Peo v. Montoya

23CA0860 Peo v Montoya 06-04-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0860
Alamosa County District Court No. 22CR5011
Honorable Kim Cortez-Rodriguez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gilberto Andres Montoya,

Defendant-Appellant.

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

Division V
Opinion by JUDGE LIPINSKY
Yun and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 4, 2026

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

Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Gilberto Andres Montoya appeals his convictions for first

degree burglary, second degree burglary, and menacing with a

deadly weapon. We reverse his conviction for first degree burglary

but otherwise affirm the judgment.

I. Background

¶2 A jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 One night, when a family, including a married couple (the

victims), returned home, they discovered that their front door was

open and that someone had entered the rental house where they

lived. The wife found Montoya, whom she recognized as the

landlord’s son, behind the house. She confronted Montoya, who

grabbed a steak knife and held it up to her. Montoya remained

behind the house, where he was arrested.

¶4 The victims smelled gasoline throughout the house. They also

discovered that the house had been “trashed” — an intruder had

strewn dishes and clothes everywhere, broken the hot water heater,

unplugged appliances, opened windows, and torn off closet doors.

¶5 Montoya was charged with first degree burglary, a class 3

felony; second degree burglary, a class 3 felony; and menacing with

1
a deadly weapon, a class 5 felony. The jury convicted Montoya as

charged.

¶6 On appeal, Montoya contends that the trial court erred by

(1) violating his statutory and constitutional speedy trial rights;

(2) failing to instruct the jury that first degree trespass is a lesser

included offense of first and second degree burglary; (3) not merging

his convictions for second degree burglary and menacing into his

conviction for first degree burglary; (4) denying his requests for

certain state-paid support services; and (5) rejecting his requests for

a change of venue.

II. Analysis

A. Montoya’s Speedy Trial Rights

¶7 Montoya contends that the trial court violated his statutory

and constitutional rights to a speedy trial. We disagree.

¶8 Because a defendant’s constitutional and statutory speedy

trial rights are different, we analyze those rights separately. See

People v. Harris, 914 P.2d 425, 430 (Colo. App. 1995) (“The

constitutional right to a speedy trial, derived from the Sixth

Amendment and from Colo. Const. art. II, § 16, is distinct from the

2
statutory speedy trial right and the determination as to one does

not necessarily dispose of the other.”).

1. The Trial Court Did Not Violate Montoya’s
Statutory Speedy Trial Right

a. Standard of Review

¶9 We “review the [trial] court’s findings of fact for clear error,

disregarding them only if the record is devoid of support.” People v.

West, 2019 COA 131, ¶ 7, 461 P.3d 591, 596. However, we “review

de novo the trial court’s interpretation of Colorado’s speedy trial

statute.” Id.

b. Montoya Was Tried Within the Statutory Speedy Trial Period

¶ 10 Montoya argues that his statutory speedy trial right was

violated because he was brought to trial after the statutory

deadline, calculated from the date of his preliminary hearing

conducted in county court. We disagree.

¶ 11 A defendant must be brought to trial “within six months from

the date of the entry of a plea of not guilty.” § 18-1-405(1), C.R.S.

2025. If trial does not begin within that period, the charges must

be dismissed with prejudice. Id. For purposes of the statute, a

“month” is calculated by counting forward to the “same numerical

3
day in the concluding month as the day of the month from which

the computation is begun.” § 2-4-108(3), C.R.S. 2025; see West,

¶ 15, 461 P.3d at 597 (applying section 2-4-108 to calculate the

statutory speedy trial period).

¶ 12 In felony cases, a defendant must enter a plea in district court.

See Colo. Const. art. VI, § 9(1) (“The district courts shall be trial

courts of record with general jurisdiction, and shall have original

jurisdiction in all civil, probate, and criminal cases . . . .”). In

contrast, the county courts lack jurisdiction over felony

prosecutions. Colo. Const. art. VI, § 17 (“County courts shall have

such civil, criminal, and appellate jurisdiction as may be provided

by law, provided such courts shall not have jurisdiction of

felonies . . . .”).

¶ 13 Montoya entered a plea of not guilty at his arraignment in

district court on August 16, 2022. Calculating six months from

that date yields a speedy trial deadline of February 16, 2023. See

§ 2-4-108(3). Montoya’s trial began on February 13, 2023 — three

days before the expiration of that deadline. Accordingly, the trial

court did not violate Montoya’s statutory speedy trial right. See

§ 18-1-405(1).

