Peo v. Brehm

22CA1228 Peo v Brehm 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1228
Mesa County District Court No. 20CR465
Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthias Martin Brehm,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE SCHOCK
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tillman Clark, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Matthias Martin Brehm, appeals his judgment of

conviction on several counts, including a felony count of attempted

second degree aggravated motor vehicle theft. He contends that the

district court erred by (1) denying his motion to suppress; (2) giving

an improper illustration of a defendant’s right to remain silent

during voir dire; (3) admitting photographs of Brehm in handcuffs

on the night of his arrest; and (4) admitting a minimally redacted

copy of Brehm’s driving record. We affirm the judgment.

I. Background

¶2 The charges in this case stem from a break-in at a vehicle lot

owned by All-Terrain Motor Sports (ATM), which was surrounded by

a chain-link fence and secured by a locked gate. Around 11:30

p.m. on the night of the break-in, the owner of ATM called police

after receiving an alert that the alarm for the vehicle lot had been

triggered. Surveillance video showed someone inside the fenced lot,

and a motorcycle had been moved to the east side of the lot.

¶3 When police arrived, they found a hole in the east side of the

fence, big enough for a person to go through. Minutes later, they

heard a car engine start in the neighboring business complex to the

east — about two minutes’ walking distance across a grassy area

1
from the hole in the fence. They also found an ATM decal on the

ground just outside the fence. The vehicle lot was in a commercial

business area, and all the surrounding businesses were closed.

¶4 The officers saw the car pull out of the business complex

parking lot and drive away. Other officers then stopped the car at

the direction of the officers on scene. The driver identified himself

as Brehm. In the meantime, an officer viewed the ATM surveillance

footage, which showed the person inside the lot wearing a black

jacket over a maroon shirt and baggy jeans — the same clothing

Brehm was wearing when he was stopped (minus the jacket, which

was in the back seat). Brehm was arrested and officers searched

his car, finding several items tying him to the ATM break-in.

¶5 Brehm was charged with nine counts, including a felony count

of attempted second degree aggravated motor vehicle theft and

several other misdemeanor, traffic, and petty offenses.

¶6 Brehm moved to suppress all evidence obtained as a result of

the stop of his vehicle on the ground that the officers did not have

reasonable suspicion to stop him. After an evidentiary hearing, the

district court denied the motion, concluding that officers had

reasonable suspicion to conduct an investigatory stop. It explained:

2
Law enforcement responds after 11:30 at night
to a commercial district where all the
businesses in that area are . . . closed.

The officers see no other traffic in the area, no
other people in the area. They observe the
hole in the fence.

And shortly after they arrive . . . they hear a
vehicle start up just from the east of the
location. . . . [T]here’s no other explanation for
why they would be there . . . .

It’s reasonable, in the court’s view, to stop the
vehicle briefly for investigation.

¶7 At trial, the prosecution dismissed three of the misdemeanor

counts, and the district court granted Brehm’s motion for judgment

of acquittal on a count of driving under restraint because the

prosecution failed to prove that Brehm knew his license had been

revoked. The jury convicted Brehm on all remaining counts.

II. Motion to Suppress

¶8 Brehm argues that the district court erred by denying his

motion to suppress the fruits of the stop because the officers did

not have reasonable suspicion to stop him. We disagree.

A. Standard of Review and Applicable Law

¶9 A suppression order presents a mixed question of fact and law.

People v. Brown, 2019 CO 63, ¶ 8. We accept the district court’s

3
factual findings if they are supported by competent evidence, but

we review the application of the law to those facts de novo. Id.

¶ 10 Both the United States and Colorado Constitutions prohibit

unreasonable searches and seizures. U.S. Const. amend. IV; Colo.

Const. art. II, § 7. But “[p]olice officers may conduct a brief

investigatory stop if they are ‘operating with a reasonable suspicion

of criminal activity.’” Brown, ¶ 10 (citation omitted). Reasonable

suspicion is “a specific and articulable basis in fact for suspecting

that criminal activity has occurred, is taking place, or is about to

take place.” People v. Barnett, 2024 CO 73, ¶ 14 (citation omitted).

