutor’s argument was attempting to convince the jury that

Tallant’s loss of consciousness constituted a serious bodily injury.

Accordingly, we perceive no error in the court’s ruling.

21
3. Misleading the Jury By Referencing
Facts Not in Evidence

¶ 48 Monte contends that the prosecutor referred to facts not in

evidence on three different occasions and thereby misled the jury.

While it is improper for the prosecutor to misstate the facts during

closing arguments, it only rises to the level of misconduct when the

misstatement is intentional, and the prosecutor intends to “mislead

the jury as to the inferences it may draw [from the evidence.]”

Domingo-Gomez, 125 P.3d at 1049 (quoting ABA Standards,

§ 3-5.8).

¶ 49 First, Monte argues that the prosecutor misled the jury when

she argued that Dr. Paull found petechiae in Tallant’s eyes. More

specifically, during closing argument, the prosecutor stated that the

jury “heard testimony from Dr. Paull and FNE Hunsaker about the

petechiae they both saw in [Tallant’s] eyes.” Defense counsel

objected that this misstated the facts, arguing that Dr. Paull did not

find petechiae in Tallant’s eyes. The court overruled the objection

and disagreed with the defense as it had “double-checked [its]

notes.”

22
¶ 50 Defense counsel later questioned this statement, saying “You

heard from Dr. Paull . . . that she did not have petechiae in her

eyes.” The prosecutor objected and argued that the court “just

ruled that the statement is an inaccurate reflection of the testimony

we heard.” The court then overruled the objection, permitting the

defense to raise questions about Dr. Paull’s testimony.

¶ 51 A review of the record reveals that Dr. Paull referred to

petechiae two times during his testimony. Both times he testified

that he saw petechiae only on Tallant’s neck. Therefore, defense

counsel was correct that Dr. Paull did not testify to seeing petechiae

in Tallant’s eyes. However, we see no indication that the prosecutor

made this statement intending to mislead the jury. And the

statement was partially correct because FNE Hunsaker testified to

seeing petechiae in Tallant’s eyes. Given that testimony, we don’t

see — and Monte doesn’t explain — how this erroneous ruling was

prejudicial. Accordingly, we conclude it was harmless.

¶ 52 Second, Monte argues that the prosecutor misled the jury

when, in an attempt to argue the seriousness of strangulation, she

said, “Think about why, in Colorado, the police prohibited the use

of chokeholds.” Monte objected to the statement on the ground that

23
these facts were not in evidence, which the trial court sustained.

The court then instructed the jurors that “they should not consider

any information regarding why police may or may not have barred

chokeholds.”

¶ 53 While a prosecutor has “wide latitude in the language and

presentation style used to obtain justice[,]” a prosecutor may not

refer to facts not admitted into evidence. People v. Burdette, 2024

COA 38, ¶ 62 (quoting Domingo-Gomez, 125 P.3d at 1048). It was

improper for the prosecutor to refer to police chokehold bans.

However, we agree with the People that Monte again does not

explain how the court’s ruling was prejudicial. The court sustained

Monte’s objection and instructed the jury to not consider whether

“police may or may not have barred chokeholds.” We presume that

the jurors followed this instruction. McKeel, 246 P.3d at 641. And

because the defense obtained relief — and Monte did not request

further relief — “we need not consider this alleged error.” People v.

Douglas, 2012 COA 57, ¶ 65; see also People v. Garcia, 526 P.2d

292, 294 (Colo. 1974) (holding that because the trial court

sustained the defendant’s objection, the possibility of prejudice was

eliminated).

24
¶ 54 Third, Monte argues that the prosecutor improperly referred to

“intimate partner violence manipulation” because no evidence was

presented on that topic. During closing arguments, the prosecutor

talked about how Tallant did not initially report the crime to the

police “because she loved him.” The prosecutor then referred to a

jail call between Monte and Tallant and said, “Listen to how he

talks to her in the jail call. Listen to the classic intimate partner

violence manipulation. You’re the only one that can help me now.

You’re the only one that can help me get out of here.”

¶ 55 Monte did not object to this statement, so we review it for plain

error. See Robinson, ¶ 19. It’s true that there was no expert

testimony specifically about “intimate partner manipulation.” But

based on what Monte told Tallant during the jail call, the prosecutor

could argue that Monte was manipulating her when he pleaded for

help just one day after the incident. And as the People point out,

Detective Jeffrey Adams testified to his experience with domestic

violence cases and that some witnesses can be “reluctant or

uncooperative because of the nature of their relationship.” Given

this testimony, we conclude that even if the argument was

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improper, it wasn’t “flagrantly, glaringly, or tremendously

improper.” Domingo-Gomez, 125 P.3d at 1053.

