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March 12, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Duran

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA1302

• Precedential Status: Non-Precedential

• Opinion

• Authorities (30)

• Cited By (0)

• Summaries (0)

• Similar Cases (20.3K)

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Combined Opinion

23CA1302 Peo v Duran 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1302
Adams County District Court No. 17CR2828
Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Louis Pete Duran,

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 March 12, 2026

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-
Appellee

Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Louis Pete Duran, appeals his convictions of

sexual assault on a child, sexual assault on a child - pattern of

abuse, and sexual assault on a child - position of trust. Duran

contends that the trial court erred by (1) allowing his second private

counsel to withdraw as his attorney without complying with the

procedural requirements of Crim. P. 44; (2) erroneously defining

“proof beyond a reasonable doubt”; and (3) violating Duran’s right of

confrontation by allowing a witness to testify while wearing a face

mask. We disagree and affirm the judgment.

I. Background

¶2 In 2016, Duran’s ex-girlfriend’s daughter, C.A., informed a

school counselor that Duran sexually assaulted her six years

earlier. The school reported the abuse to the police and C.A.

participated in a forensic interview approximately one month later

where she again disclosed the sexual abuse. She testified at trial

that on multiple occasions when her mother was working and not

at home, Duran would instruct her to shower and would touch her

inappropriately. Duran denied the abuse and testified that he took

care of C.A. but that he did not bathe her because he did not feel

comfortable doing so. A jury convicted Duran as charged. The

1
court sentenced him to twelve years to life in the custody of the

Department of Corrections.

II. Motion to Withdraw

¶3 Duran contends that the trial court’s failure to follow Crim. P.

44(c) and (d) deprived him of his right to counsel resulting in

structural error and mandating reversal of his convictions. We are

not persuaded.

A. Additional Facts

¶4 Following the filing of charges, Duran retained his first private

counsel to represent him. In December 2021, private counsel filed

a motion to withdraw that stated the attorney-client relationship

had “deteriorated to the point that counsel [wa]s unable to give

effective assistance of counsel and for other reasons specified under

Colorado Rules of Professional Conduct Rule 1.16(b)(2), Colorado

Rules of Professional Conduct Rule 1.16(b)(4), and Colorado Rules

of Professional Conduct Rule 1.16(b)(5).” Concurrent with this

motion, counsel sent Duran a written notice to withdraw containing

the following information:

• Counsel and the law firm were withdrawing as his

attorney.

2
• The Adams County District Court would retain

jurisdiction over this matter.

• Duran had the burden of keeping the court informed of

where notices, pleadings, or papers may be served.

• The next scheduled court date is for arraignment on

January 10, 2022.

¶5 On January 10, 2022 , Duran appeared for arraignment via

Webex. The court addressed counsel’s motion to withdraw in the

following colloquy:

TRIAL COURT: Okay. Let me look at this
motion. All right. I don’t see any objection in
the record to the motion.

Mr. Duran, are you objecting to the withdrawal
of your client – I mean of your attorney?

DURAN: No, sir.

TRIAL COURT: Do the People have a position
on the motion? I don’t see anything filed by
the People.

PROSECUTOR: No. Thank you, Judge.

TRIAL COURT: Okay. All right. Since there is
no objection . . . I will grant the motion to
withdraw.

¶6 Duran informed the court that he planned to hire new

counsel.

3
¶7 New private counsel entered her appearance on March 29,

1. On June 30, 2022, counsel and her law firm moved to

withdraw stating that Duran failed to meet his contractual

obligations. The pleading stated that Duran had a right to object to

counsel’s withdrawal. Counsel filed a special notice to set the

matter for a hearing on the motion to withdraw, which stated that

the motion and the notice had been sent to Duran. The court set a

hearing for July 14, 2022. Counsel filed a certificate of service

certifying that on July 1, 2022, she served a copy of the motion and

notice of hearing on the defendant via Unites States mail and email.

¶8 At the July hearing, counsel informed the court that Duran

had COVID-19 symptoms and would not be appearing. She did not

state Duran’s position on the motion, nor did she indicate whether

he was able to attend virtually. After confirming that Duran had

not appeared virtually, the trial court found that Duran’s

nonappearance constituted “no objection” to counsel’s motion to

withdraw and granted the motion. The prosecutor confirmed that

this hearing was not a bond appearance date, so no warrant issued,

and the court continued the case to the next bond appearance date.