¶ 11 In determining whether an officer had reasonable suspicion to

conduct an investigatory stop, we look to the “totality of

circumstances, keeping in mind that ‘[a]n officer is entitled to draw

reasonable inferences from all the circumstantial evidence “even

though such evidence might also support other inferences.”’”

Brown, ¶ 11 (citation omitted). Some considerations that may be

relevant to that analysis, depending on the context, include

(1) the particularity of the description of the
offender or the vehicle in which he fled; (2) the
size of the area in which the offender might be
found, as indicated by such facts as the
elapsed time since the crime occurred; (3) the

4
number of persons about in that area; (4) the
known or probable direction of the offender’s
flight; (5) observed activity by the particular
person stopped; and (6) knowledge or
suspicion that the person or vehicle stopped
has been involved in some criminality of the
type presently under investigation.

Id. (citation omitted). But these considerations are not exhaustive

or dispositive. Id. at ¶¶ 11, 13. Instead, they inform our

consideration of the “totality of the circumstances.” Id. at ¶ 13.

B. Analysis

¶ 12 Brehm characterizes the relevant circumstances in this case

as nothing more than “the sound of a lone car engine starting at

night, near the scene of an alleged trespass.” But that is not all

there was. Taking into account the totality of the circumstances,

and allowing for reasonable commonsense inferences, we conclude

that the officers had reasonable suspicion to stop Brehm’s vehicle.

¶ 13 Brehm does not dispute that officers had at least reasonable

suspicion that a crime had been committed at the ATM lot. In

investigating that crime, officers found a hole in the perimeter fence

large enough for a person to go through and an ATM decal just

outside the fence, giving officers a specific and articulable basis for

believing that the suspect had exited the lot through that hole. On

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the other side of the hole was a grassy area and then a business

complex. It was late at night in a commercial area, and everything

was closed. And no other people or vehicles were in the area.

¶ 14 It was in that context that officers heard a car engine start in

the business complex parking lot — directly across the grassy area,

just a two-minute walk from the likely exit location. Thus, it was

not simply the sound of a car engine near the scene. It was the

sound of a car engine starting minutes after police arrived in the

direction in which there was reason to believe the suspect had fled.

And as in Brown, Brehm was “the only person in the area.” Brown,

¶ 14; see also People v. Funez-Paiagua, 2012 CO 37, ¶ 12

(concluding there was reasonable suspicion where the defendant

was on the property of a closed business late at night when “no

other businesses were open and there were no other people

nearby”). Taking these facts together, it was reasonable for officers

to “deduce that the person driving the car away from the [area]

where the incident had just been reported may have been involved

in it.” People v. Jiron, 2020 COA 36, ¶ 47, cert. granted, judgment

vacated on other grounds, and case remanded, No. 20SC344, 2021

WL 96460 (Colo. Jan. 11, 2021) (unpublished order).

6
¶ 15 Brehm attempts to distinguish Brown and Jiron by arguing

that “the size of the area in which the offender might be found” was

enormous and the “known or probable direction of the offender’s

flight” was unknown. Brown, ¶ 11 (citation omitted). But these

arguments overlook the significance of the person-sized hole in the

fence perimeter. As noted above, that hole gave officers a

reasonable basis to infer the “probable direction of the offender’s

flight” was through that hole, i.e., toward the business complex. Id.

¶ 16 That probable direction of flight also limited the area in which

the offender was likely to be found. Even if the offender could have

fled in any direction after exiting the vehicle lot, it made sense that

within the first five minutes after police arrived, the offender would

be found in the direction of the flight, and likely not too far away.

Cf. People v. Mascarenas, 666 P.2d 101, 108 (Colo. 1983) (holding

there was reasonable suspicion where officer stopped vehicle fifteen

to twenty minutes after police broadcast seventeen miles away from

crime scene in probable direction of flight, “consistent with the

amount of time normally required to travel” that distance). And

regardless, Brehm was not found far away; he was found a two-

minute walk away — the only one in the area. See Brown, ¶ 14.

