Peo v. Sanchez

19CA0713 Peo v Sanchez 01-27-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0713

El Paso County District Court No. 18CR1885

Honorable Robert L. Lowrey, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob Sanchez,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division VI

Opinion by JUDGE FREYRE

Navarro and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 27, 2022

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, Jacob Sanchez, appeals his convictions of

intimidating a witness or victim and conspiracy to commit the

same. He also appeals his sentence. We affirm.

I. Background

¶ 2

The victim and his wife were sleeping in their bedroom when

they awoke to find Sanchez standing at the foot of their bed. As his

wife left the room, the victim noticed that Sanchez had a knife or

boxcutter. He asked if Sanchez was okay, but Sanchez did not

respond. Sanchez became more and more agitated as the victim

continued to talk to him. The victim’s wife asked Sanchez to leave,

but he refused. The victim then told Sanchez that he and his wife

needed to leave to pick up his kids and they walked out the front

door. Sanchez followed them out of their trailer and, once outside,

he threatened to “snitch” on the victim and to kill him. Sanchez

spit in the victim’s face and said, “let’s do this.” The victim declined

and walked across the street to his father’s trailer, and his father

called 911. Police arrested Sanchez and the State charged him with

burglary.

¶ 3

Sanchez’s girlfriend, Casey Cooper, visited him several times

at the jail. These visitations were audio recorded. During the first

2

visit, Cooper told Sanchez that she had messaged the victim’s wife

and told her not go to court because “Hector said that he saw you

and that you told him to go tell them that.” Cooper then offered to

go to the victim’s house with her cousin “to tell him what the fuck is

up? Like, why are you saying that crazy shit? Stop, you need to fix

it or else.” Sanchez responded, “He better fuckin’ fix it man, ‘cause

that shit ain’t right.”

¶ 4

A few days later, Cooper told Sanchez that she was going to

get the victim’s address and send it to his sister so she could help

him out “however she can.” Cooper also said that “someone needs

to talk to [the victim] and tell him how it’s going down,” and

Sanchez responded, “Exactly.” Sanchez asked Cooper to tell “Oso”

that if he wanted to help Sanchez, he should talk to the victim and

ask him, “why he fuckin’ lying on me like this.” He further directed

Cooper to contact the victim through Facebook and “put him on

blast.”

¶ 5

At the next visit, Cooper told Sanchez that she “hit [the victim]

up and threatened him” and that she told the victim that she would

go over to his house and “start fuckin’ shit up.” She also told

Sanchez that his brothers wanted the victim’s address because they

3

wanted to “handle that” (retrieve Sanchez’s belongings from the

victim’s trailer). Sanchez told Cooper that “[the victim] needs to tell

the fuckin’ truth and not press charges. Tell [the victim] he better

not press charges on me because I didn’t do nothing.” Sanchez

continued to direct Cooper to contact the victim and tell him to drop

the charges throughout the visit and Cooper responded, “I got you.”

¶ 6

During the final visit, Sanchez told Cooper to tell her sister to

“go over there to [the victim’s] and tell [the victim] to drop the

charges today, I’ll get out today.” Cooper responded that the victim

had blocked her on social media and that they had to go over to the

victim’s house to contact him. Again, Sanchez told Cooper to tell

the victim, “I didn’t do nothing. Right now as we speak, I have no

hard feelings, right? And if you drop the charges today, I’ll get out

today with no hard feelings.”

¶ 7

In addition to visiting Sanchez at the jail, Cooper contacted the

victim on Facebook and “explain[ed] why [he] should have never

called the cops.” She also sent him threatening messages.

¶ 8

Additionally, the victim received daily threats at his home.

People drove or walked by his trailer, yelled at him, and said the

threats were for Sanchez. The victim recognized some of these

4

people as Sanchez’s fellow gang members. More than once,

unknown people fired guns at the victim’s trailer, and bullets

passed through the doors and windows. One night, the victim

heard banging on the side of his trailer and discovered a knife

lodged in the side of the trailer. On another occasion, the victim

came home to find three people breaking into his trailer and taking

his property on behalf of Sanchez.

¶ 9

The victim reported these incidents to law enforcement and

Cooper was arrested and charged with witness intimidation. The

threats and harassment ceased after Cooper and Sanchez were both

in custody.

II. Sufficiency

¶ 10

Sanchez first contends that there was insufficient evidence to

support his intimidation of a witness or victim charge because he

did not issue any threats or commit any prohibited acts, due to his

incarceration. He also asserts that insufficient evidence showed

that he intended or agreed to commit witness intimidation to

support his conspiracy conviction. We disagree.

5

A. Standard of Review and Applicable Law

¶ 11

We review sufficiency of the evidence de novo. McCoy v.

People, 2019 CO 44, ¶ 27. In assessing the sufficiency of the

evidence to support a conviction, we employ the substantial

evidence test to determine whether the evidence, viewed as a whole,

and in the light most favorable to the prosecution, is sufficient to

support a conclusion by a reasonable person that the defendant is

guilty of the crimes charged beyond a reasonable doubt. Clark v.

