Peo v. Blue

22CA2075 Peo v Blue 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2075
Arapahoe County District Court No. 20CR2765
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mario Nicholas Blue,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE BROWN
Dunn and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Mario Nicholas Blue, appeals the judgment of

conviction entered on a jury verdict finding him guilty of several

offenses arising from a road rage incident, including attempted first

degree murder (extreme indifference), attempted first degree assault

(serious bodily injury/deadly weapon), and attempted first degree

assault (extreme indifference). Blue contends that (1) insufficient

evidence supported his attempted extreme indifference murder

conviction or, alternatively, the attempted extreme indifference

murder statute is unconstitutionally vague and violates equal

protection as applied to him; (2) the district court erroneously

admitted unqualified expert testimony; (3) the court erroneously

instructed the jury; (4) the prosecutor committed misconduct; and

(5) the attempted assault convictions should have been merged into

each other and into the attempted murder conviction. Blue also

contends that the cumulative effect of these alleged errors requires

reversal.

¶2 We conclude that the prosecution presented insufficient

evidence to support Blue’s attempted extreme indifference murder

conviction. We also conclude that the attempted assault

convictions should merge. As a result, we remand for the district

1
court to vacate the attempted extreme indifference murder

conviction, amend the mittimus, and resentence Blue. We

otherwise affirm.

I. Background

¶3 The evidence presented at a three-day trial allowed the jury to

find the following facts.

¶4 In October 2020, Jesse Carroll was driving home from work on

Hampden Avenue in a silver truck when he saw a white sedan

driving erratically and blocking two lanes of traffic. Carroll said the

sedan had a driver (who was later determined to be Blue) and a

passenger (who was never identified). Carroll stopped next to the

sedan at a stoplight, yelled “that they drove like shit,” and flipped

Blue off. Blue swerved towards Carroll, got in front of his truck,

and slammed on the brakes. Carroll avoided hitting the sedan by

maneuvering between it and a barricade on the right side of the

road and passing it.

¶5 At some point after that, Blue got in front of Carroll again and

was far enough ahead that Carroll thought he could make a right

turn onto Jason Street to evade Blue. But in his rearview mirror,

Carroll saw Blue back up in traffic to turn and follow him. Blue

2
pulled up next to Carroll’s truck at a stop sign, and Carroll saw

Blue point a gun at him. As Carroll rolled forward, he heard the

gun discharge, and a bullet hit his truck with a loud metal “tink”

sound. Then the sedan sped off to the left.

¶6 Detective Jessica Moskal, who was a patrol officer at the time

of the incident, received a report of an aggressive driver in the area.

She saw a white sedan coming from Jason Street and Hampden

Avenue at a high rate of speed and pulled it over. The driver

identified himself as Blue and said that he had been involved in an

altercation with another driver who had thrown something at his

car. Blue described the other vehicle as a silver truck and said that

he had just been trying to catch up to it. About fifteen to twenty

minutes later, the detective received a report that a truck had been

shot at and realized the white sedan may have been involved. The

detective responded to Carroll’s house, inspected the truck, and

observed a bullet hole in a toolbox in the truck bed.

¶7 Based on these facts, the prosecution charged Blue with

reckless endangerment, prohibited use of a firearm, disorderly

conduct, menacing, illegal discharge of a firearm, attempted first

degree assault (deadly weapon), attempted first degree assault

3
(extreme indifference), attempted first degree murder (extreme

indifference), attempted first degree murder (after deliberation), and

one crime of violence sentence enhancer. A jury acquitted Blue of

attempted murder after deliberation but otherwise convicted him as

charged. For the attempted extreme indifference murder count, the

district court imposed a controlling sentence of twenty years in the

custody of the Department of Corrections. It ordered the sentences

on the other counts to be served concurrently.

II. Sufficiency of the Evidence

¶8 Blue contends that the prosecution presented insufficient

evidence to sustain his attempted extreme indifference murder

conviction. We agree.

A. Generally Applicable Law and Standard of Review

¶9 “Due process requires the prosecution to present sufficient

evidence to prove beyond a reasonable doubt every fact necessary to

constitute the crime charged.” Johnson v. People, 2023 CO 7, ¶ 13.