4
¶ 14 Nonetheless, Montoya argues that the speedy trial period did

not begin on August 16 but, rather, on July 21, 2022, when he

announced at a preliminary hearing conducted in county court that

he wanted to plead not guilty. For the reasons noted above,

however, the county court lacked jurisdiction to accept Montoya’s

plea to the felony charges. See Colo. Const. art. VI, § 17; see also

§ 13-6-106, C.R.S. 2025 (outlining county courts’ limited

jurisdiction).

¶ 15 At the preliminary hearing, the county court explained that its

role was limited to determining whether there was probable cause

for the felony counts against Montoya. If probable cause existed,

the court continued, it would “bind [the case] over to the [d]istrict

[c]ourt as quickly as” it could. At the conclusion of the hearing, the

county court found probable cause for the case to be bound over,

and all further proceedings in the matter were conducted in district

court.

¶ 16 Accordingly, Montoya’s attempt to plead not guilty at the

preliminary hearing in county court had no legal effect. See People

v. Jachnik, 116 P.3d 1276, 1277 (Colo. App. 2005) (“[A]bsent a valid

appointment order, a county court judge lacks jurisdiction to act as

5
a district court judge and preside over any stage of a felony trial.

Thus, a verdict reached under such circumstances is void.”).

¶ 17 Montoya argues that, even if his attempted plea was

“irregular[],” it still triggered his statutory speedy trial right under

Harrington v. District Court, 559 P.2d 225, 227 (Colo. 1977). We

disagree.

¶ 18 In Harrington, the supreme court concluded that the

defendant’s written not guilty plea, entered through counsel, was

“not in accordance with the statutes and court rules of procedures.”

Id. Nevertheless, the court held that the plea was effective to

commence the statutory speedy trial period for two reasons. See id.

First, the trial court and the parties had “affirmatively proceeded on

the basis that a plea of not guilty had been entered.” Id. Second,

because arraignment procedures are designed to protect

defendants, a defendant may “waive any technical irregularity in the

proceeding” so long as none of his substantial rights are affected.

Id.

¶ 19 Montoya’s reliance on Harrington is misplaced.

¶ 20 Unlike in Harrington, the county court explicitly told Montoya

that it lacked authority to receive his plea, stating that its role was

6
limited to conducting the preliminary hearing in his case. At

Montoya’s arraignment on August 16, 2022, the district court

reaffirmed the county court’s statements by telling Montoya that he

could not enter his plea in county court. The district court

explained that only a district court can accept the defendant’s plea

in a felony case. Further, at his next appearance in the district

court, Montoya confirmed that he had entered his not guilty plea on

August 16.

¶ 21 Therefore, unlike in Harrington, neither the courts nor the

parties in this case “affirmatively proceeded on the basis that a plea

of not guilty had been entered” at the county court preliminary

hearing or otherwise presumed Montoya had pleaded not guilty

before August 16. Id.

¶ 22 In addition, Harrington dealt with procedural irregularities —

not jurisdictional defects — under the criminal rules. The

defendant in that case was charged with driving under the

influence — a class 1 traffic misdemeanor — and not a felony. See

id. at 226-27. The parties in Harrington did not contest the county

court’s jurisdiction over the misdemeanor charge. Rather, the only

defect that the supreme court identified in Harrington was a

7
procedural irregularity under the Colorado Rules of Criminal

Procedure — defense counsel’s submission of his client’s written

plea, which was “not in accordance with” Crim. P. 10(a) or Crim. P.

11(c). Id. at 227.

¶ 23 The procedural defect in Harrington was materially different

from the jurisdictional defect in this case, when the county court

lacked authority to accept Montoya’s felony plea. See Colo. Const.

art. VI, § 17. Moreover, unlike the procedural protections identified

in Harrington, parties “cannot consent to or waive jurisdiction when

a court does not have jurisdiction.” People in Interest of D.S., 2012

COA 199, ¶ 7, 292 P.3d 1210, 1212. Accordingly, Montoya’s

attempted plea in county court on July 21 had no legal effect.

¶ 24 Montoya also presents an alternative argument: that the

speedy trial period began to run on August 2 — the date of his first

appearance in district court. The district court continued

Montoya’s first appearance date because it conducted the August 2

proceeding via Webex, and Montoya asserted his right to appear in

person.

¶ 25 This argument runs afoul of the plain language of the speedy

trial statute, which specifies that the six-month speedy trial period

8
begins to run “from the date of the entry of a plea of not guilty.”

§ 18-1-405(1) (emphasis added). Montoya relies on inapposite rules

and on section 18-1-1001(2), C.R.S. 2025 — a protection order

statute — to assert that a defendant’s first appearance is equivalent

to an arraignment at which the defendant pleads not guilty. We

decline Montoya’s invitation to rewrite section 18-1-405(1). See

McBride v. People, 2022 CO 30, ¶ 27, 511 P.3d 613, 618 (“We must

apply our statute as written, and we may not add words to it.”).