4
¶9 Duran appeared pro se at his next hearing. When the trial

court asked Duran if he wished to be represented by an attorney,

Duran responded that he did, but that his funds for an attorney

had run low. He never voiced any objection to the court’s order

allowing private counsel to withdraw or to the court granting the

motion in his absence. Nor did he assert that he desired the court

to revisit its order allowing his second counsel to withdraw from the

case. Duran subsequently applied for and obtained representation

from the public defender, who represented him at trial.

B. Standard of Review and Applicable Law

¶ 10 We review a trial court’s ruling on a motion to withdraw for an

abuse of discretion. People v. DeAtley, 2014 CO 45, ¶ 13. A trial

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair, or when the decision is based on a

misapplication of the law. Id. Under this standard, “we ask not

whether we would have reached a different result but, rather,

whether the trial court’s decision fell within the range of reasonable

options.” People v. Archer, 2022 COA 71, ¶ 23 (quoting Hall v.

Moreno, 2012 CO 14, ¶ 54).

5
¶ 11 Whether the court correctly applied the law in ruling on a

motion to withdraw is a question of law we review de novo. DeAtley,

¶ 13. We employ the same interpretive rules applicable to statutory

construction to construe a rule of criminal procedure. Kazadi v.

People, 2012 CO 73, ¶ 11. We will first read the language of the

rule consistent with its plain and ordinary meaning, and, if it is

unambiguous, we apply the rule as written. People v. Angel, 2012

CO 34, ¶ 17.

¶ 12 The parties agree that Duran never objected to counsel’s

motion to withdraw. Duran argues that because he was not

present at the hearing, he never had the chance to object and that

the lack of an objection should not prejudice him. The People

respond that because Duran had notice of the hearing and its

purpose, he had the opportunity to object both in writing before the

hearing and verbally at the scheduled hearing but did not do so.

¶ 13 While we acknowledge that this presents a close issue, we

agree with the People. The record shows that Duran received a

copy of counsel’s motion approximately two weeks before the

hearing on the motion, which explained his right to object to her

withdrawal, and at the same time, he received notice of the hearing

6
set to address the motion. The record also shows that Duran and

counsel communicated immediately before the hearing and that

Duran told counsel he could not attend due to illness. During that

conversation, he could have, but apparently did not, communicate

any objection to the motion, nor did he ask counsel to reset the

hearing to a date at which he could be present. Moreover, at the

next hearing, when the court specifically asked Duran about

representation by counsel, Duran never voiced any disagreement

with the court’s ruling granting counsel’s motion to withdraw.

¶ 14 Under these circumstances, we conclude that because Duran

never raised any issues regarding the court’s noncompliance with

Crim. P. 44 or that it had denied Duran his counsel of choice, the

court did not have “an adequate opportunity to make findings of

fact and conclusions of law” addressing these issues. People v.

Melendez, 102 P.3d 315, 322 (Colo. 2004). Therefore, we review

this unpreserved contention for plain error. Zoll v. People, 2018 CO

70, ¶¶ 16-18. An error is plain when it is obvious and substantial

and so undermines the fairness of the proceeding as to cast serious

doubt on the reliability of the judgment. Hagos v. People, 2012 CO

63, ¶ 14.

7
¶ 15 The Sixth Amendment right to counsel includes a defendant’s

right to retain an attorney if the defendant is financially able.

DeAtley, ¶ 14. “The right to select an attorney of choice whom the

defendant trusts is considered central to the adversary system and

of substantial importance to the judicial process.” Id. at ¶ 15.

¶ 16 Crim. P. 44 governs an attorney’s withdrawal in a criminal

case. Crim P. 44 states:

(1) A lawyer may withdraw from a case only
upon order of the court. In the discretion of
the court, a hearing on a motion to withdraw
may be waived with the consent of the
prosecution and if a written substitution of
counsel is filed which is signed by current
counsel, future counsel and the defendant. A
request to withdraw shall be in writing or may
be made orally in the discretion of the court
and shall state the grounds for the request. A
request to withdraw shall be made as soon as
practicable upon the lawyer becoming aware of
the grounds for withdrawal. Advance notice of
a request to withdraw shall be given to the
defendant before any hearing, if practicable.
Such notice to withdraw shall include:

(I) That the attorney wishes to withdraw;

(II) The grounds for withdrawal;

(III) That the defendant has the right to object
to withdrawal:

(IV) That a hearing will be held and withdrawal
will only be allowed if the court approves;

8
(V) That the defendant has the obligation to
appear at all previously scheduled court dates;

(VI) That if the request to withdraw is granted,
then the defendant will have the obligation to
hire other counsel, request the appointment of
counsel by the court or elect to represent
himself or herself.

