Peo v. McDuffie

22CA0038 Peo v McDuffie 04-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0038
City and County of Denver District Court No. 19CR6072
Honorable Jennifer B. Torrington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Elliott O. McDuffie,

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 April 24, 2025

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

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Elliott O. McDuffie, appeals the judgment of

conviction entered on jury verdicts finding him guilty of two

manslaughter counts. We affirm.

I. Background

¶2 Early one morning, McDuffie returned home after working a

night shift. As he walked to his apartment, he saw his neighbors,

Jamarian McGhee and Destiny McGhee, standing nearby.1 The

neighbors’ apartment windows had recently been shot with a BB

gun. When McDuffie approached, Destiny told Jamarian that

McDuffie was the person who had shot their apartment windows.

Jamarian then approached McDuffie to confront him about the

windows.

¶3 Jamarian and McDuffie dispute what happened next.

According to Jamarian, he calmly walked up to McDuffie and asked

about the windows. Before Jamarian could finish his question,

however, McDuffie pulled out a gun and shot him. In contrast,

McDuffie reported that Jamarian approached him angrily and

1 Because Jamarian and Destiny share the same last name, we

refer to them by their first names to avoid confusion, but we intend
no disrespect.

1
began to threaten him. Jamarian also had one hand concealed in

his pocket. Between Jamarian’s threats and concealed hand,

McDuffie believed that Jamarian had a gun. Jamarian then jerked

his concealed hand from his pocket as if to pull out a weapon.

Fearing for his life, McDuffie drew his gun and shot Jamarian.

¶4 McDuffie fired eight shots in quick succession. Three shots

hit Jamarian; he survived. But one shot hit Destiny, killing her.

¶5 For shooting Jamarian, the prosecution charged McDuffie with

attempted first degree murder (after deliberation), attempted first

degree murder (extreme indifference), and first degree assault. And

for killing Destiny, the prosecution charged McDuffie with first

degree murder (after deliberation) and first degree murder (extreme

indifference).

¶6 At trial, McDuffie defended on the theory that he acted in self-

defense against Jamarian and, in doing so, inadvertently shot and

killed Destiny. The jury heard the competing versions of events

directly from Jamarian and McDuffie. It ultimately acquitted

McDuffie of all charges as to Jamarian and all but two lesser

included manslaughter counts as to Destiny. The court merged the

2
two manslaughter counts and sentenced McDuffie to six years in

prison.

¶7 On appeal, McDuffie contends that the trial court erred by

(1) declining to instruct the jury on transferred intent self-defense;

(2) instructing the jury on deadly force self-defense for Jamarian,

who did not die; and (3) denying his motion in limine, which sought

to prevent all parties and witnesses from referring to Jamarian and

Destiny as “victims” at trial. McDuffie also argues that these errors

cumulatively deprived him of a fair trial. We address each

contention in turn and conclude that no reversible error occurred.

II. Transferred Intent Self-Defense Instruction

¶8 McDuffie contends that the trial court erred by refusing to

instruct the jury “on the doctrine of transferred intent self-defense.”

A. Additional Background

¶9 Portions of the jury instruction conference are not in the

record, but as best we can tell, the parties agreed to four self-

defense instructions with respect to all the charged and lesser

included offenses: (1) deadly force self-defense as an affirmative

defense; (2) deadly force self-defense as an element-negating

3
traverse; (3) ordinary force self-defense as an affirmative defense;

and (4) ordinary force self-defense as an element-negating traverse.2

¶ 10 In addition to these instructions, McDuffie asked the court to

instruct the jury on transferred intent self-defense. To that end,

McDuffie proposed the following instruction:

A person’s right to act in self-defense is a
natural, essential, and inalienable right
protected by the Colorado Constitution.

The defendant was legally authorized to use
physical force upon another person without
first retreating if: He used that physical force
in order to defend himself from what he
reasonably believed to be the use or imminent
use of unlawful physical force by another
person and/or others who he reasonably
believed to be acting in concert with that
person, and he used a degree of force which he
reasonably believed to be necessary for that
purpose. The prosecution has the burden to
prove, beyond a reasonable doubt, that the
defendant’s conduct was not legally authorized
by this defense.

