Peo v. Ryan

23CA1783 Peo v Ryan 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1783
Arapahoe County District Court No. 22T931
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Therese Collette Ryan,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE SCHUTZ
Fox and Harris, 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, Samantha Almon, Deputy
State Public Defender, Centennial, Colorado, for Defendant-Appellant
¶1 Therese Collette Ryan appeals her judgment of conviction for

driving while ability impaired (DWAI). We affirm the judgment.

I. Background and Procedural History

¶2 Ryan’s conviction is supported by the following evidence

presented at trial.

¶3 Just after midnight on February 5, 2022, Officer Michael

Lopez pulled Ryan over after observing her crossing, or on, the

dividing line between lanes. After stopping her, Officer Lopez

observed cans of Cutwater (an alcoholic beverage) in the front

passenger seat of Ryan’s car, and an empty Cutwater can in a trash

bag behind the center console.

¶4 Officer Lopez questioned Ryan about what she did prior to her

arrest. Ryan stated that she spent the evening with a male

companion during which she ate a salad, consumed a vodka tonic,

and had sex. She also disclosed that she had a fractured bone in

her foot and was on prescribed pain medication which she had last

taken at 5 p.m. After questioning Ryan, Officer Lopez asked her to

submit to a field sobriety test. Ryan agreed to do roadside

maneuvers, after which he arrested her. At the police station, Ryan

1
took a breathalyzer test which showed a blood alcohol content

(BAC) of .066.

¶5 Ryan was charged with DWAI, lane usage violation, and failure

to display proof of insurance.1 The county court set the matter for a

jury trial. In November 2022, a jury convicted Ryan of DWAI and a

lane use violation. After the county court sentenced her, Ryan

timely appealed to the district court and moved to stay her sentence

pending the outcome of the appeal.

¶6 During the appeal to the district court, it became clear that a

portion of the county court record central to the appeal was not

decipherable. The district court remanded the case to the county

court to settle the record, but those efforts were unsuccessful.

Ultimately, the parties agreed that the record could not be

reconstructed, and a new trial was set in the district court pursuant

to Crim. P. 37(g).

¶7 The district court trial was scheduled to begin on July 17,

2023. On the evening before the trial, Ryan’s counsel moved for a

continuance after Ryan provided her with the name and contact

1 The district attorney’s office later dismissed the failure to display

proof of insurance charge.

2
information of the previously unidentified man that she had spent

the evening with, Steve Davis. The next morning, the trial court

denied the continuance motion after concluding that Ryan failed to

exercise due diligence in providing Davis’s contact information to

counsel.

¶8 The case proceeded to trial in the district court, and the jury

convicted Ryan of DWAI but found her not guilty of the lane

violation. The trial court sentenced Ryan to 180 days in jail, which

it suspended subject to the successful completion of twelve months

of supervised probation, and a $200 fine. Ryan timely appeals the

conviction.

II. Continuance Motion

¶9 Ryan claims that the trial court abused its discretion when it

failed to continue the trial. We are not persuaded.

A. Additional Facts

¶ 10 Just after 7 p.m. on July 16 — the evening before the trial —

Ryan’s counsel filed a motion to continue and contemporaneously

endorsed Davis as a witness. Counsel stated that as soon as she

learned of Davis’s contact information, she scheduled a phone

3
interview with him. During the conversation, Davis revealed the

following:

• He and Ryan had known each other for approximately two

years and were in a casual relationship.

• He drank socially with her “probably three to four” times

and had a good sense of Ryan’s alcohol tolerance.

• They were together during the afternoon and evening of

February 4 (Ryan was arrested shortly after midnight on

February 5) at a hotel and watched a movie, consumed

drinks, and had sex.

• While they were together, Ryan had two or three drinks that

she did not finish, they were not drinking heavily, and

“there was not a lot of drinking going on.”

• He would have “intervened” and would not have let Ryan

drive home if she seemed impaired because he frequently

asks his friends and colleagues if they are safe to drive if

they have been drinking.