¶ 10 In assessing a challenge to the sufficiency of the evidence,

“[w]e review the record de novo to determine whether the evidence

before the jury was sufficient both in quantity and quality to

sustain the defendant’s conviction.” Id. (quoting Clark v. People,

4
232 P.3d 1287, 1291 (Colo. 2010)). We 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 Clark, 232 P.3d at 1291). And in doing so, we

“give the prosecution the benefit of every reasonable inference

which might be fairly drawn from the evidence.” People v. Harrison,

2020 CO 57, ¶ 32 (quoting People v. Perez, 2016 CO 12, ¶ 25).

B. The Prosecution Presented Insufficient Evidence to Sustain the
Attempted Extreme Indifference Murder Conviction

¶ 11 A person commits extreme indifference murder when, “[u]nder

circumstances evidencing an attitude of universal malice

manifesting extreme indifference to the value of human life

generally, he knowingly engages in conduct which creates a grave

risk of death to a person, or persons, other than himself, and

thereby causes the death of another.” § 18-3-102(1)(d), C.R.S.

2024.

¶ 12 “A person commits criminal attempt if, acting with the kind of

culpability otherwise required for commission of an offense, he

5
engages in conduct constituting a substantial step toward the

commission of the offense.” § 18-2-101(1), C.R.S. 2024. A

“substantial step” is “any conduct . . . which is strongly

corroborative of the firmness of the actor’s purpose to complete the

commission of the offense.” Id.

¶ 13 Thus, to convict Blue of attempted extreme indifference

murder, the prosecution had to prove beyond a reasonable doubt

that he “was aware he was engaging in conduct strongly

corroborative of the firmness of his purpose to complete the

commission of the crime of extreme indifference murder.” People v.

Anderson, 2019 CO 34, ¶ 18; see § 18-2-101(1). And Blue could

only commit the crime of extreme indifference murder if he “caused

the death of another by knowingly engaging in conduct creating a

grave risk of death to a person or persons other than himself, under

circumstances evidencing an attitude of universal malice

manifesting extreme indifference to the value of human life

generally.” Anderson, ¶ 18; see § 18-3-102(1)(d); Montoya v. People,

2017 CO 40, ¶ 17.

¶ 14 Blue focuses his sufficiency challenge on the “universal

malice” element of the offense. Universal malice has been defined

6
as conduct objectively demonstrating “a willingness to take human

life indiscriminately, without knowing or caring who the victim may

be or without having an understandable motive or provocation.”

Garcia v. People, 2023 CO 30, ¶ 16 (quoting Candelaria v. People,

148 P.3d 178, 181 (Colo. 2006)). To meet this standard, the

defendant’s conduct must demonstrate an extreme “lack of care and

concern for the value of human life generally.” People v. Jefferson,

748 P.2d 1223, 1232 (Colo. 1988). This feature of extreme

indifference murder is what distinguishes it from, and elevates it in

culpability above, second degree murder. Anderson, ¶ 15.

¶ 15 Although extreme indifference murder is limited “to situations

in which the actor demonstrates an indifference to human life

generally, as distinguished from indifference to, or willingness to

take, a particular human life,” Jefferson, 748 P.2d at 1232

(emphases added), whether a defendant puts one individual at risk

or a group of people at risk is not dispositive, Anderson, ¶¶ 14-15;

Candelaria, 148 P.3d at 182. Rather, “the conduct proscribed by

the statute could include either acts putting at risk a single person

or acts putting at risk more than one person.” Anderson, ¶ 15.

And so long as “the act by which death is knowingly caused, by its

7
very nature or the surrounding circumstances of its commission,

objectively evidences” a willingness to take life indiscriminately, it is

irrelevant whether a defendant’s acts have the “actual effect of

endangering a number of lives, or even one life, indiscriminately.”

Id. at ¶¶ 14-15.

¶ 16 Blue contends that the prosecution failed to prove the

universal malice element of attempted extreme indifference murder

when the facts established that he fired one shot at a specific

person with whom he had been in a road rage incident. We agree

that nothing in the record would allow a reasonable juror to

conclude beyond a reasonable doubt that Blue’s conduct objectively

demonstrated a willingness to take human life indiscriminately. See

Garcia, ¶ 16; Anderson, ¶ 15.

¶ 17 True, the record reflects that Blue was driving erratically, but

Blue was not charged with attempted extreme indifference murder

for placing random lives at risk through his erratic driving. Instead,

as the prosecutor made clear in closing argument, Blue was

charged with attempted extreme indifference murder for attempting

to cause Carroll’s death by shooting at him.

8
¶ 18 Witness testimony established that, once Carroll confronted

Blue, Blue focused his aggression on Carroll, reversing in traffic to

follow Carroll down a side street, pulling up next to Carroll at a stop

sign, and then shooting at Carroll’s truck. Although one witness

testified that Blue pointed a gun at her too, she was not the named

victim of the attempted extreme indifference murder charge, and

there was no evidence that Blue shot at her. The prosecution

presented no evidence that Blue shot at other people or cars or that

the one shot he did fire at Carroll could have possibly hit another

person or car. Instead, Blue deliberately fired a single shot at a

particular person for a particular reason. Cf. Montoya, ¶ 20 (The

evidence established attempted extreme indifference murder when

the defendant “fired five rounds from the same semi-automatic

handgun, indiscriminately, in the direction of a house, full of

party-goers.”); People v. Rubio, 222 P.3d 355, 358-59 (Colo. App.