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¶ 17 The other factors cited in Brown and relied on by Brehm do

not change our conclusion. First, although officers had no

description of the offender or his vehicle, that is not dispositive. Id.

at ¶ 13; see also Jiron, ¶ 47 (concluding there was reasonable

suspicion without a description of the suspect).1 Second, although

Brehm asserts that there were residential neighborhoods and a

freeway nearby, he concedes there were no other persons “about in

that area.” Brown, ¶ 11 (citation omitted). Third, Brehm points out

that officers did not observe him engaging in any unlawful or

suspicious conduct and had no direct knowledge that he had been

involved in illegal activity. See id. But such direct observation is

not required, given the circumstantial evidence described above.

¶ 18 Brehm stresses that there could be innocent explanations for

an individual sitting in a car alone late at night in the parking lot of

a closed business. We agree. But an innocent explanation does not

defeat reasonable suspicion. Id. at ¶ 15; see also People v. Reyes-

1 Although officers obtained a physical description of the suspect

and confirmed that Brehm matched that description after the stop,
we may only consider facts known to police at the time of the stop.
See People v. Jiron, 2020 COA 36, ¶ 48, cert. granted, judgment
vacated on other grounds, and case remanded, No. 20SC344, 2021
WL 96460 (Colo. Jan. 11, 2021) (unpublished order).

8
Valenzuela, 2017 CO 31, ¶ 14. To the contrary, the reasonable

suspicion analysis turns on “the degree of suspicion that attaches

to . . . noncriminal acts.” Reyes-Valenzuela, ¶ 13 (citation omitted);

see also United States v. Sokolow, 490 U.S. 1, 10 (1989) (“[I]nnocent

behavior will frequently provide the basis for a showing of probable

cause . . . .”) (citation omitted). And officers may draw appropriate

inferences from otherwise innocent activity, even if such activity

might also support other inferences. Reyes-Valenzuela, ¶ 14.

¶ 19 In the end, reasonable suspicion is a commonsense inquiry

based on the totality of the circumstances. See Illinois v. Wardlow,

528 U.S. 119, 125 (2000); People v. Huynh, 98 P.3d 907, 912 (Colo.

App. 2004). Viewing the facts in their totality, we agree with the

district court that officers had reasonable suspicion to stop Brehm.

The district court therefore correctly denied the motion to suppress.

III. “Cookie Crumbles” Illustration During Voir Dire

¶ 20 Brehm next contends that the district court reversibly erred

during voir dire by telling a story about a child confronted by a

parent about eating cookies to illustrate the right to remain silent.

Brehm asserts that this illustration lowered the prosecution’s

9
burden of proof and violated his right to remain silent, his

presumption of innocence, and his right to a fair trial. We disagree.

A. Additional Background

¶ 21 At the beginning of voir dire, the district court instructed the

jury that (1) Brehm “enjoys the presumption of innocence [that]

stays with him throughout the trial”; (2) the prosecution has the

burden of proving every element of each charge beyond a

reasonable doubt; and (3) anyone accused of a crime, including

Brehm, has a “precious and absolute right . . . to remain silent.”

The court elaborated that Brehm “cannot be compelled to testify,”

and if he does not testify, “that is not proof of anything.”

¶ 22 Later in voir dire, the district court returned to those concepts

and confirmed the jury understood them. In doing so, the district

court gave what it called an example of the right to remain silent:

When we talk about how you like to hear both
sides of the story, that’s just human nature.
You know, you have — so any of you have
small children, or had small children at one
point?

So I give the example of say, say it’s a holiday
time and you’re going to bake some cookies for
the holidays. And you tell your two kids, I
don’t want you to touch these cookies. They’re

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going to be for guests we’re going to have over.
Don’t touch them.

You know, an hour later, you come downstairs
and you see when one of your children looks
perfectly normal. The other one has icing and
all kinds of stuff around their mouth.

You see broken cookies crumble everywhere.
And so, what do you do? You say, who did
this? And your child who has no icing on their
face says, not me. And the other one, you ask,
did you do this? And what do they say to you?
Judge Gurley says I have the absolute right to
remain silent. I’m not going to tell you, right?

So, I mean, you know, in our everyday lives,
we, we — you know, you, you hear both sides
of the story. But in a criminal case, you can’t
hold it against someone who’s accused if they
exercise that constitutional right to remain
silent. And you cannot use that as evidence in
your deliberations.

