Peo v. Warren

24CA0165 Peo v Warren 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0165
El Paso County District Court No. 22CR1783
Honorable Laura N. Findorff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Howard Glen Warren Jr.,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE JOHNSON
Pawar and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

Philip J. Weiser, Attorney General, Jillian J. Price, Deputy Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Howard Glen Warren, Jr. (Warren), appeals the

judgment of conviction entered upon a jury verdict finding him

guilty of robbery. He contends that the district court reversibly

erred by (1) denying his challenge for cause to a prospective juror

and (2) giving the jury a deficient instruction on the concepts of the

presumption of innocence, the burden of proof, and reasonable

doubt. We disagree and, therefore, affirm.

I. Background

¶2 Warren was charged with aggravated robbery and second

degree assault in connection with taking a cell phone from his

cousin. The jury acquitted him of those charges and of the lesser

offenses of theft and third degree assault but convicted him of the

lesser offense of simple robbery. Warren was subsequently

adjudicated a habitual criminal and sentenced by the court to

twenty-four years in the custody of the Department of Corrections.

II. Challenge for Cause

¶3 Warren asserts that the district court erroneously denied his

challenge for cause to a prospective juror who expressed an

inability to apply the presumption of innocence. And, because that

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juror — Juror K — ultimately sat on his jury, he argues that the

error is structural and requires automatic reversal. We disagree.

A. Additional Facts

¶4 During voir dire, defense counsel asked the prospective jurors

if they believed Warren must have done something wrong because

he was being tried on criminal charges. After some discussion,

counsel then “want[ed] to ask [the] question just a little differently”:

I want you all to think about a scale, one to
ten, and the only information you have is
there’s a defendant at that table and
presumably somebody investigated it, the
police investigated this, the D.A. decided to
move forward prosecuting this case. Ten being
100 percent guilty, one being 100 percent
innocent, where would you be?

¶5 One prospective juror responded, “I guess I would kind of be

right there in the middle, you know, not completely innocent, not

completely guilty.” Defense counsel then held the following colloquy

with Juror K:

[Defense counsel]: Okay. And I believe I saw
your hand, [Juror K]?

JUROR [K]: Yes, sir.

[Defense counsel]: What are your thoughts on
that?

JUROR [K]: Probably right in the middle.

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[Defense counsel]: So when we’re talking about
one being 100 percent innocent, ten being 100
percent guilty, who else agrees with the
individuals we just heard from?

Other prospective jurors said that they agreed with the above

comments because (1) “[y]ou . . . don’t know any of the facts yet.

And also, like, they could be wrong on either side”; and (2) “I’d be in

the middle as well, because without the facts we can’t really decide

one way or the other.”

¶6 After additional discussions, defense counsel recognized that

“[he] may not have explained [the scale] very well” and that “[he]

ha[d] a tendency to do that sometimes and get tripped up.” Counsel

told the prospective jurors that the law required them to be at a

“one” on the scale and asked the jurors for their thoughts on the

“modified definition of knowing the law is a one.”

¶7 After the clarification, one prospective juror noted that “maybe

[he was] thinking of the scale a little bit wrong.” Another

prospective juror stated that, due to his “mathematical data kind of

background,” he “like[d] to be more in the middle,” but that he did

not “like to be biased towards one side or the other until [he] ha[d]

. . . the data to be able to process it and see where [his] analysis of

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the data would end up.” A different prospective juror had similar

thoughts: “I look at the scale as a mathematical thing; you’re not on

the innocent side, but you’re not on the guilty side.”

¶8 Defense counsel again conceded that he was explaining the

law in a “weird way” but asked those prospective jurors who had

indicated that they were not at a one on the scale if they “ha[d] any

doubts that they could put all of what we just talked about aside

and guarantee a one once they’re given that law.” The transcript

does not reflect that Juror K was among the prospective jurors who

voiced such doubts.

¶9 Defense counsel asserted twenty-one challenges for cause, and

his request to disqualify some of those prospective jurors was

based, in part, on their indication that they could not “start at a

one” on his scale. In response, the prosecutor argued that the scale

was confusing and that he believed the prospective jurors

misunderstood the scale to mean that a number in the middle

meant they were unbiased.