2009) (By using an AK-47 assault rifle to shoot an empty car,

causing “wild shots” to hit nearby occupied residences, the

defendant’s conduct “reflect[ed] an attitude of universal malice

manifesting extreme indifference to human life generally.”); People v.

Ellis, 30 P.3d 774, 778-79 (Colo. App. 2001) (“[A]mple evidence

9
existed to establish” attempted extreme indifference murder when

the defendant shot through the doors of a home knowing that it was

full of adults and children and testified he was not “directing [his]

fire at any particular individual.”).

¶ 19 We are not persuaded otherwise by the People’s argument that

Blue’s conduct demonstrated universal malice because he had no

understandable motive or provocation, and Carroll was a “total

stranger.” Although Blue overreacted and escalated the initial

encounter by shooting at Carroll, the evidence clearly revealed his

motive — Blue shot at Carroll because Carroll flipped him off and

yelled at him. And although Blue did not know Carroll’s name and

had not met him before, Carroll was the intended target of the

single gunshot Blue fired. In other words, Blue did not

indiscriminately shoot at a random passerby for no reason; he shot

at Carroll because Carroll had confronted him.

¶ 20 Candelaria and Anderson, on which the People rely to argue

that a person can engage in conduct evidencing an attitude of

universal malice even if they target a single victim, do not compel a

different result. In Candelaria,

10
there was an abundance of evidence that the
defendant and those in his car were
specifically searching for [one person] to kill
him, [but] there was also evidence that they
fired numerous shots in the direction of his
vehicle, aware that other people whom they did
not know or have grievances against were
present in or around the vehicle.

148 P.3d at 183. Based on that evidence, the supreme court

concluded that the defendant’s conduct demonstrated universal

malice and a willingness to take human life indiscriminately. Id.

¶ 21 In Anderson, the supreme court determined that, by shooting

thirteen times in rapid succession at a random deputy who

responded to a call, the defendant’s conduct

demonstrated a willingness to take life
indiscriminately, either because it objectively
evidenced a willingness to kill as many as
thirteen bystanders within range of the
defendant’s indiscriminate shooting, or simply
because it evidenced a willingness to kill
whoever was pursuing him, in order to draw
return fire and be killed himself.

Anderson, ¶ 20. There was also “evidence from which the jury

could find that the defendant’s gunfire was not only capable of

reaching, but in fact practically reached . . . the highway from

which the defendant had recently turned and upon which he had

only minutes before necessarily observed other travelers.” Id.

11
¶ 22 In contrast to Candelaria and Anderson, the prosecution

presented no evidence that Blue targeted Carroll but nonetheless

engaged in conduct that indiscriminately risked other lives. And

although Blue’s conduct demonstrated an indifference to or

willingness to take Carroll’s life, it did not demonstrate a willingness

to take an unknown life indiscriminately. See Jefferson, 748 P.2d

at 1232.

¶ 23 Even viewing the evidence in the light most favorable to the

prosecution, see Johnson, ¶ 13, we cannot conclude that a rational

juror could find beyond a reasonable doubt that Blue engaged in

the charged conduct “[u]nder circumstances evidencing an attitude

of universal malice manifesting extreme indifference to the value of

human life generally,” § 18-3-102(1)(d). As a result, we must vacate

Blue’s conviction for attempted extreme indifference murder. See

People v. Mortenson, 2023 COA 92, ¶ 32 (“Generally, an appellate

court vacates a conviction when there is insufficient evidence.”).

And because we vacate Blue’s attempted extreme indifference

conviction, we need not address his alternative constitutional

challenges.

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III. The Police Officers’ Testimony

¶ 24 Blue contends that the district court erred by allowing three

police officers to testify about the trajectory of the bullet through

Carroll’s truck because it was (1) improper expert testimony in the

guise of lay testimony and (2) unhelpful. We disagree.

A. Standard of Review and Applicable Law

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

discretion. Zapata v. People, 2018 CO 82, ¶ 25. A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair or if it misconstrues or misapplies the law. People v. Liggett,

2021 COA 51, ¶ 16, aff’d, 2023 CO 22.

¶ 26 CRE 701 governs the admission of lay witness testimony.

People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). Under that rule, a

lay witness’ testimony is limited to “opinions or inferences” that are

(1) “rationally based on the perception of the witness”; (2) “helpful to

a clear understanding of the witness’ testimony or the

determination of a fact in issue”; and (3) “not based on scientific,

technical, or other specialized knowledge within the scope of [CRE]

702.” CRE 701.

