Peo v. Messerly

22CA1914 Peo v Messerly 07-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1914
Moffat County District Court No. 21CR59
Honorable Sandra H. Gardner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kaylee Ann Messerly,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 17, 2025

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

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Kaylee Ann Messerly, appeals her convictions for

child abuse resulting in serious bodily injury and child abuse

resulting in death. We affirm the judgment.

I. Background

¶2 In the early morning of March 11, 2021, an individual reported

an abandoned car and stroller on a private road off County Road

54. When Deputy Leanna Dennis arrived, the snow was beginning

to melt, and the road was muddy and slick. She was concerned her

car would get stuck, so she stopped when she was near enough to

read the car’s license plate. After running the plate number, she

learned that the car was registered to Messerly. Dennis called the

associated phone number and Messerly’s sister, Amy,1 answered.

She said that Messerly had left her phone at home and that she had

not seen Messerly for a couple of days.

¶3 Dennis called her partner, Corporal Nathan Baker and asked

him to bring the sheriff’s office utility vehicle to conduct a search.

When Baker arrived, they drove up to the car and saw no one was

1 Because Amy shares the same name last name as Messerly, we

refer to her by her first name. We mean no disrespect in doing so.

1
inside it. They walked a quarter of a mile down the private road

and found a stroller stuck in the mud.

¶4 Back at the station, Lieutenant Chip McIntyre followed up

with Amy. Amy had not heard from Messerly since March 9 and

said Messerly often left without her phone and without telling her

family where she was going. Amy said Messerly’s one-year-old

daughter, E.S., and two-year-old daughter, A.S., were likely with

her.

¶5 After a ground and aerial search, Baker found Messerly

holding A.S. approximately one mile from the car. Messerly was

wearing a T-shirt, black stretchy pants, and leather boots. A.S. was

wrapped in a black coat but had no socks or shoes. As Baker

approached, Messerly said that her other baby was up the hill.

Approximately one hundred yards away, E.S. was lying in a pile of

sage brush. She wore leopard print leggings and a light jacket but

had no hat, gloves, shoes, or socks. E.S. had died of hypothermia.

¶6 Messerly and A.S. were taken to the hospital where Detective

Gary L. Nichols interviewed Messerly. Messerly said she and her

children spent two nights in the snow. On March 9, around 1 p.m.,

she brought A.S. and E.S. to the private road to look for sticks and

2
stones to paint. When they arrived, it was a nice day.2 Messerly

did not check the weather, so she did not know a blizzard was

expected that night, and she did not bring winter clothing.3 After

collecting stones, Messerly’s car got stuck in the mud and would

not start. Messerly sat in her car for four hours until she thought

she saw house lights in the distance. With both children in the

stroller, Messerly started walking towards the lights.4 When the

stroller got stuck in the mud, she continued down the road holding

both children. When she reached the lights, she realized it was an

oil rig, not a house. It was dark, and when Messerly looked back

she did not see her car. She continued to walk away from the car,

calling out for help. As it began snowing, Messerly and her children

sat in the sage brush.5 A.S. and E.S. lost their shoes and socks.

The next day, they slept in the trees as it continued to snow. When

Messerly tried to walk she could only travel a distance of around six

2 According to a report from the National Weather Service, at 1:53

p.m. the temperature was 50 degrees and conditions were fair.
3 During the search of Messerly’s car, officers found clothing,

jackets, shoes, and a comforter.
4 At 4:53 p.m. the temperature was 50 degrees, and it was slightly

cloudy.
5 At 11:53 p.m. the temperature was 33 degrees, and it was

snowing heavily.

3
feet before having to sit down. During the second night, Messerly

fell asleep for twenty minutes, and when she awoke, E.S. was “not

ok.” She then wrapped her black coat around A.S. to keep her

warm.

¶7 When A.S. arrived at the emergency room, she had fourth-

degree frostbite, the most severe level of frostbite, causing

irreversible injury to her lower extremities. A.S.’s left foot required

amputation above the ankle, and her right leg required amputation

below the knee.

¶8 Messerly admitted to previously smoking methamphetamine

but said that she was trying to get clean. Messerly said that if

methamphetamine was found in her system it was because she and

E.S. consumed snow that was next to a methane gas plant. A.S.

did not eat the snow because she was “the smart one of us.”