¶ 26 In sum, Montoya’s speedy trial period began on August 16,

2022, when he entered a not guilty plea in district court. Because

Montoya’s trial commenced within six months of that date, the trial

court did not violate his statutory speedy trial right.

2. The Trial Court Did Not Violate
Montoya’s Constitutional Speedy Trial Right

a. Standard of Review

¶ 27 We review de novo a trial court’s decision on whether a

defendant was deprived of his constitutional speedy trial right.

People v. Glaser, 250 P.3d 632, 636 (Colo. App. 2010).

9
b. The Length of the Delay in Montoya’s Trial Was Not
Presumptively Prejudicial

¶ 28 Montoya contends that the trial court violated his

constitutional right to a speedy trial. We disagree.

¶ 29 As noted, both the United States and Colorado constitutions

guarantee the right to a speedy trial. Id. at 635. “[T]he defendant

has the burden of proving that his constitutional speedy trial right

has been denied.” Id. (quoting People v. Small, 631 P.2d 148, 154

(Colo. 1981)).

¶ 30 In evaluating a defendant’s constitutional speedy trial claim,

“[t]here is no established time period that automatically constitutes

undue delay.” Id. Instead, “[t]he determination of such a claim is

measured by an ad hoc balancing of four factors” — known as the

Barker factors — “the length of the delay, the reasons for the delay,

the defendant’s assertion or demand for a speedy trial, and

prejudice to the defendant.” Id.; see Barker v. Wingo, 407 U.S. 514,

530 (1972).

¶ 31 No single Barker factor is dispositive. See Glaser, 250 P.3d at

636. However, if the length of the delay is not “presumptively

prejudicial” under the first Barker factor, no further analysis is

10
necessary. People v. Sandoval-Candelaria, 2014 CO 21, ¶ 39, 321

P.3d 487, 493. A delay generally becomes “presumptively

prejudicial” when the time between charging or arrest and trial

approaches one year. Id. at ¶ 36, 321 P.3d at 493.

¶ 32 Montoya’s trial began on February 13, 2023, eight months and

three days after his arrest on June 10, 2022.

¶ 33 An eight-month delay is less than the one-year period that

marks a presumptively prejudicial delay. See People v. O’Neill, 523

P.2d 123, 125 (Colo. 1974) (holding that there was no constitutional

speedy trial violation arising from a ten-month delay because the

defendant failed to show that his trial was not held “within a period

of time consistent with the court’s trial docket”); West, ¶ 14, 461

P.3d at 596-97 (“[T]he constitutional right attached at the time of

[the defendant’s] arrest, which was eight months and six days

before the first day of trial. . . . Accordingly, we conclude that the

delay here did not prejudice [the defendant] and thus we need not

consider the remaining factors.” (citations omitted)). Because the

delay in Montoya’s case did not approach the one-year threshold for

presumptive prejudice, Montoya’s constitutional claim fails, and we

11
need not analyze the remaining Barker factors. See Sandoval-

Candelaria, ¶ 39, 321 P.3d at 493.

¶ 34 For these reasons, we conclude that Montoya failed to

establish that the trial court violated his constitutional speedy trial

right.

B. The Proposed Instruction that First Degree Trespass Is
a Lesser Included Offense of First Degree Burglary

¶ 35 Montoya contends that the trial court erred by denying his

request for a jury instruction explaining that first degree trespass is

a lesser included offense of first degree burglary. We agree.

However, we reject Montoya’s unpreserved argument that the court

should also have instructed the jury that first degree trespass is a

lesser included offense of second degree burglary.

1. Standard of Review

¶ 36 We review de novo whether one offense is a lesser included

offense of another. People v. Lopez, 2020 COA 119, ¶¶ 7-8, 471

P.3d 1285, 1287-88.

2. Additional Facts

¶ 37 During the jury instruction conference, Montoya asked the

court for an instruction that first degree trespass is a lesser

12
included offense of first degree burglary and that second degree

trespass is a lesser included offense of second degree burglary. The

prosecutor objected to both requests, asserting that, under People v.

Garcia, 940 P.2d 357, 362 (Colo. 1997), abrogated by, Reyna-

Abarca v. People, 2017 CO 15, 390 P.3d 816, first degree trespass is

not a lesser included offense of first (or second) degree burglary.

The prosecutor argued that, unlike first and second degree

burglary, first degree trespass requires proof of entry into a

dwelling.

¶ 38 The trial court concluded that first degree criminal trespass is

not a lesser included offense of first degree burglary and declined to

give the requested instruction. However, the court agreed with

Montoya that second degree trespass is a lesser included offense of

second degree burglary and instructed the jury accordingly.

