Peo v. Watkins

22CA1770 Peo v Watkins 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1770
Arapahoe County District Court No. 19CR1009
Honorable Joseph Whitfield, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cassidy Jean Watkins,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Harris and Bernard*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 31, 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, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Cassidy Jean Watkins, challenges her felony

driving while ability impaired (DWAI) and child abuse convictions.

We affirm.

I. Background

¶2 On April 3, 2019, an Aurora apartment property manager saw

a gray car driving fast through the complex’s parking lot before it

almost hit two cars. The manager called police and testified at trial

that the driver, later identified as Watkins, yelled at the manager

when she noticed he was on the phone and yelled at “whoever came

close.” Watkins next opened the hood of the car and “smoke” came

out; the manager then first noticed a child in the backseat.

¶3 Kristi Mason, the first officer to arrive, testified that she saw a

car stopped in the “driveway” area of the parking lot before it

“lurched forward real quick, slammed on their brakes, and whipped

around the corner.” Mason followed and saw the car stop again,

before it “lurched forward again, slammed on its brakes, turned,

and then lurched forward” to reach a dead end in the parking lot.

Mason watched as the car “effected a really bizarre turning pattern

that was backing up, forward, backing up. It ended up being like

. . . a [ten], [twelve]-point turnaround.” The car eventually turned

1
around and very quickly “whip[ped]” into a parking spot between

other cars.

¶4 Mason then approached the vehicle and Watkins, who had

exited the vehicle. Mason testified that she asked Watkins if she

had been drinking because Mason smelled “an alcoholic [odor]

coming from [Watkins’] breath” and Watkins was acting “odd, and

very exuberant, very high strung,” “rambling,” and not making “a

lot of sense.” Mason noted that a “sippy cup,” two empty “Fireball

shooter[s],” and a “glass pipe” were on the ground near the driver’s

side door. On body camera footage Watkins denied that these items

were hers and said to “drug test [her]” before agreeing to field

sobriety testing. Mason called for assistance from officers trained in

driving under the influence (DUI) issues. According to Mason,

Watkins continued to act “[b]izarrely. Just very animated,

laughing. Just not appropriate for the situation at all.”

¶5 Officer Brooke Mourey later arrived to begin a DUI

investigation and noted that Watkins’ eyes were slightly bloodshot

or glossy, she was slightly slurring or was “thick-tongued,” and

Mourey smelled alcohol on Watkins’ breath. Mourey also noted that

2
Watkins “was cooperative initially and then she started working

herself up” and became “excited and angry.”

¶6 Watkins’ statements were inconsistent. For example, Watkins

initially denied drinking but then “[o]ne second she said she was

drinking in her car before we made contact. The next moment she

said, no, she wasn’t drinking in her car when I asked where the

alcohol bottles were” before then stating she drank alcohol at home

earlier that day.

¶7 Mourey asked Watkins if she would agree to undergo roadside

testing, and she initially refused but then agreed. Mourey began

with a “horizontal gaze and nystagmus” eye test. Instead of

following a pen light with her eyes, Watkins “would automatically

look to the side and then look back at the light” or “would then look

down or look past,” and Mourey could not conduct the test. Mourey

asked Watkins if she wanted to continue the roadside testing and

Watkins refused, stating, “If I’m screwed, I’m screwed.” Mourey

arrested Watkins and invoked the express consent statute, § 42-4-

1301.1, C.R.S. 2024, to conduct further testing. Watkins initially

agreed to a breath test after her arrest, but refused after she was

taken to jail.

3
¶8 The prosecution charged Watkins with DUI or DWAI as a

fourth or subsequent offense, child abuse, and careless driving.

The jury found Watkins guilty of DWAI and child abuse, but not

guilty of careless driving. This appeal followed.

II. Issues on Appeal

¶9 Watkins raises five issues on appeal. First, she argues that

there was insufficient evidence of her prior qualifying DUI/DWAI

convictions to convict her of felony DWAI. Second, she contends

that the district court erred by excluding lay witness testimony

about her mental condition. Third, she contends the court erred by

admitting evidence she asserts was irrelevant and prejudicial.

Fourth, she argues the prosecution impermissibly lowered its

burden of proof in closing arguments. Lastly, Watkins contends

that even if individual errors do not merit reversal, she was

cumulatively deprived of a fair trial.

¶ 10 Watkins argues that her felony DUI conviction should be

vacated and replaced with misdemeanor DUI and that her

convictions should be reversed. We affirm her convictions.

4
A. Sufficiency of the Evidence for Watkins’ Prior DUI/DWAI
Offenses

¶ 11 Watkins first argues that the prosecution failed to present

sufficient evidence proving that she was previously convicted of

three or more qualifying DUI/DWAI offenses. She contends that the

evidence presented — court records and a Colorado Division of

Motor Vehicles (DMV) report — failed to prove that Watkins was the

person who committed the prior offenses. The prosecution

contends that the evidence presented was sufficient, and that

Watkins is essentially asking us to reweigh the evidence in her

favor.

1. Standard of Review and Applicable Law

¶ 12 “When a defendant challenges the sufficiency of the evidence,

he or she is asserting that the prosecution has not proven every fact

necessary to establish the crime at issue, and thus, it has not

established that the defendant, in fact, committed a crime.” McCoy

v. People, 2019 CO 44, ¶ 20. Regardless of whether a sufficiency

claim was preserved, “[w]e review the record de novo to determine

whether the evidence presented was sufficient in both quantity and

quality to sustain a defendant’s conviction.” Id. at ¶¶ 27, 63.

5
¶ 13 To make this determination, reviewing courts apply the

substantial evidence test to gauge “whether the relevant evidence,

both direct and circumstantial, when viewed as a whole and in the

light most favorable to the prosecution, is substantial and sufficient

to support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.” Id. at ¶ 63

(citation omitted). However, “[a]n appellate court may not serve as a

thirteenth juror and consider whether it might have reached a

different conclusion than the jury. Nor may an appellate court

‘invade the province of the jury’ by second-guessing any of the jury’s

findings that are supported by the evidence.” People v. Harrison,

2020 CO 57, ¶ 33 (citations omitted).

¶ 14 Section 42-4-1301(1)(b), C.R.S. 2024, provides that “[a] person

who drives a motor vehicle . . . while impaired by alcohol or by one

or more drugs . . . commits [DWAI]. . . . [I]t is a class 4 felony if the

violation occurred after three or more prior convictions . . . for DUI,

DUI per se, or DWAI.” Because “the legislature intended to include

the fact of prior convictions as an element of the offense,” the

prosecution must prove beyond a reasonable doubt that a

defendant has three or more qualifying convictions to obtain a

6
conviction for felony DWAI. Linnebur v. People, 2020 CO 79M,

¶¶ 2, 24, overruled in part by People v. Crabtree, 2024 CO 40M,

¶¶ 32-40.