¶ 11 When asked if he could testify at the trial, Davis stated that

given the last-minute nature of the request, he could not take time

4
off work, as he was scheduled to fly out of town the next day, but

was willing to testify on a future trial date.

¶ 12 The next morning, the parties argued the continuance motion

before the trial started. Ryan’s counsel argued that granting a

continuance was appropriate under the circumstances because this

was the only continuance she had requested, Davis was a credible

and critical witness, and defense counsel acted diligently as soon as

she learned of Davis’s contact information. The court inquired

whether Ryan’s counsel could explain why Ryan had not disclosed

Davis’s identity for over a year. After consultation with her client,

counsel attributed Ryan’s failure to disclose Davis’s contact

information earlier to “personal reasons.”

¶ 13 The prosecution objected to a continuance due to the age of

the case and argued that Ryan’s counsel was on notice of the

possibility of Davis’s existence because of Ryan’s statement at the

time of her arrest that she had spent the evening with a man.

¶ 14 The trial court denied Ryan’s motion, finding that Davis’s

testimony would not “add anything or contradict” Officer Lopez’s

testimony; rather, it would add context to the events leading up to

the arrest. And, while acknowledging that Davis’s evidence was

5
“certainly important to the case,” the court concluded that the

delayed disclosure was not justified because Ryan did not provide

Davis’s name or contact information until immediately before trial.

Based on Ryan’s failure to exercise due diligence, the court denied

the motion.

B. Standard of Review and Applicable Law

¶ 15 We review an order resolving a continuance motion for an

abuse of discretion in view of the totality of the circumstances.

People v. Roybal, 55 P.3d 144, 150 (Colo. App. 2001). A court

abuses its discretion if its decision is manifestly arbitrary,

unreasonable, unfair, or based on an incorrect understanding of the

law. People v. Owens, 2024 CO 10, ¶ 65.

¶ 16 “When the continuance is sought to locate a missing witness,

the court may consider whether the movant exercised due diligence

to secure the witness’s attendance.” People v. Senette, 2018 COA

105, ¶ 9. “Other factors relevant to the trial court’s inquiry include

the prejudice the movant would suffer from the denial of a request

for a continuance, whether that prejudice would be cured by the

continuance, and the prejudice to the nonmoving party if the

continuance is granted.” Id.

6
C. Analysis

¶ 17 Ryan contends that the trial court denied her the right to

present a complete defense because only Davis could verify her

testimony concerning how much she had eaten and drunk that

evening, and the fact that she did not appear intoxicated. Because

the prosecution’s case was built on documentary evidence and

Officer Lopez’s testimony, Ryan argues the prosecution would not

have been prejudiced by the continuance. Ryan also argues that

the denial of the continuance left her with no practical alternative

but to testify on her own behalf and therefore compromised her

right to remain silent.

¶ 18 The People contend that the trial court did not abuse its

discretion by denying the motion because Ryan failed to act with

due diligence in identifying Davis, endorsing him as a witness, and

requesting a continuance.

¶ 19 As it relates to the prejudice inquiry, we agree with Ryan that

because Officer Lopez was the prosecution’s only witness, and its

case was largely based on documentary evidence, the prosecution

likely would not have suffered prejudice if the trial court had

7
granted Ryan’s motion. See Senette, ¶ 9. However, that is not

where our analysis ends.

¶ 20 We also need to consider whether the moving party “exercised

due diligence to secure the witness’s attendance,” and that is where

Ryan’s claim fails. Id. At trial, and on appeal, Ryan does not

provide any justification for not informing her counsel of Davis’s

identity and contact information for over a year, beyond attributing

it to “personal reasons.” We understand Ryan’s desire not to

disclose personal information, but she made this choice knowing

that Davis was a potentially relevant witness. Indeed, she went to

trial previously without disclosing Davis’s identity. And she did not

change her position until the eve of her new trial date. While the

denial of her continuance motion left her with a choice between “the

right to present a complete defense and the right to remain silent,”

this tension was the product of her unjustifiable delay in revealing

Davis’s identity.