13
B. Additional Background

¶ 27 At trial, Carroll was asked to identify the bullet hole in the

toolbox that sat in the bed of his truck, up against the cab. He also

described the “entry hole of a bullet” below the back cab window

that formed “a pretty straight line” from the bullet hole in the

toolbox. And he explained that the driver’s headrest sat “flush

against” the cab window. When the prosecutor asked about a

“black dot” in the center of the headrest, Carroll explained that part

of the interior trim of the truck had been fractured from the bullet,

“and it caused the plastic to chip off, cutting that little cut into the

back of the headrest.” When the prosecutor asked Carroll if he was

“saying that when the bullet went through the cab[,] . . . it actually

came through and damaged the back of the headrest,” Carroll

responded affirmatively.

¶ 28 Without being qualified as experts, three police officers also

testified about their observations of the damage to Carroll’s truck

and the remnants of a bullet found inside.

¶ 29 First, Officer Logan Wynder testified that he was dispatched to

Carroll’s home and inspected “the trajectory of the bullet and all the

damage” to the truck. Officer Wynder said that “[t]he bullet was

14
coming from the left side, going right” and that “[i]t hit the corner

side of the toolbox, continued and went out of the toolbox, into the

truck near the back window, through that frame, and into the

backseat of where the driver would be sitting.” The officer

confirmed that his testimony was “just based on observing where

the bullet holes were.” He also said that other officers found

“fragments of the bullet inside the vehicle.”

¶ 30 Second, Detective Moskal testified that she inspected Carroll’s

truck at his home following the incident and that he “pointed out a

bullet hole” in the toolbox in the bed of his truck “that traveled

through the toolbox and into the driver’s headrest.”

¶ 31 Third, Detective Bryan Penry testified that he also inspected

Carroll’s truck that day. He found “shavings” or “fragments of [the]

bullet[] on the floorboard and the seat, as well as damage to the

back of the . . . driver’s headrest.” After removing the headrest

cover, the detective saw “a silver mark” on the black metal of the

headrest “from where the bullet struck.” During cross-examination,

defense counsel asked Detective Perry if he could tell the jury how a

bullet trajectory analysis is done. The detective responded that he

15
had “limited training on that” and that he was not “sure exactly how

they measure” the angle since he had “done it very few times.”

¶ 32 Defense counsel did not object to any of this testimony.

C. The Officers’ Testimony Was Not Expert Testimony

¶ 33 Blue contends that the district court erred by allowing the

three police officers to give unqualified expert testimony in the guise

of lay testimony that the bullet made the mark on the driver’s seat

headrest. We are not persuaded.

¶ 34 “[T]he critical factor in distinguishing between lay and expert

testimony is the basis for the witness’s opinion.” Venalonzo v.

People, 2017 CO 9, ¶ 22. We “must consider whether the testimony

could be based on an ordinary person’s experience or knowledge.”

People v. Murphy, 2021 CO 22, ¶ 21. If so, it is proper lay opinion

testimony if it meets the requirements of CRE 701. Id. at ¶¶ 17, 20.

But if a “witness provides testimony that could not be offered

without specialized experiences, knowledge, or training, then the

witness is offering expert testimony” under CRE 702. Venalonzo,

¶ 2.

¶ 35 “Police officers regularly, and appropriately, offer testimony

under CRE 701 based on their perceptions and experiences.”

16
People v. Tallwhiteman, 124 P.3d 827, 832 (Colo. App. 2005); accord

Murphy, ¶ 21. An officer’s testimony only “becomes objectionable

when what is essentially expert testimony is improperly admitted

under the guise of lay opinions.” Stewart, 55 P.3d at 123.

¶ 36 The officers’ testimony — essentially, that the bullet struck the

toolbox on Carroll’s truck, traveled through the cab frame, and hit

the headrest, leaving a mark — was based solely on what they

observed when they inspected the truck. No evidence suggests that

the officers measured the bullet holes or calculated the bullet’s

trajectory to determine that the bullet hit the headrest. Neither

Detective Moskal nor Officer Wynder said they had any special

training or experience analyzing a bullet’s trajectory, while Detective

Penry said he had “limited training” in that area but admitted he

did not know how to measure the bullet’s angle. See Venalonzo,

¶ 22. Any ordinary person could have made the observations and

given the opinions the officers gave. See Murphy, ¶ 21; Venalonzo,

¶ 22. Indeed, Carroll reached a similar conclusion based on his

own observations.