3. The Trial Court Erred by Not Instructing the Jury
that First Degree Trespass Is a Lesser Included Offense
of First or Second Degree Burglary

¶ 39 Montoya argues, the People concede, and we agree, that the

court erred by not instructing the jury that first degree trespass is a

lesser included offense of first or second degree burglary.

13
¶ 40 “A person commits the crime of first degree criminal trespass

if,” as relevant here, such person “[k]nowingly and unlawfully enters

or remains in a dwelling of another.” § 18-4-502(1)(a), C.R.S. 2025.

¶ 41 A person commits first degree burglary if the person

knowingly enters unlawfully, or remains
unlawfully after a lawful or unlawful entry, in
a building or occupied structure with intent to
commit therein a crime, other than trespass as
defined in this article, against another person
or property, and if in effecting entry or while in
the building or occupied structure or in
immediate flight therefrom, the person or
another participant in the crime assaults or
menaces any person.

§ 18-4-202(1), C.R.S. 2025.

¶ 42 Finally, a person commits second degree burglary if the person

“knowingly breaks an entrance into, enters unlawfully in, or

remains unlawfully after a lawful or unlawful entry in a building or

occupied structure with intent to commit therein a crime against

another person or property.” § 18-4-203(1), C.R.S. 2025.

¶ 43 As relevant here, one offense is included within another if it “is

established by proof of the same or less than all the facts required

to establish the commission of the offense charged,”

§ 18-1-408(5)(a), C.R.S. 2025, or if it “differs from the offense

14
charged only in the respect that a less serious injury or risk of

injury to the same person, property, or public interest or a lesser

kind of culpability suffices to establish its commission,”

§ 18-1-408(5)(c). Under this test, “[a]n offense is a lesser-included

offense if at least one of the ways to commit the greater offense

necessarily establishes all the elements of the lesser offense.”

Whiteaker v. People, 2024 CO 25, ¶¶ 11, 18, 547 P.3d 1122,

1125-26.

¶ 44 A trial court must give a lesser included offense instruction

when “some evidence tend[s] to establish the lesser included

offense,” People v. Stafford, 890 P.2d 244, 248 (Colo. App. 1994),

and there is a “rational basis for a verdict acquitting the defendant

of the offense charged and convicting him of the included offense,”

§ 18-1-408(6).

¶ 45 “[I]n deciding whether to instruct the jury on a lesser offense

requested by the defense, a trial court must consider the evidence

in the light most favorable to the defendant.” Lopez, ¶ 9, 471 P.3d

at 1288. “The lesser offense instruction is designed to ‘help[]

ensure that a jury does not convict a defendant of a greater offense

than the one actually committed merely because the greater offense

15
is the only crime charged.’” Id. at ¶ 14, 471 P.3d at 1289 (quoting

People v. Naranjo, 2017 CO 87, ¶ 16, 401 P.3d 534, 538).

¶ 46 First degree trespass is a lesser included offense of both first

degree burglary, People v. Miller, 2024 COA 66, ¶¶ 68-69, 556 P.3d

1262, 1273-74, and second degree burglary, Whiteaker, ¶ 20, 547

P.3d at 1126-27. (Although we are not bound by the division’s

decision in Miller, see Campbell v. People, 2020 CO 49, ¶ 41, 464

P.3d 759, 767, we agree with the division’s reasoning in that case.)

¶ 47 First degree trespass is a lesser included offense of second

degree burglary because a person commits the former offense by

“[k]nowingly and unlawfully enter[ing] or remain[ing] in a dwelling

of another,” § 18-4-502(1)(a), and can commit the latter offense by

“knowingly break[ing] an entrance into, enter[ing] unlawfully in, or

remain[ing] unlawfully after a lawful or unlawful entry in a building

or occupied structure,” § 18-4-203(1). These elements of second

degree burglary also satisfy the elements of first degree trespass.

See Miller, ¶ 68, 556 P.3d at 1273-74. And first degree trespass is

also a lesser included offense of first degree burglary, which

likewise requires that the person “knowingly enter[ed] unlawfully, or

remain[ed] unlawfully after a lawful or unlawful entry, in a building

16
or occupied structure.” § 18-4-202(1); see Miller, ¶ 69, 556 P.3d at

1274.

¶ 48 The evidence established that Montoya entered the victims’

house knowingly and unlawfully, in violation of the first degree

trespass statute. See § 18-4-502(1)(a).

¶ 49 But although Montoya admitted that he entered the victims’

house, he denied that he did so with the intent to commit a crime.