People, 232 P.3d 1287, 1291 (Colo. 2010). We must give the

prosecution the benefit of every reasonable inference that may be

fairly drawn from the evidence. People v. Duran, 272 P.3d 1084,

1090 (Colo. App. 2011).

¶ 12

“The pertinent question is whether, after viewing the evidence

in the light most favorable to the prosecution, a rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.” Clark, 232 P.3d at 1291. The jurors are

entrusted with resolving the weight and credibility of the evidence.

People v. McGlotten, 166 P.3d 182, 188 (Colo. App. 2007). And we

do not sit as the thirteenth juror to reassess credibility or to reweigh

the evidence presented to the jury. Clark, 232 P.3d at 1293.

6

¶ 13

As relevant here, a person commits the crime of intimidating a

witness or victim if,

by use of a threat, act of harassment as

defined in section 18-9-111, [C.R.S. 2021,] or

act of harm or injury to any person or property

directed to or committed upon a witness in any

criminal or civil proceeding; a victim of any

crime . . . he or she intentionally attempts to

or does:

(a) Influence the witness or victim to testify

falsely or unlawfully withhold any testimony;

or

(b) Induce the witness or victim to avoid legal

process summoning him to testify; or

(c) Induce the witness or victim to absent

himself or herself from an official proceeding;

or

(d) Inflict such harm or injury prior to such

testimony or expected testimony.

§ 18-8-704(1), C.R.S. 2021. As relevant here, a person commits

harassment if, with the intent to harass, annoy, or alarm another

person, he or she:

(e) [d]irectly or indirectly initiates

communication with a person or directs

language toward another person, anonymously

or otherwise, by telephone, telephone network,

data network, text message, instant message,

computer, computer network, computer

system, or other interactive electronic medium

7

in a manner intended to harass or threaten

bodily injury or property damage . . .; or

. . .

(g) [m]akes repeated communications at

inconvenient hours that invade the privacy of

another and interfere in the use and

enjoyment of another’s home or private

residence or other private property . . . .

§ 18-9-111(1).

¶ 14

A person commits conspiracy to commit a crime if,

with the intent to promote or facilitate its

commission, he agrees with another person or

persons that they, or one or more of them, will

engage in conduct which constitutes a crime or

an attempt to commit a crime, or he agrees to

aid the other person or persons in the

planning or commission of a crime or of an

attempt to commit such crime.

§ 18-2-201(1), C.R.S. 2021.

B. Analysis

¶ 15

Sanchez concedes that a defendant may be convicted of

intimidating a witness or victim where the defendant directs

another person to issue a threat to a witness or victim. See People

v. Rester, 36 P.3d 98, 99 (Colo. App. 2001) (affirming the

intimidation of a victim convictions “related to an incident in which

[the defendant] called his wife’s daughter and indicated that he

8

would take it as a ‘personal threat’ if his wife were to return from

California to testify against him”). He argues, however, that there

was no evidence that he committed a prohibited act or that he

directed Cooper or any other person to threaten and harass the

victim or to damage the victim’s property.

¶ 16

Contrary to his contention, we conclude that the prosecution

presented sufficient evidence that Sanchez indirectly harassed the

victim and that he directed Cooper to threaten and harass the

victim on his behalf, based on the following evidence:

 Sanchez repeatedly told Cooper to tell the victim to tell

the truth or to drop the charges. And he told Cooper to

tell other people to do the same.

 When Cooper told Sanchez “someone needs to talk to [the

victim] and tell him how it’s going down,” Sanchez

responded, “Exactly.”

 Sanchez told Cooper to contact the victim on Facebook

and put him “on blast.” Cooper then sent the victim

threatening messages on Facebook and the victim

eventually blocked her.

9

 Cooper told Sanchez that his siblings wanted the victim’s

address to “help” Sanchez get his things. The victim then

found three people breaking into his trailer and taking

his property on Sanchez’s behalf.

 After Cooper told Sanchez that the victim had blocked

her, Sanchez instructed Cooper to go the victim’s trailer

with her sister that day and tell the victim to “drop the

charges today, I’ll get out today with no hard feelings.”

 The harassment and threats stopped when both Sanchez

and Cooper were incarcerated.

See id.

¶ 17

We similarly conclude that sufficient evidence supports

Sanchez’s conspiracy conviction. Indeed, the record reveals that

Sanchez did more than simply listen to Cooper’s descriptions of

threatening the victim. He told Cooper to use Facebook to contact

the victim, he told her what to say, he told her to go to the victim’s

trailer, and he told her to tell other people to contact the victim.

¶ 18

Viewing this evidence in the light most favorable to the

prosecution, we conclude that the jury could reasonably determine

beyond a reasonable doubt that Sanchez intimidated the victim by

10

the use of threats and acts of harassment, and that he conspired to

commit intimidation of a witness or victim.

III. Evidence of Underlying Burglary Case

¶ 19

Sanchez next contends that the trial court erred by admitting

testimony about the underlying burglary case involving the victim.