¶ 37 We reject Blue’s assertion that the officers had to personally

observe the bullet being fired at Carroll’s truck to be able to testify

17
as they did. Under CRE 701, the officers could relay “opinions or

inferences” that were “rationally based on [their] perception[s].” See

also Tallwhiteman, 124 P.3d at 832. And their opinions were

rationally based on their perceptions of the bullet holes and damage

to the truck and on the bullet fragments found on the floor of the

cab. Thus, we conclude that the court did not abuse its discretion

by admitting the officers’ testimony as lay testimony. See CRE 701;

see also People v. Caldwell, 43 P.3d 663, 667 (Colo. App. 2001)

(concluding that a former police officer working as a crime scene

technician gave proper lay testimony about the path of two bullets

through a car because the testimony was based “only [on] his

observations about the entry locations of the bullets and the path

they traveled inside the vehicle,” which were observations that

“could just as easily have been made by the jury from the

photographs”).

D. The Officers’ Testimony Was Helpful

¶ 38 Blue alternatively contends that the district court erred by

admitting the officers’ testimony under CRE 701. Specifically, he

argues that the testimony was not helpful because “the witnesses

were in no better position than the jurors to evaluate the evidence.”

18
But each of the three officers inspected the truck in person,

whereas the jurors only viewed photographs of the bullet holes and

vehicle damage. See People v. Vigil, 2015 COA 88M, ¶ 67

(concluding that a sergeant was not in the “very same position as

the jurors” because, unlike the jurors, “he personally observed the

shoeprints at the scene”), aff’d, 2019 CO 105. Based on their

personal observations of Carroll’s truck, the officers were in a better

position to give an opinion about the bullet’s trajectory than the

jurors. Accordingly, we conclude that the court did not abuse its

discretion by concluding that the officers’ testimony was helpful to

the jury. See CRE 701; see also Zapata, ¶ 25; Liggett, ¶ 16.

IV. Jury Instruction

¶ 39 Blue contends that the district court erroneously instructed

the jury that it could only draw inferences from facts that were

proved, not from the absence of evidence. We perceive no error.

A. Generally Applicable Law and Standard of Review

¶ 40 The district court has a duty to accurately instruct the jury

concerning the controlling law. Riley v. People, 266 P.3d 1089,

1092 (Colo. 2011). We review de novo whether the jury

instructions, considered as a whole, correctly stated the law. People

19
in Interest of J.G., 2016 CO 39, ¶ 33. But “[w]e review a trial court’s

decision whether to give a particular jury instruction for an abuse

of discretion.” People v. Cline, 2022 COA 135, ¶ 32. A court abuses

its discretion when its ruling results in a misstatement of the law or

is manifestly arbitrary, unreasonable, or unfair. J.G., ¶ 33.

B. The District Court Did Not Erroneously Instruct the Jury

¶ 41 Without objection, the district court gave the jury the following

instruction offered by the prosecution (Instruction No. 4):

The evidence in this case consists of the sworn
testimony of all witnesses and all exhibits
which have been received in evidence.

You are to consider only the evidence in this
case and reasonable inferences therefrom. An
inference is a deduction or conclusion which
reason and common sense lead the jury to
draw from facts that have been proved.

¶ 42 Blue contends that Instruction No. 4 misstated the law and

the burden of proof by (1) telling the jury that it could only draw

inferences from “facts that have been proved” by direct evidence,

not from circumstantial evidence or from the lack of evidence; and

(2) not identifying a standard or burden by which the jury could

determine that the facts had been proved. For three reasons, we

20
conclude that Instruction No. 4 did not misstate the law or the

burden of proof.

¶ 43 First, the instruction did not erroneously preclude the jury

from drawing inferences from the lack of evidence. “[T]he absence

of an express instruction to consider the lack of evidence is not

tantamount to a prohibition on doing so.” People v. Melara, 2025

COA 48, ¶ 32 (concluding that a reasonable doubt instruction that

did not refer to the lack of evidence did not impermissibly lower the

prosecution’s burden of proof); accord People v. Schlehuber, 2025

COA 50, ¶¶ 19-20 (concluding that a court does not err by omitting

“lack of evidence” language from the reasonable doubt instruction).

Instruction No. 4 “did not forbid or even dissuade the jurors from

applying their common sense when considering the evidence in this

case, including issues or requirements that the evidence failed to

address.” Melara, ¶ 31; accord Schlehuber, ¶ 21 (“[T]he concept of

reasonable doubt inherently invites jurors to consider what

evidence is missing.”). And before the court read Instruction No. 4,

it had already correctly instructed the jury that reasonable doubt

means, in relevant part, “a doubt based upon reason and common

sense which arises from a fair and rational consideration of all of

21
the evidence, or the lack of evidence, in the case.” (Emphasis

added.) See COLJI-Crim. E:03 (2021) (model jury instruction for

presumption of innocence, burden of proof, and reasonable doubt).