2 Concerning the crimes charged for Destiny, self-defense was an

affirmative defense only to first degree murder (after deliberation)
and second degree murder, meaning that the prosecution had the
burden to disprove the defense. As to the remaining charges for
Destiny, self-defense was an element-negating traverse that the
prosecution didn’t need to disprove. See Pearson v. People, 2022
CO 4, ¶¶ 17-19 (explaining the differences between an affirmative
defense and a traverse).

4
Transferred intent self defense: The doctrine of
self-defense is available to insulate one from
criminal responsibility for charges where his
act, justifiably in self-defense against another
person, inadvertently results in the injury or
death of an innocent bystander.
For example: If A aims at his attacker B in
proper self-defense, but hits C instead, he is
not generally guilty of murder or assault of C.
Once again, he is only as guilty as to C as he
would have been had his aim been accurate
enough to have hit B.

¶ 11 Citing his constitutional right to present a defense, and

pointing to People v. Koper, 2018 COA 137, which recognized

transferred intent self-defense, McDuffie argued that the court was

required to give the transferred intent instruction because it went

“to the core of” his defense theory. The prosecution countered that

Koper required self-defense instructions “where a third party is

killed as a result of intent to kill” a different person. Thus, the

prosecution argued that the standard self-defense instructions were

sufficient and that a separate transferred intent instruction based

on Koper wasn’t necessary. The court agreed with the prosecution

and rejected McDuffie’s proposed transferred intent instruction.

¶ 12 Defense counsel then asked the court to let him explain

transferred intent to the jury during closing argument — that is, to

5
specifically relay the “A intending to shoot B but hit C” example

taken from Koper and described in his rejected instruction. The

prosecution did not object. The court agreed to allow defense

counsel to present that “hypothetical” to the jury so long as it “[did]

not include any reference to the case law that underlies it.”

¶ 13 During closing argument, defense counsel thoroughly

explained to the jury the concept of transferred intent self-defense

and, more specifically, how McDuffie’s use of self-defense against

Jamarian transferred to and justified his conduct as to Destiny.

B. Applicable Law and Standard of Review

¶ 14 Transferred intent self-defense is a legal fiction. See Koper,

¶¶ 11-13. Under that concept, “the doctrine of self-defense is

available to insulate one from criminal responsibility where his act,

justifiably in self-defense, inadvertently results in the injury of an

innocent bystander.” Id. at ¶ 13 (citation omitted).3

3 The People don’t question People v. Koper, 2018 COA 137, or ask

us to revisit whether transferred intent self-defense applies, so we
don’t consider that issue. Yet our supreme court has plainly
disapproved of the doctrine of transferred intent in first degree
murder “bad-aim” cases. People v. Jackson, 2020 CO 75, ¶¶ 2, 16-
22. Whether and to what extent that view extends to transferred
intent self-defense is an open question.

6
¶ 15 We review a trial court’s decision whether to give a particular

jury instruction for an abuse of discretion. People v. Trujillo, 2025

COA 22, ¶ 24. A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law. Id.

¶ 16 But we review de novo whether the jury instructions, as a

whole, accurately informed the jury of the law. Id.

C. The Court Didn’t Reversibly Err by Rejecting
McDuffie’s Transferred Intent Instruction

¶ 17 McDuffie says that, by rejecting his proposed transferred

intent self-defense instruction, the trial court “effectively deprived”

him of “the benefit of the traverse to the charges” related to

Destiny.4 We disagree for a few reasons.

4 As the People point out — and McDuffie doesn’t appear to

contest — he argues only that the trial court erred by failing to give
his transferred intent instruction as a traverse, not that it erred by
failing to tender the instruction as an affirmative defense. Thus, we
only address whether the court erred by refusing McDuffie’s
instruction as a traverse.