Messerly and A.S. tested positive for methamphetamine. During a

follow up interview, Messerly said that she did a “hot rail”6 on

March 8 or 9.

6 A “hot rail” refers to when an individual heats up the end of a

glass pipe/stem and inhales the vapor of methamphetamine up
their nose.

4
¶9 The State charged Messerly with one count of child abuse

resulting in death (E.S.) and one count of child abuse resulting in

serious bodily injury (A.S.). The jury convicted Messerly on both

counts. The trial court sentenced her to sixteen years in the

custody of the Department of Corrections for E.S.’s death and

imposed a consecutive sentence of ten years for A.S.’s serious bodily

injury.

¶ 10 On appeal Messerly contends that she was erroneously

convicted of “knowingly” or “recklessly” committing child abuse

because the trial court determined at the preliminary hearing that

the evidence did not establish probable cause to believe that

Messerly “knowingly” committed the charged crimes. She further

contends the trial court erred by permitting the prosecutor to use

reasonable doubt analogies and by admitting other act evidence.

We affirm the judgment.

II. Preliminary Hearing and Probable Cause

¶ 11 Messerly contends that she was erroneously convicted of

“knowingly” and “recklessly” committing child abuse despite the

trial court determining that probable cause did not exist for the

“knowingly” mental state at the preliminary hearing. We conclude

5
that this contention was waived. However, even if the contention

was not waived, we perceive no plain error.

A. Additional Background

¶ 12 In the complaint, the State charged Messerly with two counts

of child abuse:

Count 1 – Child Abuse Resulting in Death

Between and including March 9, 2021 and
March 11, 2021, Kaylee Ann Messerly
unlawfully, feloniously, knowingly, or
recklessly caused an injury to, or permitted to
be unreasonably placed in a situation that
posed a threat of injury to, the life, or health if
a child, namely: E.S., that resulted in the
death of the child; in violation of section
18-6-401(1)(a), (7)(a)(I), C.R.S. [2024.]

Count 2 – Child Abuse Resulting in Serious
Bodily Injury

Between and including March 9, 2021 and
March 11, 2021, Kaylee Ann Messerly
unlawfully, feloniously, knowingly, or
recklessly caused an injury to, or permitted to
be unreasonably placed in a situation that
posed a threat of injury to, the life or health of
a child, namely: A.S., that resulted in serious
bodily injury to the child; in violation of section
18-6-401(1)(a), (7)(a)(III), C.R.S.

(Emphases added.)

¶ 13 Messerly requested the lesser included offense of child abuse,

negligence.

6
¶ 14 Lieutenant McIntyre testified at the preliminary hearing. The

prosecutor argued that McIntyre’s testimony was sufficient to

establish probable cause that Messerly recklessly caused serious

bodily injury to A.S. and recklessly caused E.S.’s death by

“recklessly leaving the vehicle, not bringing them warm clothes, not

going back to the vehicle . . . and just staying out there in this cold

for . . . multiple nights.”

¶ 15 Messerly argued that the prosecutor failed to establish

probable cause that Messerly acted “knowingly” or “recklessly” and

instead asked the trial court bind the case over to the district court

on the lesser included offense of negligent child abuse. Messerly

argued:

I could acknowledge that they’ve made a case
for negligence. But [when you] talk about
knowing conduct or reckless conduct, in the
case of knowingly, Your Honor, [you] have to
demonstrate that there was evidence that Ms.
Messerly was aware that her conduct [was]
going to cause either death or [serious] bodily
injury to her children, [and] notwithstanding
that, [she] persisted in that conduct, knowing
that it would cause death or serious bodily
injury, or alternatively — and she would —
they have to show that her conduct was
reckless.

7
That is to say that she consciously disregarded
a known risk that death would occur, or
serious bodily injury would occur to one of
the — one of the children. And . . . they have
not set out facts sufficient to allow the Court to
draw such a conclusion.

¶ 16 Messerly argued that the prosecution relied on the fact that

Messerly did not check the weather, that her car got stuck, and that

she exited the car to show probable cause for knowing or reckless

conduct. Messerly asserted that this conduct only established

probable cause for negligent child abuse resulting in serious bodily

injury and death.

