Peo v. Lujan

22CA1273 Peo v Lujan 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1273
Boulder County District Court No. 13CR1829
Honorable Norma A. Sierra, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Abel Lujan,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE DUNN
Tow and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 27, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, James S. Hardy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A decade ago, a jury convicted defendant, Abel Lujan, of

second degree murder for killing his girlfriend. After a division of

this court reversed Lujan’s conviction, a second jury again found

him guilty of second degree murder. Lujan now appeals that

conviction. We affirm.

I. Background

¶2 In 1999, Lujan’s girlfriend was found beaten and strangled in

an alley. A beer bottle was positioned in the victim’s hand, which,

in combination with a few other things, suggested that the body had

been staged.

¶3 An autopsy revealed that the victim died by strangulation.

She also had broken ribs and a lacerated liver. At the time, Lujan

repeatedly denied any involvement in his girlfriend’s death. Over a

decade later, however, DNA testing linked Lujan to the beer bottle

placed in the victim’s hand.

¶4 The prosecution charged Lujan with one count of first degree

murder. Departing from his original denial, Lujan defended on the

theory that he killed his girlfriend but that he did so recklessly, not

with intent or after deliberation. The jury disagreed and found

Lujan guilty of knowingly committing second degree murder.

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¶5 Lujan appealed his conviction, arguing, among other things,

that the trial court violated his public trial right. People v. Lujan,

2018 COA 95, ¶ 8 (Lujan I), rev’d, 2020 CO 26 (Lujan II). A division

of this court agreed and reversed his conviction. Id. at ¶¶ 20-32.

¶6 On certiorari review, the supreme court concluded that the

trial court didn’t violate Lujan’s public trial right and remanded for

the division to consider Lujan’s remaining appellate contentions.

Lujan II, ¶ 4.

¶7 Back before this court, the division again reversed Lujan’s

conviction. People v. Lujan, (Colo. App. No. 15CA1176, Aug. 6,

2020) (not published pursuant to C.A.R. 35(e)) (Lujan III). This time

it concluded that the trial court had violated Lujan’s right to be

present during a critical stage of the proceeding and had erred by

excluding relevant evidence. Id. at ¶¶ 22, 28, 35.

¶8 In his second trial, Lujan once more defended on the theory

that he recklessly — not knowingly — killed his girlfriend. The jury

rejected Lujan’s defense and convicted him of second degree

murder. The court sentenced Lujan to forty-eight years in prison.

¶9 On appeal, Lujan argues that (1) the trial court erred by

admitting improper and prejudicial other act evidence under

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CRE 404(b); (2) the prosecutor committed misconduct by

improperly commenting on Lujan’s invocation of his constitutional

rights; and (3) the cumulative effect of these errors requires

reversal.

II. The Other Act Testimony

¶ 10 Lujan contends that the trial court erred by allowing Lujan’s

ex-wife and former girlfriend to testify about violent acts that Lujan

directed against them and by admitting testimony from a bartender

that witnessed Lujan assault the victim not long before Lujan killed

her. We first address the testimony of Lujan’s ex-wife and former

girlfriend and then the bartender’s testimony.

A. The Ex-Wife’s and Former Girlfriend’s Testimony

¶ 11 Before the first trial, the prosecution filed a notice to introduce

other act evidence from Lujan’s ex-wife and former girlfriend. In a

thorough written order, the trial court found that the evidence was

admissible under Rule 404(b) and section 18-6-801.5, C.R.S. 2024.

See CRE 404(b) (outlining purposes for which other act evidence

may be introduced); § 18-6-801.5(3) (outlining purposes for which

other act evidence may be introduced in domestic violence cases).

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¶ 12 At trial, Lujan’s ex-wife described an incident where Lujan

strangled her until she “couldn’t breathe” and told her she was

going to die. And Lujan’s former girlfriend testified that Lujan had

tried to suffocate her and threatened to kill her. Contemporaneous

with each witness’s testimony, the court instructed the jury on the

limited purposes of the testimony.

¶ 13 The trial court also allowed one of the victim’s friends to

testify — under an exception to the hearsay rule — that a week

before the victim’s death, she saw fingerprint marks on the victim’s

neck and that the victim told her that Lujan had tried to strangle

her.