¶ 15 To prove a defendant’s identity, “the prosecution must

establish an essential link between the prior conviction and the

defendant. This . . . requires . . . present[ing] some documentary

evidence combined with specific corroborating evidence of

identification connecting the defendant to the prior felony

conviction.” Gorostieta v. People, 2022 CO 41, ¶ 2. The “types of

corroborating evidence that a prosecutor might seek to introduce

vary widely” and may include, but are not limited to,

(1) evidence specifically identifying the
defendant; (2) unique identifiers such as a
driver license, prison identification number, or
social security number; (3) photographs or
fingerprints from the prior case that link that
case to the current defendant; (4) a physical
description from the prior case that can be
compared to the defendant in the present case;
(5) distinguishable features of the defendant
such as tattoos; or (6) testimony of probation
officers or others with personal knowledge
positively identifying the defendant as being
the same person who had previously been
convicted.

7
Id. at ¶ 27. That said, however, “the mere fact that the defendants

in the present and prior cases have the same name and date of

birth, without more, will generally be insufficient.” Id. at ¶ 28.

2. Analysis

¶ 16 To prove that Watkins had three prior DUI/DWAI convictions,

the prosecution first admitted a certified copy of Watkins’ DMV

driving record. The driving record indicated that Watkins was

convicted of (1) DWAI on May 23, 2006, in Adams County; (2) DUI

on January 28, 2009, in Denver; and (3) DWAI on September 6,

2011, in Denver. The driving record provided Watkins’ full name

(Cassidy Jean Watkins), a picture, a fingerprint, a physical

description matching Watkins’ appearance, and an Aurora address.

The driving record redacted Watkins’ date of birth (DOB), but the

DMV record custodian’s certificate provided her DOB — which

matched the North Dakota driver’s license that Watkins provided to

police before her arrest — and stated that “[a] search of our records

has revealed that this is the only subject with this name and

[DOB].” For all three listed convictions the prosecution admitted

supporting court records that largely corresponded with the DMV

driving record.

8
¶ 17 For the first DWAI conviction in 2006, the prosecution

admitted an Adams County sentencing order showing Watkins was

convicted of DWAI. The order identified Watkins by her full name

and a DOB matching her North Dakota license, though the order

was dated May 31, 2007. But an additional court document related

to the 2006 DWAI conviction had the same case number as the

sentencing order (003369), had Watkins’ full name and matching

DOB, and showed the sentence date as May 23, 2006, matching the

driving record. The additional document also came from Adams

County, provided a ticket number (2494492) and violation date

(August 23, 2005), and a physical description of Watkins, all

matching the driving record.

¶ 18 For the second 2009 DUI conviction the prosecution

introduced a court document showing that Watkins was convicted

of DUI (with a prior DWAI) for a violation on April 23, 2008,

(matching the violation date in the driving record for Watkins’

second conviction) and identifying her as Cassidy J. Watkins with a

matching DOB. The case number in the court document also

matched the violation number in the driving record (08M07391).

9
¶ 19 For Watkins’ third conviction the prosecution admitted a court

document showing that Watkins was convicted of DWAI (as a third

subsequent offense) for a violation on July 15, 2011, matching the

violation date in the driving record. The document identified her as

Cassidy J. Watkins with her matching DOB, and the case number

in the document matched the violation number in the driving record

(11M07618).

¶ 20 Generally, the supporting court documents all corroborate the

DMV driving record. But Watkins’ home address in her driving

record never matched the court records, which were different for

each conviction, as were her listed phone numbers.

¶ 21 Giving the prosecution the benefit of every reasonable

inference, McCoy, ¶ 63, we conclude that the prosecution admitted

sufficient evidence for a jury to reasonably conclude that Watkins

had three prior qualifying DWAI/DUI convictions. It is true, as

Watkins points out, that some of the information in the driving

record and the court documents for each offense is inconsistent —

namely, the addresses and phone numbers. Only the court

documents from the 2006 conviction contained a physical

description of the defendant, and none included fingerprints to

10
compare to the driving record. But most of the information in the

court documents and the driving record supported that Watkins

was the individual who committed the various offenses. See People

v. Burdette, 2024 COA 38, ¶¶ 56-59 (In finding the prosecution’s

admitted DMV record evidence and court records were sufficient for

a jury to find that the defendant committed felony DUI, the court

noted that, “[w]hile the court records did not precisely match the

DMV records in all respects, the major details generally synced

up.”).

¶ 22 Each court document identified Watkins by name (although

sometimes with a middle initial) and included a DOB that matched

the North Dakota license she provided to police. And the DMV

record custodian’s certificate attested that there were no other

records for an individual with Watkins’ name and DOB. Further,

there was more information in the documentary evidence than just

Watkins’ name and DOB. And each violation in the driving record

corresponded to the case numbers or a violation number in the

court documents.

¶ 23 Furthermore, the later court documents indicated that the

defendant had prior DUI/DWAI offenses, with the 2009 conviction

11
noting the defendant had a prior DWAI conviction and the 2011

conviction detailing that it was a third offense. The driving record

also contained a photograph of Watkins the jury could view and

compare to her appearance in court. Lastly, aside from the date

from the first court record associated with the 2006 conviction

(which linked to another document with a matching date), nothing

in the court records or driving record provided conflicting

information that might raise doubts that they were associated with

Watkins.

¶ 24 In sum, the prosecution provided sufficient documentary and

corroborating evidence for a jury to reasonably link Watkins to the

three prior convictions, as required to convict her of felony DWAI.

See Gorostieta, ¶¶ 2, 27; see also Burdette, ¶¶ 56-59. We therefore

affirm Watkins’ felony DWAI conviction.