Rather, he testified that he entered the house only to prevent an

explosion after smelling gas fumes while walking by. This

testimony would support Montoya’s defense that he lacked the

necessary intent to commit burglary. See Stafford, 890 P.2d at 248

(reversing for failure to give a lesser included instruction when the

record contained evidence supporting a rational basis to acquit of

the greater offense and to convict of the lesser).

¶ 50 Accordingly, the jury could have rationally believed that

Montoya did not intend to commit a crime against a person or

property when he unlawfully entered the house. Thus, it could

have acquitted him of first or second degree burglary while finding

sufficient evidence that he committed first degree trespass.

17
¶ 51 Because there was a rational basis for the jury to acquit

Montoya of first or second degree burglary, yet to convict him of

first degree trespass, the court erred by declining to instruct the

jury that first degree trespass is a lesser included offense of both

forms of burglary.

4. The Trial Court’s Error in Not Providing an Instruction that
First Degree Trespass Is a Lesser Included Offense of
First Degree Burglary Was Not Harmless

a. Standard of Reversal

¶ 52 “When a trial court erroneously fails to give a jury instruction

that the defendant requested and to which he was entitled, we

review that omission under the harmless error standard.” Lopez,

¶ 10, 471 P.3d at 1288. Under that standard, reversal is only

warranted if “there is ‘a reasonable probability that [the error]

contributed to the defendant’s conviction.’” Id. (quoting

Mata-Medina v. People, 71 P.3d 973, 980 (Colo. 2003)).

b. There Is a Reasonable Probability that the Trial Court’s Error
Contributed to Montoya’s Conviction

¶ 53 We agree with Montoya there is a reasonable probability that

the court’s error in not instructing the jury that first degree

18
trespass is a lesser included offense of first degree burglary

contributed to the jury’s verdict.

¶ 54 When “the defendant concede[s] committing the elements of

the lesser offense of trespass in h[is] testimony at trial and denie[s]

committing the greater offense of burglary on the basis of h[is]

subjective intent alone,” there is “a reasonable probability the jury

would not have found h[im] guilty of burglary had it been permitted

to find instead that [he] committed” first degree trespass. People v.

Rock, 2017 CO 84, ¶ 24, 402 P.3d 472, 480.

¶ 55 Because second degree trespass is a less serious offense than

first degree trespass, we cannot infer, as the People argue, that the

jury’s conviction of Montoya for first degree burglary — but not

second degree trespass — renders harmless the trial court’s error in

not instructing the jury that first degree trespass is a lesser

included offense of first degree burglary. As the supreme court

explained, when a court “fails to instruct on an intermediate

offense, conviction of a greater offense does not carry the same

implicit rejection of lesser offenses.” Mata-Medina, 71 P.3d at 981.

Therefore, the jury’s conviction of Montoya for first degree burglary,

despite receiving an instruction on second degree criminal trespass,

19
does not show that the lack of a first degree trespass instruction

was harmless.

¶ 56 For this reason, we reverse the judgment of conviction on the

first degree burglary charge. See Lopez, ¶ 15, 471 P.3d at 1289.

5. The Trial Court Did Not Plainly Err by Not Instructing the Jury
that First Degree Trespass Is a Lesser Included Offense of
Second Degree Burglary

a. Plain Error

¶ 57 Montoya did not ask the court to instruct the jury that first

degree trespass is a lesser included offense of second degree

burglary. Accordingly, we review for plain error. See Hagos v.

People, 2012 CO 63, ¶ 14, 288 P.3d 116, 120.

¶ 58 An error is plain if it is “obvious and substantial,” id., and it is

obvious if it is “so clear-cut” that “a trial judge should be able to

avoid it without benefit of objection,” People v. Crabtree, 2024 CO

40M, ¶ 42, 550 P.3d 656, 667 (quoting Romero v. People, 2017 CO

37, ¶ 6, 393 P.3d 973, 976). The defendant bears the burden to

establish that an error occurred and that it was both obvious and

substantial. See Kaufman v. People, 202 P.3d 542, 549 (Colo.

2009).

20
b. The Error Was Not Obvious

¶ 59 We disagree with Montoya’s argument that the trial court

plainly erred by not sua sponte instructing the jury that first degree

trespass is a lesser included offense of second degree burglary.

¶ 60 Courts presume that the lack of an instruction on a lesser

included offense means that the defendant “elected to take his

chance on an outright acquittal or conviction of the principal

charge.” People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985). This

presumption is particularly strong in this case because Montoya

argued that second degree trespass, but not first degree trespass, is

a lesser included offense of second degree burglary. And an error

cannot be obvious when the record suggests that the defense may

have deliberately pursued that position. See People v. Peterson, 656

P.2d 1301, 1303-04 (Colo. 1983) (explaining that an omission is not

plain error when the record shows it was “at least equally likely” the

result of the defense’s strategy).