Specifically, he argues that the facts of the underlying burglary case

were irrelevant and unfairly prejudicial under CRE 403. He does

not otherwise challenge admissibility under the remaining factors

set forth in Spoto v. People, 795 P.2d 1314 (Colo. 1990). We

perceive no error.

A. Additional Facts

¶ 20

The prosecution filed a pretrial notice of its intent to introduce

evidence of two underlying burglary cases — 18CR963 (involving

the named victim here) and 18CR973 (involving a different victim).1

The prosecutor argued that the evidence was relevant to Sanchez’s

motive to intimidate the victim, his state of mind, and his intent;

and that the evidence was admissible as res gestae. Defense

counsel objected and argued that the evidence was inadmissible

1 Sanchez does not challenge the admissibility of the evidence in

18CR973 so we do not address it.

11

character evidence and that the danger of unfair prejudice

outweighed its probative value.

¶ 21

The trial court ruled that it would allow “evidence of the

[18CR]963 and [18CR]973 cases to the extent that they [were]

necessary to prove a basis for [Sanchez’s] actions in the newly

charged case.” It reasoned that

the information from the [18CR]963 and

[18CR]973 are necessarily presented in some

fashion to provide a basis for even charging the

[present] case. It shows a motive, it shows an

intent, a state of mind, it shows the absence of

any simpl[e] accident or mistake. So, for all

those reasons it’s certainly relevant

information.

They’re relevant to a material fact; that is, his

state of mind, reason for doing what he is

alleged to have done. It’s completely

independent of any inference that he’s simply

acting under bad character. I cannot find that

the probative value is outweighed by the

danger of unfair prejudice because it’s

essentially the essential bits of information

must be provided to even prove the [present]

case.

. . .

It would also come in under res gestae

because, again, these elements would have to

be proven to provide a basis for the underlying

current charge in the [present] case.

Otherwise, that would make no sense to the

12

jury. So to the extent it would provide benefit

to the jury by way of information, that the

charge would make no sense without this

added information, the Court finds that it is

logically related and should be presented.

¶ 22

Before trial, the court ruled that Sanchez’s convictions in the

burglary cases were inadmissible. But it reiterated that there

needed to be “some mention of the prior bad acts . . . because

otherwise there’s no predicate for the intimidation charge.”

¶ 23

During the victim’s direct examination, the prosecution elicited

the facts described above that resulted in Sanchez’s burglary

charge. The victim did not testify about the burglary trial or

Sanchez’s burglary conviction.

¶ 24

At the close of evidence, the trial court instructed the jury:

“You have heard testimony that the defendant was charged with two

prior burglaries. You can consider that evidence only as it relates

to absence of mistake, modus operandi, motive[,] and intent. You

must not consider it for any other purpose.”

B. Standard of Review and Applicable Law

¶ 25

We review the trial court’s evidentiary rulings for an abuse of

discretion. People v. Miranda, 2014 COA 102, ¶ 46. The trial court

abuses its discretion when its evidentiary ruling is manifestly

13

arbitrary, unreasonable, or unfair, or based on a misunderstanding

or misapplication of the law. Id. In assessing the admissibility of

relevant evidence, the evidence should be given its maximum

probative value and minimum prejudicial effect. People v.

Quintana, 882 P.2d 1366, 1375 (Colo. 1994).

¶ 26

Although the parties agree this issue was unpreserved, we

nevertheless conclude that defense counsel preserved this issue by

objecting to the prosecution’s pretrial notice and by arguing against

the admission of the evidence at the hearing. See People v. Zubiate,

2013 COA 69, ¶ 22 (“We are not bound by the parties’ concessions

and may rely on our own legal interpretations . . . .”). Thus, we

review this issue for harmless error. People v. Yachik, 2020 COA

100, ¶ 38. An error is harmless when it does not affect the

substantial rights of the parties. Id.

¶ 27

Only relevant evidence is admissible. CRE 402. Relevant

evidence means evidence that tends “to make the existence of any

fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.”

CRE 401. “Other act” evidence is relevant when it is admitted for

the purpose of proving “motive, opportunity, intent, preparation,

14

plan, knowledge, identity, absence of mistake, or lack of accident.”

CRE 404(b)(2); see People v. Rath, 44 P.3d 1033, 1038 (Colo. 2002).

¶ 28

Even if relevant, evidence may be inadmissible “if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.” CRE 403.

“Evidence is unfairly prejudicial where it introduces into the trial

considerations extraneous to the merits, such as bias, sympathy,

anger, or shock.” People v. Greenlee, 200 P.3d 363,367 (Colo.

2009).

C. Analysis

¶ 29

Sanchez concedes that some evidence of the burglary charge

was relevant to whether the victim was a witness or victim within

the meaning of the intimidation statute, including (1) the date of the

alleged burglary; (2) the charges against Sanchez; and (3) the

victim’s role as an anticipated witness and named victim in the

case. See § 18-8-704(1). He contends, however, that the facts of

the burglary charge were irrelevant and unfairly prejudicial. We

disagree and conclude, consistent with the trial court, that the facts

of the underlying burglary charge are relevant to the elements of the

crime and to Sanchez’s intent, motive, and state of mind.