B. Lay Mental Condition Evidence

¶ 25 Watkins next challenges the court’s decision to exclude lay

witness testimony concerning her mental condition. She contends

that the evidence was admissible under CRE 701 and section 16-8-

109, C.R.S. 2024, without requiring her to plead not guilty by

reason of insanity (NGRI). She argues the evidence’s exclusion

12
prevented her from arguing that a mental condition (bipolar

disorder) — not intoxication — explained her erratic behavior at the

time of her arrest. The prosecution responds that the court allowed

much of the evidence Watkins sought to admit, minimal evidence

was properly excluded, and any error was harmless.

1. Additional Background

¶ 26 Watkins endorsed two lay witnesses ahead of trial, Matt

Martin and Daniel Toquero. A prosecution investigator spoke with

Toquero (he could not reach Martin), and Toquero said that he

planned to testify at trial that he knew Watkins “was not taking

medication. After the incident she started taking her medication

again . . . [and] her behavior” was different; she was not “as

hyperactive.” The prosecution moved to preclude Martin and

Toquero from testifying, arguing that they were unqualified to testify

to Watkins’ mental health diagnoses, treatment, and medical

history.

¶ 27 Defense counsel responded that Watkins’ “mental condition

and behavior is relevant to explain her behavior on the night of the

alleged offenses and to rebut the assertion that she was under the

influence.” Counsel added that “testimony regarding what Ms.

13
Watkins is like with and without medication and what Ms. Watkins’

‘hyperactivity’ looks like is relevant to explaining how her behavior

on the date of offense is consistent with the manifestations of her

mental condition generally as opposed to intoxication.” Counsel

explained that Watkins was not pursuing an NGRI plea, and that

section 16-8-109 permitted her “to call lay witnesses to testify as to

their observations of Ms. Watkins’ actions and conduct, and to

conversations with Ms. Watkins bearing upon her mental

condition.” Counsel also clarified that Watkins was not seeking to

admit “testimony regarding a specific diagnosis or any other

testimony which would require scientific, technical, or other

specialized knowledge.”

¶ 28 Section 16-8-109 provides,

In any trial or hearing in which the mental
condition of the defendant is an issue,
witnesses not specially trained in psychiatry or
psychology may testify as to their observation
of the defendant’s actions and conduct, and as
to conversations which they have had with him
bearing upon his mental condition, and they
shall be permitted to give their opinions or

14
conclusions concerning the mental condition
of the defendant.[1]

The court found that section 16-8-109 did not apply. It reasoned

that while this provision on its face would permit the testimony

Watkins sought to admit, its context in article 8 of title 16 — which

deals with insanity — indicated that it only comes into play when a

defendant’s sanity or mental condition is at issue as a formal

defense. But the court declined to exclude all of Watkins’ lay

witness testimony outright, excluding only “testimony about the

effects of the defendant’s medications or any mental health

diagnosis” offered without proper foundation and notice.

¶ 29 Defense counsel later asked for clarification of this ruling and

objected to the court’s interpretation of section 16-8-109. The court

clarified that it “denied the People’s request to exclude the

particular witness[’] . . . testimony outright . . . [and] did not restrict

1 Section 16-8-109, C.R.S. 2024, and other provisions in title 16,

article 8, were amended by the Colorado legislature in 2025 with
the changes set to go into effect on August 6, 2025. Ch. 15, secs.
15, 28, § 16-8-109, 2025 Colo. Sess. Laws 50, 59. Unless otherwise
noted, this opinion refers to the version of section 16-8-109 in effect
at the time of Watkins’ offense and trial. The version of the statute
in effect then and the amended version are substantively the same
however. See id. at 50.

15
the defense . . . from [presenting] those witnesses.” The court

further allowed Watkins to submit an offer of proof under seal to

determine what testimony it would permit.

¶ 30 Watkins’ offer of proof explained that she sought to admit the

following testimony from Martin:

1. The defense may call defense-endorsed
witness, Matt Martin.

2. Mr. Martin has known Ms. Watkins for
seven years and was previously [Ms. Watkins’
roommate].

3. Mr. Martin was speaking to Ms. Watkins
daily or weekly and was in contact with Ms.
Watkins on the date of the alleged offense in
this case.

4. Mr. Martin has observed Ms. Watkins both
intoxicated and sober.

5. Mr. Martin knows Ms. Watkins to have a
mental condition.

6. Mr. Martin has observed Ms. Watkins both
on and off medication.

7. When Ms. Watkins[] is off-medication, Mr.
Martin has observed Ms. Watkins to be more
talkative, hyper, off-topic, and manic.

8. Mr. Martin has observed Ms. Watkins to act
in this manner while sober on numerous
occasions.

16
¶ 31 After reviewing the offer of proof, the court again found that

section 16-8-109 did not allow for the admission of all of Martin’s

lay testimony evidence. The court noted that Watkins had not

pleaded a mental condition defense, and the statute’s context in the

insanity statutes did not allow for the admission of the proffered

evidence when Watkins’ mental condition or sanity was not at

issue. But the court added that “[o]bservations that comport with

the normal rules [of evidence]” would be admissible. “So a person

saying, for example, . . . I’ve known Ms. Watkins for five years and

. . . I’ve seen her when she’s intoxicated, I’ve seen her when she’s

sober, I know what she looks like . . . that’s not excluded” because

this testimony would be based on a witness’ personal knowledge.

The issue of medications specifically was murkier, with the court

explaining that testimony about Watkins’ medications and mental

diagnoses would generally not be admissible, but some limited

17
testimony could be admissible depending on “if the witness could

actually say it’s medications.”2

¶ 32 Martin testified that he was Watkins’ former roommate and

that they had “hung out together” for “seven plus years” and that

around April 2019 he had seen or spoken with Watkins almost

daily. Martin testified that Watkins had asked for help the day of

her arrest because her car was experiencing mechanical issues, but

when he arrived she was gone. Martin also testified that he had

seen Watkins when she was sober and intoxicated; and when he

was asked, “Without going into what they are or what they are for,

have you seen her take pills before,” Martin said, “Yes. I have.” The

defense then asked, “Is there a difference in her behavior when she

does not take those pills from when she does?” The prosecution

objected. The court allowed the question while cautioning that the

defense could not introduce evidence through a lay witness

concerning medications, diagnoses, or treatment.

2 Watkins filed a petition pursuant to C.A.R. 21 with the Colorado

Supreme Court for review of the issue. The Supreme Court initially
ordered a rule to show cause but later reversed this decision, noting
that the rule to show cause was granted “improvidently” and
returned jurisdiction to the district court.