¶ 17 The prosecutor responded:

[T]he standard here is that Ms. Messerly
recklessly — not that she recklessly
(indiscernible) the death, but that she
recklessly permitted a child to be
unreasonably placed in a situation that posed
a threat of injury to the child’s life or health,
which then resulted in serious bodily injury or
the death of a child.

And certainly these children were permitted to
be unreasonably placed in a situation that
posed a threat of injury to their life or health.
You know, even if each of these individual
actions, you know, themselves don’t give —
rise to the level of reckless, all of them together
do. They show that there was this substantial
risk. It continued to build, it continued to
build, and it was disregarded.

8
¶ 18 The prosecutor argued that the amount of time Messerly

remained outside without attempting to return to the car

established reckless behavior. “And that that recklessness did

permit the child to be unreasonably placed in this situation that

posed a threat of injury to the child’s life or health and — and did

result in serious bodily injury and death.”

¶ 19 The trial court found:

Starting with child abuse resulting in
death, . . . and focusing specifically on
recklessly. I don’t think that the People have
established knowingly, but that recklessly Ms.
Messerly permitted — permitted her child to be
unreasonably placed in a situation that posed
a threat of injury to the life or health of the
child, and then resulted in death.

....

But when you look at all of these events, and
how they transpired, I think from a probable
cause standard, they rise to the level of
recklessly, recklessly permitting a child to be
unreasonably placed in a situation that posed
the threat of injury to the life or health of a
child. And we know that that resulted in the
death of a child. That is clear. That that
occurred in Moffat County between March 9th
and March 11th of 2021.

With regard to Count 2, under the same
standard, recklessly, permitted to be
unreasonably placed in a situation that posed

9
a threat of injury to the life or health of a child
that resulted in serious bodily injury. And
that particular child also tested positive for
methamphetamine, adding a — an additional
layer of what could be deemed as reckless.
That she was unreasonably placed in a
situation that posed a threat of injury to her
life or health. That occurred, as the testimony
explained, between March 9th and March
11th, 2021, and resulted in serious bodily
injury to the child. We heard testimony that
the doctor at Children’s Hospital who
examined her signed off on a serious bodily
injury form.

Let me just make sure I’ve covered everything I
wanted to cover in my notes, folks. For the
purpose of the preliminary hearing, I find that
the People have carried their burden, and I will
order both cases being bound over to the
district court for further proceedings.

....

DEFENSE COUNSEL: My understanding is the
Court has found that they have not shown
probable cause for knowing conduct; is that
correct?

TRIAL COURT: That is correct. I have not
found probable cause for knowingly.

¶ 20 The court ruled the trial would proceed on both counts.

¶ 21 During the jury instruction conference, the prosecutor

tendered the following instruction:

The elements of the crime of Child Abuse as it
relates to Counts 1 and 2 are:

10
1. That the defendant,

2. in the State of Colorado, at or about the
date and place charged,

3. knowingly,

4. caused an injury to a child’s life or health,
or permitted a child to be unreasonably placed
in a situation that posed a threat or injury to
the child’s life or health, or engaged in a
continued pattern of conduct that resulted in
malnourishment, lack of proper medical care,
cruel punishment, mistreatment, or an
accumulation of injuries that ultimately
resulted in the death of a child or serious
bodily injury to a child.

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

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

(Emphasis added.)

¶ 22 The following discussion ensued:

TRIAL COURT: I believe there is an error on
Element 3, knowingly. As charged in the
complaint, it is knowingly or recklessly.

DEFENSE COUNSEL: I can live with
knowingly.

11
PROSECUTION: We would ask that recklessly
be added.

TRIAL COURT: All right. Any further
modifications to that instruction?

DEFENSE COUNSEL: I don’t think so, Judge.

TRIAL COURT: So Element 3 will read
knowingly or recklessly.

B. Applicable Law and Standard of Review

¶ 23 “[P]reliminary hearings are for the purpose of determining

whether ‘there is probable cause to believe that an offense has been

committed and that the person charged committed it.’” People v.

Villapando, 984 P.2d 51, 55 (Colo. 1999) (quoting People v. Dist. Ct.,

803 P.2d 193, 196 (Colo. 1990)). The prosecution has probable

cause when it “present[s] evidence sufficient to induce a person of

ordinary prudence and caution to entertain a reasonable belief that

the defendant committed the crime.” Dist. Ct., 803 P.2d at 196. At

a preliminary hearing, the prosecution does not need to “present

evidence sufficient to support a conviction for the crime charged.”