¶ 14 In his first appeal, Lujan contended that the trial court

reversibly erred by admitting the other act testimony and the

friend’s testimony about the victim’s statement. See Lujan I, ¶¶ 26-

32. Though Lujan I reversed on other grounds, it expressly

considered these evidentiary contentions. And it concluded that the

court didn’t abuse its discretion by admitting either the victim’s

statement to her friend or his ex-wife’s and former girlfriend’s other

act testimony under Rule 404(b) and section 18-6-801.5. Lujan I,

¶¶ 26-32; see also Lujan III, ¶ 10 n.2 (reiterating that “Lujan raised

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two additional evidentiary issues” in his first appeal that the

division reviewed and rejected).

¶ 15 At the second trial — and this time with no objection — the

prosecution introduced the other act testimony of Lujan’s ex-wife

and former girlfriend and the victim’s statement to her friend that

Lujan had tried to strangle her.1

¶ 16 Despite the fact that he didn’t object to the testimony at the

second trial, Lujan now contends that the trial court erred by

admitting his ex-wife’s and former girlfriend’s other act testimony

under Rule 404(b).2 But a division of this court already rejected

this contention. Indeed, Lujan I specifically held that the first trial

court properly admitted the testimony under Rule 404(b) and

section 18-6-801.5. Lujan I, ¶¶ 26-32; Lujan III, ¶ 10 n.2. The

second trial court was bound by the law of the case. See People v.

1 Lujan’s ex-wife died before the second trial, so a portion of the ex-

wife’s testimony from the first trial was read at the second trial.
2 Lujan maintains that he preserved his objection to this CRE

404(b) testimony by objecting to the testimony at the first trial.
Though we are skeptical that’s sufficient to preserve the objection, it
doesn’t matter because, as we explain, the trial court had no
discretion to depart from the division’s resolution of the Rule 404(b)
issue in People v. Lujan, 2018 COA 95 (Lujan I). See People v.
Roybal, 672 P.2d 1003, 1005 (Colo. 1983).

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Roybal, 672 P.2d 1003, 1005 (Colo. 1983). And absent some

change in the law or other changed circumstance — neither of

which are argued here — we too generally follow the law of the case

established by divisions of this court. See People v. Morehead, 2019

CO 48, ¶ 10 (noting that courts generally “refuse to reopen what

has been decided”); see also People v. Fogle, 116 P.3d 1227, 1229

(Colo. App. 2004) (revisiting an earlier ruling of another division of

this court based on an intervening supreme court decision).

¶ 17 Because Lujan I already concluded that the trial court didn’t

err by admitting the ex-wife’s and former girlfriend’s Rule 404(b)

testimony, we won’t revisit that ruling.

B. The Bartender’s Testimony

¶ 18 Before Lujan’s first trial, the prosecution also noticed its intent

to present testimony from a bartender who had observed injuries on

the victim and had witnessed Lujan strangling and threatening the

victim a couple of weeks before he killed her. Over Lujan’s

objection, the trial court admitted the bartender’s testimony under

the res gestae doctrine. At trial, the bartender testified that a few

weeks before Lujan killed the victim, she saw them arguing at the

bar and followed them outside. There, the bartender witnessed

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Lujan knock the victim to the ground and choke her. The bartender

also heard Lujan tell the victim that she “didn’t deserve to live” and

that he was “going to put her ten feet in the ground.”

¶ 19 In his first appeal, Lujan didn’t challenge the court’s ruling

admitting this testimony. But between Lujan’s first and second

trials, our supreme court abolished the res gestae doctrine in

criminal cases and established a new intrinsic-extrinsic framework

for evaluating whether general relevance rules or Rule 404(b)

applies to challenged evidence. See Rojas v. People, 2022 CO 8,

¶ 52.

¶ 20 At the second trial, and over Lujan’s objection, the prosecution

asked the court to admit the bartender’s testimony under Rojas.

The court first ruled that the testimony was intrinsic evidence and

not subject to Rule 404(b). See id. At the prosecution’s request,

the court later found the bartender’s testimony also satisfied Rule

404(b). See id.

¶ 21 The bartender was unavailable to testify at the second trial, so

her original testimony describing the assault she witnessed and

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threats she heard was read to the jury.3 Contemporaneous with the

bartender’s testimony, the court gave a limiting instruction to the

jury.

¶ 22 Lujan contends that the trial court erred by admitting the

bartender’s testimony. He argues the testimony wasn’t intrinsic

evidence and didn’t satisfy Rule 404(b).

