Peo v. Najera

23CA0472 Peo v Najera 07-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0472
Adams County District Court No. 21CR1636
Honorable Priscella J. Loew, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Frederick Alexander Najera,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE SULLIVAN
Tow and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 3, 2025

Philip J. Weiser, Attorney General, Jenna Baker, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Frederick Alexander Najera, appeals the judgment

of conviction entered on jury verdicts finding him guilty of

aggravated robbery and menacing. We affirm.

I. Background

¶2 The jury heard evidence at trial from which it could have

reasonably found the following facts.

¶3 In March 2021, Najera robbed a restaurant in Aurora,

threatening the cashier with a gun and taking cash from the

drawer. About a month later, the cashier identified Najera as the

robber during an out-of-court identification procedure in which she

picked him out of a photo array consisting of six photos. Najera

moved to suppress the out-of-court identification as impermissibly

suggestive, but the district court denied the motion after an

evidentiary hearing.

¶4 At trial, the cashier didn’t identify Najera as the robber in the

courtroom, nor did counsel ask her to do so. The detective who

assisted in administering the identification procedure, however,

testified that the cashier had selected Najera’s photo from the photo

array. The detective also identified Najera in the courtroom as the

person the cashier selected.

1
¶5 The jury found Najera guilty of both aggravated robbery and

menacing.

¶6 Najera appeals. He contends that (1) the court should have

suppressed the cashier’s out-of-court identification; (2) the

prosecution committed reversible misconduct; and (3) the court’s

instruction on reasonable doubt improperly lowered the

prosecution’s burden. We address each in turn.

II. Out-of-court Identification

¶7 Najera first contends that the district court erred by denying

his motion to suppress the cashier’s out-of-court identification,

arguing that the police’s photo array and identification procedures

were impermissibly suggestive. We disagree.

A. Standard of Review and Applicable Law

¶8 “A defendant is denied due process when an in-court

identification is based upon an out-of-court identification which is

so suggestive as to render the in-court identification unreliable.”

People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003). Courts apply a

two-part test to determine the admissibility of an out-of-court

photographic identification. Bernal v. People, 44 P.3d 184, 191

(Colo. 2002). First, the defendant bears the burden of proving that

2
the photo array was impermissibly suggestive. Id. Second, if the

defendant meets this burden, the burden shifts to the prosecution

to show that the identification was nevertheless reliable under the

totality of the circumstances. Id.

¶9 At the initial step, courts consider “a number of factors” when

evaluating whether the photo identification procedure was

impermissibly suggestive, including the size of the photo array, the

manner of its presentation by the officers, and the details of the

photographs themselves. Id.; People v. Palacios, 2018 COA 6M,

¶ 12. Najera challenges the cashier’s out-of-court identification

based on each of these factors, which we address below.

¶ 10 To prevent swaying the eyewitness’s recollection of the

assailant, the photos in an array must not “differ[] significantly”

from the eyewitness’s initial description. People v. Singley, 2015

COA 78M, ¶ 20. In addition, the accused’s photo must not stand

out from the “filler”1 photos in a way that suggests to the eyewitness

that they are more likely the culprit. See Bernal, 44 P.3d at 191.

1 A “[f]iller” is “either a person or a photograph of a person who is

not suspected of the offense in question and is included in an
identification procedure.” § 16-1-109(2)(d), C.R.S. 2024.

3
But the police need not provide a photo array containing only “exact

replicas” of the accused’s photo. Id. (citation omitted). All that is

required is that the photos match by race, approximate age, facial

hair, and a number of other characteristics. Id. at 191-92.

¶ 11 We review the constitutionality of a pretrial identification

procedure as a mixed question of law and fact. Borghesi, 66 P.3d at

104. We defer to the trial’s court’s findings of fact but review its

legal conclusions de novo. See Bernal, 44 P.3d at 190.

B. Additional Background

¶ 12 The cashier told police that the robber was about forty years

old and described him as “Chicano,” although she also mentioned

he was “white skinned.” While she couldn’t recall his exact height,

she said that the robber appeared taller than the five-foot-five-inch

officer who was interviewing her.

¶ 13 Three weeks after the robbery, the detective assigned to the

case received a tip through an email that included a photo of

Najera. Based on the tip, the detective created a six-person photo

array by inputting Najera’s photo into a software program that

generated 50 to 100 photos of individuals with similar

characteristics, including age, race, weight, and gender. From that

4
group, the detective selected five fillers’ photos to use in the array

with Najera’s photo, taking into account various factors such as

facial expression, presentation, lighting, and clothing.