18
¶ 33 Martin then responded that when Watkins did not take her

pills she was “[j]ust more talkative, . . . off the wall [and] . . .

bouncing around in the conversation.” Martin added that Watkins

was like this when she was sober and she did not seem intoxicated

over the phone the day of the arrest, “[j]ust stressed out and upset.”

Finally, Martin testified that he did not know if she had taken her

pills that day.

2. Standard of Review and Applicable Law

¶ 34 “We review a trial court’s exclusion of evidence for an abuse of

discretion.” People v. Johnson, 2019 COA 159, ¶ 35, aff’d, 2021 CO

35. “A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair, or based on an erroneous

understanding of the law.” People v. Day, 2023 COA 115, ¶ 14 (cert.

granted in part Dec. 23, 2024). And because this issue was

preserved but the alleged error did not entirely foreclose Watkins

from presenting her mental condition defense at trial, we review it

for nonconstitutional harmless error. Johnson, ¶ 35; see also

Hagos v. People, 2012 CO 63, ¶ 12. Under this standard, “we

reverse if the error ‘substantially influenced the verdict or affected

19
the fairness of the trial proceedings.’” Hagos, ¶ 12 (citation

omitted).

¶ 35 “Unless otherwise provided by constitution, statute, or rule, all

relevant evidence is admissible.” People v. Salazar, 2012 CO 20,

¶ 16. But “the right to present a defense is not absolute; the

Constitution requires only that the accused be permitted to

introduce all relevant and admissible evidence.” Id. at ¶ 17.

Relevant evidence may be excluded “if its probative value is

substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations

of undue delay, waste of time, or needless presentation of

cumulative evidence.” CRE 403.

¶ 36 Lay witnesses may testify to “opinions or inferences which are

(a) rationally based on the perception of the witness, (b) helpful to a

clear understanding of the witness’ testimony or the determination

of a fact in issue, and (c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” CRE 701.

“[T]he critical factor in distinguishing between lay and expert

testimony is the basis for the witness’s opinion.” Venalonzo v.

People, 2017 CO 9, ¶ 22. “Expert testimony . . . goes beyond the

20
realm of common experience and requires experience, skills, or

knowledge that the ordinary person would not have.” Id.

3. Analysis

¶ 37 We need not decide whether the district court erred by

excluding Watkins’ proffered testimony on the grounds that section

16-8-109 required her to plead NGRI or impaired mental condition

because, even assuming without deciding that this was error, most

of Martin’s proffered testimony was admitted — and the remaining

testimony would have been impermissible expert testimony by a lay

witness barred by CRE 701. See People v. Dyer, 2019 COA 161,

¶ 39 (“[A]n appellate court may affirm a lower court’s decision on

any ground supported by the record, whether relied upon or even

considered by the trial court.”). Any assumed error was therefore

harmless because it did not substantially influence the verdict or

affect the fairness of the trial, so it does not merit reversal. See

Hagos, ¶ 12.

¶ 38 On appeal Watkins argues she was harmed because she was

unable to introduce evidence that she “(1) had a mental condition

for which she took medication, (2) was off her medication on the

date of offense, and (3) that her behavior on video was consistent

21
with how she acts while sober and off her medication.” As detailed

in the offer of proof, Watkins proposed to have Martin testify that he

knew Watkins had a “mental condition,” that she took “medication,”

and that without this medication she was “more talkative, hyper,

off-topic, and manic.” Watkins concedes that she “did not seek to

introduce her bipolar disorder diagnosis.”

¶ 39 As a lay witness Martin properly testified that (1) he knew

Watkins for years and spoke to her almost daily; (2) he had seen her

sober and intoxicated; (3) he saw her take “pills” that affect her

behavior; (4) without these pills she was more “talkative” and

“bounc[ed]” around in conversations; (5) she was like this when she

was sober; (6) she did not seem intoxicated when he spoke with her

on the phone the day of her arrest, “[j]ust stressed and upset”; and

(7) he was unaware if she took her pills that day. Watkins was able

to introduce nearly everything in her offer of proof, except that

Watkins had a “mental condition” and took “medication” rather

than “pills.”

¶ 40 Martin could, and did, testify to behavior he personally

observed, but as a lay witness he could not have speculated as to

what mental condition afflicted Watkins. Such testimony would

22
have clearly been expert testimony requiring specialized knowledge.

See CRE 701; see also Dunlap v. People, 173 P.3d 1054, 1098 (Colo.

2007) (allowing a lay witness to testify to a defendant’s specific

diagnosis “could only be considered expert opinions under the rules

of evidence” and was inadmissible via section 16-8-109).

¶ 41 Admitting this testimony through Martin would have

introduced an unverifiable possibility that Watkins had an

unnamed mental condition without any means to determine

(1) whether Watkins was actually diagnosed with a specific

condition and (2) the importance of such a diagnosis.3 Martin

certainly could not have answered such questions on cross-

examination, leaving the jury to speculate. See People v. Gonzales,

666 P.2d 123, 128 (Colo. 1983) (“[V]erdicts in criminal cases may

not be based on ‘guessing, speculation or conjecture.’”) (citation

omitted).

¶ 42 To discuss whether she had a mental condition, how her

proposed mental conditions affected her, or what medication she

3 We do not comment on the potential veracity of Watkins’ claims

concerning her mental health or potential diagnoses. We merely
emphasize that, as a lay witness, Martin was not properly able to
opine on these issues without expert knowledge.

23
was taking to manage this, Watkins needed expert testimony. See

Venalonzo, ¶ 22; CRE 701, 702. And while Watkins would have

preferred the term “medication” over “pill,” Martin’s testimony

conveyed what Watkins sought to elicit at trial — she regularly took

something that made her less talkative and more focused in

conversations, and it was unclear whether she had taken such pills

that day. The jury had all the information that Martin could

provide.

¶ 43 So, even assuming without deciding that the district court

erred by excluding the proffered testimony under section 16-8-109,

(1) most of Martin’s testimony was admitted and (2) what was

excluded was expert testimony per CRE 701 and 702. Any

assumed error was therefore harmless and does not warrant

reversal. See Hagos, ¶ 12.