¶ 21 Absent a reasonable explanation for the delayed disclosure, we

cannot conclude that the trial court abused its discretion by

denying the motion. See United States v. Nguyen, 526 F.3d 1129,

1134 (8th Cir. 2008) (the trial court’s discretion whether to grant or

8
deny a motion to continue “is at its zenith when the issue . . . is

raised close to the trial date.”)

III. Juror Challenges

A. For-Cause Challenge

¶ 22 Ryan contends that the trial court erred by failing to grant her

motion to strike Juror R for cause. The People disagree, arguing

that the trial court correctly concluded that Juror R stated that he

could consider all the evidence and could follow the controlling law.

1. Additional Facts

¶ 23 During voir dire, Ryan’s counsel asked Juror R whether he

could consider all the evidence and not rely solely on the results of

the breathalyzer test:

[Ryan’s Counsel]: Okay. So you wouldn’t be
able to consider sort of all the evidence as a
whole, that’s really going to be hard for you if
you have that test in front of you?

[Juror R]: I just think, like, behaviors are more
subjective. Like, so if you give me a number,
that — that’s yes or no they were impaired or
not.

¶ 24 Other potential juror members chimed in, discussing their

views about the weight to give a BAC test. After the conversation,

Ryan’s counsel asked Juror R follow up questions:

9
[Ryan’s Counsel]: You had said that — a few
minutes ago that that test would be sort of be
all you need to hear to determine impairment,
right? So same question to you. . . .

It sounds to me like you’re saying, you know,
you hear that test, that piece of evidence, and
that is all you need to hear to make your
decision about impairment and, you know,
make . . . the case; is that fair to say?

[Juror R]: Yes. I guess I’m not familiar with
the law —

[Ryan’s Counsel]: Sure.

[Juror R]: [S]o to me, like, impairment means
you, you know, blew or have a blood alcohol
level above a certain guideline. So if that’s the
case, then it’s going to be yeah.

...

[Juror R]: I would hear all of the evidence, but
same as everyone else has said, I feel like if
you — your blood alcohol level falls above what
it’s supposed to be —

[Ryan’s Counsel]: Uh-huh.

[Juror R]: [T]hat you’re legally impaired.

¶ 25 The court conducted rehabilitative questioning of Juror R:

[The Court]: [T]o follow up on some of the
questions about the numbers that were
referenced. This case — Ms. Ryan is charged
with driving while ability impaired. There is a
different charge in Colorado for driving under
the influence. And for driving under the

10
influence, if we assume it’s simply alcohol,
driving under the influence of alcohol, the
District attorney is required to prove that a
person drove with a blood alcohol
concentration above a particular number —
actually, it would be .08 or higher. That is not
the case here. That is not what Ms. Ryan is
charged with.

I anticipate giving the jury an instruction that
describes a permissive inference of what the
jury may do if a number is presented of .05 to
.08. And it is not an Instruction that tells you
the crime is committed if a person’s blood
alcohol level is in that range. It is an
instruction that you may infer certain things,
but you’re not required to. And, in fact, the
jury must consider all of the evidence that’s
presented in the case.

So I want to follow up with that information.
And [Juror R] with that information, do you
believe that you can listen to any numbers
that may be presented in this case and all of
the other evidence and not make a
determination until you’ve considered all of
that evidence and engaged in deliberations
with your fellow jurors at the end of the trial?

[Juror R]: I want to say yes, but if you can help
me understand. Like, you’re saying that if
there was a number between .5 [sic] and .08,
that doesn’t automatically mean that the
person is driving impaired; is that what you’re
saying?

[The Court]: That is what I’m saying. It does
not necessarily mean that. There is a
difference. . . .

11
There would be an instruction informing you of
what inference you are allowed to make, but
not required to make. The jury still has to
decide whether the Prosecution has proven
each element of the crime. So I don’t know if
that is helpful at all.

[Juror R]: That is helpful. Thank you.

...

[The Court]: So do you believe that you would
consider that evidence and all of the other
evidence?

[Juror R]: Yes.

[The Court]: Do you believe you’d shut down
when you hear a number?

[Juror R]: I don’t think so.