¶ 14 As prepared by the detective, the six men in the array each

had black hair, brown eyes, and varying amounts of facial hair.

Each appeared to be of Hispanic ethnicity as described in Bernal,

44 P.3d at 193. Their ages ranged between forty-eight and fifty-two

years old (Najera was fifty-one at the time of the robbery), and they

weighed between 200 and 215 pounds (Najera weighed 210

pounds). Although the photos depicted the men from the shoulders

up, thus preventing a viewer from discerning their height, each fell

between five feet, five inches and five feet, ten inches in height

(Najera says he is five feet, eight inches tall). Four of the men,

including Najera, had neck tattoos. Four of the fillers wore T-shirts

that were black or muted in color, the fifth filler wore a black

hooded sweatshirt, and Najera wore a black V-neck shirt. The

backgrounds and lighting appeared similar, except for the filler in

photo number three, which had a lighter background and

somewhat harsher lightning.

5
¶ 15 After preparing the photo array, the detective and another

officer returned to the restaurant to show it to the cashier. The

detective recorded the identification process with his body camera.

Before showing the photo array to the cashier, the detective asked

her to review a standardized admonishment form. The form advised

her, among other things, that the suspect may or may not be in the

photo array and that she wasn’t obligated to make a selection. The

cashier said she understood the form’s advisements.

¶ 16 After reviewing the array, the cashier said Najera’s photo

looked the most like the robber. She said she was “somewhat sure”

and that she recognized his eyes and gaze.

¶ 17 Najera moved to suppress the cashier’s out-of-court

identification, asserting that it was made under suggestive

circumstances. At a pretrial hearing on the motion, the detective

testified regarding his preparation of the photo array and the

cashier’s out-of-court identification. In a detailed oral ruling, the

court denied Najera’s motion, finding that the photo array and the

identification procedure weren’t impermissibly suggestive.

6
C. Size of the Array

¶ 18 Najera concedes that a photo array with “as few as six

pictures” isn’t a “per se . . . due process violation.” Bernal, 44 P.3d

at 191. He argues, however, that the relatively small number of

photos requires that we more closely scrutinize the array for

“suggestive irregularities.” Id. We agree on both counts. While the

six-photo array in this case didn’t necessarily create a due process

violation, it does require that we closely examine both the array and

the procedure used for any suggestive irregularities. Id.

D. Manner of Presentation

¶ 19 Next, Najera argues that the detective presented the array in

an impermissibly suggestive manner because (1) the procedure

wasn’t “blind”;2 (2) all six photos were displayed simultaneously on

a single sheet of paper rather than sequentially on multiple sheets;

2 A “[b]lind” procedure means “the administrator of a live lineup,

photo array, or showup does not know the identity of the suspect,”
§ 16-1-109(2)(a), while a “[b]linded” procedure means the
administrator may know who the suspect is “but does not know in
which position the suspect is placed in the photo array when it is
viewed by the eyewitness,” § 16-1-109(2)(b). We mean no disrespect
to persons with visual impairments by using these statutorily
defined terms.

7
and (3) the photos in the array didn’t match the cashier’s initial

description. We aren’t persuaded by these arguments.

¶ 20 First, Najera acknowledges in his brief that the body camera

footage shows no “discernable overt signals” by the detective that

hinted to which photo depicted Najera. Indeed, the detective denied

making any movements that may have suggested which photo

depicted Najera. Consistent with this evidence, the district court

found that the detective’s statements and actions while

administering the photo array neither directed the cashier nor

influenced her identification. While a “blind” or “blinded” procedure

may have been preferable, § 16-1-109(3)(a)(II), C.R.S. 2024 (law

enforcement agencies must adopt policies that include protocols

guiding the “recommended use” of “blind” and “blinded” photo

arrays), on this record we can’t say that the non-blind procedure

rendered the photo array impermissibly suggestive. See, e.g., State

v. Gholson, 700 S.W.3d 613, 627 (Mo. Ct. App. 2024) (A non-blind

lineup wasn’t “impermissibly suggestive” when the detective “denied

doing anything to suggest who Victim 2 should identify, and there

[wa]s nothing in the record [that] indicat[ed] otherwise.”).