C. Irrelevant and Prejudicial Evidence

¶ 44 Watkins next contends that the district court erred by

admitting irrelevant and prejudicial evidence: (1) Mourey’s

testimony that she believed she had enough evidence to invoke the

express consent statute and the “screening process”; (2) bodycam

footage of Watkins receiving a Miranda v. Arizona, 384 U.S. 436

24
(1966), advisement, thus violating her right to remain silent;

(3) statements about officers’ concerns for Watkins’ child; and (4)

Watkins’ statements that she was being persecuted for being white.

Watkins preserved each claim and argues the claims warrant

reversal. We address each contention in turn but conclude the

court did not err.

¶ 45 “In order to be admissible, evidence must be relevant; and

unless otherwise provided by constitution, statute, or rule, all

relevant evidence is admissible.” People v. Rath, 44 P.3d 1033,

1038 (Colo. 2002). And “[e]vidence is relevant, in the logical sense,

as long as it . . . [tends] [‘]to make the existence of any fact that is of

consequence to the determination of the action more probable or

less probable than it would be without the evidence.’” Id. (quoting

CRE 401).

¶ 46 “Colorado Rule of Evidence 403 strongly favors the admission

of relevant evidence, so the evidence should be given its maximum

probative value and minimum prejudicial effect. Evidence is

unfairly prejudicial where it introduces into the trial considerations

extraneous to the merits, such as bias, sympathy, anger, or shock.”

People v. Greenlee, 200 P.3d 363, 367 (Colo. 2009) (citation

25
omitted), overruled on other grounds by Rojas v. People, 2022 CO 8,

¶ 4; see also People v. Robinson, 908 P.2d 1152, 1156 (Colo. App.

1995), aff’d, 927 P.2d 381 (Colo. 1996).

¶ 47 “The trial court has considerable discretion to determine the

relevancy, admissibility, probative value, and prejudicial impact of

evidence.” People v. Cordova, 293 P.3d 114, 118 (Colo. App. 2011).

A trial court’s decision to admit evidence is
reviewed for abuse of discretion and will be
disturbed on appeal only if it was manifestly
arbitrary, unreasonable, or unfair. When the
defense properly objects to the admission of
evidence, harmless error review applies, and
reversal is required if the error affects the
defendant’s substantial rights.

Perez v. People, 2015 CO 45, ¶ 22 (citation omitted).

1. Express Consent and the Screening Process

a. Additional Background

¶ 48 Before trial, Watkins moved to exclude officer testimony

concerning express consent, Watkins’ refusal of the breath test, and

discussions of probable cause. Watkins argued this testimony

would impermissibly imply that, because of a pretrial “screening

process,” “only guilty parties are charged with crimes and thus the

defendant must be guilty.” Watkins argued such testimony was

26
irrelevant and prejudicial. The prosecution argued testimony

showing that officers established probable cause was relevant

because “it’s important for the jury to understand the progress of

the [DUI investigation] . . . and why . . . Ms. Watkins was under the

obligation to take this [breath] test” after officers invoked express

consent.

¶ 49 The court admitted the testimony, explaining that, “[i]n a DUI

case, the establishment of probable cause plays somewhat of a

different role than it would for other types of charges. And that’s

primarily based on the fact that in a DUI case you have to establish

probable cause in order to invoke Express Consent.” Thus, while

probable cause testimony would normally be irrelevant, in a DUI

case evidence concerning officers’ investigation and the decision to

invoke express consent is “part of the evidence.” The court ruled

that officers could testify “about what they observed and what that

evidence shows and, based on that information, what did they do

next,” but it warned that if the prosecution needed to discuss the

probable cause standard it would need to be careful.

27
¶ 50 During trial probable cause and express consent came up

several times. During voir dire the prosecution explained express

consent, over Watkins’ objection, stating,

In Colorado, any person who chooses to drive
on our roads gives their consent to submit to a
blood or a breath test if an officer has probable
cause . . . to believe that the person is driving
under the influence or driving while ability
impaired. So what that means is, they can’t
just . . . ask a random person to submit to a
blood or breath test. But when that happens,
they can ask — the person . . . whether they
will take a blood or a breath test.

¶ 51 Watkins later objected to bodycam footage in which Mourey

opined that Watkins was intoxicated, arguing this impermissibly

allowed Mourey to opine about Watkins’ guilt. The court overruled

the objection. The court distinguished the DUI context from the

situation in People v. Mendenhall, 2015 COA 107M, ¶ 63, where an

“investigator’s statements regarding how many potential cases he

received each year and in how many of those cases charges were

brought constituted inadmissible evidence” because a jury needed

to be able to understand a DUI officer’s investigative process.

¶ 52 Mourey testified that when conducting a DUI investigation,

“[f]irst, I want to determine if there is impairment. And if there is

28
impairment, then I’m going to make an arrest.” Mourey then

testified about the “stages” of a DUI investigation. Testifying to

Watkins’ arrest specifically, Mourey explained that after Watkins

refused to conduct field sobriety testing Mourey was unable to “rule

out” intoxication. Based on the totality of the evidence, including

the items near the car, the odor of alcohol, Watkins’ “glassy eyes”

and inconsistent statements, and the refusal to conduct the

roadside tests, Mourey arrested Watkins and “invoked Express

Consent.”

¶ 53 Finally, the jury received an instruction on express consent

noting that anyone who drives a motor vehicle in Colorado may be

required to complete a breath or blood test to determine drug or

alcohol impairment when requested by a “law enforcement officer

having probable cause to believe that the person was driving a

motor vehicle” while intoxicated. The instruction added that the

jury could consider Watkins’ refusal to conduct a breath test as

evidence of DUI or DWAI.

b. Analysis

¶ 54 Section 42-4-1301.1(1) and (2)(a)(I) provides that all drivers in

Colorado expressly consent to

29
take and complete, and to cooperate in the
taking and completing of, any test or tests of
the person’s breath or blood for the purpose of
determining the alcoholic content of the
person’s blood or breath when so requested
and directed by a law enforcement officer
having probable cause to believe that the
person was driving a motor vehicle in violation
of the prohibitions against [DUI or DWAI].

A driver may typically choose between a blood or breath test, or

may refuse testing. People v. Montoya, 2024 CO 20, ¶¶ 22, 24. “In

the administrative context, the price of refusal is revocation of the

driving privilege.” Id. at ¶ 23. “But in a criminal trial, . . . a refusal

is admissible because it may provide circumstantial evidence that

the driver knew (or at least suspected) that taking the test would

produce incriminating evidence of guilt.” Id. at ¶¶ 27, 32 (“A

driver’s refusal to submit to testing is also probative because it may

suggest consciousness of guilt.”).