¶ 26 Ryan’s counsel moved to strike Juror R for cause, expressing

doubt that he could objectively consider all the evidence. The court

denied the challenge.

2. Standard of Review and Applicable Law

¶ 27 We review a trial court’s ruling on a for-cause challenge to a

prospective juror for an abuse of discretion. People v. Oliver, 2020

COA 97, ¶ 7. The court’s ruling will be reversed only if there is no

record support for it. People v. Palomo, 272 P.3d 1106, 1108 (Colo.

App. 2011).

12
¶ 28 To determine whether a potential juror should be struck for

cause, the trial court must consider whether the potential juror will

“be able to set aside any bias or preconceived notion and render an

impartial verdict based on the evidence adduced at trial and the

instructions given by the court.” People v. Clark, 2022 COA 33,

¶ 14 (quoting People v. Drake, 748 P.2d 1237, 1244 (Colo. 1988)),

aff’d, 2024 CO 55.

¶ 29 Defendants have a constitutional right to a fair trial, and an

impartial jury is essential to protecting that right. Id. at ¶ 13. A

court commits structural error if it denies a for-cause challenge by

seating a juror who is biased against the defendant. People v. Abu-

Nantambu-El, 2019 CO 106, ¶ 29. Thus, courts must sustain for-

cause challenges when a prospective juror evinces enmity or bias

toward the defendant. § 16-10-103(1)(j), C.R.S. 2024.

¶ 30 However, for-cause challenges are not meant to remove jurors

who merely misunderstand the law, provided that “after explanation

and rehabilitative efforts, the court believes that they can render a

fair and impartial verdict based on the instructions given by the

judge and the evidence presented at trial.” People v. Blassingame,

2021 COA 11, ¶ 12; see § 16-10-103(1)(j).

13
3. Analysis

¶ 31 Ryan contends that the trial court abused its discretion by

failing to remove Juror R for cause because his statements during

voir dire compelled the inference that he could not decide the issues

fairly due to his potential improper reliance on the BAC result.

¶ 32 The People reason that the trial court did not abuse its

discretion by denying Ryan’s for-cause challenge because after

rehabilitative questioning by the court, Juror R demonstrated that

he could follow the court’s instructions and appropriately weigh the

evidence. We agree.

¶ 33 A juror must be removed for cause if they evince “enmity or

bias toward the defendant.” § 16-10-103(1)(j). However, expressing

doubt or confusion about the law does not presumptively mean that

the juror is biased against the defendant. Here, Juror R initially

demonstrated that he might improperly rely solely on the BAC test

results. However, once the trial court explained the difference

between DWAI and driving under the influence, and that the jury

would be instructed on how the law works and what evidence to

consider, Juror R said that he could and would follow the court’s

instructions. Because the record supports the trial court’s

14
conclusion to deny Ryan’s challenge to Juror R for cause, we

discern no abuse of the trial court’s discretion.

B. Batson Challenge

¶ 34 Ryan contends that the trial court erred by denying her motion

under Batson v. Kentucky, 476 U.S. 79 (1986), challenging the

prosecution’s peremptory strike of Juror A, the only Black2

prospective juror.

1. Additional Facts

¶ 35 During jury selection, the prosecution exercised its third

peremptory strike on Juror A, the only Black juror in either the

presumptive panel or venire. Ryan’s counsel immediately raised a

Batson challenge.

¶ 36 In response, the prosecution first argued that there was no

basis for a Batson challenge because there was “no pattern” of

2 The trial court and parties refer to Juror A as an African

American. Although “Black” and “African American” are frequently
used to refer to people who are Black, the terms are not
interchangeable. Not all Black people self-identify as African
Americans. Because we do not know how Juror A self-identified, we
refer to him as Black rather than African American. See U.S. Nat’l
Insts. Health, Style Guide, https://perma.cc/Q3F3-XRPR (“Black is
broader and more inclusive than African American — someone . . .
could be born in Jamaica and live in the U.S. and identify as Black
but not African American.”).

15
using their peremptory challenges “for kicking people off.” In the

alternative, the prosecution offered the following race-neutral

explanations for the peremptory: Juror A indicated on his juror

questionnaire that he had a previous bad experience with law

enforcement and the prosecution favored another prospective juror

who was “more favorable to [them].”