8
¶ 21 Second, Najera identifies no Colorado statute or case that

requires photo arrays to be presented sequentially rather than

simultaneously. To the contrary, Colorado courts have upheld

simultaneous six-photo composites, deeming them not

impermissibly suggestive. See Palacios, ¶ 14 (citing People v.

Wilford, 111 P.3d 512, 514 (Colo. App. 2004)). To the extent Najera

asserts that a scientific consensus exists that sequential arrays are

superior, we disagree. See Commonwealth v. Thomas, 68 N.E.3d

1161, 1172 (Mass. 2017) (concluding that “the relative superiority

of competing identification procedures [involving simultaneous

versus sequential lineups] is unresolved” (quoting Nat’l Rsch.

Council, Nat’l Acad. of Scis., Identifying the Culprit: Assessing

Eyewitness Identification 3 (2014), https://perma.cc/M3C3-

GQUS)).

¶ 22 Third, the photos in the array didn’t “differ[] significantly” from

the cashier’s initial description. Singley, ¶ 20. Najera argues that

the cashier initially described the robber as five feet, five inches to

five feet, seven inches tall, approximately forty years old, and “white

skinned”; but he is five feet, eight inches tall, was fifty-one years old

9
when the robbery occurred, and has a “Hispanic or Latino”

complexion. We reject these arguments as follows:

• The cashier testified that she “never affirmed” that the

robber’s height was five feet, five inches to five feet, seven

inches; rather, she described him as “taller than the

police officer” who interviewed her. That officer was five

feet, five inches tall. Regardless, the photos in the array

depicted the men from the shoulders up, removing their

relative heights from the cashier’s consideration.

• The men in the photo array ranged between forty-eight

and fifty-two years old. While older than cashier’s

estimate of forty, none appeared significantly older to the

point that the photos may have impermissibly suggested

an alternative description of the assailant. See Singley,

¶¶ 19-20; cf. id. at ¶ 23 (defendant satisfied Bernal’s first

prong when photo array depicted men “twice as old” as

eyewitness’s initial description).

• The cashier told the police that the robber may have been

“Chicano.” And when asked at trial what she meant

when she also described him as “white skinned,” she said

10
“[t]hat could be Hispanic.” We conclude any

inconsistencies in the cashier’s initial description were

ripe for cross-examination and go to the weight of her

identification, not its admissibility. See Singley, ¶ 33.

¶ 23 In addition, the detective provided the cashier with an

admonishment form that advised her that (1) the photo array may

or may not contain a photo of the suspect, and (2) she didn’t have

to identify anyone. Under these circumstances, we conclude the

photo array didn’t impermissibly suggest an alternative description

of the robber.

E. The Photos

¶ 24 Najera also argues that the photos themselves were

impermissibly suggestive because Najera had the lightest skin tone

and was the only one in the array wearing jail clothes. We aren’t

persuaded.

¶ 25 The detective testified he used a software program that

produced 50 to 100 photos of individuals with characteristics

similar to Najera’s, including his race. From those, the detective

selected five filler photographs to achieve a “homogenous”

appearance among the photos in the array. Having reviewed the

11
array, we agree with the detective’s overall assessment and

conclude that any differences in skin tone between Najera and the

fillers were negligible. Cf. People v. Shanks, 2019 COA 160, ¶ 50

(“We are in the same position as the district court to review the

details of the photographs and consider their placement in the

array.”); see also Bernal, 44 P.3d at 191 (police need not provide

“exact replicas” in the photo array) (citation omitted).

¶ 26 We also aren’t persuaded that Najera’s jail clothing

differentiated him from the fillers in a way that rendered the array

impermissibly suggestive. Even accepting Najera’s argument that

his dark V-neck shirt was unique among the photos in the array,

his clothing wasn’t “connected to a specific, identifying feature” that

the cashier raised during her identification. Borghesi, 66 P.3d at

104. Moreover, the district court determined, and we agree, that an

observer wouldn’t necessarily affiliate Najera’s dark V-neck shirt

with someone in custody. See People v. Owens, 97 P.3d 227, 233

(Colo. App. 2004) (concluding that nothing in the defendant’s

picture “suggest[ed] that the [green] shirt originated from the

department of corrections, as opposed to some more innocuous

12
source, such as hospital attire”), overruled in part on other grounds

by Garcia v. People, 2022 CO 6.

¶ 27 Accordingly, the district court didn’t err by denying Najera’s

motion to suppress the cashier’s out-of-court identification.