15

¶ 30

The victim’s description of the burglary demonstrated the

gravity of the underlying offense and provided a motive for

Sanchez’s desire to persuade the victim not to cooperate in its

prosecution. It also showed Sanchez’s knowledge of the victim’s

involvement in the criminal proceedings and in particular, the

importance of the victim’s testimony in identifying him as the

perpetrator. Finally, it informed the jury of Sanchez’s state of mind

when discussing the burglary case with Cooper. Accordingly, the

evidence was relevant to prove Sanchez’s state of mind, his motive

to commit witness intimidation, and his motive to direct Cooper to

threaten and harass the victim. See People v. Cousins, 181 P.3d

365, 372 (Colo. App. 2007) (finding that evidence of the defendant’s

prior actions established the “defendant’s animus toward women as

a motive for his attack on the victim”).

¶ 31

As well, the facts of the burglary case were relevant to prove

that Sanchez attempted to influence the victim to testify falsely.

See § 18-8-704(1)(a); see also People v. Thomeczek, 284 P.3d 110,

114 (Colo. App. 2011) (finding that evidence of a prior incident and

the parties’ actions thereafter was probative of the defendant’s

intent). At trial, Sanchez challenged the credibility of the victim’s

16

account of the burglary, arguing that he only wanted the victim to

tell the truth. Evidence about the underlying burglary case

rebutted this defense theory by showing that Sanchez intended to

influence the victim’s testimony.

¶ 32

Furthermore, we agree with the trial court that the probative

value of the evidence was not substantially outweighed by the

danger of unfair prejudice. See CRE 403. In any event, the

potential for unfair prejudice was diminished by the limiting

instruction which precluded the jury’s use of the burglary facts for

any purpose other than absence of mistake, modus operandi,

motive, and intent. And we presume the jury understood and

followed this limiting instruction. See People v. Garcia, 2012 COA

79, ¶ 20.

¶ 33

Accordingly, the trial court did not abuse its discretion by

admitting testimony about the facts of the underlying burglary case.

IV. Prosecutorial Misconduct

¶ 34

Sanchez next contends the prosecutor engaged in four

instances of misconduct: (1) misstating the law in rebuttal closing

argument by arguing that Sanchez was guilty because he directed

Cooper to commit a crime and by suggesting he should have told

17

Cooper not to commit a crime; (2) telling the jury he was convicted

of the underlying burglary in rebuttal closing argument; (3)

appealing to the jury’s sympathy; and (4) arguing the irrelevant

facts of the underlying burglary case. He further contends that the

misconduct requires reversal independently and cumulatively. We

disagree.

A. Standard of Review and Applicable Law

¶ 35

We review claims of prosecutorial misconduct using a two-step

analysis. Wend v. People, 235 P.3d1089, 1096 (Colo. 2010). First,

we determine whether the prosecutor’s conduct was improper based

on the totality of the circumstances. Id. If so, we determine

whether such conduct warrants reversal under the proper standard

of review. Id.

¶ 36

We evaluate claims of improper argument in the context of the

argument as a whole and in light of the evidence before the jury.

People v. Samson, 2012 COA 167, ¶ 30. “In doing so, we recognize

that prosecutors have wide latitude in the language and style they

choose to employ, as well as in replying to an argument by opposing

counsel.” Id.

18

¶ 37

Where a defendant does not object to the prosecutor’s

statements, we review only for plain error. Hagos v. People, 2012

CO 63, ¶ 14. Prosecutorial misconduct constitutes plain error only

when it was obvious and “seriously affected the fairness or integrity

of the trial.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.

2005). “Only prosecutorial misconduct which is ‘flagrantly,

glaringly, or tremendously improper’ warrants reversal.’” Id.

(citation omitted).

¶ 38

Because the right to a fair trial includes the right to an

impartial jury, prosecutorial misconduct that misleads a jury may

warrant reversal. Harris v. People, 888 P.2d 259, 264 (Colo. 1995).

But a prosecutor’s use of rhetorical devices to argue record evidence

or to respond to the defense’s arguments is not misconduct.

Samson, ¶ 31 (prosecutors may “employ rhetorical devices and

engage in oratorical embellishment”). And prosecutorial

misconduct in closing argument rarely constitutes plain error.

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

P.3d 1073 (Colo. 2005).

19

B. Misstatement of the Law

¶ 39

Sanchez first contends that the prosecutor misstated the law

when he told the jury it could find him guilty for directing Cooper to

commit a crime.

¶ 40

During closing argument, defense counsel argued that the

prosecution did not meet its burden of proving the element “by use

of a threat, an act of harassment, or by committing an act of harm

or injury upon any person or property.” She asserted that Sanchez

did not “direct anyone to harass, didn’t direct anyone to do any of

these things to [the victim], to [the victim’s] home.” Sanchez only

wanted the victim to tell the truth and Cooper went “rogue.”

¶ 41

In rebuttal, the prosecutor argued,

Defense counsel says I can’t prove this charge.