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1. The Instructions Conveyed the Concept of
Transferred Intent Self-Defense

¶ 18 For one, the instructions as a whole accurately conveyed the

concept of transferred intent self-defense. The deadly force self-

defense traverse instruction stated:

A person is justified in using deadly physical
force upon another person without first
retreating in order to defend himself or a third
person from what he reasonably believes to be
the use or imminent use of unlawful physical
force by that other person if he reasonably
believes a lesser degree of force is inadequate,
and he has a reasonable ground to believe,
and does believe, that he is in imminent
danger of being killed or of receiving great
bodily harm.

The ordinary force self-defense traverse instruction similarly

provided:

A person is justified in using physical force
upon another person without first retreating in
order to defend himself from what he
reasonably believes to be the use or imminent
use of unlawful physical force by that other
person, and he may use a degree of force
which he reasonably believes to be necessary
for that purpose.

¶ 19 Despite these instructions, McDuffie maintains that by

informing the jury that he was entitled to defend himself against

“another person” when “that other person” was using or about to

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use unlawful force, the traverse instructions didn’t allow the jury to

conclude that his use of self-defense against Jamarian also applied

to Destiny.5

¶ 20 But McDuffie’s argument ignores the remainder of the traverse

instructions. The traverse instructions specified that “[t]he evidence

in his case has raised the question of self-defense with respect to”

first degree murder (extreme indifference), manslaughter, and

criminally negligent homicide — offenses that only concerned

Destiny. The traverse instructions then stated that, with respect to

these offenses, “a person does not act with extreme indifference,

recklessness, or criminal negligence if his conduct is legally justified

as set forth above” — that is, if McDuffie’s use of force against

Jamarian was justified.

¶ 21 Thus, read together, these instructions correctly and

completely explained transferred intent self-defense as it applied to

Destiny: if McDuffie’s use of self-defense against Jamarian was

justified, then his conduct toward Destiny was not extremely

5 The self-defense portion of McDuffie’s proposed transferred intent

instruction included similar references to “another person” and
“that person” that he now takes issue with.

9
indifferent, reckless, or criminally negligent. See People v. Bryant,

2018 COA 53, ¶ 85 (“If the instructions, taken as a whole, properly

instructed the jury on the governing law, there is no error.”).

2. No Separate Transferred Intent Self-Defense
Instruction Was Required

¶ 22 We are equally unpersuaded by McDuffie’s contention that

Koper requires a separate instruction on transferred intent self-

defense. While Koper adopted the concept of transferred intent self-

defense, Koper, ¶ 15, it held only that the defendant’s transferred

intent self-defense theory warranted a self-defense instruction, see

id. at ¶ 23 (concluding that “the trial court erred in rejecting

defendant’s jury instructions on self-defense as an affirmative

defense”). Koper didn’t say that the trial court must give a separate

transferred intent self-defense instruction. See id. at ¶¶ 4-28.

That’s so even though the defendant in Koper asserted transferred

intent self-defense as an affirmative defense, id. at ¶¶ 5-6, which

requires a separate instruction, see People v. Marks, 2015 COA 173,

¶ 54.

¶ 23 Pressing on, McDuffie claims that without an express

transferred intent instruction, the other instructions were

10
“confusing,” “contradictory,” and “internally inconsistent.” He says

the jury must’ve understood and followed the “plain language” of

the instructions to find that McDuffie was only authorized to use

self-defense against Jamarian. This appears to be a rehash of

McDuffie’s “that other person” argument that we rejected above. To

the extent this argument is different, McDuffie doesn’t explain how

the instructions were confusing, contradictory, or inconsistent.

And he directs us to nothing in the record that suggests the jury

misunderstood that if McDuffie’s use of self-defense against

Jamarian was justified, then his conduct as to Destiny was not

extremely indifferent, reckless, or criminally negligent. Indeed, the

jury asked two questions during deliberations, and neither involved

the traverse instructions or McDuffie’s use of self-defense.