Villapando, 984 P.2d at 55. “Rather, the preliminary hearing acts

as a screening device . . . .” Id.

¶ 24 “If, from the evidence [presented at a preliminary hearing], it

appears to the district court that no probable cause exists to believe

12
that any or all of the offenses charged were committed by the

defendant, the court shall dismiss those counts from the

information . . . .” Crim. P. 7(h)(4).

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

matters of law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).

We review jury instructions de novo to determine whether they

correctly informed the jury of the applicable law. Id.

¶ 26 Waiver is the intentional relinquishment of a known right or

privilege. People v. Rediger, 2018 CO 32, ¶ 39. A waived claim of

error presents nothing for an appellate court to review. People v.

Kessler, 2018 COA 60, ¶ 68. Although a mere failure to object does

not in all cases constitute a waiver, Rediger, ¶ 44, unequivocally

agreeing to a proposed course of action with full knowledge of the

surrounding facts and circumstances does, Forgette v. People, 2023

CO 4, ¶ 34 (when counsel was fully aware of a sleeping juror but

failed to ask the court to address the issue, defendant intentionally

relinquished his right to object and therefore waived appellate

review of the issue).

¶ 27 We review unpreserved, forfeited errors for plain error. People

v. Van Meter, 2018 COA 13, ¶ 42. Reversal is required under this

13
standard only if the error was obvious and “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, ¶ 18.

C. Analysis

¶ 28 We conclude that Messerly waived this contention. Despite

the court’s ruling at the preliminary hearing, defense counsel

affirmed that he “[could] live with” the prosecutor’s tendered

instruction that only included “knowingly” after the trial court

identified that the instruction did not match the charges that

contained both “knowingly” and “recklessly.” Messerly did not

merely acquiesce to the proposed instruction, but she explicitly

agreed to it during the discussion. Cf. Rediger, ¶¶ 43-44 (perceiving

no waiver of a constructive amendment claim when there was no

discussion of the jury instruction challenged on appeal or any

indication that counsel knew of a discrepancy between the jury

instruction and the charging document). Then, when asked if the

instruction needed further modification after “recklessly” was

added, defense counsel responded, “I don’t think so.” Accordingly,

based on this record, we conclude Messerly waived this issue.

14
¶ 29 However, even assuming an error occurred and was not

waived, we conclude any error was not plain for three reasons.

First, the error was not obvious because the jury instruction

tracked the statutory language and was therefore legally correct.

See People v. Chase, 2013 COA 27, ¶ 60 (“A jury instruction that

tracks [the] language of the statute is almost always sufficient.”). It

also tracked the model instruction. See COLJI-Crim. 6-4:01 (2022).

Moreover, when a statute describes two ways in which an offense

can be committed, it is proper to instruct the jury in the disjunctive,

requiring conviction if any of the statutory alternatives are

established by the evidence. People v. Viduya, 703 P.2d 1281, 1292

(Colo. 1985).

¶ 30 Second, Messerly argues that the verdict does not indicate the

mens rea on which the jury convicted her. But a finding of knowing

child abuse necessarily includes a finding of reckless child abuse.

People v. Struckmeyer, 2020 CO 76, ¶ 6. And “knowingly” is a more

difficult mental state to prove. See People v. Rigsby, 2020 CO 74,

¶ 21. Therefore, its inclusion in the instruction served to increase

the prosecution’s burden, making it unlikely that any error

contributed to Messerly’s conviction.

15
¶ 31 Third, we reject Messerly’s argument that she did not receive

notice of the charges against her. A charging instrument is

sufficient so long as “it advises the defendant of the charges he is

facing so that he can adequately defend himself.” Campbell v.

People, 2020 CO 49, ¶ 44 (quoting Cervantes v. People, 715 P.2d

783, 785 (Colo. 1986)). “The prosecution cannot constitutionally

require a defendant to answer a charge not contained in the

charging instrument.” People v. Rodriguez, 914 P.2d 230, 257

(Colo. 1996). Here, the prosecutor charged Messerly with knowing

or reckless conduct, and the jury instructions and verdict forms

matched the charging document.

¶ 32 Accordingly, we perceive no reversible error.