¶ 37 The trial court found that Ryan’s counsel made a prima facie

showing of discrimination under Batson based on Juror A’s race,

expressly rejecting the notion that a party has the burden of

demonstrating a “pattern of practice” at step one of the Batson

process. Thus, the court found that there was a rebuttable

presumption that the challenge may have been used for an

improper purpose. The court then asked the prosecution if it had

any other race-neutral reasons for striking Juror A.

¶ 38 The prosecutor responded that Juror A was an “unknown” and

the prosecution had spoken to other panel members and

understood their positions on the issues in the case, and preferred

to have those other people sit as jurors rather than someone they

had not spoken with. The prosecutor also cited Juror A’s profession

as an engineer as a reason for the strike because the district

16
attorney’s office prefers to “try to avoid engineers as much as

possible” because “they don’t look favorably on our cases.”

¶ 39 Ryan’s counsel countered that two white prospective jurors

who were not excused — Juror R and Juror G — indicated they also

had previous negative experiences with law enforcement. Because

the prosecution did not move to strike either of them, and had not

even spoken with Juror A, Ryan’s counsel argued that the

peremptory strike of Juror A was pretextual.

¶ 40 After hearing from both parties, the court initially clarified that

the prosecution had the opportunity to speak to Juror A but elected

not to do so. Ultimately, the court concluded that the people

presented a race-neutral rationale for striking Juror A, reasoning as

follows:

• Juror A indicated that he had a prior bad experience with

law enforcement.

• Juror A indicated he was an engineer, and the prosecution

did not like to empanel engineers in cases like this.

• Juror A’s negative experience with law enforcement was

distinguishable from Juror R’s because the prosecution

questioned Juror R about his bad experience and concluded

17
that Juror R’s previous negative experience would not

negatively impact the prosecution. To the contrary, Juror

R’s views were favorable to the prosecution.

• The prosecution wanted to exercise its last peremptory

challenge to strike Juror A so that a prospective juror that

they saw as more favorable to the prosecution would be

seated on the panel.

¶ 41 The trial court also noted that, even though it is not a

dispositive factor, the court would have had “significantly greater

concerns if [Ryan] was a [Black] person.”

2. Standard of Review and Applicable Law

¶ 42 “The ‘Constitution forbids striking even a single prospective

juror for a discriminatory purpose.’” Foster v. Chatman, 578 U.S.

488, 499 (2016) (citation omitted). In particular, the Equal

Protection Clause forbids a party from using peremptory strikes to

excuse potential jurors on account of race. Batson, 476 U.S. at 89.

¶ 43 When a defendant raises a Batson challenge based on race, a

trial court applies a three-step analysis. People v. Wilson, 2015 CO

54M, ¶ 10. First, the defendant must make a prima facie showing

that the prosecutor struck the prospective juror based on race. Id.

18
To do so, the defendant must show that (1) the prosecutor struck a

juror of a cognizable racial group and (2) the totality of the facts

gives rise to an inference of purposeful discrimination. See Valdez

v. People, 966 P.2d 587, 589 (Colo. 1998). “[M]erely identifying

cognizable groups to which the excluded juror might have belonged”

is insufficient, without more, to establish a prima facie showing of

purposeful discrimination. People v. Morales, 2014 COA 129, ¶ 25.

But if the totality of the relevant circumstances raises an inference

of discriminatory motivation, the objecting party has satisfied their

step-one burden. Batson, 476 U.S. at 96.

¶ 44 At step two, the burden shifts to the prosecution to proffer a

race-neutral reason for excusing the prospective juror. See People

v. Ojeda, 2022 CO 7, ¶ 24. A race-neutral explanation is one that is

based on something other than the prospective juror’s race. Id.

¶ 45 At step three, after the objecting party has had a chance to

rebut the proffered race-neutral justification, the trial court must

decide the ultimate question of whether the objecting party has

established purposeful discrimination. Id. at ¶ 27. Purposeful

discrimination is established if “the proffered reasons are pretextual

and the prosecutor instead exercised peremptory strikes on the

19
basis of race.” Flowers v. Mississippi, 588 U.S. 284, 303 (2019).