Because Najera didn’t meet his burden under Bernal’s first step, we

need not proceed to the second. See Bernal, 44 P.3d at 191.

III. Prosecutorial Misconduct

¶ 28 Najera contends that the district court erred by failing to

correct misconduct during the prosecution’s opening statement,

case-in-chief, and closing argument. We perceive no basis to

reverse.

A. Standard of Review and Applicable Law

¶ 29 “Whether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.” Domingo-

Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We won’t

disturb the court’s rulings regarding such statements absent an

abuse of that discretion. People v. Strock, 252 P.3d 1148, 1152

(Colo. App. 2010).

¶ 30 When reviewing claims of prosecutorial misconduct, we

conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096

13
(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id.

Second, if we determine that the comments were improper, we

evaluate whether they warrant reversal under the proper standard

of reversal. Id.

¶ 31 When the alleged misconduct involves closing argument, we

consider the prosecutor’s questionable comments 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. A prosecutor may

comment on the evidence at trial and the reasonable inferences that

can be drawn from the evidence. Id. at ¶ 31. The prosecutor also

enjoys wide latitude in the language and style they choose to

employ and in replying to arguments by opposing counsel. Id. at

¶ 30; see also People v. Roadcap, 78 P.3d 1108, 1114 (Colo. App.

2003) (“A prosecutor has wide latitude to respond to a defendant’s

‘opening salvos’ in closing argument.”) (citation omitted). And

because arguments delivered in the heat of trial aren’t always

perfectly scripted, we give the prosecutor the benefit of the doubt

when their remarks are ambiguous or simply inartful. Samson,

¶ 30.

14
¶ 32 Still, a prosecutor must exercise caution not to use closing

arguments to mislead or unduly influence the jury. Domingo-

Gomez, 125 P.3d at 1049. A prosecutor may not, for example,

intentionally misstate the evidence or attempt to inflame the jury’s

passions. See id.

¶ 33 When a defendant asserts that the prosecution has improperly

shifted its burden of proof, as here, we consider the degree to which

(1) the prosecutor specifically argued or intended to establish that

the defendant carried the burden of proof; (2) the prosecutor’s

actions constituted a fair response to the questioning and

comments of defense counsel; and (3) the court and counsel

informed the jury about the defendant’s presumption of innocence

and the prosecution’s burden of proof. People v. Santana, 255 P.3d

1126, 1131-32 (Colo. 2011).

¶ 34 Najera preserved only some of his prosecutorial misconduct

contentions through contemporaneous objections. We review his

preserved contentions for either constitutional or nonconstitutional

harmless error, depending on the way in which the argument is

alleged to have been improper. See Crider v. People, 186 P.3d 39,

42 (Colo. 2008); People v. Ortega, 2015 COA 38, ¶ 51. But we

15
review his unpreserved contentions for plain error. Hagos v. People,

2012 CO 63, ¶ 14. We will reverse for plain error only if the

misconduct was obvious and so undermined the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction. People v. Walker, 2022 COA 15, ¶ 28.

B. Additional Background

¶ 35 In opening statements, the prosecutor summarized some

evidence that she anticipated the jury would hear, including video

footage of the robbery, the detective’s investigation, photographs of

Najera, and eyewitness accounts. After summarizing the evidence,

the prosecutor ended her opening statement by asking the jury to

“hold [Najera] responsible for robbing a 21-year-old cashier who

[wa]s just trying to get through her day at [the restaurant], hold him

accountable and find him guilty.”

¶ 36 During the prosecution’s case-in-chief, the prosecutor asked

the cashier, “Did the defendant approach you?” Defense counsel

objected based on “[f]acts not in evidence,” but the court overruled

the objection. The cashier answered, “Yes.”

¶ 37 As part of his defense, Najera called a cognitive psychologist to

testify as an expert in eyewitness memory and reliability. The

16
expert opined, among other things, that persons experiencing

frightening events tend to narrow their focus to only “central” facts

and fail to remember smaller “peripheral” details.

¶ 38 In the prosecution’s initial closing argument, the prosecutor

referred to the trauma endured by the restaurant’s employees

during the robbery and how they shouldn’t have to relive their

experience. The following remarks are illustrative:

They had to relive that traumatic experience.
And whenever [the cashier] was looking at that
I.D. pack, that six pack that was so heavily
scrutinized, but when she had to relive it, it
produced a visceral reaction and emotion. It is
emotion that she came back to while on the
stand.