III. Prosecutorial Misconduct

¶ 33 Messerly next contends that the prosecutor committed

misconduct when he employed two analogies to explain reasonable

doubt. We disagree and discern no plain error.

A. Additional Background

¶ 34 Before voir dire, the trial court instructed the jury on

reasonable doubt:

16
A reasonable doubt is the highest standard we
have in our justice system. It is a doubt based
upon reason and common sense, which arises
from a fair and rational consideration of all the
evidence, or lack of evidence, in this case. It is
not a doubt that is vague, speculative, or
imaginary, but such a doubt as would cause a
reasonable person to hesitate to act in matters
of importance to themselves.

¶ 35 During voir dire, the prosecutor presented prospective jurors

with a pair of analogies to explain the concept of reasonable doubt.

The first analogy involved a dog being left in an apartment.

So [Juror R], I — I use a stupid little factual
scenario to kind of explain proof beyond a
reasonable doubt. You heard the Judge say
it’s not vague, speculative, or imaginary doubt.
Okay. And so in this little factual scenario, I
have a small 600 square foot apartment. I
have a couch inside that apartment and I have
a dog. Okay? No windows, just the front door.

I leave to go to work in the morning, I lock the
door, leave my dog inside. When I leave my
dog inside the couch is in the — in the way
that I left it, you know, clean, tidy. I come
home and the couch is ripped up to shreds
and there’s fuzz everywhere. Okay? In that
stupid little factual scenario, have I proven to
you beyond a reasonable doubt that my dog
probably destroyed my couch while I was out
that day?

JUROR R: Chances are, yeah. The dog
probably did it.

17
¶ 36 The prosecution questioned two more jurors, and they said

that they would believe that the dog tore up the couch. The

prosecutor continued:

PROSECUTOR: Uh-huh. Yeah. Do you think
beyond a reasonable doubt that the dog did it?

JUROR B: Most likely.

PROSECUTOR: Yeah. Most likely.

JUROR B: Yeah.

PROSECUTOR: And — and it’s just like a — it
is just this weird concept, right? It’s not a
numerical concept. It’s not 51 percent, 75
percent, 99 percent. You can’t attach a
number to it, of — how sure you are. It’s —
it’s a legal definition.

But what we do know is it’s not vague,
speculative, or imaginary. And so one of the
things that [a juror] and I was [sic] talking
about was, should I speculate that somebody
walked in that front door and did it, and
blamed it on the dog? Right? Would that be
speculative if the — if the evidence was, nope
that door wasn’t open? What do you think,
[Juror B], would that be speculative?

JUROR B: Yes.

PROSECUTOR: Okay. All right? It’s not an
imaginary doubt.

¶ 37 In the middle of the dog scenario, the prosecutor said:

18
PROSECUTOR: Right? And you know, we’re —
we’re kind of in that world in criminal law, as
well, where we don’t oftentimes get a
confession about what happened. And so it is
left up to us to kind of put the pieces together,
put these puzzle pieces together to find out
whether or not this actually happened the way
it did. What do you think about that?

¶ 38 Messerly’s counsel did not object.

¶ 39 Before opening statements, the trial court instructed the jury:

Please understand that it is my job to decide
what rules of law apply to the particular case,
and you are to follow those rules as I instruct
you on them. Even if you disagree or you do
not understand why we have a particular rule,
you are still to follow the rules. You will then
apply these rules that I give you throughout
these proceedings to the facts of the case, and
that is how you will reach your verdict. And
this is how you’ll determine whether the
prosecution has proven the guilt of Ms.
Messerly beyond a reasonable doubt.

¶ 40 Before closing arguments, the trial court instructed the jury:

It is my job to decide what rules of the law
apply to the case, the attorneys may comment
on these rules, you must follow the
instructions I give you. Even if you disagree or
do not understand the reasons for some of the
rules of law, you must follow them. No single
instruction describes all of the law which must
be applied. The instructions must be
considered as a whole.

....

19
The burden of proof is upon the prosecution to
prove to the satisfaction of the jury beyond a
reasonable doubt the existence of all of the
elements necessary to constitute the crime
charged. 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 important to
themselves.