¶ 55 “When probable cause to charge a defendant is not at issue

. . . the prosecution’s presentation of evidence about charging

decisions may imply that, because of a pretrial screening process,

only guilty parties are charged with crimes and thus the defendant

must be guilty.” Mendenhall, ¶ 62. Such “screening process”

testimony is prohibited because it “hint[s] that additional evidence

30
supporting guilt exists that is unknown to the jury, and also

reveal[s] the personal opinion of the witness” as to guilt. Id.; see

also Domingo-Gomez v. People, 125 P.3d 1043, 1052-53 (Colo.

2005).

¶ 56 Yet “in some circumstances, police officers may testify about

the reasons they took certain investigative steps, even where this

testimony touches upon prohibited subjects.” People v. Penn, 2016

CO 32, ¶ 32. Compare id. at ¶¶ 25, 33 (officer’s testimony, “I had

reason to arrest him for a crime that had been committed,” was not

plain error because it merely “provided context for his action and

simply explained, as a factual matter, why he called [the defendant]

as the next step in his investigation”), and Davis v. People, 2013 CO

57, ¶ 22 (“[D]etectives’ testimony did not constitute an improper

credibility opinion . . . because it was offered to provide context for

the detectives’ interrogation tactics and investigative

decisions . . . .”), with People v. Mullins, 104 P.3d 299, 301 (Colo.

App. 2004) (plain error for an officer to testify about probable cause

and the warrant’s issuance because “[t]he facts that the police

believed they had enough evidence and that a judge found there

31
was probable cause to arrest defendant had no rational tendency to

prove that defendant committed” the charged crimes).

¶ 57 In this case, as the district court noted, officers’ discussion of

probable cause in the DUI/DWAI context is a unique situation. To

invoke express consent, law enforcement officers must conclude

they have probable cause to do so as part of their investigation, in

accordance with section 42-4-1301.1(1) and (2)(a)(I), and as

accurately explained in the jury’s instructions.

¶ 58 Whether probable cause exists to invoke express consent does

not establish the defendant’s guilt, but it is relevant testimony

needed to explain the investigation. See Penn, ¶¶ 25, 32, 33; see

also Davis, ¶ 22. Given the law on express consent and the

corresponding jury instruction, had Mourey not testified to whether

she had a basis to invoke express consent the jury would have been

forced to speculate as to whether Mourey believed probable cause

existed.

¶ 59 Furthermore, the prosecution did not offer this testimony to

prove that Watkins committed DUI or DWAI, nor did it suggest that

Mourey’s invocation of express consent meant that Watkins was

guilty. See Mendenhall, ¶ 62. Mourey testified to what a DUI/DWAI

32
investigation entails, the relevant legal standard, and what she

observed to justify invoking express consent. These investigative

steps and observations were permissible in this context. See Penn,

¶¶ 25, 32, 33. The district court did not err by admitting this

testimony.

2. Watkins’ Miranda Advisement

¶ 60 Next, Watkins contends that the court erred by admitting

bodycam footage of her Miranda advisement, which she argues

violated her constitutional right to remain silent. Watkins says the

footage was irrelevant and “its only purpose was to imply that [she]

invoked her right to remain silent.” She adds that showing her

Miranda advisement before she refused the breath test allowed the

prosecution to tie these actions together and indirectly use Watkins’

silence as evidence of guilt.

¶ 61 The prosecution responds that under section 42-4-1301(6)(d),

a defendant may not invoke the privilege against self-incrimination

to block evidence of a refusal to complete or cooperate with testing.

Given that Watkins referenced Miranda when refusing breath

testing, the video of her Miranda advisement was relevant. Further,

33
the prosecution contends it never encouraged the jury to find that

Watkins was guilty because she invoked her right to remain silent.

a. Additional Background

¶ 62 The challenged footage shows Watkins in jail after her arrest

and opens with Watkins being read her Miranda rights, which

Watkins says she understands, before the officer asks, “So do you

still want to talk to me about certain things?” and Watkins says

“yeah.” The video then cuts to Watkins being led by Mourey to

speak to another officer, who attempts to confirm that Watkins

agreed to conduct a breath test. Watkins responds, “No, I refuse to

do it.”

¶ 63 After confirming her decision, Watkins explains to Mourey that

she is refusing the test in part because she was provided her

Miranda rights. Mourey then explains the potential consequences

of refusal, including the revocation of Watkins’ license and the

installation of a breath monitoring device in her car, and Watkins

again refuses testing. The video then cuts again and ends with

Watkins requesting “just a drug test.”

¶ 64 Before trial, Watkins objected to the admission of the first

portion of the video. The prosecution argued that juries expect to

34
see a Miranda advisement as part of an investigation, and it was not

commenting on Watkins’ choice to remain silent.

¶ 65 The court ruled that based on Watkins refusing a test the

video was not a comment on Watkins’ right to remain silent. There

was no violation because the footage was “just a plain body-worn

camera of a defendant who is Mirandized and speaks to law

enforcement. . . . Just the . . . general fact that someone is

Mirandized on video is not a commentary on [Watkins’] right [to

remain silent.]” The court added that the video’s relevance was to

rebut the contentions that “law enforcement didn’t take the proper

steps,” “jumped to conclusions,” or “made assumptions,” and to

explain that a Miranda advisement is part of the investigatory

process.

b. Analysis

¶ 66 “It is well established that ‘the prosecution may not refer to a

defendant’s exercise of h[er] Fifth Amendment right to remain silent

in the face of accusation.’” People v. Burnell, 2019 COA 142, ¶ 45

(quoting People v. Key, 522 P.2d 719, 720 (Colo. 1974)). But

“[r]eversal is only required where the prosecutor’s comment on the

defendant’s exercise of the right creates an inference of guilt or

35
where the prosecutor argues that the defendant’s silence

constituted an implied admission of guilt.” Id. at ¶¶ 45-50 (that a

“prosecutor stated that [the defendant] answered several questions,

and then chose to exercise his right to remain silent” was

misconduct, but it did not warrant a mistrial because it was brief

and not detailed, and the court issued a curative instruction).

Because Watkins preserved this issue, we review it de novo for

constitutional harmless error. See People v. Gallegos, 2023 COA

47, ¶ 88, aff’d, 2025 CO 41.