¶ 10 The district court agreed with the prosecutor that the scale

was confusing and stated that it was disinclined to “grant a

challenge to somebody when we’re operating off of this kind of

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nuanced scale.” The court further noted the prospective jurors’

misunderstanding of the exercise: “And I’m not sure that all of the

jurors even understood the scale as to how — in fact, I know at

least a couple of them did not understand it, because they were

wanting to put themselves in the middle to show they were not

biased.”

¶ 11 In denying one of the challenges for cause, the district court

said that it was “usually pretty good about writing down notes if

somebody is taking a strong stance on . . . presumption of

innocence . . . , and [it did not] have that specific information as to

[the challenged juror].” The court then took a similar view

regarding defense counsel’s challenge to Juror K:

[Defense counsel]: Next, we would request to
strike Juror [K], Judge. He actually did put
himself at 50/50 guilt or innocence starting
out, which is not presuming Mr. Warren
innocent, which does not comport with the
rule of law.

THE COURT: Well, I have no notes indicating
anywhere that he said he was at 50/50, and
the Court notes that he never indicated that he
could not follow the law as instructed. So the
Court is going to deny the challenge as to
[Juror K].

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¶ 12 The district court granted eleven of defense counsel’s

challenges for cause and moved on to peremptory challenges.

Defense counsel exhausted all six of his peremptory challenges, and

Juror K was seated on the jury.

B. Standard of Review and Applicable Law

¶ 13 If a court erroneously denies a challenge for cause and the

challenged juror sits on the jury, “the defendant’s right to an

impartial jury is violated, the error is structural, and reversal is

required.” People v. Abu-Nantambu-El, 2019 CO 106, ¶ 30.

¶ 14 The United States and Colorado Constitutions guarantee a

defendant the right to a trial by a fair and impartial jury. See id. at

¶ 14; Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). “A

defendant’s right to an impartial jury is violated if the trial court

fails to remove a juror biased against the defendant.” Morrison, 19

P.3d at 672; see Abu-Nantambu-El, ¶ 14.

¶ 15 As relevant here, a court must sustain a challenge for cause

when there exists “a state of mind in a juror manifesting a bias for

or against the defendant, or for or against the prosecution, or the

acknowledgement of a previously formed or expressed opinion

regarding the guilt or innocence of the defendant.” Crim. P.

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24(b)(1)(X); see also § 16-10-103(1)(j), C.R.S. 2025 (A court must

sustain a challenge if the “juror evinc[es] enmity or bias toward the

defendant or the state.”). But the court need not disqualify the

juror if it “is satisfied that the juror will render an impartial verdict

based solely upon the evidence and the instructions of the court.”

Crim. P. 24(b)(1)(X); see § 16-10-103(1)(j). Specifically, the court

must grant the challenge for cause “if a prospective juror is

unwilling or unable to accept the basic principles of criminal law

and to render a fair and impartial verdict based upon the evidence

admitted at trial and the court’s instructions.” Morrison, 19 P.3d at

672.

¶ 16 The question whether a prospective juror “cannot judge the

matter fairly and impartially is necessarily a matter involving an

exercise of discretion on the part of the trial court and therefore a

range of permissible judgments about the ability and willingness of

that prospective juror.” Vigil v. People, 2019 CO 105, ¶ 14. “We

accord great deference to the trial court’s handling of challenges for

cause because such decisions turn on an assessment of the juror’s

credibility, demeanor, and sincerity in explaining [their] state of

mind.” Morrison, 19 P.3d at 672. Such assessments are subject to

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a “very high standard of review,” and, accordingly, a court will be

deemed to have abused its discretion only if its ruling is manifestly

arbitrary, unreasonable, or unfair. Vigil, ¶ 14 (quoting Carrillo v.

People, 974 P.2d 478, 485-86 (Colo. 1999)). “In determining

whether a trial court has abused its discretion, reviewing courts

have . . . been admonished from considering merely whether they

would have reached the same conclusion and, instead, must affirm

as long as the trial court’s decision fell within a range of reasonable

options.” Id.

C. Analysis

¶ 17 On the above record, we are not convinced that the district

court’s denial of the challenge for cause to Juror K was manifestly

arbitrary, unreasonable, or unfair. See People v. Ambrose, 2021

COA 62, ¶ 29 (“We will overturn a trial court’s ruling on a challenge

for cause only upon an affirmative showing that the court abused

its discretion; that is, only if there is no evidence in the record to

support the ruling.” (citations omitted)).