B. Standard of Review and Applicable Law

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

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

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We

will not disturb the trial court’s ruling regarding such a statement

absent a showing of an abuse of discretion. People v. Strock, 252

P.3d 1148, 1152 (Colo. App. 2010). A trial court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair or is based on a misunderstanding or misapplication of

the law. People v. Snelling, 2022 COA 116M, ¶ 31.

¶ 42 When, as here, a defendant does not object at trial, we review

the error under the plain error standard. People v. James, 117 P.3d

91, 95 (Colo. App. 2004). “To constitute plain error, misconduct

20
must be flagrant or glaring or tremendously improper, and it must

so undermine the fundamental fairness of the trial as to cast

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

People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119

P.3d 1073 (Colo. 2005). And although lawyers “should avoid using

analogies when explaining the concept of reasonable doubt to a

jury,” People v. Sauser, 2020 COA 174, ¶ 88, prosecutorial

misconduct rarely constitutes plain error, People v. Carter, 2015

COA 24M-2, ¶ 53.

¶ 43 When reviewing claims of prosecutorial misconduct, we

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

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

questionable conduct was improper based on the totality of the

circumstances.” Id. In doing so, we consider the context of the

argument as a whole and view it in the light of the evidence before

the jury. People v. Samson, 2012 COA 167, ¶ 30.

¶ 44 Second, if the comments were improper, we determine

“whether such actions warrant reversal according to the proper

standard of review.” Wend, 235 P.3d at 1096.

21
C. Analysis

¶ 45 Messerly contends that the analogies lowered the prosecutor’s

burden of proof and trivialized the jury’s task by equating the

burden to an everyday choice and by encouraging jurors to guess or

jump to a conclusion.

¶ 46 Concerning the puzzle analogy, divisions of this court have

specifically held that prosecutors should avoid using puzzle

analogies when explaining reasonable doubt to a jury. See Van

Meter, ¶¶ 31-34. Puzzle analogies can be problematic if they

(1) “quantify the concept of reasonable doubt”; (2) “inappropriately

trivialize the state’s burden”; (3) “equate the burden of proof to an

everyday choice”; and (4) “use iconic images, which invite the jury

to jump to a conclusion about a defendant’s guilt.” People v.

Camarigg, 2017 COA 115M, ¶¶ 44-47; see also Van Meter, ¶ 28.

¶ 47 In People v. Sanders, the prosecutor said, “All the evidence you

heard are pieces for the puzzle. This is the final puzzle.” 2022 COA

47, ¶ 46, aff’d, 2024 CO 33. The division concluded that the

prosecutor’s comments did not trivialize the prosecutor’s burden

because (1) the prosecutor did not compare his burden of proof to

simple activities, and (2) there was no attempt to quantify the

22
amount of proof necessary to solve the puzzle. Id. at ¶¶ 48-49. As

in Sanders, the prosecutor here did not use recognizable images or

reference missing pieces to quantify reasonable doubt. Cf. Van

Meter, ¶ 32 (concluding the prosecutor’s use of a puzzle analogy,

including the display of an incomplete puzzle of a recognizable

space shuttle image, was improper). Nor did the prosecutor equate

the burden of proof to an everyday choice. Instead, the prosecutor

told the jury that it had to consider each piece of evidence in

determining whether Messerly was guilty.

¶ 48 But even assuming the prosecutor’s use of the analogies was

improper, we conclude that any error in allowing the analogies was

not plain for three reasons. First, the prosecutor referred to the

analogies only briefly during voir dire. See Sauser, ¶ 93 (using a

puzzle analogy to explain reasonable doubt was improper but didn’t

amount to plain error because the prosecutor referred to the

analogy “only briefly during voir dire and closing argument”); see

also People v. Dominguez-Castor, 2020 COA 1, ¶ 91 (finding no plain

error in prosecutor’s improper analogy because, among other

things, it was not repeated).

23
¶ 49 Second, this is unlike cases in which the court gave

problematic reasonable doubt analogies. See Tibbels v. People,

2022 CO 1; see also Pettigrew v. People, 2022 CO 2. In contrast to

the prosecutor’s analogies, the court properly instructed the jury on

the prosecution’s burden of proof and the definition of reasonable

doubt during voir dire, before opening statements, in the jury

instructions, and before closing arguments. See Carter, ¶ 59

(concluding the prosecutor’s puzzle analogy was not plain error

because the trial court instructed the jury twice on the definition of

reasonable doubt). Messerly does not contend that the trial court

incorrectly instructed the jury on the meaning of reasonable doubt.