So, the court did expressly instruct the jury that it could consider

the lack of evidence, albeit in a separate instruction. See Johnson

v. People, 2019 CO 17, ¶ 14 (“We do not consider jury instructions

in isolation; rather, we consider them ‘in the context of the

instructions as a whole . . . .’” (quoting Estelle v. McGuire, 502 U.S.

62, 72 (1991))).

¶ 44 Second, the instruction did not prohibit the jury from

considering circumstantial evidence. The instruction did not

reference or distinguish between direct and circumstantial evidence.

Separately, the court correctly instructed the jury that “[a] fact may

be proven by either direct or circumstantial evidence. Neither is

necessarily more reliable than the other.” And it defined direct

evidence as “first-hand observation of the fact in question” and

circumstantial evidence as “based on observations of related facts

that may lead you to reach a conclusion about the fact in question.”

The instructions collectively informed the jury that it could base its

verdict on circumstantial evidence. See id.

22
¶ 45 Third, although Instruction No. 4 itself did not identify a

burden or standard of proof, the balance of the instructions

collectively made clear that the prosecution alone bore the burden

to prove beyond a reasonable doubt each element of the charged

crimes. See id. The court instructed the jury that “[e]very person

charged with a crime is presumed innocent. This presumption of

innocence remains with [Blue] throughout the trial and should be

given effect by you unless, after considering all of the evidence, you

are then convinced that he is guilty beyond a reasonable doubt.” It

informed the jury that “[t]he burden of proof is upon the

prosecution to prove to the satisfaction of the jury beyond a

reasonable doubt the existence of all the elements necessary to

constitute the crime charged.” It correctly defined reasonable

doubt. And it told the jury that “[n]o single instruction describes all

the law which must be applied; the instructions must be considered

together as a whole.”

¶ 46 Thus, we conclude that the instructions, as a whole, correctly

stated the law, and the court did not abuse its discretion by giving

Instruction No. 4. See J.G., ¶ 33.

23
V. Prosecutorial Misconduct

¶ 47 Blue contends that the district court plainly erred when it

allowed the prosecutor to commit misconduct during closing

argument by (1) evoking racist stereotypes; (2) exploiting

“erroneous” Instruction No. 4; and (3) providing expert testimony.

We disagree.

A. Standard of Review

¶ 48 We engage in a two-step analysis when reviewing claims for

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

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

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

Second, we decide whether such actions warrant reversal under the

proper standard. Id.

¶ 49 We review unpreserved claims of prosecutorial misconduct

under the plain error standard. People v. McMinn, 2013 COA 94,

¶ 58. “To constitute plain error, prosecutorial misconduct must be

flagrant or glaringly or tremendously improper, and it must so

24
undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction.” Id.1

B. Racist Stereotypes

¶ 50 Blue contends that the prosecutor evoked racist stereotypes

during closing argument by describing Blue as “hunting” Carroll.

We are not persuaded.

1. Additional Background

¶ 51 During closing, while arguing that Blue eventually directed his

aggressive driving at Carroll, the prosecutor told the jury that Blue

1 Blue argues that we should review claims of prosecutorial

misconduct that evoke racist stereotypes de novo and automatically
reverse regardless of preservation. He points to a recent case in
which the Washington Supreme Court reviewed unpreserved claims
of race-based prosecutorial misconduct de novo and imposed an
automatic reversal rule due to the grave violation that occurs when
a “prosecutor resorts to racist argument and appeals to racial
stereotypes or racial bias to achieve convictions.” State v. Bagby,
522 P.3d 982, 990-97 (Wash. 2023) (citation omitted). We note that
the Washington Supreme Court determined that a prosecutor’s
race-based misconduct requires automatic reversal “when a
prosecutor flagrantly or apparently intentionally appeals to racial
bias in a way that undermines the defendant’s credibility or the
presumption of innocence.” Id. at 990. That standard is not all
that different from how we determine whether to reverse for
prosecutorial misconduct under plain error review. See People v.
McMinn, 2013 COA 94, ¶ 58. But because we conclude that the
prosecutor’s conduct was not improper, we need not determine
whether automatic reversal would be appropriate.

25
reversed “in oncoming traffic, he back[ed] up his car far enough

that he c[ould] make that turn onto Jason and start his hunt over

again.” A few minutes later, while arguing that Blue’s actions

evidenced an attitude of universal malice, the prosecutor said that

“[a]fter driving, after hunting, [Blue] took the shot.” She continued,

So either you believe that he deliberately
wanted to kill [Carroll] by taking that shot, by
hunting him down, or you have to at least
believe that he took the shot knowing what
happens when a bullet hits a human, knowing
the danger a gun can cause, knowing what a
firearm is.