Intimidating a witness or a victim, look at

[instruction number four]. Directed to or

committed upon a witness. There’s only one of

those ors. Mr. Sanchez directed this to

happen. He thinks because he’s in jail and we

know where he was that he has the perfect

alibi, hands are clean. He knows he’s got

Cooper in his pocket. We all know she would

do anything for him because she says that to

him, no matter what it is . . . . He knows that.

He’s a smart guy. He has the control. He

directed her to do this.

20

¶ 42

For the reasons set forth in Part II, we conclude that the

prosecutor did not misstate the law when he argued that Sanchez

could be guilty of committing intimidation of a witness or victim by

directing Cooper to threaten and harass the victim. In addition, the

prosecutor’s comments were a fair response to defense counsel’s

argument that Sanchez did not direct Cooper or anyone else to

threaten or harass the victim or cause damage to the victim’s

property. See People v. Vialpando, 804 P.2d 219, 225 (Colo. App.

1990) (“A prosecutor is afforded considerable latitude in the right to

reply to an argument by opposing counsel.”).

¶ 43

Sanchez also contends that the prosecutor misstated the law

when he suggested that Sanchez was guilty because he failed to tell

Cooper not to hurt the victim.

¶ 44

In rebuttal, the prosecutor argued,

Tell [the victim] to drop the charges. Defense

counsel hit the nail right on the head . . . .

Let’s talk about what the defendant doesn’t say

in those video visitations. Cooper says I don’t

know what else to do beside hurt these people.

Nothing. No, no, stop, don’t, I don’t want any

part of this. Casey, you’re crazy. None of that.

¶ 45

We acknowledge that Sanchez did not have a duty to dissuade

Cooper from committing witness intimidation. See § 18-1-501(7),

21

C.R.S. 2021 (defining “omission” as “a failure to perform an act as

to which a duty of performance is imposed by law”); see also People

v. Madison, 176 P.3d 793, 802 (Colo. App. 2007) (assuming that the

prosecution must prove the existence of a duty imposed by law that

a defendant breached in order to prove criminal liability for an

omission). But we must evaluate the prosecutor’s remarks in the

context of the entire argument and the evidence presented. Doing

so, we conclude that the prosecutor legitimately commented on the

recorded conversations between Sanchez and Cooper and made

reasonable inferences about Sanchez’s intent by not dissuading

Cooper from hurting the victim. See Domingo-Gomez, 125 P.3d at

1048 (final arguments may properly refer to the facts in evidence

and any reasonable inferences drawn therefrom).

C. Facts Not in Evidence

¶ 46

Sanchez also contends the prosecutor violated the trial court’s

order when she informed the jury that he was convicted in the

underlying burglary case, contrary to the court’s order. See People

v. Denhartog, 2019 COA 23, ¶ 58 (“[A] prosecutor may not refer to

facts not in evidence, which, we assume, would include facts

22

excluded from evidence.”) (citation omitted). We discern no

violation.

¶ 47

In rebuttal, the prosecutor argued,

The defendant thinks because he was in jail he

cannot be held responsible for this, but he

made a mistake because of motive. You want

to know why we talked about those other

burglaries? Because Mr. Sanchez has the

motive to keep [the victim] from testifying. He

has all the motive in the world. There were no

other criminal actions where [the victim] was

the victim in that you heard. Just this one.

And it stopped at least for the time when both

the defendant and co-conspirator were in jail.

That’s not a coincidence. There’s only one

person on this planet with that type of motive,

and that is Mr. Sanchez.

Look at [the victim’s] motive. Maybe it’s

revenge. Did that look like somebody that was

after revenge? That was a broken man. He’s

here because the most sacred place to him had

been violated time and time again, and he

wanted it to stop. That’s why he’s here, not

because he’s out to get Mr. Sanchez. He got

that on the burglary case. What would be the

point? [The victim] admitted to you that he

was in fear of his life. Think about how hard

that would be to admit in front of the person

who is intending to inflict that fear upon you.

Think how hard it would be to tell that person

face to face you won, you intimidated me, I

was afraid for my life. Was he scared up here?

Absolutely. That’s human. That’s real. That’s

how you know whether or not he’s telling the

truth.

23

(Emphasis added.)

¶ 48

We do not view the italicized language above as telling the jury

that Sanchez was convicted in the burglary case. Instead, we

conclude that the prosecutor properly argued that the burglary

facts established Sanchez’s motive to intimidate the victim. Id. at ¶

59 (finding that the prosecutor’s comment argued that the facts in

evidence established the defendant’s intent). The prosecutor did

not tell the jury that Sanchez was convicted in the underlying

burglary case, nor did she imply that he was convicted. Instead,

the prosecutor contrasted Sanchez’s motive to intimidate the victim

with the victim’s motive, arguing that the victim did not have an

ulterior motive in testifying about the intimidation because any

motive for revenge was “got . . . on the burglary case.” And the jury

heard testimony about the underlying burglary case. Thus, we

discern no misconduct.