(2) Upon setting of a hearing on a motion to
withdraw, the lawyer shall make reasonable
efforts to give the defendant actual notice of
the date, time and place of the hearing. No
hearing shall be conducted without the
presence of the defendant unless the motion is
made subsequent to the failure of the
defendant to appear in court as scheduled. A
hearing need not be held and notice need not
be given to a defendant when a motion to
withdraw is filed after a defendant has failed to
appear for a scheduled court appearance and
has not reappeared within six months.

Crim. P. 44(d)(1)-(2).

¶ 17 “When a retained defense attorney files a motion to withdraw

under Crim. P. 44(c), the trial court necessarily must make an

inquiry into the foundation for the motion when balancing ‘the need

for orderly administration of justice with the facts underlying the

request.’” DeAtley, ¶ 15 (quoting Crim. P. 44(c)); People v. Alengi,

148 P.3d 154, 159 (Colo. 2006) (“Because there exists a strong

presumption against the waiver of a fundamental constitutional

9
right, the trial court has the duty to make a careful inquiry about

the defendant's right to counsel and his or her desires regarding

legal representation.”).

¶ 18 Violation of a defendant’s right to counsel of choice is

structural error. See Anaya v. People, 764 P.2d 779, 783 (Colo.

1988) (“[T]here is no way to know whether the character of the

proceedings would have changed, whether counsel would have

made different decisions, or whether the defense strategy would

have been different if [counsel of choice] had represented [the

defendant]. Under these circumstances, prejudice to the defendant

is assumed without the necessity of showing specific prejudice.”

(citation and internal quotation marks omitted)); People v. Ragusa,

220 P.3d 1002, 1010 (Colo. App. 2009).

C. Analysis

¶ 19 Even assuming the trial court did not follow the Crim. P.

44(d)(2) requirement to hold a hearing on a motion to withdraw, we

discern no plain error, for three reasons.

¶ 20 First, no one disputes that Duran received counsel’s notice or

her written motion to withdraw. The notice stated that counsel had

“given actual notice to the client prior to filing this Motion both via

10
U.S. Mail and email.” As well, both pleadings stated, “The

Defendant has the right to object to withdrawal of counsel. A

hearing will be set and withdrawal will only be allowed if the court

approves.”

¶ 21 Second, the record contains, and no one disputes that counsel

then filed a Notice To Hear, setting the matter for a hearing on the

motion for July 14, 2022 at 8:30 a.m. And the record shows that

counsel served the Notice To Hear on Duran via U.S. Mail and email

on July 1, 2022. Indeed, Duran never claimed that he was unaware

of the motion or the hearing.

¶ 22 Third, counsel appeared for the hearing and told the court

that she had spoken with Duran and that he could not appear at

the hearing because he was ill. While counsel did not represent

Duran’s position on the motion, nothing in the record suggests that

Duran told counsel he objected to the motion, or that he asked for

the hearing be rescheduled to another day during their

conversation. Indeed, Duran did not make any such

representations when he next appeared and discussed the issue of

representation with the court. Instead, he implicitly acknowledged

that there was cause for the motion by stating that his funds to

11
retain private counsel had run low. And, consistent with that

statement and his lack of objection, Duran then applied for and

received an attorney through the public defender’s office.

¶ 23 Because Duran and counsel were regularly communicating,

and there was no evidence of any disagreements between them, we

discern no abuse of discretion in the court’s decision to grant the

motion in Duran’s absence.

¶ 24 We are not persuaded otherwise by Duran’s reliance on People

v. Cardenas, 2015 COA 94M, ¶ 13, where a division of this court

held that automatic reversal was required because the trial court’s

noncompliance with Crim. P. 44 violated the defendant’s right to be

present. See People v. Wolfe, 213 P.3d 1035, 1036 (Colo. App.