¶ 67 Because the jury could consider Watkins’ refusal to conduct

testing, Montoya, ¶¶ 27, 32, the Miranda advisement — which she

relied on as her reason for refusing testing — had some relevance

that was not substantially outweighed by improper considerations

in violation of CRE 403.

¶ 68 Even assuming it was error to admit the challenged portion of

the footage, any error was harmless. That the jury saw Watkins’

Miranda advisement does not equate to an improper comment on

her right to remain silent. Despite Watkins’ contention otherwise,

the prosecution made no comments that created an “inference of

guilt” or “an implied admission of guilt.” Burnell, ¶ 45. Indeed,

36
Watkins agreed to speak to police — waiver of her Miranda rights is

not contested on appeal — so it is unclear how her later refusal to

cooperate with testing or her statements on the video implicate her

right to remain silent. See People v. Cuellar, 2023 COA 20, ¶ 49 (In

rejecting an undeveloped argument, “we are unaware of . . . any

Colorado case holding that a reference to an officer’s provision of a

Miranda warning to the defendant, without more, violates the

defendant’s right against self-incrimination.”).

¶ 69 The court did not err by admitting the footage, and even if this

was error, it was harmless. See Burnell, ¶ 45.

3. Officers’ Statements About Watkins’ Child

¶ 70 Next, Watkins argues that the court erred by admitting

bodycam footage showing officers’ statements concerning the safety

of Watkins’ daughter who was in the backseat of her car. Watkins

contends the statements were irrelevant and overly prejudicial

because the prosecution “implied that [she] was a bad mother” and

inflamed the jury’s passions against her. The prosecution responds

that (1) the child’s presence in the car was relevant to the child

abuse charge, and (2) Watkins’ conflicting statements about

whether someone could pick up the child were relevant for the

37
DWAI or DUI charge because they demonstrated her inconsistent

statements and behavior.

a. Additional Background

¶ 71 During Watkins’ arrest police officers raised concerns about

her child. The bodycam footage shows that after Watkins was

arrested, she asked to call her mother, and Mourey said, “Yeah.

Because we need somebody to come pick the child up, is she

nearby?” Mourey added, “[W]e don’t like people drinking and

driving on these roads, especially with a child in the car.” Mourey

suggested that a family member pick up her child rather than social

services, but Watkins said she had “no one to help.” Eventually,

officers were able to contact Watkins’ mother, and she agreed to

pick up the child.

¶ 72 Before trial, Watkins objected to mentions of her child in the

backseat. But the court found that the statements were not

unfairly prejudicial and were relevant to the charges. Moreover,

instructions to the jury to consider each charge separately would

remedy any prejudice. The court excluded part of the video where

Mourey noted that having social services take the child would be

“more traumatizing to the child.”

38
b. Analysis

¶ 73 The court did not err by admitting the challenged footage

because the statements were relevant and were not substantially

outweighed by the risk of unfair prejudice. See Greenlee, 200 P.3d

at 367; see also Robinson, 908 P.2d at 1156.

¶ 74 Watkins’ and the officers’ statements concerning the child

revealed that the child was in the car while Watkins was driving,

and the child would have been endangered again if Watkins

continued to drive while intoxicated. See § 18-6-401(1)(a), C.R.S.

2024 (“A person commits child abuse if such person causes an

injury to a child’s life or health, or permits a child to be

unreasonably placed in a situation that poses a threat of injury to

the child’s life or health . . . .”). Further, as the prosecution notes,

Watkins’ conflicting statements were relevant for the intoxication

charge because they showed her behavior at the time of her arrest,

providing circumstantial evidence of intoxication. See § 42-4-

1301(1)(f), (1)(g) (defining DUI and DWAI). And while the

expressions of concern for the child could have been prejudicial,

none of the challenged statements were so prejudicial as to

improperly inflame the jury’s passions. Greenlee, 200 P.3d at 367;

39
CRE 403. As a result, the court did not abuse its broad discretion

by admitting the footage. See Perez, ¶ 22.

4. Watkins’ Statements About Persecution for Being White

¶ 75 Watkins next contends that the court erred by admitting

bodycam footage showing Watkins’ statements alleging that she was

being persecuted for being white and accusations that apartment

complex residents hated her “for being white.” Watkins concedes

that these “rambling, illogical statements” might show intoxication

(though she contested this and offered her mental condition as her

explanation), but she argues other evidence could have conveyed

this point. And she argues that, while potentially relevant, the

statements’ relevance was substantially outweighed by the risk of

unfair prejudice because of the strong feelings her statements could

invoke in the jurors. The prosecution responds that the statements

were relevant to show Watkins’ “strange and illogical behavior” and

were sufficiently probative of Watkins’ intoxication.

a. Additional Background

¶ 76 While interacting with the officers before her arrest Watkins

explained she was in the area to return items to her ex-boyfriend

(who was not home), but the community disliked her and, because

40
she was white, “basically I’m not allowed in this area . . . this is

Mexican owned now . . . so just because I’m white when I come

through they will call the cops on me.”4 She later stated again that

she believed she was targeted for being white, that she “wasn’t dirty

enough for them,” and that the apartment manager would lie to

police because he “will flag anybody who is not from the cartel.”

Watkins added that she could not get an apartment in the building

because she was not a “prostitute,” did not “sell drugs,” and was

“the minority here . . . [and they] treated [her] like shit” because she

was white.

¶ 77 Pretrial Watkins moved to exclude these, and similar,

statements because they were overly prejudicial, while the

prosecution argued they were relevant to show Watkins’

“nonsensical and illogical responses and demeanor in her responses

to police questioning.” The court found the statements to be more

probative than prejudicial and allowed them.

4 Watkins made other similar statements throughout her

interactions with police. We have excerpted some of her statements
here to illustrate the main point of these statements as relevant for
the issue on appeal.

41
b. Analysis

¶ 78 As Watkins concedes on appeal, the statements demonstrated

that Watkins responded to police questioning with nonsensical,

rambling, and illogical statements. These statements were relevant

circumstantial evidence of Watkins’ potential intoxication. See

§ 42-4-1301(1)(f), (1)(g). Undoubtedly the statements were

prejudicial to Watkins, but they were not so prejudicial that the jury

would have based its decision on improper considerations, nor did

the risk of prejudice substantially outweigh their relevance. See

Greenlee, 200 P.3d at 367; CRE 403. The court did not abuse its

discretion by admitting the challenged footage. See Cordova, 293

P.3d at 118; see also Perez, ¶ 22.