D. Sympathy

¶ 49

Sanchez next contends the prosecutor improperly appealed to

the jury’s sympathies by describing the victim as a broken man and

by explaining why the victim had difficulty testifying. We disagree

and conclude the prosecutor’s comment was a reasonable inference

24

from the evidence of the victim’s credibility. See People v. Wilson,

2014 COA 114, ¶ 52 (“A prosecutor may, however, draw reasonable

inferences from the evidence as to the credibility of witnesses.”).

¶ 50

During his testimony, the victim had a hard time keeping

track of timelines and could not recall the dates of specific events.

He testified that “he was going through a lot” when he was being

threatened and harassed, and that he had been “under a lot of

stress.” The prosecutor drew reasonable inferences from this

testimony by arguing that the victim was afraid during the

intimidation and during his testimony and to rebut the defense

argument that the victim was not credible. Thus, we discern no

error.

E. Underlying Burglary Case

¶ 51

Sanchez last contends that the prosecutor improperly argued

the facts of the underlying burglary case in violation of the trial

court’s pretrial ruling. However, the court only excluded evidence of

Sanchez’s conviction, not the facts of the underlying burglary case.

For the reasons stated in Part III, we conclude the prosecutor

properly argued admissible evidence.

25

F. Cumulative Error

¶ 52

Because we have concluded that no prosecutorial misconduct

occurred, we necessarily reject Sanchez’s contention that

cumulative prosecutorial misconduct requires reversal. Howard-

Walker v. People, 2019 CO 69, ¶ 24.

V. Trial Court’s Illustration of Reasonable Doubt

¶ 53

Sanchez next contends that the trial court’s illustration of

reasonable doubt during voir dire impermissibly lowered the

prosecutor’s burden of proof and requires reversal. While we do not

condone such illustrations, we conclude that the illustration here

was so unclear that reversal is not required.

A. Additional Facts

¶ 54

Before voir dire, the trial court instructed the jury that the

prosecution had to prove each element of the crimes charged

beyond a reasonable doubt. The court then instructed the jury on

the meaning of reasonable doubt by reading the model jury

instruction.

¶ 55

The court then described the prosecution’s burden with an

illustration:

26

THE COURT: It will be up to you as a juror to

determine what that is to you based upon that

definition. One thing reasonable doubt is not,

though, is beyond all doubt. It is not beyond a

shadow of a doubt or any doubt. Because

almost nothing can be proven to that level.

But it does need to be beyond a reasonable

doubt.

Let me give a simple example that I

occasionally use. How many people in this

room think that I’m a district judge? Anyone?

We have a couple. Everyone pretty much

thinks I’m a district judge. Why do you think

that?

PROSPECTIVE JUROR: It says so right there.

THE COURT: My name is on the front of this.

That’s sort of a giveaway, isn’t it? I’m wearing

this nice attire that the State has given me to

wear. Not everybody wears a robe like this.

That’s another hint. I have thinning white

hair. That’s also probably another clue that

I’ve been around for a while. So everybody

thinks that I’m a district judge. Do you think

that beyond a reasonable doubt? Do you have

any doubt? You might have some doubt. How

many of you have heard on television stories

over the years on Dateline and things like that

about people impersonating people in other

vocations or professions. Some of them do it

for almost a lifetime. They hold themselves out

as doctors or medical professionals or

insurance agents or attorneys or judges or

whatever, and they pull it off for years and

years and years and nothing ever questions it.

That could be me. You probably think that’s

not true. You probably think I really am a

27

judge, at least the State of Colorado thinks

that. But is that proof beyond all doubt?

There’s always that lingering doubt. Maybe

this guy is one of those imposters that’s pulled

it off for [twenty] or [thirty] years.

So that’s what I mean. You can’t prove

anything just sitting here beyond all doubt,

but it must be beyond a reasonable doubt.

Not a vague, speculative, or imaginary doubt,

but such a doubt as would cause reasonable

people to hesitate to act in matters of

importance to themselves. That’s what the

trial is all about. We’ll have [thirteen] of you

sit and listen to this evidence, and [twelve] of

you will then go back and determine whether

or not the People have met that particular

burden.

B. Standard of Review and Applicable Law

¶ 56

We review de novo whether jury instructions as a whole

accurately informed the jury of the law. Johnson v. People, 2019

CO 17, ¶ 8. A court’s decision to provide a particular instruction is

reviewed for an abuse of discretion. People v. Sandoval, 2018 COA

156, ¶ 11. A court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, unfair, or contrary to law. Id. at

¶ 26.

¶ 57

The prosecution bears the burden to prove every element of

the crime charged beyond a reasonable doubt. Johnson, ¶ 10. Any

28

instruction or illustration on reasonable doubt that lowers this

burden of proof violates a defendant’s constitutional right to due

process. People v. Garcia, 113 P.3d 775, 784 (Colo. 2005). And,

“[a]n instruction that lowers the prosecution’s burden of proof below

reasonable doubt constitutes structural error and requires

automatic reversal.” Johnson, ¶ 8.

¶ 58

To determine whether a trial court’s illustration of beyond a

reasonable doubt lowered the prosecution’s burden of proof, we

apply a functional test. Tibbels v. People, 2022 CO 1, ¶ 2. We

“must ask whether there is a reasonable likelihood that the jury

understood the court’s statements, in the context of the

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

based on a standard lower than beyond a reasonable doubt.” Id.