And so, again, what do you do? You make
your decision based upon the evidence that’s
been presented in the trial.

But you can’t use someone’s right to remain
silent against them as evidence, because it’s
not evidence.

¶ 23 The district court then asked whether any of the prospective

jurors had a problem with that concept, and no one indicated they

did. Brehm’s counsel did not object to the court’s statements.

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¶ 24 At the close of trial, the district court correctly instructed the

jury on the prosecution’s burden of proof beyond a reasonable

doubt, the presumption of innocence, and the right not to testify.

B. Lowering the Burden of Proof

¶ 25 We first address Brehm’s argument that the district court’s

illustration lowered the prosecution’s burden of proof beyond a

reasonable doubt because, if it did, it would constitute structural

error and require reversal. See Tibbels v. People, 2022 CO 1, ¶ 22.

¶ 26 The United States Constitution “protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged.” In

re Winship, 397 U.S. 358, 364 (1970). The reasonable doubt

standard is “[i]ntrinsically related” to the presumption of innocence.

Tibbels, ¶ 24. In determining whether the district court’s

statements to the jury lowered the burden of proof, we apply a

functional test, asking “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. at ¶ 2. We review this question de novo. Id. at ¶ 22.

12
¶ 27 We agree with Brehm that the district court’s illustration

raises some concerns. Most significantly, the only child to exercise

their right to remain silent was the child who had apparently eaten

the cookies, i.e., the guilty one. This risked the implication that

only a guilty person will exercise the right. The story would have

been less problematic, for example, if both children had appeared

equally guilty or equally innocent, or if both children had exercised

the right. Moreover, although the court did not directly compare

Brehm to the child with icing on their face, Brehm was the only one

who was accused of a crime and whose right to remain silent was at

issue, which could have led jurors to infer that there must also be

evidence against Brehm. See Pettigrew v. People, 2022 CO 2, ¶ 44.

¶ 28 But notwithstanding our concerns with the illustration itself,

we do not think there is a reasonable likelihood that the jury

understood the court’s comments, in the context of the instructions

and record as a whole, to lower the prosecution’s burden of proof

below the reasonable doubt standard. See id. at ¶ 46.

¶ 29 First, the court did not use the illustration to define

reasonable doubt. See Tibbels, ¶ 25 (cautioning against “attempts

by trial courts to define ‘reasonable doubt’ in ways beyond the long-

13
established pattern instructions”); People v. Sanders, 2022 COA 47,

¶ 49 (holding that analogies to puzzles and baking a cake were not

improper “where there was no attempt to quantify the amount of

proof necessary to solve the puzzle”), aff’d on other grounds, 2024

CO 33. Indeed, the challenged statements did not refer to the

prosecution’s burden or the reasonable doubt standard at all. Their

express purpose was to illustrate the right to remain silent.

¶ 30 Second, before and after the problematic illustration, the court

repeatedly instructed the jury with “clarity and succinctness . . .

that the prosecution bore the burden of proving [Brehm’s] guilt

beyond a reasonable doubt.” Pettigrew, ¶ 42. Immediately before

the illustration, the court told the jurors that (1) they must

“presume that Mr. Brehm is innocent”; (2) “[t]hat presumption can

only be overcome if you’re convinced that the prosecution has

proven each element of these allegations beyond a reasonable

doubt”; and (3) the accused has “no obligation to present any

evidence at all.” Then, immediately after the illustration, the court

“mitigated the problematic implications of its statement[s],” id. at

¶ 45, by reiterating that the prosecution has the burden of proving

“each element of [every] allegation by proof beyond a reasonable

14
doubt.” After the jury was empaneled, the court reminded the jury

in “correct and clear terms” of the presumption of innocence and

the prosecution’s burden of proof beyond a reasonable doubt. Id. at

¶ 42. And in the final jury instructions, the court once again

“correctly advised the jury” on each of those concepts. Id.

¶ 31 Thus, considering the district court’s statements in the context

of the record as a whole, there is no reasonable likelihood that the

jury understood those statements to lower the prosecution’s burden

of proof or supplant the presumption of innocence. The comments

therefore do not amount to structural error. See id. at ¶ 46.