2009) (one division of court of appeals is not bound by decision of

another division). In Cardenas, private counsel filed a motion to

withdraw that asserted irreconcilable differences of opinion between

him and the client concerning the case. Id. at ¶ 5. In a bench

conference, counsel alluded to the absence of communication. Id.

at ¶ 6. The court set the matter for a hearing before a different

judge so the parties could make a more complete record, and it

asked if the defendant objected to the motion. Id. The defendant

12
objected to counsel’s withdrawal. At the next hearing, the trial

court conducted an in camera hearing to obtain the reasons for

counsel’s motion to withdraw. Id. at ¶ 7. The hearing occurred in

the judge’s chambers and outside of the defendant’s presence. Id.

Without any inquiry of the defendant, the court granted the motion.

Id.

¶ 25 Unlike Cardenas, nothing in counsel’s motion suggested any

disagreement between Duran and counsel. It simply asserted that

Duran “has failed to meet his expectations and responsibilities

under the Agreement between counsel and client.” Moreover, the

record shows that they regularly communicated and did so

immediately before the hearing.

¶ 26 Additionally, unlike the defendant in Cardenas, who clearly

objected to counsel’s withdrawal but never got to explain his

objection following the in camera hearing, Duran received written

notice of his right to object, communicated his illness and inability

to attend the hearing to counsel immediately before the hearing, but

never told counsel, or the court at the following hearing, that he

objected to the withdrawal or wanted the hearing to be rescheduled.

Thus, we conclude that even though Duran did not appear at the

13
hearing, he had the opportunity to make his objection to the motion

through counsel and to request the opportunity to be present if he

so desired.1 When he next appeared and discussed representation

with the court, Duran explained that he was “low on funds” but

never asked any questions or voiced concerns about counsel’s

withdrawal. In the end, Duran was represented by counsel from

the public defender’s office at trial, and nothing in the record

suggests that he was dissatisfied with its representation.

¶ 27 Under the unique circumstances of this case, we conclude

that any noncompliance with Crim. P. 44(d)(2) did not “seriously

affect the fairness, integrity or public reputation of [the] judicial

proceedings,” and therefore the court did not deny Duran’s right to

counsel of choice. Hagos, ¶ 18.

1 We reject the People’s argument that we should construe Duran’s

nonappearance as a waiver of his right to be present. While the
record here shows that Duran knew of the July hearing, his
absence was due to illness, and nothing in the record suggests that
he knowingly and intentionally waived his right to attend the
hearing or otherwise voluntarily chose not to attend. Because we
“indulge every reasonable presumption against waiver,” we decline
to find an implied waiver from Duran’s absence. People v. Garcia,
2024 CO 41M, ¶ 43.

14
III. Jury Instruction

¶ 28 Duran next contends that the trial court erroneously defined

“proof beyond a reasonable doubt” for the jury. We disagree.

A. Additional Background Information

¶ 29 Before 2022, the Colorado model criminal jury instruction

defined reasonable doubt as follows:

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

COLJI-Crim. E:03 (2021).

¶ 30 In 2022, the model instruction concerning the presumption of

innocence, burden of proof, and reasonable doubt was substantially

revised to read, in its entirety, as follows:

Every person charged with a crime is
presumed innocent. This presumption of
innocence remains with the defendant
throughout the trial and should be given effect
by you unless, after considering all the
evidence, you are convinced that the defendant
is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a

15
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
proof that something is highly probable, but it
does not require proof with absolute certainty.

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

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

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

COLJI-Crim. E:03 (2022).

¶ 31 Defense counsel objected to using the newer reasonable doubt

instruction stating,

It’s our position that proof beyond a
reasonable doubt – the language specifically
where it says “firmly convinced of the
defendant’s guilt” and ends with “but if you
think there is a real possibility,” brings down
the burden of proof. Providing this instruction

16
to the jurors would violate Mr. Duran’s
constitutional rights on the federal and
Colorado level and his right to due process and
a fair and impartial jury.

¶ 32 The prosecutor responded, “[T]he People have no problem with

the Court providing the new instruction. I believe it was created

and approved by the Colorado Supreme Court; so we don’t foresee

any issues if the Court wants to provide that new instruction.

That’s the one I submitted in the packet.”