¶ 61 Accordingly, the trial court did not obviously err when it did

not, on its own initiative, instruct the jury that first degree trespass

is a lesser included offense of second degree burglary. For this

21
reason, we hold that the court’s error not to provide such an

instruction was not obvious and, therefore, not plain.

C. Merger

¶ 62 Montoya argues, and the People concede, that Montoya’s

second degree burglary and menacing with a deadly weapon

convictions merge into his conviction for first degree burglary.

Although we reverse Montoya’s first degree burglary conviction, we

address his merger argument because the issue “may arise on

retrial.” Kinney v. People, 187 P.3d 548, 554 (Colo. 2008).

1. Standard of Review

¶ 63 “[A] defendant’s double jeopardy rights are violated for failure

to merge a lesser included offense into a greater offense . . . .”

Reyna-Abarca, ¶ 81, 390 P.3d at 828. “[W]e ‘review de novo a

defendant’s claim that a conviction violates the constitutional

protection against double jeopardy.’” Whiteaker, ¶ 9, 547 P.3d at

1125 (quoting Garcia v. People, 2023 CO 41, ¶ 13, 530 P.3d 1200,

1203).

22
2. If Montoya Is Convicted of First Degree Burglary at
a New Trial, the Trial Court Must Merge
Montoya’s Other Convictions with First Degree Burglary

¶ 64 “[S]econd degree burglary of a dwelling is a lesser included

offense of . . . first degree burglary.” Armintrout v. People, 864 P.2d

576, 582 (Colo. 1993). In addition, a defendant’s conviction for

menacing merges into a first degree burglary conviction if the latter

is predicated on the defendant’s unlawful entry into a building or

occupied structure with the intent to commit menacing, and, while

inside, the defendant menaced any person. See People v. Ramirez,

18 P.3d 822, 825-26, 830 (Colo. App. 2000).

¶ 65 Thus, we agree that, if Montoya is convicted of first degree

burglary at a new trial, then his convictions for second degree

burglary and menacing with a deadly weapon must merge with the

first degree burglary conviction. See Armintrout, 864 P.2d at 582;

Ramirez, 18 P.3d at 830.

D. Montoya’s Requests for Support Services

1. Standard of Review

¶ 66 “[A] trial court has discretion to grant a motion for support

services to a defendant.” People v. Stroud, 2014 COA 58, ¶ 5, 356

P.3d 903, 906. “A court abuses its discretion when its decision is

23
manifestly arbitrary, unreasonable, or unfair, or based on an

erroneous understanding or application of the law.” Id.

¶ 67 “[A] trial court erroneously denies a defendant’s request for

support services if the defendant shows that the requested services

were reasonable, necessary, and helpful to the defense.” Id.

(emphasis added).

2. The Trial Court Reasonably Provided
a Media Player for Montoya’s Use

¶ 68 Montoya contends that the trial court erred by denying him

access to a media player during his cross-examination of Deputy

Austin Reneau, a prosecution witness. Montoya argues that the

media player would have allowed him to refresh Deputy Reneau’s

memory with Officer Jareb Aziz’s body camera video, potentially

eliciting testimony that the garage door was closed when officers

arrived at the victims’ house. Such testimony, Montoya argues,

would have contradicted the victims’ testimony that the garage door

was open when the police arrived. We disagree with Montoya’s

argument.

¶ 69 At the outset, we note that the trial court did not entirely deny

Montoya access to a court-provided media player. Montoya asked

24
for a media player in the midst of his cross-examination of Deputy

Reneau to play Officer Aziz’s body camera video and refresh Deputy

Reneau’s recollection. In response, a sergeant offered to retrieve a

laptop from the jail so Montoya could play the video. Due to time

constraints, however, the court declined to allow the sergeant to

retrieve the laptop. But the court provided Montoya with a laptop

for the completion of his cross-examination of Deputy Reneau after

the lunch recess. Thus, the court could only have erred if it was

required to provide Montoya with a laptop during the first part of

Deputy Reneau’s cross-examination.

¶ 70 We agree with the trial court’s conclusion that it was

unreasonable for Montoya to expect the court to provide a media

player on such short notice. Under the circumstances, the trial

court did not abuse its discretion by waiting until after the lunch

recess to provide Montoya with the laptop he requested. See id.