C. Right to Remain Silent

¶ 32 Brehm also argues that the illustration minimized and violated

his right to remain silent by (1) characterizing the right as a

permission given by the judge instead of a constitutional right and

(2) implying that a person’s exercise of the right is evidence of guilt.

¶ 33 To the extent this argument is distinct from Brehm’s argument

that the court’s comments lowered the prosecution’s burden of

proof, we review it for plain error because Brehm did not object in

the district court. See Hagos v. People, 2012 CO 63, ¶ 14 (applying

plain error review to unpreserved constitutional errors); cf. Deleon v.

15
People, 2019 CO 85, ¶ 29 (reviewing preserved argument that

district court failed to properly instruct jury on the defendant’s right

to remain silent for harmless error, not structural error). Plain

error is obvious and substantial error that “so undermined the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction.” Hagos, ¶ 18 (citation

omitted). An error is obvious only if it “contravene[s] a clear

statutory command, a well-settled legal principle, or established

Colorado case law.” People v. Crabtree, 2024 CO 40M, ¶ 42.

¶ 34 A district court’s comments during the jury selection process

can “have the effect of instructing the jury on the law to be applied.”

Pettigrew, ¶ 36. And the district court must correctly instruct the

jury on the applicable law. People v. Jones, 2018 COA 112, ¶ 24.

We review jury instructions de novo to determine whether it fulfilled

that obligation. McDonald v. People, 2021 CO 64, ¶ 54. But as long

as the instructions properly inform the jury of the law, the district

court has broad discretion to determine their form and style. Id.

¶ 35 We first disagree that the district court improperly trivialized

the right to remain silent by having the child in his example say

“Judge Gurley says I have the absolute right to remain silent.” To

16
the contrary, the district court called the right a “constitutional

right” three times — including right after the “cookie crumbles”

illustration — and twice characterized it as “precious and absolute.”

The court’s framing of that right in this one instance in the words a

child might use did not undermine the significance of the right.

¶ 36 Nor did the district court violate Brehm’s right to remain silent

by suggesting that it was “human nature” to want to “hear both

sides of the story.” As the supreme court has explained, it is

reasonable for jurors to arrive for jury duty wanting to “hear both

sides,” and it is incumbent on the district court to rectify any

potential misunderstanding by “explain[ing] the correct legal

principles to jurors during voir dire.” People v. Clemens, 2017 CO

89, ¶¶ 17, 21. That is what the court sought to do here by pointing

out that the operation of the right to remain silent in the courtroom

might be counterintuitive to what jurors might expect elsewhere.

¶ 37 As to Brehm’s argument that the illustration implied that the

exercise of the right to remain silent was evidence of guilt, we have

recognized that, in and of itself, the illustration risked such an

interpretation. But as with the reasonable doubt standard and the

presumption of innocence, the court mitigated that risk by

17
immediately clarifying unequivocally that an exercise of the right to

remain silent cannot be used as evidence. And as with the other

concepts, the court did the same, clearly and correctly, before the

illustration and in the final jury instructions. See Pettigrew, ¶ 42.

¶ 38 Given the district court’s repeated admonition that a

defendant’s decision not to testify is “not proof of anything,” we

cannot conclude that the district court’s statements, even if

potentially problematic in isolation, violated Brehm’s constitutional

right to remain silent, when considered “in the context of the

instructions as a whole and the entire record.” Tibbels, ¶ 57.

¶ 39 Moreover, any potential defects in the illustration were neither

obvious nor substantial. Brehm cites no case outside the

reasonable doubt context in which such an illustration has been

held to be error. See Crabtree, ¶ 42. And neither the court nor the

parties ever mentioned the illustration again. In light of the court’s

repeated correct instructions on the right to remain silent and the

lack of any reasonable likelihood that the jury misunderstood the

right, the court’s isolated illustration during voir dire did not so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction. Hagos, ¶ 18.