2. Analysis

¶ 52 Blue argues that the prosecutor’s characterization of Blue’s

conduct as “hunting” Carroll “tap[ped] into deep-seated racial

prejudices dehumanizing Black people” because words “commonly

associated with animals . . . can ‘activate the juror’s mental

association’ with racial stereotypes, including the stereotype of

Black people as animalistic and . . . ‘the super-predator trope.’”

(Citation omitted.) He argues that the prosecutor inflamed the

passions of the jury by invoking “some of the most damaging and

pernicious stereotypes that have historically infected American

society and undermined confidence in the criminal justice system.”

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¶ 53 To be sure, racism in the justice system cannot be tolerated.

See Peña-Rodriguez v. Colorado, 580 U.S. 206, 224 (2017) (“[R]acial

bias” is “a familiar and recurring evil that, if left unaddressed,

would risk systemic injury to the administration of justice.”). But

Blue does not point us to anything in the record beyond the

prosecutor’s use of the word “hunt” to demonstrate that she

attempted to evoke racist stereotypes.2

¶ 54 While prosecutors may not use arguments calculated to

inflame the passions and prejudices of the jury, they must be given

wide latitude during closing argument to “refer to the strength and

significance of the evidence, conflicting evidence, and reasonable

inferences that may be drawn from the evidence.” People v. Carter,

2015 COA 24M-2, ¶¶ 70-71 (quoting People v. Walters, 148 P.3d

331, 334 (Colo. App. 2006)). The common meaning of the word

“hunt” is “to pursue with intent to capture” or “search out.”

Merriam-Webster Dictionary, https://perma.cc/R6FE-SLFA. And

2 The only other portion of the record that Blue cites to support this

argument is the testimony of Stephanie Strand, who described Blue
as driving “slouched down really low” with his hat low. Blue argues
that Strand’s testimony was racist, but Strand’s testimony is not
the prosecutor’s conduct, and the prosecutor did not reference this
portion of Strand’s testimony.

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here, the evidence established that after Carroll yelled at Blue and

flipped him off, Blue targeted Carroll. Carroll tried to get away from

Blue, but Blue chased Carroll down — including by reversing in

traffic to follow Carroll down a side street. Once Blue caught

Carroll, he shot at him. Viewing the prosecutor’s statements “in the

context of the argument as a whole and in light of the evidence

before the jury,” McMinn, ¶ 60, we do not see her use of the term

“hunt” as an improper attempt to inflame the passions of the jury

by evoking racial stereotypes.

C. Jury Instruction

¶ 55 Blue contends that the prosecutor (1) exploited “erroneous”

Instruction No. 4 by telling the jury that it could not consider his

theory of defense without direct evidence that the passenger shot

the gun and (2) lowered and shifted the prosecution’s burden of

proof to him. We reject these contentions.

1. Additional Background

¶ 56 During rebuttal closing argument, the prosecutor reminded

the jury that it was her burden to prove the case beyond a

reasonable doubt. She told the jurors they “[could ]not speculate

about evidence that [they] did or did not hear; [they] c[ould] only

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look at the evidence [they] ha[d].” She said, “There is no evidence

that the passenger in this case ever touched a gun. In fact, the

evidence you have is that Mario Blue, the defendant, pointed a gun

at the victim and shot it.” She also told the jury it could not

“speculate as to what [the passenger] could have said or what his

role may have been because there[] [was] no evidence of that.” The

prosecutor argued it would be “unreasonable to look at the victim,

to look at his car, to look at the physical evidence, and say the

victim was never shot at. The only other way that that bullet could

have been there there’s no evidence of.”

2. Analysis

¶ 57 We have already concluded that Instruction No. 4 did not

erroneously prohibit the jury from drawing inferences from

circumstantial evidence or the lack of evidence. Even so, the

challenged remarks were not tied to Instruction No. 4 at all. The

prosecutor did not discuss the types of evidence the jury could draw

inferences from or suggest that the jury could not consider Blue’s

defense because it was not based on direct evidence. So we fail to

see how the prosecutor “exploited” Instruction No. 4.

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¶ 58 Instead, after reminding the jury that it was her burden to

prove the charges beyond a reasonable doubt, the prosecutor

simply argued that there was no evidence to support Blue’s theory

of defense that the passenger was the shooter. She did not argue

that Blue was required to offer evidence to support his theory, only

that the jury should not speculate to find a reasonable doubt. See

COLJI-Crim. E:03 (2021). Viewing the prosecutor’s remarks in

context, we conclude that they did not lower or shift the burden of

proof. See People v. Strock, 252 P.3d 1148, 1154-55 (Colo. App.