“Absent evidence to suggest otherwise, we presume that the jury

followed these instructions.” Carter, ¶ 59.

¶ 50 Third, Messerly’s failure to object to the analogies may indicate

her counsel did not believe they were overly damaging. See People

v. Villa, 240 P.3d 343, 356 (Colo. App. 2009) (“The fact that the

defendant did not object to the remarks may indicate his belief that

the live argument was not overly damaging.”).

¶ 51 Accordingly, we perceive no plain error.

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IV. CRE 404(b)

¶ 52 Messerly last contends that the trial court erred in admitting

evidence of a prior interaction she had with a tow truck driver. We

disagree.

A. Additional Background

¶ 53 Before trial, Messerly filed a motion in limine seeking to

exclude evidence of two interactions she had with Kelly Hatten, a

tow truck driver. On December 27, 2020, Hatten towed Messerly’s

car after she was stuck in a ditch. Then on March 7, 2021,

Messerly called Hatten because she locked her keys in her car.

During both interactions, Hatten was concerned with Messerly’s

safety based on comments she made to him. The prosecutor

responded by filing a notice of intent to introduce the evidence

under CRE 404(b) and arguing that the evidence was admissible to

show intent, common scheme or plan, and motive.

¶ 54 In a written order, the trial court found evidence of Messerly’s

interactions with Hatten admissible. It concluded that the evidence

was relevant to show lack of accident or mistake as it “directly

bears on the culpable mental state of knowingly and/or particularly

recklessly.” The court stated:

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The evidence is logically relevant, because,
again at minimum, it would show that
[Messerly] knew the potential perils of driving
in rural Moffat County in the winter months
and the need to be properly prepared. The
evidence does not demand the inference of bad
character, and the proffered evidence is
logically relevant independent of that
inference. Furthermore, the probative value is
not substantially outweighed by the danger of
unfair prejudice.

¶ 55 Before Hatten testified, Messerly expressly waived the option

to request that the court provide an oral limiting instruction for

tactical reasons, stating, “I just believe that sometimes those

limiting instructions serve to highlight the evidence instead of the

purpose that they intended.”

¶ 56 Hatten testified that on December 27, 2020, he received a call

from a passerby about a car stuck in a ditch. It was a cold night,

and when Hatten reached Messerly’s car, he noticed that she was

not appropriately dressed for the weather. She was wearing a

T-shirt and shorts and did not have a jacket. Messerly’s children

were not with her.

B. Standard of Review and Applicable Law

¶ 57 We review a trial court’s decision to admit or exclude other

acts evidence under CRE 404(b) for an abuse of discretion. People

26
v. Jones, 2013 CO 59, ¶ 11. We will uphold the trial court’s ruling

unless it is manifestly arbitrary, unreasonable, or unfair or contrary

to law. Id.

¶ 58 CRE 404(b) prohibits using evidence of a defendant’s prior

acts to prove his character or to show that he acted in conformity

with that character on a particular occasion. However, evidence of

an uncharged act may be admissible for another purpose, “such as

proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” CRE 404(b)(2).

¶ 59 To be admissible, the prosecution must establish that the

prior acts occurred by a preponderance of the evidence, and the

evidence must satisfy the four-prong test set out in People v. Spoto,

795 P.2d 1314 (Colo. 1990). See People v. Garner, 806 P.2d 366,

372-73 (Colo. 1991). First, the evidence must relate to a material

fact. Spoto, 795 P.2d at 1318. Second, the evidence must be

logically relevant to that material fact: It must tend to make the

existence of the material fact more or less probable. Id. Third, the

evidence’s logical relevance must be independent of the prohibited

character inference. Id. Fourth, the evidence’s probative value

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must not be substantially outweighed by the danger of unfair

prejudice. Id.

¶ 60 A trial court has substantial discretion in deciding whether to

admit evidence of other acts. Perez v. People, 2015 CO 45, ¶ 22.

“In deference to the trial court’s discretion, we must assume the

maximum probative value and the minimum unfair prejudice to be

given the evidence.” Yusem v. People, 210 P.3d 458, 467 (Colo.

2009).