3. The Trial Court’s Errors in Not Providing Montoya with a
Transcript or an Investigator
Were Harmless Beyond a Reasonable Doubt

¶ 71 Montoya argues, and the People concede, that the trial court

erred by failing to provide Montoya with a transcript of the

preliminary hearing (the transcript) and an investigator. Because

25
Chief Justice Directive 04-04, Appointment of State-Funded

Counsel in Criminal Cases and for Contempt of Court, section

(V)(D)(1)-(2) (amended Nov. 2014), https://perma.cc/6TF5-4EEF,

authorizes trial courts to provide such resources at state expense,

we agree with the parties. Therefore, we must address whether the

court’s decision not to provide these services to Montoya warrants a

new trial on all counts.

a. Standard of Reversal

¶ 72 “Because a court’s erroneous denial of a defendant’s request

for support services is subject to constitutional harmless error

review, we reverse a defendant’s conviction unless the error is

harmless beyond a reasonable doubt.” Stroud, ¶ 6, 356 P.3d at

907. “In other words, we reverse if ‘there is a reasonable possibility

that the [error] might have contributed to the conviction.’” Hagos,

¶ 11, 288 P.3d at 119 (quoting Chapman v. California, 386 U.S. 18,

23 (1967)). Conversely, reversal is unwarranted if the record

establishes, beyond a reasonable doubt, that the jury’s verdict was

“surely unattributable to the error.” Griego v. People, 19 P.3d 1, 9

(Colo. 2001) (quoting Blecha v. People, 962 P.2d 931, 942 (Colo.

1998)).

26
b. There Is No Reasonable Possibility that
Montoya’s Lack of the Transcript Might Have Contributed to
His Convictions

¶ 73 Montoya contends that he needed the transcript to “impeach

portions of [the victims’] trial testimony and to show his consistent

assertion that he didn’t intend to commit a crime when he entered

their house.” But the victims did not testify at the preliminary

hearing. Therefore, Montoya could not have used the transcript to

impeach them. See State ex rel. Coffman v. Robert J. Hopp &

Assocs., LLC, 2018 COA 69M, ¶ 97, 442 P.3d 986, 1005

(“[I]mpeachment generally refers to proof a witness made [prior]

statements inconsistent with his or her present testimony.”).

¶ 74 It is unclear whether, by arguing that the transcript would

have shown “his consistent assertion that he didn’t intend to

commit a crime when he entered their house,” Montoya contends

that he should have been allowed to introduce the transcript into

evidence or whether he intended to tie this statement to his

impeachment argument.

¶ 75 In any event, even if the transcript were admissible under the

Colorado Rules of Evidence, it would not have aided Montoya in

identifying or developing evidence of his intent at the time of the

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offense. At the preliminary hearing, Officer Aziz testified that

Montoya denied that he intended to start a fire when he entered the

house. But Montoya did not need the transcript to prove that he

made this statement because the court admitted into evidence a

bodycam video of Montoya’s interaction with Officer Aziz. The

bodycam video duplicated Officer Aziz’s testimony regarding

Montoya’s statements. Therefore, the transcript could not have

assisted Montoya in rebutting the prosecution’s allegations.

¶ 76 Because there is no possibility that the transcript would have

helped Montoya persuade the jury, the court’s ruling that Montoya

was not entitled to the transcript was harmless beyond a

reasonable doubt. See Hagos, ¶ 11, 288 P.3d at 119.

c. There Is No Reasonable Possibility that
the Trial Court’s Decision Not to Provide Montoya with
an Investigator Might Have Contributed to His Convictions

¶ 77 Montoya further contends that he required the assistance of

an investigator to locate witnesses who could testify that he “wasn’t

inside the house long enough to cause the damage.” But as with

the court’s denial of Montoya’s request for the transcript, its

decision not to provide Montoya with an investigator could not have

affected the jury’s verdict.

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¶ 78 On the bodycam video, which the jury viewed, Montoya said

that he “went through all the rooms” in the victims’ house. And

Montoya’s testimony regarding his actions inside the house

corroborated what he told officers at the scene. Therefore, any

testimony suggesting that Montoya was in the house for only a brief

period of time would have contradicted his own statements and

undermined his credibility.

¶ 79 In addition, Montoya’s argument relies on the mistaken

assumption that causing the damage required a substantial

amount of time and that evidence that he was only in the house

briefly would establish that he did not engage in criminal

mischief — the predicate offense for the burglary charges. To

commit criminal mischief, a person need only damage “real or

personal property,” and the statute sets no minimum length of time

for the defendant’s actions. § 18-4-501(1), C.R.S. 2025. And the

damage to the house, such as wires pulled from a wall, was not

particularly time-consuming. Accordingly, evidence that Montoya

was only in the house for a brief time would not have materially

advanced his argument that he did not commit criminal mischief.