¶ 33 The trial court concluded as follows:

I’ve been using the new one. I’m going to use
the new one in this case, and we’re going to
find out if the Supreme Court thinks it’s
wrong. I think most trial judges are probably
using that instruction now. So at this point, I
have no reason to believe that it’s
unconstitutional. But, again, that’s ultimately
for the Supreme Court to decide if and when a
case gets up there challenging that. But for
today’s purposes, I am going to use the new
one because I think it is a little more easily
understood by jurors who don’t have a law
background. So that’s what I’m going to talk
to them about today, and that’s what I’ll give in
my final instruction package with the objection
noted.

B. Standard of Review and Applicable Law

¶ 34 The Due Process Clause of the United States Constitution

“protects the accused against conviction except upon proof beyond

17
a reasonable doubt of every fact necessary to constitute the crime

with which he is charged.” In re Winship, 397 U.S. 358, 364, 90

(1970); accord Vega v. People, 893 P.2d 107, 111 (Colo. 1995). The

U.S. Supreme Court has thus made clear that the reasonable doubt

standard is “indispensable” in criminal prosecutions. See Winship,

397 U.S. at 364.

¶ 35 The trial court must properly instruct the jury on the

reasonable doubt standard. Tibbels v. People, 2022 CO 1, ¶ 22.

Although the court has some flexibility in how it defines reasonable

doubt, an instruction that lowers the prosecution’s burden of proof

below the reasonable doubt standard is structural error requiring

automatic reversal. Id. at ¶¶ 22-25. To determine whether an

instruction impermissibly lowered the burden of proof, we apply a

“functional test, asking whether there is a reasonable likelihood

that the jury understood [the] contested instruction, in the context

of the instructions as a whole and the trial record, to allow a

conviction based on a standard lower than beyond a reasonable

doubt.” Id. at ¶ 36.

¶ 36 Model jury instructions are “intended as guidelines and should

be considered by trial courts.” People v. Morales, 2014 COA 129,

18
¶ 42. But they are not binding and they are not the law. Krueger v.

Ary, 205 P.3d 1150, 1154 (Colo. 2009); People v. Randolph, 2023

COA 7M, ¶ 22. Nor does adherence to a model instruction provide a

“safe harbor that insulates instructional error from reversal.”

Garcia v. People, 2019 CO 64, ¶ 22. Instead, we review such an

instruction as we would any other. See id. at ¶ 23.

¶ 37 We review de novo whether a jury instruction impermissibly

lowered the prosecution’s burden of proof. Tibbels, ¶ 22. But if the

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

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

People, 2021 CO 64, ¶ 54. Thus, if the instructions as a whole

correctly inform the jury of the prosecution’s burden of proof

beyond a reasonable doubt, there is no due process violation.

Johnson v. People, 2019 CO 17, ¶ 14.

C. Analysis

¶ 38 Duran challenges five aspects of the 2022 model jury

instruction, as given by the trial court, contending that (1) the

omission of the “lack of evidence” language from the prior COLJI

instruction requires reversal; (2) the instruction erroneously omitted

the “hesitate to act” language from the prior COLJI instruction; (3)

19
the “real possibility” language in the new instruction lowered the

burden of proof; (4) the “firmly convinced” language in the new

instruction lowered the burden of proof; and (5) the changes

cumulatively lowered the burden of proof. We disagree.

¶ 39 First, as two previous divisions of this court concluded, not

including “lack of evidence” in a reasonable doubt instruction does

not lower the prosecution’s burden of proof. People v. Schlehuber,

2025 COA 50, ¶ 20; People v. Melara, 2025 COA 48, ¶ 24. As

explained in Schlehuber, the 2022 model reasonable doubt

instructions do not preclude the jury’s consideration of the

prosecution’s lack of evidence. Schlehuber, ¶ 22. This concept was

included in the trial court’s instruction, which informed the jury

that “[t]he burden of proof in this case is upon the prosecution” and

that “[e]very person charged with a crime is presumed innocent.”

Id. Moreover, the ultimate paragraph of the court’s instruction told

the jury that it must consider “all the evidence” when determining

whether the prosecution met its burden of proof. Id. Thus, the

court’s instruction clearly informed the jury that, “if the prosecution

fails to present sufficient evidence of guilt, it will not have met its

burden.” Id. (citing United States v. Petty, 856 F.3d 1306, 1311

20
(10th Cir. 2017)); see also Rault v. Louisiana, 772 F.2d 117, 137

(5th Cir. 1985) (“These instructions necessarily conveyed the

concept that a reasonable doubt would arise in the absence of

evidence sufficient to show guilt beyond a reasonable doubt.”).