“In this way, even statements made to the venire during voir dire

can, in context, have the effect of instructing the jury on the law to

be applied, and the reviewing court must determine whether such

statements operated to reduce the prosecution’s burden of proof.”

Pettigrew v. People, 2022 CO 2, ¶ 36.

29

C. Analysis

¶ 59

The United States Supreme Court and our supreme court have

both cautioned trial courts and attorneys against further defining

the standard for reasonable doubt. See, e.g., Holland v. United

States, 348 U.S 121, 139-40 (1954); Tibbels, ¶ 25; Johnson, ¶ 13.

While we also discourage the use of illustrations to further explain

the reasonable doubt standard, we discern no reversible error here

for two reasons.

¶ 60

First, in the context of the instructions as a whole, the trial

court properly instructed the jury on reasonable doubt in

accordance with the model jury instructions before providing the

illustration. And unlike the court in Tibbels, the court here never

criticized or undermined the model instruction. See Tibbels, ¶ 50

(finding the court’s crack-in-the-foundation example significant

because the court gave the example immediately after undermining

the model instruction on reasonable doubt). As well, the court

repeated the model “hesitate to act” language immediately following

the illustration. See Pettigrew, ¶ 42; Johnson, ¶ 16; see also COLJI-

Crim. E:03 (2020). The court then repeated the model reasonable

doubt instructions at the close of evidence. See Pettigrew, ¶ 42.

30

Because the jury never indicated confusion about the reasonable

doubt instruction, we presume that the jury understood and

followed the court’s instructions. Leonardo v. People, 728 P.2d

1252, 1255 (Colo. 1986).

¶ 61

Second, like the court’s “hesitate to act” instruction in

Johnson, ¶ 15, the trial court’s illustration here was “too

nonsensical” for the jury to understand. The judge rhetorically

asked the jury whether it thought he was a district court judge

beyond a reasonable doubt without providing concrete examples or

answers. Did they have “any doubt” based on the surrounding

circumstances (i.e., the judge’s name plate, his black robe, and his

“thinning white hair”) that he was a district court judge? In an

attempt to explain the difference between beyond a reasonable

doubt and beyond all doubt, he then told the jury that it may have

some doubt that he is a judge because there had been stories on

Dateline and other media sources of people impersonating

professionals for years. And even if the jury probably thought he

was a district court judge, it may have a “lingering doubt” that he

was an imposter. In our view, the court’s series of rhetorical

questions and references to imposters in other professions left the

31

jury with no concrete example that it might have used in assessing

the prosecution’s burden of proof. Compare Tibbels, ¶ 55 (“[T]he

[court’s] crack-in-the-foundation example was a clear, real-world

scenario that we believe the jurors would readily have understood

and relied on . . . .”), with Pettigrew, ¶¶ 42, 45 (the trial court’s

confusing birth certificate example, read in context, did not warrant

reversal).

¶ 62

Accordingly, we conclude that the court’s confusing

illustration did not impermissibly lower the prosecution’s burden of

proof, did not prejudice Sanchez, and thus, does not require

reversal. Pettigrew, ¶ 46. But again, we discourage the use of

examples and illustrations to define “reasonable doubt” because

“[t]hese efforts, at best, provide no additional clarity and, at worst,

create needless litigation that jeopardizes otherwise valid

convictions.” Id. at ¶ 47.

VI. Jury Nullification

¶ 63

Sanchez next contends the trial court denied his right to a jury

trial by instructing the jury that it must follow the law as the court

instructed. We disagree and discern no error in the court’s

instruction.

32

A. Additional Facts

¶ 64

Before voir dire, the trial court instructed the jury on its duty

to follow the law provided by the court:

You must follow the instructions of law if you

are on this jury. You don’t get to decide what

the law might be, what you wish it could be,

but you must follow the law as I instruct it to

you. Does anybody have any trouble with that

basic concept in our law?

Let me give you a simple example I use from

time to time. Suppose you’re up the street on

Bijou or Kiowa where the municipal court sits

up there. Let’s suppose you were on a small

jury and you were tasked with deciding

whether someone was speeding on I-25 or not.

Let us suppose the evidence in that case

showed that someone was doing 100 miles per

hour on I-25 through Colorado Springs. Let us

suppose the judge told you that if you find

they were doing more than [sixty-five] miles per

hour you would find them guilty of that

charge. If you didn’t find that proof, you would

find them not guilty. But let us suppose the

evidence showed they were, in fact, doing 100

miles per hour. Let us also suppose you drive

a Porsche or Corvette and you think it’s just

fine to drive 100 miles per hour on I-25

through Colorado Springs. It’s easy for you,

it’s easy for your car, it handles well, so you

think that’s just fine. But do you understand

you cannot substitute your judgment for what

would be the appropriate law? You can’t make

it up and say because I can do that, I think it’s

okay, so I’m not going to find the person guilty

in that case for doing 100 miles per hour.