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¶ 80 Further, the time required to cause the damage was irrelevant

because Montoya admitted to damaging the victims’ property. He

testified, among other things, that he removed the door from the

room where the water heater was located. Montoya also admitted to

“shut[ting] down” the boiler and “turn[ing] off” the water heater,

which the victims were unable to restart.

¶ 81 Most significantly, the prosecution did not need to prove that

Montoya committed criminal mischief to prove that he committed

burglary; it needed only to prove that he intended to do so. See

§§ 18-4-202(1), 18-4-203(1). The amount of time Montoya spent in

the victims’ house was irrelevant to this question of intent. For

these reasons, an investigation into the length of time Montoya

remained in the victims’ house would not have affected the jury’s

verdict.

¶ 82 In sum, neither the transcript nor the services of an

investigator would have supported Montoya’s defense. Accordingly,

the judgment is “surely unattributable” to the trial court’s errors in

denying Montoya a transcript and an investigator. Griego, 19 P.3d

at 9 (quoting Blecha, 962 P.2d at 942). Therefore, any such errors

30
were harmless beyond a reasonable doubt and do not warrant

reversal.

E. Montoya’s Requests for a Change of Venue

1. Standard of Review

¶ 83 “We review a trial court’s decision to grant or deny a change of

venue for an abuse of discretion.” People v. Hankins, 2014 COA 71,

¶ 6, 361 P.3d 1033, 1035.

2. Montoya Did Not Establish that He Could Not Receive a
Fair Trial in Alamosa County

¶ 84 Montoya contends the trial court reversibly erred by denying

his requests for a change of venue because of his prior relationships

with various prosecutors, law enforcement personnel, and the

preliminary hearing judge. We disagree.

¶ 85 A trial’s venue should be changed only if the court determines

that a “fair or expeditious trial cannot take place in the county or

district in which the trial is pending.” Crim. P. 21(a)(1); accord

§ 16-6-101(1)(a), C.R.S. 2025. “In the absence of such grounds,” a

court may not transfer venue. People v. Reed, 132 P.3d 347, 351

(Colo. 2006).

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¶ 86 But venue must be transferred if pretrial publicity is so

“massive, pervasive and prejudicial as to create a presumption that

the defendant [will be denied] a fair trial.” Hankins, ¶ 11, 361 P.3d

at 1036 (quoting People v. Bartowsheski, 661 P.2d 235, 240 (Colo.

1983)). “Alternatively, the defendant can demonstrate that any

publicity will create actual prejudice and hostility in the jury panel.”

Id.; see Groppi v. Wisconsin, 400 U.S. 505, 510 (1971) (holding that

a change of venue may be required when the community is

“permeated with hostility” toward the defendant and other

measures cannot ensure an impartial jury). A defendant must

support a change of venue claim with “one or more affidavits setting

forth the facts upon which [he] relies.” Crim. P. 21(a)(2)(I).

¶ 87 First, Montoya failed to submit any affidavits in support of his

change of venue requests. Because Montoya did not comply with

Crim. P. 21(a)(2)(I)’s affidavit requirement, the trial court acted

within its discretion in denying his requests for a change of venue.

See People v. Martinez, 2015 COA 33, ¶ 28, 350 P.3d 986, 991

(acknowledging, in the jurisdictional context, that a “party’s failure

to comply with a procedural requirement may justify the court’s

32
dismissal of the action within its discretion” (quoting SMLL, L.L.C. v.

Peak Nat’l Bank, 111 P.3d 563, 566 (Colo. App. 2005)).

¶ 88 Second, Montoya concedes that there was no pretrial publicity

regarding his trial. As a result, he fails to meet the standard for

presumed prejudice. See Hankins, ¶ 11, 361 P.3d at 1036.

¶ 89 Third, contrary to Montoya’s argument, his past associations

with various criminal justice officials do not demonstrate that the

community was “permeated with hostility” toward him or that the

court was incapable of empaneling a fair jury. Groppi, 400 U.S. at

510. Indeed, Montoya’s allegations do not even establish that the

officials he identified were biased against him. In the absence of

evidence of bias, the trial court did not abuse its discretion by

determining that Montoya could receive a fair trial in Alamosa

County.

¶ 90 Thus, the trial court properly denied Montoya’s requests for a

change of venue.

III. Disposition

¶ 91 Montoya’s conviction for first degree burglary is reversed. The

judgment is otherwise affirmed. On remand, the prosecution may

request that the court (1) enter a judgment for second degree

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burglary and menacing with a deadly weapon or (2) set a new trial

on the first degree burglary count.

JUDGE YUN and JUDGE SCHUTZ concur.

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