¶ 24 Finally, McDuffie argues his transferred intent instruction was

necessary because the court was required to “tailor instructions to

the particular circumstances” to “apprise the jury of the law of self-

defense from the standpoint of the defendant.” Idrogo v. People, 818

P.2d 752, 754 (Colo. 1991) (emphasis added). In Idrogo, the

defendant requested a self-defense instruction explaining that he

had no duty to retreat before using deadly force against his

11
assailant. Id. at 753-54. The supreme court held, among other

things, that the trial court erred by failing to explicitly instruct the

jury on the defendant’s no-retreat theory. Id. at 754-57. This

holding does not support the broad proposition that McDuffie was

entitled to the exact self-defense instruction of his choosing. After

all, a court doesn’t err by rejecting a defendant’s proposed

instruction — even if legally correct — when the other instructions

adequately advise the jury of the law. See People v. Darbe, 62 P.3d

1006, 1010 (Colo. App. 2002). As explained, the two traverse

instructions adequately informed the jury that if McDuffie’s use of

self-defense against Jamarian was justified, then his conduct

toward Destiny was not extremely indifferent, reckless, or criminally

negligent.6

3. Any Error Regarding the Self-Defense
Instructions Was Harmless

¶ 25 Even if we assume the self-defense instructions could have

been clearer, any error was harmless because the court instructed

6 McDuffie doesn’t contend that the verdicts are inconsistent, and in

any event, consistent verdicts aren’t necessarily required. See
People v. Frye, 898 P.2d 559, 571 (Colo. 1995).

12
the jury using McDuffie’s requested theory of the case instruction.

That instruction read:

The defense contends that [McDuffie] was
lawfully defending himself against the
imminent use of unlawful force by [Jamarian],
when he fired his gun at [Jamarian], and
inadvertently struck and killed [Destiny].

[McDuffie] drew his firearm and used it solely
for the purpose of preventing an assault by
[Jamarian].

In addition, McDuffie thoroughly walked the jury through the

doctrine of transferred intent self-defense and why he believed it

applied here. As defense counsel explained to the jury:

Though A intentionally injures B, A is not
guilty of murder. Though he injured B, he
may be guilty of no crime at all such as when
he’s privileged to kill or injure B in self-
defense.

Now, suppose A shoots B under these
circumstances, right -- suppose that somebody
is defending themselves legally, take that part
for granted. They believe legally, reasonably,
in all ways their conduct is perfectly
acceptable to defend themselves to shoot at B,
and then inadvertently, accidentally they miss
and they kill and injure C, an innocent
bystander.

. . . A person’s intent to defend themselves
from a person also transfers to an unintended
bystander. Once again, he’s only as guilty to C
as he would have been had his aim been

13
accurate enough to hit B. In effect, A’s intent
to shoot, intent to defend himself from B
transfers to C.

. . . [McDuffie] never intended to shoot
[Destiny]. He never pointed the gun at her. He
never knew that she was there, which is why
he’s not guilty of any of the crimes for [Destiny]
as the named victim in this case.

That’s what happened. There was a situation
where [McDuffie] had to defend himself from a
threat. And that’s what he did and,
unfortunately, [Destiny], who did not deserve
to die, died. It’s terrible, it’s tragic, but she
died because [McDuffie] was defending himself
legally.

¶ 26 Because the court instructed the jury on self-defense and

McDuffie’s theory of defense, and because McDuffie explained his

transferred intent defense in closing argument, the failure to

separately instruct the jury on transferred intent self-defense didn’t

substantially influence the verdict or affect the fairness of

McDuffie’s trial. See Hagos v. People, 2012 CO 63, ¶ 12.

¶ 27 That alone makes this case different from the out-of-state

cases McDuffie relies on where, without a separate transferred

intent instruction, the jury had no ability to acquit the defendant

for crimes related to the bystander. See, e.g., State v. Greenfield,

847 S.E.2d 749, 753-57 (N.C. 2020) (concluding the jury could not

14
acquit without the defendant’s transferred intent self-defense

instruction because no self-defense instruction was given for

convicted charge and general instruction on transferred intent did

not inform the jury that self-defense could transfer); State v. Clifton,

290 N.E.2d 921, 922-23 (Ohio Ct. App. 1972) (concluding the jury

could not acquit without transferred intent instruction). Unlike

these cases, the jury here had an avenue to acquit McDuffie on the

charges related to Destiny, and it largely did so.