¶ 18 The record demonstrates that defense counsel’s “scale” was a

confusing attempt to learn the prospective jurors’ thoughts on the

presumption of innocence. Importantly, the jurors’ confusion

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appears to have focused on the belief that the middle of the scale —

Juror K’s stated position — reflected a balanced, unbiased view on

guilt or innocence. See People v. Clemens, 2017 CO 89, ¶ 16 (“The

purpose of challenges for cause . . . is to remove jurors who have

shown bias or enmity toward one of the parties, not jurors who

simply enter the courtroom with a misunderstanding of the law.”).

¶ 19 Juror K’s “right in the middle” statement — the basis for the

challenge for cause — preceded defense counsel’s attempted

clarification of the scale, which did not appear to abate the jurors’

confusion based on the voir dire colloquies. Even so, the record

does not indicate that, after counsel clarified the scale and asked

for the prospective jurors’ thoughts on the “modified definition,”

Juror K voiced any doubts about his ability to apply the

presumption of innocence. Cf. id. at ¶ 19 (“[A] prospective juror’s

silence in response to rehabilitative questioning constitutes

evidence that the juror has been rehabilitated when the context of

that silence indicates that the juror will render an impartial verdict

according to the law and the evidence submitted to the jury at the

trial.”).

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¶ 20 And the record shows that the district court was fully engaged

in monitoring the prospective jurors for partiality or bias during voir

dire. Indeed, at the conclusion of voir dire, the court asked a

prospective juror to clarify his statements regarding the “scale,” and

the court later sustained a challenge for cause based solely on the

court’s observations of a prospective juror’s body language during

questioning. Despite this scrutiny of the jury venire, the court had

no such concerns regarding Juror K. See Morrison, 19 P.3d at 672

(“The trial court is in a superior position to evaluate [the challenged

juror’s credibility, demeanor, and sincerity in explaining their state

of mind] than a reviewing court, which has access only to a cold

record for its determination.”).

¶ 21 Viewing Juror K’s “right in the middle” statement in the

context of the entire voir dire, we conclude that the district court

did not err by rejecting defense counsel’s characterization of the

statement regarding counsel’s ill-defined “scale” as being “50/50”

on guilt or innocence. See People v. Young, 16 P.3d 821, 824 (Colo.

2001) (“An appellate court must review the entire voir dire at issue

when reviewing a trial court’s ruling on a challenge for cause in

order to place the juror’s statement in context.”); see also Carrillo,

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974 P.2d at 488 (“[A]lthough it would have been better practice for

the trial judge to question [the prospective juror] in order to fully

explore his feelings, we do not find that the record of [the juror’s]

answers taken as a whole demonstrates that he had a state of mind

evincing bias against [the defendant].”). Again, Juror K’s lone

statement was made at a time when the prospective jurors exhibited

confusion regarding the “scale,” and Juror K did not voice any

doubts about his ability to apply the law after counsel’s attempted

clarification. See Ambrose, ¶ 33 (“The court must examine the

juror’s statements or silence in light of the totality of the

circumstances.”).

¶ 22 We are further persuaded that this record supports the court’s

finding that there was no reason to believe Juror K could not follow

the law. See id. at ¶ 36 (The court did not err by denying a

challenge for cause based on the prospective juror’s initial

indication of partiality because the absence of further questioning

regarding the juror’s ability to be fair and impartial, “when

considered with the absence of raised hands to the prosecutor’s

questions about the panel’s ability to be fair and impartial, leaves a

record containing no evidence that [the challenged juror] was

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unable to be fair and impartial, or that she would be unable to

follow the law.”); see also Clemens, ¶ 15 (“[I]f a court is satisfied that

a challenged juror will render a fair and impartial verdict according

to the law and the evidence presented at trial, then the court should

not dismiss that juror for cause.”); People v. Vigil, 2015 COA 88M,

¶ 10 (“[U]nder the abuse of discretion standard, the question for us

is not whether the record would have supported a decision to grant

the challenge for cause or whether we would have granted the

challenge. Rather, the question presented is whether the record

compelled the trial court to grant the challenge.” (citations omitted)),

aff’d, 2019 CO 105.

III. Jury Instruction Challenge

¶ 23 Next, Warren contends that the new model jury instruction on

the presumption of innocence lowered the burden of proof. We

disagree.

A. Standard of Review and Applicable Law

¶ 24 We review de novo the question of whether a court accurately

instructed the jury on the law. Tibbels v. People, 2022 CO 1, ¶ 22.