D. The Prosecution’s Closing Argument

¶ 79 Next, Watkins argues that the prosecution lowered its burden

of proof during closing arguments. Specifically, Watkins challenges

the prosecution’s comments during rebuttal closing argument that

the jury must “look at the pieces of evidence and see what they

point to. And if they point to guilty — if in a totality they point to

her guilt, then you must find the defendant guilty.” The

prosecution responds that, viewed in context, the isolated

42
comments simply asked the jury to consider the totality of the

evidence, which is proper; and even if error occurred, it was

harmless.

1. Standard of Review and Applicable Law

¶ 80 It is improper for a prosecutor to make comments that may

potentially lower the burden of proof or misstate the law. See

Cuellar, ¶¶ 66-69. “In a claim of prosecutorial misconduct, the

reviewing court engages in a two-step analysis. First, it 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 of review.” Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010) (citation omitted). Each of these steps is “analytically

independent” of the other, potentially allowing a prosecutor’s

comments to be improper but also harmless. Id.

¶ 81 “We must evaluate claims of improper argument in the context

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

jury.” People v. McMinn, 2013 COA 94, ¶ 60. And “[i]n doing so, we

recognize that prosecutors have wide latitude in the language and

style they choose to employ, . . . [so] reviewing courts accord

43
prosecutors the benefit of the doubt when their remarks are

ambiguous or simply inartful.” Id. (citation omitted).

¶ 82 Because Watkins preserved this argument by

contemporaneously objecting to the statements implicating the

burden of proof, we review Watkins’ claim of prosecutorial

misconduct for constitutional “harmless error, which requires

reversal if there is a reasonable probability that any error by the

trial court contributed to the defendant’s conviction.” People v.

Duncan, 2023 COA 122, ¶ 34; see also Cuellar, ¶ 62; Hagos, ¶ 11.

2. Analysis

¶ 83 The challenged comments were made early in the

prosecution’s rebuttal closing argument. The prosecution argued,

When you get back to the jury deliberation
room, if you have different details you are
focused on, different perspectives, perfect.
Great. Compare. That’s the point of having a
jury with different life experiences and
different perspectives and observations.

And I want to point out that no single piece of
evidence proves this case. It couldn’t, right?
There’s more than one element to each of these
charges.

So what you have to do is look at the pieces of
evidence and see what they point to. And if
they point to guilty — if in a totality they point

44
to her guilt, then you must find the defendant
guilty. If we’ve proven it beyond a reasonable
doubt —

Watkins objected but was overruled. The prosecution continued,

Beyond a reasonable doubt. And the defense
points out correctly the burden is on the
prosecution, on the People to prove this
case. . . .

Well, let’s look at the evidence. You cannot
speculate. We talked about those pieces of
evidence pointing to the result. If you have a
piece of evidence, and . . . if there’s not a piece
of evidence, if you’re guessing, if you’re
wondering, if you’re speculating, oh, what if?
What if that said something else? That does
not apply in your role as a juror. So apply the
evidence that is in front of you.

Watkins contends the prosecutor’s assertion that if the evidence

“point[s] to guilty — if in a totality [it] point[s] to her guilt, then you

must find the defendant guilty” was improper.

¶ 84 While these statements, in isolation, do not properly represent

the prosecution’s burden of proof, when viewed in context and

considering the totality of the arguments, they did not lower the

prosecution’s burden of proof. See Wend, 235 P.3d at 1096; see

also McMinn, ¶ 60.

45
¶ 85 The prosecution pointed out that it had to prove the case

“[b]eyond a reasonable doubt” and added that “[as] the defense

points out correctly the burden is . . . on the People to prove this

case.” And the prosecution emphasized the proper burden of proof

repeatedly throughout closing arguments. For example, at the start

of closing argument the prosecutor stated, “The Judge just

instructed you on the elements of the offense. And these are the

things that the People have to prove beyond a reasonable doubt.

Nothing less, but also nothing more.” And at the end of closing the

prosecution reiterated, “The People have to prove this case beyond a

reasonable doubt and we have done that. A reasonable doubt is

doubt based on reason. It is not vague, speculative, or imaginary.

It is not beyond all doubt.” As a result, even if the challenged

comments were inartful, these isolated “pointing” comments do not

demonstrate that the prosecution lowered its burden of proof. See

Wend, 235 P.3d at 1096; see also McMinn, ¶ 60; People v. Carter,

2015 COA 24M-2, ¶ 60.

¶ 86 Furthermore, the court properly instructed the jury on the

correct burden of proof. The jury’s instructions provided, in

relevant part,

46
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.

The court also explained, “It is my job to decide what rules of law

apply to the case. While the attorneys may comment on some of

these rules, you must follow the instructions I give you.” “Absent

evidence to suggest otherwise, we presume that the jury followed

these instructions.” Carter, ¶ 59.

¶ 87 Considering the court’s proper instructions on the

prosecution’s burden of proof, and the isolated nature of the

prosecution’s comments when viewed in context, the comments did

not lower the prosecution’s burden of proof. See Carter, ¶¶ 59-60;

see also Wend, 235 P.3d at 1096; McMinn, ¶ 60.

47
E. Cumulative Error

¶ 88 Finally, Watkins contends that even if the individual errors

alleged above do not warrant reversal individually, in the aggregate

they deprived her of a fair trial and merit reversal. The prosecution

responds that cumulative error did not occur.

¶ 89 Cumulative error may warrant reversal “when ‘the cumulative

effect of [multiple] errors and defects substantially affected the

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

process.’” Howard-Walker v. People, 2019 CO 69, ¶ 24 (alteration in

original) (citation omitted). To reach this conclusion, we “must

identify multiple errors that collectively prejudice the substantial

rights of the defendant, even if any single error does not.” Id. at

¶ 25.

¶ 90 We have concluded for all of Watkins’ claims raised on appeal

that the district court did not err, or that any assumed error was

harmless. And the assumed errors, considered together, did not

substantially affect the fairness or integrity of Watkins’ trial to the

point that reversal is warranted. See id. (“Stated simply, cumulative

error involves cumulative prejudice.”).

48
III. Disposition

¶ 91 We affirm Watkins’ DWAI and child abuse convictions.

JUDGE HARRIS and JUDGE BERNARD concur.

49