¶ 40 Second, we reject Duran’s contention that the court

undermined the proof beyond a reasonable doubt standard by

omitting the “hesitate to act” language that appeared in the 2021

model instructions. We disagree because, like the Schlehuber

division, we do not see why it would be error to exclude “hesitate to

act” in a reasonable doubt instruction, “so long as the instruction

otherwise correctly defines the reasonable doubt standard,” as it

does here. Schlehuber, ¶ 28.

¶ 41 Third, we disagree with Duran that including language that a

reasonable doubt requires a “real possibility that the defendant is

not guilty” lowered and shifted the burden of proof. See id. at ¶ 34.

The court’s instruction said that “reasonable doubt” is a “real

possibility that defendant is not guilty” and that proof beyond a

reasonable doubt “requires more than proof that something is

highly probable.” This definition of reasonable doubt “has been

consistently approved by federal courts as an accurate expression

21
of the reasonable doubt standard.” Id. at ¶ 30; see e.g., Victor v.

Nebraska, 511 U.S. 1, 24-27 (1994) (Ginsburg, J., concurring in

part and concurring in the judgment) (concluding that a similar

definition of reasonable doubt “surpasse[d] others . . . in stating the

reasonable doubt standard succinctly and comprehensibly”). The

“phrase ‘real possibility’ correctly directs the jury not to acquit the

defendant simply because it can conceive of some fanciful

possibility that the defendant is not guilty” and explains “the

threshold [that] the prosecution must overcome” to prove each

element of the offense by a reasonable doubt. Schlehuber, ¶¶ 31,

34.

¶ 42 Fourth, we disagree with Duran’s contention that the “firmly

convinced” phrase lowered the prosecution’s burden of proof. As

the Schlehuber division explained, “[t]he phrase ‘firmly convinced’

correctly connotes a standard of ‘near certitude’” greater than

“highly probable” but less than absolute certainty. Id. at ¶ 31

(quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)); see People

v. Camarigg, 2017 COA 115M, ¶ 49 (recognizing the distinction

between “proof beyond a reasonable doubt and proof beyond all

doubt”). Moreover, another division of this court in Melara

22
characterized the “firmly convinced” phrase as “an accurate

statement of the law.” Melara, ¶ 30.

¶ 43 Fifth, we reject Duran’s argument that the court did not

correctly instruct the jury on the prosecution’s burden of proof

because of the cumulative effect of the deficiencies in the court’s

instruction. Because we conclude that the court did not err in

giving the instruction, there can be no cumulative error.

IV. Confrontation Clause

¶ 44 Duran next contends that the trial court erred by allowing a

witness to testify at trial while wearing a face mask. We disagree.

A. Additional Background Information

¶ 45 At trial, Blair Garnett testified for the prosecution. In 2016,

Garnett was a program manager for Youth Empowerment Support

Services, and C.A. was in Garnett’s class. Before Garnett’s

testimony began, the trial court asked her to remove her face mask.

Garnett responded, “Even though I’m still contagious with strep

throat? I’m happy to remove it if you would like, though.” The

following discussion occurred outside the presence of the jury:

[DEFENSE COUNSEL]: So I think the situation
– we’re objecting, for the record. I think at this
point, it would be more harmful than helpful

23
to, you know, not have her testify just because
she is wearing a mask. I don’t want anybody
to get contagious with strep throat or anything
like that. So I think, you know, just –

TRIAL COURT: I don’t know how material she
is. I have no idea what this witness is going to
tell me. So I don’t know how material she is to
this case.

PROSECUTOR: Judge, I don’t have an
opinion. I think she’s behind glass. I don’t
know how far strep throat can travel.

TRIAL COURT: I do have – I mean, she’s just in
close proximity to our jurors; so I do have
concerns about that. Like I said, I don’t know
what this witness – how long –

PROSECUTOR: She’s an outcry witness. I
don’t think super long.

TRIAL COURT: One of the teachers?

PROSECUTOR: That C.A. disclosed to.