“Instructions that lower the prosecution’s burden of proof below the

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reasonable doubt standard constitute structural error and require

automatic reversal.” Id.

¶ 25 A court has a duty to instruct the jury on all matters of law

applicable to the case. Roberts v. People, 2017 CO 76, ¶ 18. “As

long as the instruction properly informs the jury of the law, a trial

court has broad discretion to determine the form and style of jury

instructions.” McDonald v. People, 2021 CO 64, ¶ 54 (quoting Day

v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011)).

B. Analysis

¶ 26 In 2022, the Colorado Model Criminal Jury Instruction

defining the concepts of the presumption of innocence, the burden

of proof, and reasonable doubt was substantially revised to read 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
reasonable doubt the existence of each and
every element necessary to constitute the

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crime charged. This burden requires more
than 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 & cmts. 1, 7 (2022).

¶ 27 Warren objected to the district court’s giving of the 2022 model

instruction, arguing that the prior version’s language was an

accurate and accepted representation of the law and that the

revised language impermissibly lowered the prosecution’s burden of

proof, shifted the burden to him, and undermined the presumption

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of innocence. The court overruled the objection and gave the 2022

model instruction to the jurors.

¶ 28 On appeal, Warren raises multiple challenges to the court’s

decision to give the 2022 model instruction:

1. The language “real possibility that the defendant is not guilty”

required the jurors to possess a higher quantum of doubt

than is needed for reasonable doubt and, consequently,

lowered the prosecution’s burden of proof.

2. The language “firmly convinced of the defendant’s guilt”

allowed the jurors to apply a lower standard than is required

for the beyond a reasonable doubt standard.

3. The 2022 model instruction omitted the judicially-approved

“hesitate to act” language, which was included in the

pre-2022 version of Instruction E:03, see COLJI-Crim. E:03

(2021).

4. The 2022 model instruction did not inform the jurors that,

when determining whether the prosecution had proved guilt

beyond a reasonable doubt, they could consider a “lack of

evidence,” which was included in the pre-2022 version of

Instruction E:03, was omitted from the 2022 version, and was

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added back to the model instructional language in 2023, see

COLJI-Crim. E:03 (2021); COLJI-Crim. E:03 & cmt. 8 (2023).

5. The cumulative effect of the preceding errors lowered the

burden of proof, shifted the burden to the defense, and

undermined the presumption of innocence.

¶ 29 Warren recognizes that other divisions of this court have

already addressed and rejected these challenges to the 2022 model

instruction, but he asks us to depart from their reasoning based on

previously unconsidered extra-jurisdictional authority. We decline

Warren’s invitation to do so.

¶ 30 Prior divisions of this court have considered similar challenges

to the 2022 model instruction and concluded that those arguments

did not establish that the court reversibly erred in giving the model

instruction. See People v. Berumen, 2025 COA 93, ¶¶ 1, 14-33

(rejecting the defendant’s challenges to the inclusion of the “firmly

convinced” and “real possibility” instructional language and to the

omission of the “lack of evidence” instructional language); People v.

Schlehuber, 2025 COA 50, ¶¶ 1-2, 7-35 (rejecting the defendant’s

challenges to the inclusion of the “firmly convinced” and “real

possibility” instructional language and to the omission of the “lack

16
of evidence” and “hesitate to act” instructional language, and

rejecting the defendant’s assertion that, if not individually

problematic, the cumulative effect of the errors impermissibly

lowered or shifted the burden of proof or undercut the presumption

of innocence); People v. Melara, 2025 COA 48, ¶¶ 10-32 (concluding

that, while a court should inform the jury that it may consider the

“lack of evidence,” the omission of that language did not

impermissibly lower the burden of proof); see also Teran-Sanchez v.

People, (Colo. No. 25SC148, Sept. 2, 2025) (unpublished order)

(granting a writ of certiorari to address “[w]hether the trial court’s

jury instruction on burden of proof and reasonable doubt, based on

the 2023 Model Criminal Jury Instruction . . . violated petitioner’s

federal and constitutional rights to due process and a fair trial”).

We are not persuaded that the additional extra-jurisdictional

authority presented in Warren’s opening brief warrants a different

result.

¶ 31 Thus, for the reasons set forth in Berumen, Schlehuber, and

Melara, we conclude that the district court did not err when giving

the 2022 model instruction.

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IV. Conclusion

¶ 32 The judgment is affirmed.

JUDGE PAWAR and JUDGE GOMEZ concur.

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