1. Legal Principles and Standard of Review

¶ 23 Under Rule 404(b), evidence of other crimes, wrongs, or acts is

not admissible to prove a person’s character to show that the

person acted in conformity with that character on a particular

occasion. But such evidence may be admissible for another

purpose, such as to prove motive, intent, plan, or knowledge. CRE

404(b)(2); see also § 18-6-801.5(3).

¶ 24 Whether Rule 404(b) applies to other act evidence depends on

whether the evidence is intrinsic or extrinsic to the charged crime.

Rojas, ¶ 52. If evidence is intrinsic, meaning that it directly proves

the charged offense or occurred contemporaneously with and

3 The bartender also testified that she observed visible injuries on

the victim and that the victim admitted that Lujan had caused the
injuries. That testimony is not challenged on appeal.

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facilitated its commission, it may be admitted under general

evidentiary principles. Id.; see also CRE 401-403. Otherwise, the

evidence is extrinsic, and its admission is governed by Rule 404(b)

and People v. Spoto, 795 P.2d 1314 (Colo. 1990). Rojas, ¶ 52.

¶ 25 Other act evidence is admissible under Spoto if (1) it relates to

a material fact; (2) it is logically relevant; (3) its relevance is

independent of the intermediate inference that the person was

acting in conformity with a bad character; and (4) its probative

value is not substantially outweighed by the danger of unfair

prejudice. Spoto, 795 P.2d at 1318.

¶ 26 We review a trial court’s evidentiary ruling for an abuse of

discretion, meaning we will not disturb the ruling unless it

misconstrues the law or is otherwise manifestly arbitrary,

unreasonable, or unfair. People v. Johnson, 2019 COA 159, ¶ 10,

aff’d, 2021 CO 35.

2. The Trial Court Properly Admitted the Bartender’s
Testimony Under Rule 404(b)

¶ 27 The trial court admitted the bartender’s testimony both as

direct intrinsic evidence and as other act evidence under Rule

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404(b). We agree the evidence was properly admitted under Rule

404(b).4

¶ 28 The trial court found that the bartender’s testimony about

Lujan’s previous strangulation and threats related to the material

fact of Lujan’s state of mind, the evidence was logically relevant to

Lujan’s intent, the logical relevance was independent of an improper

propensity inference, and the probative value substantially

outweighed the danger of unfair prejudice.

¶ 29 Though Lujan argues the court erred at every Spoto step, he

lumps together his arguments regarding the bartender’s testimony

with that of the ex-wife, former girlfriend, and victim’s friend. Thus,

Lujan doesn’t develop any specific argument explaining how the

trial court erred by admitting the bartender’s testimony under Rule

404(b), leaving us limited in our review.

¶ 30 Even so, because the only contested trial issue was Lujan’s

mental state, we agree with the trial court that Lujan’s act of

choking the victim coupled with his threats to kill her just weeks

4 Because the bartender described an incident that occurred weeks

before Lujan killed the victim, we are doubtful that the testimony
was intrinsic evidence, but we needn’t resolve that issue here
because we may affirm on any basis supported by the record.

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before her death satisfied Spoto. The evidence was relevant to a

material fact — that is, Lujan’s mental state. See People v. McBride,

228 P.3d 216, 227 (Colo. App. 2009) (evidence of the defendant’s

prior violent acts were admissible to prove intent). And the evidence

was logically relevant to the only disputed issue — whether Lujan

acted knowingly — and that relevance was independent of any

propensity inference. See id.; see also § 18-6-801.5(1) (prior acts of

domestic violence are generally considered “helpful and . . .

necessary” to establish, among other things, the “escalating levels of

seriousness” of the domestic violence). As well, the evidence,

though prejudicial, was not unfairly so because it was probative as

to whether the strangulation causing the victim’s death was

knowing or reckless. See McBride, 228 P.3d at 227 (The

defendant’s “prior violent acts against the victim were highly

probative, as they bore directly on whether the shooting was

intentional . . . or accidental.”); see also People v. Cross, 2023 COA

24, ¶ 22 (In enacting section 18-6-801.5, the legislature “placed its

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finger on the scale in favor of admitting evidence of prior acts of

domestic violence in prosecutions involving domestic violence.”).5

¶ 31 We therefore conclude that the trial court didn’t abuse its

discretion by admitting the bartender’s testimony under Rule

404(b).

III. Prosecutorial Misconduct

¶ 32 When the victim’s body was discovered, police went

immediately to Lujan’s home. Despite some evidence that he was

home, Lujan didn’t respond when the police knocked and

announced themselves. Police later returned with a warrant and

Lujan eventually met with officers.