....

I want to push back on that and point out the
nerves, the emotion, the trauma, and having to
relive that. And having to do that. And there
was nothing that was required of them to do
that.

....

[Najera] is the one that subjected [the
restaurant employees] to a terrible time in
their life. He is the robber.

¶ 39 Defense counsel then delivered her closing argument, arguing

in part that the prosecution’s case was full of “blanks” and “missing

17
evidence,” including the cashier’s failure to identify Najera in the

courtroom.

¶ 40 In rebuttal closing, the prosecutor countered by arguing that

the jury shouldn’t succumb to speculating about evidence that

wasn’t presented:

Now, the lack of evidence. Gun. You didn’t
hear — your [sic] didn’t see any gun today.
Defense is asking you to speculate. Getaway
car. Same thing. Defense is asking you to
speculate. Cash. You didn’t hear from [a
particular restaurant employee]. Defense is
asking you to speculate what her testimony
would be. The defense is asking you to
speculate what the officers would have seen or
testified to. Defense is asking you to speculate
what nearby surveillance footage would have
shown you.

¶ 41 Defense counsel objected to burden shifting, which the court

overruled. At that point, the prosecutor acknowledged that she

carried the burden of proving the elements of the offenses beyond a

reasonable doubt.

¶ 42 The prosecutor also returned to the trauma visited upon the

restaurant employees, explaining the prosecution “didn’t want to

subject them to having to identify the man who robbed them, who

caused them one of the most traumatic events in their life.”

18
C. Preserved Contentions

1. Presupposing Najera’s Identity

¶ 43 Najera argues that the prosecutor improperly asserted facts

not in evidence by asking the cashier, “Did the defendant approach

you?” The prosecutor’s framing, Najera asserts, improperly

assumed that he was the robber. But the cashier could reasonably

interpret the prosecutor’s question as asking both (1) whether

someone approached her in the restaurant during the robbery and,

if yes, (2) whether that person was the defendant. The cashier had

the option to answer, “No,” to one or both parts of the question or to

seek clarification. But she answered, “[Y]es.” On this record, we

can’t say that the court abused its discretion by overruling Najera’s

objection. See CRE 611(a) (trial courts may exercise control over

the mode and order of interrogating witnesses); cf. United States v.

Cohen, 583 F.2d 1030, 1044 (8th Cir. 1978) (trial court didn’t err by

permitting the prosecutor to ask a compound question).

¶ 44 We aren’t persuaded otherwise by Najera’s reliance on People

v. Fortson, 2018 COA 46M, and People v. Estep, 583 P.2d 927 (Colo.

1978). In Fortson, ¶¶ 29-31, the prosecutor asked about

inadmissible CRE 404(b) evidence, while in Estep, 583 P.2d at 930,

19
the prosecutor asked an “improper” and “prejudicial” question that

conveyed the prosecutor’s personal belief that the defendant was

guilty. Neither occurred here.

¶ 45 Moreover, even if the prosecutor’s question assumed facts not

in evidence, any error was harmless. See Hagos, ¶ 12. The cashier

testified just a few moments later that she circled on the photo

array the person she believed robbed the restaurant; later that

same day, the detective (1) testified that the cashier selected

Najera’s photo and (2) identified Najera in the courtroom as the

person the cashier identified.

2. Use of “Speculation” in Rebuttal Closing Argument

¶ 46 Najera argues that the prosecutor misstated and shifted the

burden of proof by telling the jury during rebuttal closing that the

defense was inviting it to “speculate” about certain unadmitted

evidence. Applying Santana’s three-part framework, we perceive no

improper burden shifting. See 255 P.3d at 1131-32.

¶ 47 First, the prosecutor specifically argued during rebuttal

closing that the prosecution, not Najera, shouldered the burden of

proving every element of the charged offenses beyond a reasonable

doubt. See id. at 1131.

20
¶ 48 Second, the prosecutor’s comments constituted a fair response

to defense counsel’s closing argument. See id.; Roadcap, 78 P.3d at

1114. Defense counsel repeatedly asked the jurors to focus on the

prosecution’s “lack of evidence” and “missing evidence.”