1. Shifting the Burden of Proof

¶ 56 Monte contends that the prosecution improperly shifted its

burden of proof twice during closing arguments.

¶ 57 The prosecution has to prove each element of a crime beyond a

reasonable doubt. See People v. Clark, 214 P.3d 531, 540 (Colo.

App. 2009), aff’d on other grounds, 232 P.3d 1287 (Colo. 2010).

This burden of proof cannot be shifted to a defendant. Id. Even if

“a prosecutor’s comments and questions . . . imply a defendant has

the burden of proof, such comments and questions do not

necessarily shift the burden of proof, constituting error.” People v.

Santana, 255 P.3d 1126, 1131 (Colo. 2011). A court must instead

assess whether the prosecution shifted the burden of proof in light

of the entire record. Id.

¶ 58 The first statement that Monte claims shifted the burden of

proof was when the prosecutor said, “For you to find the defendant

not guilty, you would need to believe every single version of their

events.” While defense counsel objected to this statement, she did

not object to burden shifting, and therefore this claim is

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unpreserved and reviewed for plain error. See People v. Ujaama,

2012 COA 36, ¶ 37.

¶ 59 While this statement arguably constitutes burden shifting, it is

not “flagrantly, glaringly, or tremendously improper” as to

constitute plain error. Domingo-Gomez, 125 P.3d at 1053. In

addition, the court correctly instructed the jury at the conclusion of

trial that the defendant was presumed innocent, and the

prosecution had the burden of proof and needed to prove each

element beyond a reasonable doubt. Santana, 255 P.3d at

1131-32.

¶ 60 The second statement that Monte claims shifted the burden of

proof was “[a]ll of these things would have to be true. That Ms.

Tallant got in a bar fight, but the bruises somehow don’t show up

for that kind of assault, and they don’t show up until two days later

somehow. It’s spontaneous bruising two days after the fight. That

would have to be true. You would have to accept that fact as true.”

The defense objected to the statement and claimed that the

prosecution was burden shifting. The court overruled the objection,

but then it reminded the jury that “the People hold the burden of

proof and must prove all elements beyond a reasonable doubt. The

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defendant does not hold any burden of proof with regards to the

charges in this case.”

¶ 61 Monte is correct that the jurors would not need to believe that

Tallant got into a bar fight to acquit him. It was always the

prosecution’s burden to prove Monte’s guilt beyond a reasonable

doubt. See People v. Heilman, 52 P.3d 224, 227 (Colo. 2002) (“The

burden of proof . . . always remains with the prosecution.”). But in

light of the entire record and the court’s instructions on the burden

of proof, we can’t conclude that this statement shifted the burden to

Monte.

1. Appealing to Juror Sympathies and Prejudices

¶ 62 Prosecutors cannot make arguments that are intended to

“inflame the passions or prejudice of the jury.” Mendenhall, ¶ 78

(quoting People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999)).

¶ 63 Monte contends that the prosecution appealed to the jury’s

sympathy, inflamed the jury’s passions, and mischaracterized and

denigrated the defense and Monte six times during closing

argument. We address each claim in turn.

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¶ 64 First, Monte argues that the prosecutor denigrated the defense

when she stated that the “[d]efense wants you to disregard the

entire [strangulation] story because of tiny minute details, details

they described as minor because that’s all they have. They even

resort to slut-shaming Ms. Tallant for trying to move on.” The

defense objected to the statement, and the court sustained the

objection. The court then instructed the jury to “disregard the

statement.”

¶ 65 While Monte acknowledges that he obtained relief when the

court sustained his objection, he claims that the prosecutor

“doubled down” when she subsequently said, “Ladies and

gentlemen, you have your notes. You know what the testimony

was, and you’re going to be able to look back at that testimony.”

Monte does not explain why this statement “doubled down” on the

prosecutor’s slut-shaming comment, nor do we see how urging the

jurors to refer to their notes reinforces the statement. Moreover,

Monte obtained relief when the court sustained his objection and

instructed the jury to disregard the statement. And he didn’t seek

further relief after the conduct he perceives as “doubling down.”

See Garcia, 526 P.2d at 294; Douglas, ¶ 65.

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¶ 66 Second, Monte challenges an analogy that “appealed to and

inflamed the jury’s passions and emotions.” The prosecutor said,

“Think of [these events] as a gun analogy. If someone pulls a gun

and says, I’m going to kill you, you need to die, and then pulls the

trigger, that’s easily accepted as attempted murder. And the issue

here is that the method the . . . defendant used was the most lethal

form of intimate partner violence: strangulation. Every time he

wrapped his hands around her throat and squeezed, he pulled the

trigger.” The defense objected to this statement, and the trial court

overruled its objection. The prosecutor then continued, “When he

threw her down the stairs and she blacked out, he pulled the

trigger. When he beat her until she lost consciousness, he pulled

the trigger.”