4. The Court Wasn’t Required to Rework McDuffie’s
Theory of the Case Instruction

¶ 28 For similar reasons, we reject McDuffie’s alternate argument

that the court should have incorporated the substance of his

proposed transferred intent instruction into his theory of the case

instruction. The jury received McDuffie’s requested theory of the

case instruction, which advised the jury that he “inadvertently

struck and killed [Destiny]” while lawfully defending himself against

Jamarian. That is, he got the instruction he asked for. On top of

that, as outlined already, the court properly instructed the jury on

self-defense and permitted McDuffie to thoroughly explain the

concept of transferred intent self-defense in closing argument.

15
¶ 29 Because the court accepted McDuffie’s theory of the case

instruction and allowed him to fully explain his transferred intent

self-defense theory to the jury, the trial court didn’t err by not sua

sponte incorporating the substance of McDuffie’s rejected

transferred intent instruction into his theory of the case instruction.

See People v. Dore, 997 P.2d 1214, 1221-22 (Colo. App. 1999)

(concluding the trial court didn’t err by rejecting the defendant’s

theory of the case instruction because the instructions as a whole

and defense counsel’s closing argument adequately informed the

jury of the defendant’s theory of the case); see Nibert v. Geico Cas.

Co., 2017 COA 23, ¶ 9 (explaining that it’s “not error” for a court to

reject a party’s theory of the case instruction when, among other

things, “the court allows the party to otherwise argue its theory of

the case”).

¶ 30 We therefore conclude that the trial court didn’t reversibly err

by rejecting McDuffie’s transferred intent self-defense instruction.

III. Deadly Force Self-Defense Instruction

¶ 31 Next, McDuffie contends that the trial court erred by

instructing the jury on deadly force self-defense. More specifically,

he argues that because he didn’t use deadly force against Jamarian,

16
the court shouldn’t have instructed the jury on deadly force self-

defense as to Destiny, even though she died.

¶ 32 McDuffie didn’t object to the deadly force self-defense

instructions (indeed, he stipulated to them). We therefore review

only for plain error. See People v. Martinez, 2022 COA 111, ¶ 32,

aff’d, 2024 CO 48. To be plain, an error must be obvious, meaning

it contravenes a clear statutory command, a well-settled legal

principle, or Colorado case law. People v. Burdette, 2024 COA 38,

¶ 32.

¶ 33 We aren’t aware of any authority — and McDuffie points us to

none — concluding that a deadly force self-defense instruction

doesn’t apply when one victim dies (albeit inadvertently). Nor does

McDuffie explain how the trial court erred by instructing the jury on

deadly force self-defense for the charges related to Destiny, who did

die. Without any argument or legal authority explaining why deadly

force self-defense doesn’t apply when an unintended victim dies, we

conclude that the trial court didn’t plainly err by instructing the

jury on deadly force self-defense.7

7 For the offenses concerning Jamarian, who did not die, the court

gave two ordinary force self-defense instructions.

17
IV. Motion in Limine

¶ 34 McDuffie’s final claim is that the trial court erred by denying

his motion in limine, which sought to prevent all parties and

witnesses from referring to Jamarian and Destiny as “victims” at

trial.

A. Additional Background

¶ 35 Before trial, McDuffie filed a motion in limine requesting the

court to prohibit “all parties and trial participants” from referring to

Jamarian and Destiny as “victims” at trial. In it, McDuffie argued

that the term “victim” presupposed the commission of a crime, was

unfairly prejudicial under CRE 403, undermined his self-defense

claim, bolstered the prosecution’s theory, and violated his due

process and fair trial rights.

¶ 36 At the pretrial motions hearing, the prosecution objected,

arguing that it was “presupposing the commission of a crime by

bringing charges against [McDuffie]” and that Jamarian and

Destiny “were, in fact, victims of a crime by the definitions of the

Colorado Revised Statutes.” The prosecution added that it “will not

go around trying to inflame the passions of the jury by using the

18
word [“victim”] haphazardly . . . but it is a word that is perfectly

within our lexicon to use as part of our case.”