33

Does everyone understand that simple

example? You don’t get to substitute your

judgment for the law that you will be

instructed by the Court. Does anyone have a

problem with that concept?

B. Standard of Review

¶ 65

The parties agree that this alleged error was not preserved, but

they dispute the proper standard of reversal if we find an error

occurred. Sanchez contends that the court’s instruction denied

him his right to a jury trial and constitutes structural error. See

Sullivan v. Louisiana, 508 U.S. 275, 281 (1993). Specifically, he

argues that the trial court’s instruction infringed on the jury’s

power to acquit and that it abolished the jury’s nullification power.

The People argue that plain error applies. We need not resolve this

dispute, however, because we discern no error.

¶ 66

Whether a trial court’s instruction accurately states the law is

a legal question we review de novo. Johnson, ¶ 8.

C. Analysis

¶ 67

Jury nullification is a juror’s “knowing and deliberate rejection

of the evidence or refusal to apply the law because the result

dictated by law is contrary to [each] juror’s sense of justice,

morality, or fairness.” People v. Waller, 2016 COA 115, ¶ 57

34

(quoting State v. Nicholas, 341 P.3d 1013, 1015 (Wash. Ct. App.

2014)). Jury nullification occurs in a trial when a jury acquits a

defendant even though the members of the jury believe the

defendant is guilty. Id.

¶ 68

Although the jury has the inherent power to nullify, this power

is in conflict with the jury’s duty to follow the court’s instructions

on the law and apply that law to the evidence. See Sparf v. United

States, 156 U.S. 51, 74 (1895); People v. Wilson, 972 P.2d 701, 706

(Colo. App. 1998). A jury is required to follow the law as the court

instructs even if it disagrees with the instruction on the law.

Alvarez v. People, 653 P.2d 1127, 1131 (Colo. 1982); see also Sparf,

156 U.S. at 102 (“[I]t is the duty of juries in criminal cases to take

the law from the court, and apply that law to the facts as they find

them to be from the evidence.”). Because of this conflict, both the

federal circuit courts and divisions of this court have consistently

held that trial courts should not instruct a jury that it may nullify a

guilty verdict and that courts should not promote nullification. See

Wilson, 972 P.2d at 706; Waller, ¶ 76; People v. Scott, 2021 COA 71,

¶¶ 17, 19-20.

35

¶ 69

Here, the court’s instructions to the jury that it must follow

the law provided by the court is not only consistent with a jury’s

duty to follow the law as instructed, but it is consistent with the

model jury instructions. The model jury instructions direct the

court to provide the following instruction at the close of the

evidence in every case: “It is my job to decide what rules of law

apply to the case. . . . [Y]ou must follow the instructions I give you.

Even if you disagree with or do not understand the reasons for

some of the rules of law, you must follow them.” COLJI-Crim. E:01

(2020). And jurors who disregard the court’s instructions or the

evidence violate their sworn oaths to “well and truly try the matter

before the court, and render a true verdict, according to the

evidence and the law.” COLJI-Crim. B:01 (2020).

¶ 70

For these reasons, we conclude that the trial court properly

instructed the jury on its duty to follow the law and that the

instruction did not abolish the jury’s power to nullify.

VII. Sentencing

¶ 71

Sanchez last contends that the trial court’s sentences were not

within the presumptive sentencing range. Specifically, he argues

36

that there is no evidence in the record of aggravating factors to

support the increased sentences.

¶ 72

Whether a sentence is authorized by law is a question that we

review de novo. Yeadon v. People, 2020 CO 38, ¶ 6.

¶ 73

The jury convicted Sanchez of a class 4 and a class 5 felony.

The presumptive sentencing range for a class 4 felony is two to six

years and the presumptive sentencing range for a class 5 felony is

one to three years. § 18-1.3-401(1)(a)(V)(A), C.R.S. 2021. But, the

court is required to sentence a “defendant to a term of at least the

minimum in the presumptive range but not more than twice the

maximum term authorized in the presumptive range for the

punishment of a felony” if, “[a]t the time of the commission of the

felony, the defendant was charged with or was on bond for a felony

in a previous case and the defendant was convicted of any felony in

the previous case.” § 18-1.3-401(9)(a).

¶ 74

At the time Sanchez committed intimidation of a witness or

victim and conspiracy, he was charged with multiple felonies in two

separate cases — 18CR963 and 18CR973. Before the jury

convicted him here, he had been convicted of felonies in those

cases. Therefore, when the court sentenced him in all cases, the

37

aggravated sentencing range for Sanchez’s class 4 felony conviction

here was two to twelve years and the aggravated range for his class

five felony conviction was one to six years. The trial court

sentenced Sanchez to eight years imprisonment for the class 4

felony intimidation of witness or victim conviction and to six years

imprisonment for the class 5 conspiracy conviction. Because the

court was required by statute to increase the sentencing ranges

based on the sentence-enhancing circumstance, it did not need to

make additional findings to support the sentences.

¶ 75

Accordingly, we discern no error in the court’s sentence.

VIII. Conclusion

¶ 76

The judgment and sentence are affirmed.

JUDGE NAVARRO and JUDGE HARRIS concur.