The trial court must consider all the circumstances bearing on the

issue of purposeful discrimination, including the prosecutor’s

“demeanor, the reasonableness of the proffered race-neutral

explanations, and whether the rationales are rooted in accepted

trial strategy.” People v. Madrid, 2023 CO 12, ¶ 34. “[T]he ultimate

burden of persuasion regarding racial motivation rests with, and

never shifts from, the opponent of the strike.” Wilson, ¶ 14 (citation

omitted).

¶ 46 The trial court’s ruling at step three is a question of fact, and

we therefore review for clear error. Ojeda, ¶ 30. A step-three

determination is clearly erroneous only if it finds no support in the

record. People v. Beauvais, 2017 CO 34, ¶ 22. Thus, we accord the

trial court’s ruling “great deference and will only reverse under

‘exceptional circumstances.’” Id. at ¶ 25 (citation omitted).

3. Analysis

¶ 47 Ryan argues that the trial court erred by (1) failing to find that

the prosecution’s reasons for the peremptory strike were pretextual

and (2) impermissibly considering Ryan’s race when it made its

findings. We address each contention in turn.

20
a. Pretextual Claims

¶ 48 Ryan argues that the prosecution’s reliance on Juror A’s

questionnaire response about a prior negative experience with law

enforcement was pretextual because two white jurors also

responded that they had negative experiences with law enforcement

and the prosecution did not move to strike them. Ryan also argues

that the prosecution’s other proffered explanation for the strike —

an alleged preference not to empanel engineers — does not pass

muster as a race-neutral explanation because the prosecution did

not strike any of the other three prospective jurors who indicated

that they were engineers.

¶ 49 The People disagree, noting that the other two jurors who

reported they had negative experiences with law enforcement were

differently situated than Juror A: Juror G never made it to the

panel, and the prosecution questioned Juror R about his previous

experience and determined that it would not negatively impact the

prosecution. As to the other prospective jurors who identified as

engineers, the People note that two of them did not make it onto the

panel, and Ryan struck the other juror who identified as an

engineer with her second peremptory challenge.

21
¶ 50 As noted, we review step three of a trial court’s Batson

analysis for clear error, which means that reversal is only

appropriate if the finding was clearly erroneous. Ojeda, ¶ 30. Even

though we agree with Ryan that the prosecution’s proffered

explanations for striking Juror A are a bit thin, the trial court’s

rationale has record support and is therefore not clearly erroneous.

¶ 51 Juror A wrote that his “wife was insulted by an officer, [who]

said ‘are you blind.’” Ryan contends that this experience alone is

insufficient for the prosecution to conclude that striking Juror A

was appropriate considering that Juror R and Juror G’s responses

were similarly mild. However, as the People note, the prosecution

questioned Juror R and explored the extent of his alleged negative

experience, which was that a law officer wrongly cited him when he

was around twenty years old.

¶ 52 Furthermore, any concerns that the prosecution may have had

about Juror R were assuaged by his seemingly favorable views

toward the prosecution. It is permissible for either party to prefer a

juror who they think will respond favorably to their arguments.

Moreover, Juror G never made it to the panel, so the prosecution

had no reason to vet him further. The lack of questioning of Juror

22
A, combined with the belief that Juror R favored the prosecution’s

side, adequately distinguishes him from Juror A as it relates to the

seemingly disparate treatment.

¶ 53 The second proffered explanation, that the district attorney’s

office prefers to avoid engineers, was a race-neutral explanation for

striking Juror A. The prosecutor indicated that there is an office-

wide preference against selecting engineers for these kinds of cases.

Two of the potential jurors who indicated that they were engineers

never made it to the panel. Ryan struck the remaining engineer on

the panel, thus dissipating any suggestion that using the

peremptory on Juror A was not exercised on a race-neutral basis.