¶ 37 Denying McDuffie’s request, the trial court ruled as follows:

I’ll tell you what I think about it. I think it’s a
trap for a mistrial. Victim is a natural word.
Witnesses are going to use it. . . . I’m not
going to set up a ruling so that the minute
somebody says victim, which will surely
happen, that there’s a mistrial motion. I won’t
do it. People need to testify honestly without
pressure. They can’t be sitting in the witness
stand thinking, What is the list of words I can’t
say today, and looking nervous about it.
They’re entitled to testify, and I’m not going to
cramp that.

....

You know, sometimes it is statutory. It’s not
improper to call them victims. It doesn’t mean
[the People] don’t have a burden to prove that
they’re the victims of a crime in this case. I
don’t expect the People are going to abuse it. If
they do, I can call them up. But, no, we’re not
banning words in this courtroom like that and
putting everyone on edge about it and setting
up mistrials. I expect everyone to be careful
about it, but there’s no ban on the word victim
in a murder trial.

¶ 38 During trial, several prosecution witnesses referred to

Jamarian or Destiny as “victim” during their testimony. The

prosecution occasionally asked questions using the word “victim.”

19
Defense counsel also used the word “victim” in a few questions.

The court asked one juror question that used the word “victim.”

During closing arguments, both the prosecution and defense

counsel used the word “victim” once.

¶ 39 McDuffie didn’t contemporaneously object to the use of the

word “victim” during trial, though he preserved his objection

through his pretrial motion in limine.

B. Standard of Review

¶ 40 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Strickler, 2022 COA 1, ¶ 21; see also Palizzi v.

City of Brighton, 228 P.3d 957, 962 (Colo. 2010) (reviewing a court’s

ruling on an evidentiary motion in limine for an abuse of

discretion). A court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, or unfair, or when it misapplies

the law. Strickler, ¶ 21.

¶ 41 To the extent McDuffie alleges a constitutional violation, we

review that allegation de novo. People v. Cuevas, 2024 COA 84,

¶ 21.

20
C. The Court Didn’t Abuse its Discretion by Allowing the Parties
and Witnesses to Use the Word “Victim”

¶ 42 By allowing the prosecution and witnesses to refer to

Jamarian and Destiny as “victims” throughout trial, McDuffie says

the trial court violated his due process rights and his presumption

of innocence. In support, he advances several discrete arguments.

None are persuasive.

¶ 43 First, McDuffie points to Colorado’s criminal pattern jury

instructions, which include the general recommendation that

instructions “[a]void using . . . words which can be construed as

connoting prejudgment of the evidence (e.g., the term ‘victim,’ which

presupposes the commission of a crime).” COLJI-Crim. ch. A,

miscellaneous cmt. 2 (2024). But during the pretrial motions

hearing, defense counsel specifically clarified that McDuffie’s

request to prohibit the word “victim” was “not a jury instruction

issue” but rather “an issue related to in-trial references.” Nor does

the word “victim” appear anywhere in the jury instructions. So we

don’t see how the model jury instructions provide much guidance

on the trial court’s discretionary evidentiary ruling. See People v.

Salazar, 2023 COA 102, ¶ 22 (explaining that the model jury

21
instructions, while helpful for instructional issues, are ultimately

not binding on courts).

¶ 44 Second, McDuffie cites cases from other jurisdictions where

courts have concluded that it is improper to refer to the

complaining witness as a “victim” at trial. See, e.g., Jackson v.

State, 600 A.2d 21, 24 (Del. 1991); State v. Devey, 2006 UT App

219, ¶ 17. Colorado, however, has not prohibited the word “victim”

at trial. See People v. Dinapoli, 2015 COA 9, ¶¶ 29-35 (recognizing

that no Colorado case had yet addressed the issue and

acknowledging the split in authority among jurisdictions that have

addressed it). Thus, nothing prohibited the court from exercising

its broad discretion to decline McDuffie’s request.