18
IV. Photographs

¶ 40 Brehm next asserts that the district court erred by admitting

three photos of him in handcuffs on the night of the arrest. The

photos — taken while Brehm was in police custody — show Brehm

from the back, right, and left with his hands cuffed behind his

back.2 They were introduced to show Brehm’s appearance and

clothing when he was taken into custody and, more specifically, to

establish that his clothing matched the clothing of the intruder on

the surveillance footage. We again discern no reversible error.

¶ 41 Because Brehm did not object to the admission of the photos

at trial, we review their admission for plain error. See Hagos, ¶ 14.

Relying on Deck v. Missouri, 544 U.S. 622, 635 (2005), Brehm

argues that the constitutional harmless error standard applies. But

“[c]onstitutional harmless error analysis is reserved for those cases

in which the defendant preserved his claim for review by raising a

contemporaneous objection.” Martinez v. People, 2015 CO 16, ¶ 12

(citation omitted). When a defendant did not object, we review for

plain error, whether the error is constitutional or not. Hagos, ¶ 14.

2 A fourth photo from the front was also admitted in which Brehm’s

hands are behind his back and the handcuffs are not visible.

19
¶ 42 In any event, Brehm has not shown a constitutional violation.

The Due Process Clause prohibits the use of physical restraints

visible to the jury in the courtroom absent a case-specific

justification. Deck, 544 U.S. at 629; Hoang v. People, 2014 CO 27,

¶ 13. That prohibition is not implicated by photographs showing

the defendant restrained out of court. See People v. Thames, 2019

COA 124, ¶¶ 49-50 (holding that video of interrogation of defendant

in prison clothing did not violate presumption of innocence).

¶ 43 Nor did the district court abuse its discretion, much less

plainly err, by failing to exclude the photos under CRE 403. Under

CRE 403, relevant evidence may be excluded if its probative value is

outweighed by the danger of unfair prejudice. The district court

has broad discretion to balance these competing considerations,

and we will not disturb its ruling absent an abuse of discretion.

People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). Because CRE

403 strongly favors the admissibility of relevant evidence, we afford

the evidence its maximum reasonable probative value and the

minimum unfair prejudice to be reasonably expected. Id.

¶ 44 The challenged photos were probative to show that Brehm’s

appearance and clothing at the time of his arrest matched the

20
appearance and clothing of the person on the surveillance footage,

thus establishing Brehm’s identity. See People v. Forgette, 2021

COA 21, ¶ 46 (holding that photos of the defendant while he was in

custody were “substantially probative of identity”), aff’d in part and

vacated in part on other grounds, 2023 CO 4; see also People v.

Elmarr, 2015 CO 53, ¶ 28 (“In a criminal prosecution, identity is a

material element of any charged crime.”). In particular, an officer

testified that the person in the surveillance footage was wearing a

maroon shirt under a black jacket with “very baggie pants.” In the

photos, Brehm is wearing a maroon shirt and baggie pants.

¶ 45 Moreover, although booking photos are generally considered

prejudicial, Forgette, ¶ 48, the risk of unfair prejudice was

minimized because the jury had already learned through other

testimony that Brehm was handcuffed when he was taken into

custody. Thus, seeing him in handcuffs would not be a surprise.

See Thames, ¶ 49 (“[M]ost jurors would not be surprised by the fact

that a defendant was handcuffed . . . while in jail prior to trial.”)

(citation omitted). The photos were shown to the jury only briefly,

and neither the prosecution nor the witness highlighted that Brehm

was wearing handcuffs. See id. at ¶ 50 (reasoning that “the clothing

21
shown in a video lasting one hour and fourteen minutes will not . . .

create a prejudicial, continuing influence in juror’s minds”).

¶ 46 Brehm points out that the photos were not edited, as they

were in Forgette. See Forgette, ¶¶ 41, 48. But he does not explain

how the photos could have been edited without undermining their

probative value where their purpose was to show Brehm’s entire

outfit (shirt and pants), and his hands were at his waist. Nor did

Brehm propose any such modification as a solution at trial.

¶ 47 Thus, giving the photos their maximum reasonable probative

value and their minimum prejudicial effect, the district court did

not abuse its discretion, much less plainly err, by admitting them.