¶ 54 In sum, there is record support for the trial court’s factual

finding that the peremptory challenge of Juror A was not racially

motivated. Thus, we cannot conclude that the court clearly erred in

so finding. See Ojeda, ¶ 30.

b. The Trial Court’s Alleged Improper Reliance on Race

¶ 55 Finally, Ryan claims that the trial court misapplied the law

when it said that if Ryan was Black, it would have “significantly

greater concerns” about allowing the prosecutor to strike Juror A.

23
¶ 56 In support of her contention, Ryan relies on Powers v. Ohio,

which held that criminal defendants have standing to raise a

Batson challenge even if the juror does not share the same race as a

struck juror. 499 U.S. 400, 415 (1991) (“[A] defendant in a criminal

case can raise the third-party equal protection claims of jurors

excluded by the prosecution because of their race.”). This is true

whether the dismissed juror is of the same or a different race than

the defendant. Flowers, 588 U.S. at 301 (“A defendant of any race

may raise a Batson claim, and a defendant may raise a Batson

claim even if the defendant and the excluded juror are of different

races.”). Thus, Ryan had standing to pursue her Batson claim

regardless of whether she was the same race as Juror A.

¶ 57 In view of these authorities, the trial court’s notation that

Juror A and Ryan were not of the same race was inartful.

Nevertheless, we conclude that the trial court’s misapplication of

the law did not impact its decision to reject Ryan’s Batson

challenge. As the People note, the trial court did not state that

removing Juror A was acceptable because he was not the same race

as Ryan. Moreover, as we previously noted, the trial court

concluded, with record support, that the peremptory challenge to

24
Juror A was not racially motivated. The court’s improvident

observation about potentially greater concerns if Ryan was the

same race as Juror A does not negate that conclusion. Thus, we

discern no basis for reversal.

IV. Reasonable Doubt Instruction

¶ 58 Ryan also contends that the trial court abused its discretion

by denying her proposed reasonable doubt instruction and instead

giving the reasonable doubt instruction from the 2022 Colorado

Model Criminal Jury Instructions (COLJI). We disagree.

A. Additional Background

¶ 59 Prior to 2022, the COLJI contained the following definition of

reasonable doubt:

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.

People v. Melara, 2025 COA 48, ¶ 11; COLJI-Crim. E:03 (2021). In

2022, the Colorado Supreme Court’s Model Jury Instruction’s

Committee revised the model reasonable doubt instruction and

25
combined it with the presumption of innocence and burden of proof

into a single model instruction. See COLJI-Crim. E:03 (2022). The

2022 instruction reads as follows:

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

The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
than proof that something is highly probable,
but it does not require proof with absolute
certainty.

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty,
then the prosecution has failed to prove the
crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide
the prosecution has proven each of the
elements of a crime charged beyond a
reasonable doubt, you should find the
defendant guilty of that crime.

26
After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements of a crime charged
beyond a reasonable doubt, you should find
the defendant not guilty of that crime.

(Emphasis added.) The trial court’s reasonable doubt instruction

was consistent with this 2022 COLJI instruction.

B. Standard of Review and Applicable law

¶ 60 A trial court has a duty to properly instruct the jury on the

applicable law. People v. Claycomb, 2025 COA 36, ¶ 14 (citation

omitted). We review de novo whether the trial court’s instructions,

read as a whole, correctly instructed the jury on the controlling law.

Tibbels v. People, 2022 CO 1, ¶ 22. But we review “a trial court’s

decision to give, or not to give, a particular jury instruction for an

abuse of discretion.” People v. Payne, 2019 COA 167, ¶ 16.

¶ 61 Model jury instructions are not law and are not authoritative,

and courts are not bound by them. People v. Salazar, 2023 COA

102, ¶ 22 (citing Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009)).

Thus, using a model instruction does not provide trial courts with

“a safe harbor that insulates instructional error from reversal.”

Melara, ¶ 21 (quoting Garcia v. People, 2019 CO 64, ¶ 22).

27
¶ 62 In criminal cases, the prosecution has the burden of proving

every element of the crime charged beyond a reasonable doubt.