2010) (a prosecutor’s comments on the lack of evidence supporting

a defendant’s theory did not improperly shift the burden of proof).

Accordingly, we perceive no error, let alone plain error. See

McMinn, ¶ 58.

D. Expert Testimony

¶ 59 Blue contends that the prosecutor gave improper expert

testimony in closing argument by (1) discussing the witnesses’

inability to identify Blue because they were focused on the gun and

(2) arguing that the bullet “disintegrated” in the headrest. We

disagree.

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1. Witness Perception

¶ 60 During closing, the prosecutor argued that inconsistencies in

the witnesses’ ability to identify Blue after the incident related to

whether each witness was distracted by a gun:

[T]he difference between Caitlin Rasmussen,
who was able to identify [Blue] from a lineup,
and Jesse Carroll and [Stephanie] Strand is
the presence of a gun. Because, when [Strand]
was looking at the driver, she looked down and
she saw the driver holding that gun, and that’s
where her focus went to. When Jesse Carroll
saw that driver holding a gun, that’s where his
focus went to.

¶ 61 Blue argues that the prosecutor’s comments were improper

because they were not supported by expert testimony at trial yet

implied “the results of social science research, and there was no

reason to believe average jurors would be knowledgeable about the

effects a weapon has on eyewitness perception and memory.” But

the prosecutor did not suggest that her explanation was grounded

in research the jury had not heard. And arguing that a witness

may not be able to focus on anything but a gun being pointed at

them is not outside the realm of an average person’s experience.

See Murphy, ¶ 21; Venalonzo, ¶ 22; cf. People v. Davis, 280 P.3d 51,

54 (Colo. App. 2011) (concluding that the prosecutor committed

31
misconduct during closing argument by discussing the stages of

rape trauma syndrome when no such evidence was presented at

trial and the prosecutor’s detailed argument implied that he had

specialized knowledge and expertise). Accordingly, the prosecutor’s

statements were not improper. See McMinn, ¶¶ 59-60.

2. “Disintegrate”

¶ 62 While discussing the bullet fragments found in Carroll’s car,

the prosecutor said,

[Carroll] said he was shot, and that’s the bullet
hole (indicating). That bullet hole goes
through . . . the toolbox, through the cab, into
the back of the driver-side headrest where his
head is; so far in with enough strength that it
is still managing to damage that metal.
Eventually, it would disintegrate, leaving
evidence of bullet fragments. That
corroborates that he was shot.

¶ 63 Blue contends that the prosecutor’s remarks were not rooted

in the evidence, but two police officers testified that there were

bullet fragments and shavings found inside Carroll’s truck. The

prosecution also admitted photo exhibits of the bullet shavings.

Thus, the prosecutor’s remarks were based on the evidence

presented at trial. See Carter, ¶ 71.

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¶ 64 Blue also contends that the prosecutor’s statement that “the

bullet disintegrated in the headrest was not common sense,” but it

was clear from the witness testimony and the exhibits that the

bullet had split apart in some way. And multiple witnesses testified

that the bullet hit the headrest. The prosecutor’s choice of the word

“disintegrate” to describe that evidence was not based on

specialized knowledge or expertise; it was, at most, oratorical

embellishment. See id. at ¶ 70. Accordingly, we perceive no

improper conduct. See McMinn, ¶¶ 59-60.

VI. Merger

¶ 65 Blue contends that the attempted assault (deadly weapon)

conviction and the attempted assault (extreme indifference)

conviction should have merged into each other and into the

attempted extreme indifference murder conviction because they

were all based on the same act against the same victim. See People

v. Moore, 877 P.2d 840, 845 (Colo. 1994). The People do not

dispute that merger is required. Although we have vacated the

attempted extreme indifference murder conviction, we agree that

the assault convictions should merge with each other because they

were based on the same act against the same victim. See id. We

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remand the case for the district court to amend the mittimus

accordingly.

VII. Cumulative Error

¶ 66 Blue contends that, even if the alleged errors do not

individually require reversal, their cumulative prejudicial impact

does. But because we have found no error, the cumulative error

doctrine does not apply. See Howard-Walker v. People, 2019 CO 69,

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

court must identify multiple errors that collectively prejudice the

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

not.”); People v. Shanks, 2019 COA 160, ¶ 76 (cumulative error

doctrine only applies when multiple errors were committed, not

merely alleged).

VIII. Disposition

¶ 67 We vacate the attempted extreme indifference murder

conviction and remand the case to the district court to merge the

assault convictions, amend the mittimus, and resentence Blue. We

otherwise affirm the judgment of conviction.

JUDGE DUNN and JUDGE SCHOCK concur.

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