C. Analysis

¶ 61 We discern no abuse of discretion in the trial court’s

admission of Messerly’s interaction with Hatten. We begin with the

requirement that the prosecution prove the existence of the prior

acts by a preponderance of the evidence. Although the court made

no specific finding concerning this requirement, we conclude it is

implied in the court’s ruling because Messerly did not argue that

someone else committed these prior acts or assert that they never

occurred. See People v. McGraw, 30 P.3d 835, 838 (Colo. App.

2001) (trial court’s ruling admitting evidence under CRE 404(b)

necessarily implied a finding that the court was satisfied, by a

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preponderance of the evidence, that defendant committed the other

act).

¶ 62 The child abuse statute requires that the defendant knowingly

or recklessly caused serious bodily injury, § 18-6-401(1)(a),

(7)(a)(III), or death, § 18-6-401(1)(a), (7)(a)(I) to a child. The culpable

mental state relates “to the nature of the offender’s conduct in

relation to the child or to the circumstances under which the act or

omission occurred,” not a particular injury to the child. People v.

Archer, 2022 COA 71, ¶ 19 (quoting People v. Deskins, 927 P.2d

368, 371 (Colo. 1996)).

Thus, “knowing” child abuse does not require
that the defendant is aware that his conduct
will cause serious bodily injury. Instead, to
knowingly commit child abuse, a defendant
need only be aware of the conduct he is
engaging in with the child. Similarly, to
recklessly commit child abuse, a defendant
need only consciously disregard a substantial
and unjustifiable risk that, given the child’s
circumstances, the child may be injured.

Id. at ¶ 19.

¶ 63 As to Spoto’s first and second factors, “[t]he first prong of the

Spoto test is the easiest to satisfy.” Yusem, 210 P.3d at 464. A

material fact is one “that is of consequence to the determination of

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the action.” CRE 401. “So long as the purposes for which the prior

act evidence is offered are somehow probative of an ultimate fact,

the first prong is satisfied.” Yusem, 210 P.3d at 464. And to satisfy

the second prong, the prosecution “need only show logical

relevance — that the prior act evidence has any tendency to make

the existence of the material fact more or less probable than

without the evidence.” Id. at 464-65.

¶ 64 Messerly’s mental state was of consequence to the

determination of whether she committed child abuse. See Archer,

¶ 19. Further, the evidence was logically relevant to prove the

absence of mistake or accident. The mental state the prosecution

had to prove was that Messerly “knowingly” or “recklessly” caused

serious bodily injury or death to a child. Therefore, the absence of

mistake or accident was relevant to both to her awareness of the

conduct in which she was engaging and to whether she consciously

disregarded a substantial and unjustifiable risk that, given the

children’s circumstances, the children may be injured. See id.

Evidence that Messerly’s car got stuck in the winter months when

she was not dressed appropriately for the weather made it more

probable that she was aware of or consciously disregarded a

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substantial and unjustifiable risk of injury to her children. See

People v. Fry, 74 P.3d 360, 370-71 (Colo. App. 2002) (evidence of

other acts tending to show the defendant’s absence of mistake or

accident related to a material fact were logically relevant), aff’d, 92

P.3d 970 (Colo. 2004).

¶ 65 Concerning the third Spoto factor, we conclude that the other

acts evidence was logically relevant independent of any

impermissible character inference. See Jones, ¶ 16. Although the

other acts evidence “could support a propensity inference, Spoto

‘does not demand the absence of the inference’ but ‘merely requires

that the proffered evidence be logically relevant independent of that

inference.’” People v. McBride, 228 P.3d 216, 227 (Colo. App. 2009)

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

evidence of Messerly’s interaction with Hatten was relevant to

Messerly’s mental state independent of the prohibited character

inference.

¶ 66 Concerning the fourth Spoto factor, and giving the evidence its

maximum probative value, we conclude that its probative value

outweighed any danger of unfair prejudice. See CRE 403; People v.

McCants, 2021 COA 138, ¶ 36. As discussed, evidence of

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Messerly’s interaction with Hatten was probative of her mental state

and of whether the incident could be attributed to accident or

mistake instead of knowing or reckless conduct. The probative

value of this evidence was not substantially outweighed by any

danger of unfair prejudice.

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

admission of the other acts evidence.

V. Disposition

¶ 68 The judgment is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.

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