¶ 45 Third, McDuffie broadly asserts violations of his presumption

of innocence and, citing CRE 403, unfair prejudice. But

considering the handful of references to the word “victim” in the

context of the four-day trial with twenty witnesses, we cannot

conclude that the use of the word “victim” was unfairly prejudicial,

much less that it violated his presumption of innocence. See People

v. Gonzales, 2019 COA 30, ¶ 34 (noting that unfair prejudice refers

to an undue tendency to suggest a decision made on an improper

22
basis), aff’d, 2020 CO 71; see also People v. Pernell, 2014 COA 157,

¶¶ 69-74 (discerning no error or unfair prejudice from witnesses’

and the prosecutor’s use of the term “rape” to reference an alleged

sexual assault), aff’d, 2018 CO 13.

¶ 46 To illustrate, some witnesses (such as first responders and a

resident of the apartment complex where the parties lived) referred

to Jamarian and Destiny as “victims” because the witnesses didn’t

know their names. In those instances, the prosecution appeared to

try and encourage the witnesses to use Jamarian’s and Destiny’s

names instead of the word “victim.” While the prosecution did

occasionally ask questions using the word “victim,” such questions

were asked to elicit information from these witnesses about what

happened after the shooting occurred and over the course of the

police investigation and were not framed to evoke sympathy or

inflame the jury. Other times, the witnesses and prosecution used

the word “victim” generically and not in reference to Jamarian and

Destiny (for example, to explain how a doctor generally treats

gunshot wound victims). And during closing argument, the

prosecutor called Jamarian a “victim” once when summarizing

23
McDuffie’s testimony about the shooting. None of these instances

strike us as improperly inflammatory or unfairly prejudicial.

¶ 47 Still, even assuming the trial court abused its discretion by

allowing the references to Jamarian and Destiny as “victims,” we

will not reverse unless the court’s error “substantially influenced

the verdict or affected the fairness of the trial proceedings.” People

v. Snelling, 2022 COA 116M, ¶ 32 (citation omitted). The record

here demonstrates that the references to the word “victim” — used

relatively sparingly and scattered throughout the trial — neither

adversely influenced the jury’s verdict nor rendered the trial unfair.

That is, despite occasional references to Jamarian as a “victim,” the

jury acquitted McDuffie of all charges for Jamarian. It likewise

acquitted McDuffie of all but two lesser included charges for

Destiny. Thus, the verdicts show that the word “victim” did not

unduly sway or influence the jury. See People v. Quillen, 2023 COA

22M, ¶ 39 (remarking that a split verdict shows that the jurors

“parsed the evidence and were not unduly swayed by any improper

evidence”); Snelling, ¶ 40 (explaining that the jury’s split verdict

demonstrates that the improper testimony “did not substantially

influence the verdict”). The court also mitigated any harm by

24
properly instructing the jury orally and in writing on McDuffie’s

theory of self-defense, his presumed innocence, and the

prosecution’s burden of proof. Cf. Dinapoli, ¶ 32 (concluding that

references to complaining witness as a “victim” during trial did not

cause sufficient prejudice to constitute plain error because jury was

instructed on presumption of innocence and burden of proof); State

v. Robinson, 838 A.2d 243, 247-48 (Conn. App. Ct. 2004)

(concluding that any prejudicial effect resulting from trial court’s

use of the word “victim” in jury instructions was negated, and

therefore did not violate the defendant’s right to a fair trial, because

the jury was also instructed on the defendant’s presumption of

innocence).

¶ 48 All this said, we conclude that the trial court didn’t reversibly

err by allowing the parties and witnesses to refer to Jamarian and

Destiny as “victims” at trial.

V. Cumulative Error

¶ 49 Though we have assumed two possible errors, even viewed

collectively, the assumed errors did not “substantially affect[] the

fairness of the trial proceedings and the integrity of the fact-finding

process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting

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People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)). We therefore

reject McDuffie’s cumulative error contention.

VI. Disposition

¶ 50 We affirm the judgment.

JUDGE TOW and JUDGE MEIRINK concur.

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