V. Driving Record

¶ 48 Brehm’s final argument is that the district court plainly erred

by admitting a redacted copy of his driving record that contained

various information that Brehm contends was prejudicial. We

conclude that Brehm waived or invited this putative error by

affirmatively agreeing to the admission of the record as redacted.

A. Additional Background

¶ 49 Brehm was originally charged with driving under restraint. At

trial, the prosecution moved to admit a certified copy of Brehm’s

22
driving record. Though saying he did not think he could object,

Brehm’s counsel argued that the record was “a bit more broad than

[he’d] like to see,” in that it included convictions from 2010 and

2018 that were irrelevant and unduly prejudicial. But he

acknowledged that a portion of the record — a 2019 conviction for

which Brehm’s license was revoked — was “of course” relevant.

¶ 50 The district court asked the prosecution if it could redact the

two convictions identified by Brehm’s counsel, and the prosecution

agreed. The court then asked Brehm’s counsel if he had any other

issues, and counsel said he did not. Counsel then volunteered that

he would “be fine with having . . . the People admit[] it now on the

basis of them redacting it before it goes back to the jury.” With that

agreement, the district court admitted the record. After the

prosecution made the agreed-upon redactions, defense counsel

confirmed that he had no objection to the redacted exhibit.

B. Analysis

¶ 51 We may not review a putative error on appeal that a party has

waived or invited in the district court. People v. Rediger, 2018 CO

32, ¶¶ 34, 40. Waiver is the intentional relinquishment of a known

right or privilege. Id. at ¶ 39. Invited error is an error that the

23
party “invited or injected into the case.” Id. at ¶ 34. The doctrine

applies when “a party requests that the court take a particular

action” and the court does so, or when the party “expressly

acquiesces to conduct by the court or the opposing party.” Horton

v. Suthers, 43 P.3d 611, 619 (Colo. 2002); see also People v. Garcia,

2018 COA 180, ¶ 7 (noting that the doctrine’s application “is limited

to situations where an error was caused by a party’s affirmative,

strategic conduct and not by a party’s inaction or inadvertence”).

¶ 52 Whether by waiver or invited error, we conclude that Brehm

surrendered his challenge to the admission of the driving record

when his counsel identified the potential overbreadth of the record

and then affirmatively told the court that he was “fine” with it being

admitted with the proposed redactions. Brehm did not merely fail

to assert an objection or “generally acquiesce[]” to the record’s

admission. Rediger, ¶¶ 40, 42. Nor did he overlook the issue. See

id. at ¶¶ 34-35. Instead, his counsel raised the specific issue, and

when the court proposed a solution, he agreed that solution was

appropriate and told the court he had no other objections.

¶ 53 By doing so, Brehm either intentionally relinquished any

further objections or invited the error of which he now complains

24
and must “abide the consequences of his . . . acts.” Id. at ¶¶ 34,

39; see also People v. Quillen, 2023 COA 22M, ¶¶ 49-54 (holding

that defendant waived her objection to unredacted driving record by

arguing that if the record was admitted, it should not be redacted);

People v. Kessler, 2018 COA 60, ¶ 37 (holding that defendant

waived objection to breath test results where “[d]efense counsel

explicitly agreed that the specific evidence at issue was admissible”).

¶ 54 Regardless, even if we were to conclude that Brehm did not

waive this argument, there is no plain error where (1) the driving

record was relevant to Brehm’s knowledge that his license was

under restraint, People v. Arzabala, 2012 COA 99, ¶ 87; (2) the

record does not reflect that the exhibit was ever published to the

jury; (3) nothing in the redacted exhibit was so prejudicial as to

undermine the fundamental fairness of the trial; and (4) the

prosecution never referred to the driving record or its contents, see

People v. Lahr, 2013 COA 57, ¶ 24 (noting that inadmissible

evidence is less prejudicial when the reference to it is fleeting). The

subsequent dismissal of the driving under restraint charge does not

erase the relevance of the record at the time it was admitted.

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VI. Cumulative Error

¶ 55 Because we have concluded that there was no error at trial, we

reject Brehm’s argument that cumulative error deprived him of a

fair trial. See Howard-Walker v. People, 2019 CO 69, ¶ 25.

VII. Disposition

¶ 56 The judgment is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.

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