Johnson v. People, 2019 CO 17, ¶ 10. If the instructions provided

by the court lower the prosecution’s burden of proof, there is

structural error that mandates reversal. Melara, ¶ 20. We employ

a functional test to determine if “there is a reasonable likelihood

that the jury understood a contested instruction, in the context of

the instructions as a whole and the trial record, to allow a

conviction based on a standard lower than beyond a reasonable

doubt.” Tibbels, ¶ 36.

C. Analysis

¶ 63 At trial, Ryan objected to the tendered instruction, arguing

that it lowered the prosecution’s burden of proof. Specifically, Ryan

objected to the phrase that allowed the jury to convict if it was

“firmly convinced” of Ryan’s guilt, and the language that permitted

an acquittal only if there “was a real possibility” that Ryan was not

guilty. But Ryan does not discuss either of these phrases in the

opening brief, so we do not address them further.

¶ 64 Ryan’s sole contention on appeal is that the court’s instruction

did not contain important language from the most recent Tenth

28
Circuit Federal Instruction. See Tenth Cir. Crim. Pattern Jury

Instruction 1.05 (2025). Specifically, Ryan notes that the trial

court’s reasonable doubt instruction did not include the phrase

encouraging the jury to make a careful and impartial consideration

of all of the evidence in the case or the phrase directing the jury

that, if there is a real possibility that the defendant is not guilty,

you must give her “the benefit of the doubt” and find her not guilty.

See id. Thus, she argues, the trial court’s instruction should not be

approved based on federal precedent interpreting federal model

instructions, citing United States v. Taylor, 997 F.2d 1551, 1557

(D.C. Cir. 1993) (interpreting Pattern Criminal Jury Instruction 28

(Federal Judicial Ctr. 1988)). But neither this argument, nor the

remainder of Ryan’s appellate brief, addresses the controlling

question: whether the omission of these two phrases lowered the

prosecution’s burden of proof.

¶ 65 We are not aware of any authority stating that the omission of

these two phrases lowered the prosecution’s burden to prove Ryan’s

guilt beyond a reasonable doubt. Moreover, the trial court’s

instruction advised the jury that Ryan was presumed innocent, and

that presumption should be given effect unless, after considering all

29
the evidence, it was convinced that Ryan was guilty beyond a

reasonable doubt. It advised the jury that the prosecution must

prove every element of the crime, and that it must be firmly

convinced of Ryan’s guilt. And the instruction told the jury that it

must find Ryan not guilty if the prosecution has failed to prove any

element of the offense. We fail to see how omitting the two noted

phrases lowered the prosecution’s burden of proof.

¶ 66 Finally, although the cases were announced after the parties

completed their appellate briefs, we note that multiple divisions of

this court have concluded that the 2022 COLJI reasonable doubt

instruction did not lower the prosecution’s burden of proof. See,

e.g., Melara, ¶ 48; People v. Schlehuber, 2025 COA 50, ¶ 19.3 We

agree with those holdings, and therefore reject Ryan’s argument

that the trial court’s instruction impermissibly lowered the

prosecution’s burden of proof.

3 We also note that the divisions in People v. Melara, 2025 COA 48 ¶

48 and People v. Schlehuber, 2025 COA 50 ¶ 20, agree that absent
further direction from the supreme court, the better practice is for
trial courts to use the current COLJI reasonable doubt instruction,
which informs the jury that, “A reasonable doubt can be based on
the evidence presented or the lack of evidence presented.” COLJI-
Crim. E:03 (2024). We agree.

30
V. Cumulative Error

¶ 67 Finally, Ryan contends that the cumulative impact of the

asserted errors requires reversal. “For reversal to occur based on

cumulative error, a reviewing court must identify multiple errors

that collectively prejudice the substantial rights of the defendant,

even if any single error does not. Stated simply, cumulative error

involves cumulative prejudice.” Howard-Walker v. People, 2019 CO

69, ¶ 25 (citation omitted). Because we find no error, Ryan’s

cumulative error claim necessarily fails.

VI. Disposition

¶ 68 The judgment is affirmed.

JUDGE FOX and JUDGE HARRIS concur.

31