Specifically, defense counsel argued that the prosecution hadn’t

presented exterior surveillance footage, a DNA test of Najera, the

robber’s gun, evidence about the getaway car or driver, the stolen

cash, or the robber’s distinctive clothes. Given these arguments,

the prosecutor’s comments were a fair reply and didn’t improperly

shift the burden of proof.

¶ 49 Third, the court and counsel properly informed the jury about

Najera’s presumption of innocence and the prosecution’s burden of

proving Najera’s guilt beyond a reasonable doubt. See Santana,

255 P.3d at 1131-32.

21
D. Unpreserved Contentions

1. Invoking Themes of Sympathy and Accountability

¶ 50 Turning to Najera’s unpreserved contentions of prosecutorial

misconduct, Najera argues that the prosecutors3 improperly

invoked themes of sympathy and accountability during opening

statement, initial closing argument, and rebuttal closing argument.

Among others, he points to the prosecutors’ arguments (1) that the

jury should hold Najera “accountable”; (2) that Najera subjected the

restaurant employees to a “terrible time in their life”; and (3) that

the cashier had “a visceral reaction” and cried on the witness stand

and in the body camera footage.

¶ 51 But the prosecutors made these comments while summarizing

the evidence against Najera. During opening statement, for

example, the prosecutor made her challenged comment immediately

after discussing the videos, photographs, and witness testimony

that the prosecution anticipated presenting. So too in closing

arguments. The prosecutors properly tethered their remarks to the

3 The prosecution team consisted of two attorneys — one who

delivered opening statement and rebuttal closing argument, and a
second who delivered initial closing argument.

22
cashier’s testimony and the video evidence. See People v. Garcia,

2021 COA 80, ¶ 40 (“In opening statement and in closing argument,

the prosecutor asked the jury to ‘do the right thing’ only after

discussing the evidence. In context, the prosecutor asked the jury

to ‘hold [Garcia] accountable’ because the evidence tended to show

Garcia was guilty, and the jury likely would have understood his

statements accordingly.”), aff’d, 2023 CO 30.

¶ 52 In addition, while the prosecutors’ comments touched on the

cashier’s trauma, the significance of that trauma on the cashier’s

memory was a disputed issue at trial. The defense’s expert testified

that fear could narrow one’s focus and influence memory. The

prosecution vigorously disputed some of the expert’s conclusions.

The cashier’s memory, demeanor, and credibility were therefore

highly relevant. See People v. Constant, 645 P.2d 843, 846 (Colo.

1982) (a prosecutor is allowed to draw reasonable inferences

regarding a witness’s demeanor and credibility). Under these

circumstances, the prosecutors’ comments were properly “anchored

in the evidence, not in emotion,” and didn’t improperly ask the jury

to “do justice” for the victims regardless of whether the jury believed

the prosecution’s evidence. People v. Salazar, 2023 COA 102, ¶ 51.

23
¶ 53 Even if the prosecutors’ comments crept near or slightly over

the line, we see no obvious error that required the court to

intervene on its own accord. See Domingo-Gomez, 125 P.3d at 1054

(“The lack of an objection may demonstrate the defense counsel’s

belief that the live argument, despite its appearance in a cold

record, was not overly damaging.”) (citation omitted). As a result,

the “drastic remedy” of reversal under the plain error standard isn’t

warranted. Id. at 1055.

2. Asserting Facts Not in Evidence and Evoking Sympathy

¶ 54 Najera also argues that the prosecutors asserted facts not in

evidence and improperly evoked sympathy by arguing in initial and

rebuttal closing arguments that they refrained from asking the

restaurant employees to identify Najera in court to spare them from

reliving “one of the most traumatic events in their life.” We disagree

for the following reasons:

• A prosecutor’s reasons for asking or not asking a witness

a particular question aren’t “facts” that can be admitted

into evidence.

• As already explained, the employees’ memory, credibility,

and demeanor were contested issues, and the evidence

24
suggested that their trauma may have affected their

recollection. The prosecutors were therefore permitted to

comment on the employees’ trauma. See Samson, ¶ 31.

• At least as it pertains to the prosecutor’s rebuttal closing,

the prosecutor was responding to defense counsel’s

closing argument. Defense counsel criticized the

employees’ failure to identify Najera in the courtroom,

saying they never answered “a really simple question,

[D]o you recognize the person who did this in the

courtroom today[?]” Given this opening salvo, the

prosecutor appropriately explained her reasons for

omitting what some jurors may have viewed as a critical

question. See Walker, ¶ 40 (reviewing court must

consider defense counsel’s “opening salvo” when

evaluating prosecutor’s remarks) (citation omitted).