¶ 67 While the prosecution cannot appeal to the passions and

prejudices of the jury, “[i]n closing argument, [a prosecutor] may

employ rhetorical devices and engage in oratorical embellishment

and metaphorical nuance.” People v. Ortega, 2015 COA 38, ¶ 52

(alteration in original) (quoting People v. Allee, 77 P.3d 831, 837

(Colo. App. 2003)). This is exactly what the prosecutor did here,

using the gun analogy to describe how Monte was “pulling the

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trigger” each time he strangled Tallant until she lost consciousness,

beat her, and threw her down the stairs.

¶ 68 Third, Monte argues that the prosecutor disparaged the

defense’s argument when she said, “The defense got up here on

their closing . . . statement and essentially tried to bash Ms.

Tallant’s credibility.” The defense objected to the statement, and

the court sustained its objection. The court then instructed the

jury to disregard the statement as to “bash.” As before, Monte

obtained relief through a sustained objection and a curative

instruction. And he didn’t seek further relief. See Garcia, 526 P.2d

at 294; Douglas, ¶ 65.

¶ 69 Fourth, Monte argues that the prosecutor “mischaracterized

and denigrated the defense” when she stated that the “[d]efense

wants you to find the defendant not guilty of attempted murder

because he didn’t keep trying to murder her.” The defense objected

to this statement, and the court sustained the objection. The

prosecution did not continue this line of argument. Again, Monte

obtained relief from the court. See Douglas, ¶ 65.

¶ 70 Fifth, Monte argues that the prosecutor denigrated Monte

when she referred to him as a “bully.” The prosecutor explained

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why Tallant was initially hesitant to report the incident to the police

when they first arrived at her house and said, “Of course she’s not

going to say anything. Her bully is right there.” The defense

objected, and the court overruled the objection.

¶ 71 As Monte points out, “courts have uniformly condemned as

improper a prosecutor using such terms as ‘rat,’ ‘dog,’ or ‘animal,’

to describe a defendant.” People v. Hernandez, 829 P.2d 394, 396

(Colo. App. 1991). The term “bully” is not among these terms,

which are more denigrating and dehumanizing. Given the facts of

this case, we consider the use of the word “bully” as an oratorical

embellishment rather than improper conduct. See Ortega, ¶ 52.

¶ 72 Sixth, Monte argues that the prosecutor appealed to the

jurors’ emotions when, in response to the defense’s speculation as

to FNE Hunsaker’s decision not to suggest follow-up care for

Tallant, the prosecutor said, “The defendant wants you to believe

there’s no serious bodily injury because the nurse didn’t force the

victim into a follow-up, as if that’s relevant. They want you to

believe that she didn’t suffer serious bodily injury because [FNE]

Hunsaker refused to subject her to another kidnapping.” Monte did

not object to this statement, so we review it for plain error.

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¶ 73 While dramatic, the statement was more of a rhetorical device

than improper argument. Ortega, ¶ 52. And to the extent it was

improper at all, it certainly wasn’t “flagrantly, glaringly, or

tremendously improper.” Domingo-Gomez, 125 P.3d at 1053.

¶ 74 Given all of this, we conclude that there were no instances of

prosecutorial misconduct that require reversal in this case.

E. Mistrial

¶ 75 Monte also contends that the trial court erred by applying an

appellate standard of review in evaluating whether the effect of the

multiple alleged instances of prosecutorial misconduct required a

new trial. It’s true that the court noted that the defense had not

objected to some statements. But then the court detailed on the

record why — for many of the reasons described above — it didn’t

find many of the statements in closing argument significantly

prejudicial. On this record, we can’t conclude that denying the

drastic remedy of a mistrial was a gross abuse of the trial court’s

discretion. See People v. Peoples, 8 P.3d 577, 580 (Colo. App.

2000).

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F. Cumulative Error

¶ 76 Lastly, Monte contends that the cumulative effect of

prosecutorial misconduct warrants a new trial.

¶ 77 The cumulative error doctrine applies when “the cumulative

effect of [multiple] errors and defects substantially affected the

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

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

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

Considering the cumulative effect of the errors we identified or

assumed, we still conclude that they did not substantially affect the

fairness of the trial or the integrity of the fact-finding process. We

therefore reject Monte’s final contention.

III. Disposition

¶ 78 The judgment is affirmed.

JUDGE FOX and JUDGE SULLIVAN concur.

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