TRIAL COURT: So I think it’s probably
discretionary to the Court. That’s why I
wanted to know a little bit about what this
witness is going to be testifying to. Sounds
like a short witness.

PROSECUTOR: I think so. I don’t know how
long their cross will be.

TRIAL COURT: Right. But basically she’s just
as an outcry witness that received a report
from the victim?

24
TRIAL COURT: Okay. Just with the health
and safety concerns, at this point, I’m going to
allow her to leave her mask on, noting the
defense’s objection to that. In the fact that
she’s that material of a witness in this case, I
mean, I might have a different view obviously
of the victim or someone else. But it sounds
like she’ll be a short witness and sounds like
we’ve already heard through other witnesses
what we’re going to remember from this
witness.

¶ 46 The trial court allowed Garnett to testify with her mask on “for

health reasons.” Garnett testified that, in the week leading up to

her outcry, C.A. seemed “particularly upset” and avoided making

eye contact with her. When C.A. asked to speak with Garnett

privately, C.A. was “terrified, frightened, agitated.” C.A. told

Garnett that someone she knew touched her where they were not

supposed to and that she had told her mother the night before.

C.A. began to cry.

B. Standard of Review and Applicable Law

¶ 47 We review de novo whether a trial court violated a defendant’s

rights under the Confrontation Clause. Nicholls v. People, 2017 CO

71, ¶ 17. The United States and Colorado Constitutions guarantee

criminal defendants the right to confront witnesses called to testify

against them. People v. Reynolds-Wynn, 2024 COA 33, ¶ 23. The

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Confrontation Clause of the United States Constitution provides

that a defendant shall be entitled to “be confronted with the

witnesses against him.” U.S. Const, amend. VI. Similarly, though

not identically, the Colorado Constitution provides that “[i]n

criminal prosecutions the accused shall have the right to . . . meet

the witnesses against him face to face.” Colo. Const, art. II, § 16.

¶ 48 Trial courts are accorded broad discretion to regulate

courtroom conduct. People v. Woellhaf, 87 P.3d 142 (Colo. App.

2003). The trial court’s management of the courtroom is reviewed

for an abuse of discretion. People v. Rudnick, 878 P.2d 16, 21

(Colo. App. 1993). “A trial court abuses its discretion when its

ruling is manifestly arbitrary, unreasonable, or unfair, or when the

trial court misapplies or misconstrues the law.” Fisher v. People,

2020 CO 70, ¶ 13. Under this standard, “we ask not whether we

would have reached a different result but, rather, whether the trial

court’s decision fell within the range of reasonable options.” Archer,

¶ 23 (quoting Moreno, ¶ 54).

C. Analysis

¶ 49 We reject Duran’s argument that the trial court’s decision to

allow Garnett to wear a face mask during her testimony violated his

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confrontation rights. While we recognize that Colorado’s

constitution provides a right to “face to face” confrontation, Colo.

Const. art. II, § 16, the Colorado constitution “secures identical

rights as the federal right to confrontation.” People v. Collins, 2021

COA 18, ¶ 37. And the U.S. Supreme Court has held that the right

to face-to-face confrontation is not absolute and may be relaxed

“where denial of such confrontation is necessary to further an

important public policy.” Maryland v. Craig, 497 U.S. 836, 850

(1990).

¶ 50 The trial court stated that Garnett could keep her mask on to

protect the jurors and other courtroom participants from

contracting strep throat, a legitimate public policy reason to

minimally relax Duran’s confrontation right. Duran and the jurors

were still able to see Garnett’s overall body movements, hear the

tone of her voice, and see her eye movements. People v. Garcia,

2022 COA 144, ¶ 19 (finding that “a mask covering a juror’s nose

and mouth does not make it impossible to assess the juror’s

demeanor” because demeanor includes the language of the entire

body). And Garnett’s testimony as an outcry witness was

cumulative to C.A.’s testimony. C.A. testified that she told Garnett

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that she was touched inappropriately a day after she told her

mother.

¶ 51 Accordingly, we discern no abuse of discretion in the court’s

decision to allow Garnett to testify with a mask on, nor do we

perceive a violation of Duran’s constitutional right to confrontation

flowing from that decision.

V. Disposition

¶ 52 The judgment is affirmed.

JUDGE BROWN and JUDGE SCHUTZ concur.

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