¶ 55 Accordingly, we reject Najera’s contentions that the

prosecutors engaged in reversible misconduct.

IV. Reasonable Doubt Instruction

¶ 56 Najera contends that the district court erred by instructing the

jury consistently with the 2021 model criminal jury instruction on

25
reasonable doubt. See COLJI-Crim. E:03 (2021). He argues that

multiple phrases in the model instruction improperly lowered the

prosecution’s burden. We discern no error in the court’s

instruction.

A. Standard of Review and Applicable Law

¶ 57 “The Due Process Clause of 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.’” Tibbels v. People, 2022 CO 1, ¶ 23

(quoting In re Winship, 397 U.S. 358, 364 (1970)).

¶ 58 “[S]o long as the court instructs the jury on the necessity that

the defendant’s guilt be proved beyond a reasonable doubt, the

Constitution does not require that any particular form of words be

used in advising the jury of the government’s burden of

proof.” Victor v. Nebraska, 511 U.S. 1, 5 (1994) (citation omitted).

Our supreme court approves the Colorado Model Criminal Jury

Instructions in principle, which serve as “beacon lights” to guide

trial courts. Galvan v. People, 2020 CO 82, ¶ 38. But the model

instructions aren’t binding and don’t insulate a court’s instructional

26
error from reversal. See id.; People v. Schlehuber, 2025 COA 50, ¶

14.

¶ 59 We review de novo whether the district court accurately

instructed the jury on the law. Tibbels, ¶ 22.

B. Additional Background

¶ 60 Consistent with the 2021 model instruction, the court

instructed the jury on reasonable doubt, in part, as follows:

Every person charged with a crime is
presumed innocent. This presumption of
innocence remains with Mr. Najera throughout
the trial and should be given effect by you
unless, after considering all of the evidence,
you are then convinced that Mr. Najera is
guilty beyond a reasonable doubt.

The burden of proof is upon the prosecution to
prove to the satisfaction of the jury beyond a
reasonable doubt the existence of all of the
elements necessary to constitute the crime
charged.

Reasonable doubt means a doubt based upon
reason and common sense which arises from a
fair and rational consideration of all of the
evidence, or the lack of evidence, in the case.
It is a doubt which is 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.

27
C. “Arises From” and “Hesitate to Act” Language

¶ 61 Najera argues that the court’s instruction didn’t accurately

inform the jury that the prosecution exclusively bore the burden of

proof. Pointing to specific language in the instruction, he argues

that (1) the “arises from” language could reasonably be understood

to shift the prosecution’s burden, and (2) the “hesitate to act in

matters of importance” phrase lowered the prosecution’s burden by

likening it to everyday decision-making.

¶ 62 A division of this court has previously rejected these

arguments. See People v. Rubio, 222 P.3d 355, 363 (Colo. App.

2009). In Rubio, the division determined that the model instruction

didn’t improperly reverse or lower the prosecution’s burden. Id. In

doing so, it approved both the “arise from” and “hesitate to act”

language, explaining that the United States Supreme Court has

repeatedly endorsed reasonable doubt instructions containing both

phrases. Id. (collecting cases). We agree with Rubio’s analysis and

see no reason to depart from its holding.

¶ 63 We aren’t convinced otherwise by Najera’s reliance on Tibbels

and People v. Knobee, 2020 COA 7. The trial courts in those cases

deviated from the model jury instruction by improperly analogizing

28
the concept of reasonable doubt to buying a home with a

foundation crack and choosing a doctor. See Tibbels, ¶¶ 10-12;

Knobee, ¶ 18. No such analogy occurred here.

D. “Utmost Certainty”

¶ 64 Najera also argues that the court’s instruction failed to convey

the height of the beyond a reasonable doubt standard and that the

court should have given the defense’s alternative instruction that

asked the jury to reach a state of “utmost certainty.”

¶ 65 But again, a division of this court has already considered and

rejected this argument. See People v. Robb, 215 P.3d 1253, 1263

(Colo. App. 2009) (“[A] reasonable doubt instruction need not be

phrased in terms of proof of ‘utmost certainty.’”) (citation omitted).

We agree with the division’s reasoning and follow it here.

V. Disposition

¶ 66 We affirm the judgment.

JUDGE TOW and JUDGE YUN concur.

29