¶ 33 At trial, the prosecutor outlined this series of events in

opening statement, elicited testimony about it during the direct

examination of a detective, and referenced the initial interaction in

closing argument by arguing that Lujan “hid” in his apartment.

5 Lujan doesn’t develop any specific argument that the trial court

plainly erred by admitting the victim’s friend’s testimony under CRE
404(b). At most, he generically references the friend’s testimony in
his Rule 404(b) argument. To the extent that Lujan contends that
the friend’s testimony was also improper other act evidence, we
reject that argument for the same reason we reject the contention
with respect to the bartender’s testimony.

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¶ 34 Lujan objected to the opening statement and direct

examination but not closing argument. He argued that the

prosecutor’s opening statement and direct examination improperly

referenced Lujan’s “exercise of [his] constitutional rights.” The

court overruled the objections.

¶ 35 Lujan maintains that the trial court erred by allowing the

prosecutor to improperly comment on his Fourth and Fifth

Amendment rights.

¶ 36 We engage in a two-step analysis when reviewing a claim of

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

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

questionable conduct was improper based on the totality of the

circumstances and, second, whether such actions warrant reversal

according to the proper standard.” Id.

¶ 37 We generally review preserved prosecutorial misconduct

claims for an abuse of discretion and reverse only if the error

substantially influenced the verdict or impaired the fairness of the

trial. Hagos v. People, 2012 CO 63, ¶ 12. But we review conduct

that “directly offend[s] a defendant’s constitutional rights” for

constitutional harmless error, Wend, 235 P.3d at 1097, which

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requires reversal unless we are “confident beyond a reasonable

doubt that the error did not contribute to the guilty verdict,” Bernal

v. People, 44 P.3d 184, 200 (Colo. 2002). And we review

unpreserved misconduct claims for plain error and reverse only if

the error was obvious and “so undermined the fundamental

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

reliability of the judgment of conviction.” Hagos, ¶ 14 (quoting

People v. Miller, 113 P.3d 743, 748-50 (Colo. 2005)).

¶ 38 When officers first went to Lujan’s house, Lujan wasn’t in

custody. Officers knocked on his door, announced themselves, and

told him to come out. Lujan remained inside and didn’t respond.

Whether the prosecutor’s description of this first encounter and the

officer’s brief testimony about it was a “comment” on Lujan’s

“invocation” of his constitutional rights is not without doubt. See

People v. Rios, 2020 COA 2, ¶ 35 (noting that the Fifth Amendment

doesn’t apply in noncustodial settings); People v. Buckner, 2022

COA 14, ¶ 28 (“[A] person’s refusal to consent to a search may not

be used by the prosecution — either through the introduction of

evidence or by explicit comment — to imply the person’s guilt of a

crime.” (quoting People v. Pollard, 2013 COA 31M, ¶ 32)) (emphasis

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added); see also Salinas v. Texas, 570 U.S. 178, 181 (2013) (a

defendant does not invoke the Fifth Amendment privilege against

self-incrimination “by simply standing mute”).

¶ 39 But even if we assume some error, it isn’t reversible under any

standard. After all, years after the initial police encounter, Lujan

admitted he killed his girlfriend. The only issue at his second trial

was whether he acted knowingly or recklessly. Whether he initially

declined to respond when the officers knocked on his door says

nothing about his mental state when he strangled the victim. And

even though the prosecutor argued the evidence was relevant to

show consciousness of guilt, it was undisputed at trial that Lujan

was guilty of killing the victim. Thus, the evidence of the initial

encounter with the police was immaterial to the only disputed issue

at trial.

¶ 40 For that reason, even if we construe Lujan’s nonresponse to

the detective’s attempt to contact him as an “invocation” of his

Fourth and Fifth Amendment rights and assume that the

prosecutor improperly commented on and elicited some testimony

about that invocation, reversal isn’t required.

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IV. Cumulative Error

¶ 41 Finally, although we have assumed one possible

nonprejudicial error, cumulative error requires “multiple errors that

collectively prejudice the substantial rights of the defendant.”

Howard-Walker v. People, 2019 CO 69, ¶ 25. We therefore reject

Lujan’s cumulative error contention.

V. Disposition

¶ 42 The judgment is affirmed.

JUDGE TOW and JUDGE MEIRINK concur.

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