Peo v. Lovato

23CA0105 Peo v Lovato 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0105
Adams County District Court No. 19CR731
Honorable Thomas R. Ensor, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

David Daniel Lovato,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE PAWAR
Lipinsky and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 7, 2025

Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

T. Marshal Seufert, Alternate Defense Counsel, Boulder, Colorado, for
Defendant-Appellant
¶1 Defendant, David Daniel Lovato, appeals the judgment of

conviction entered on jury verdicts finding him guilty of felony

menacing, third degree assault, and driving while ability impaired.

We affirm.

I. Background

¶2 Lovato was upset with M.M., a member of his extended family.

He drove to her house and, while holding a screwdriver, walked up

the single flight of outdoor stairs to the front door of her apartment.

He banged on the door while holding the screwdriver and

threatened to kill her.

¶3 When Lovato walked away from the door and back down the

stairs, M.M. came outside. A scuffle ensued in which Lovato

punched M.M., she hit Lovato with a baseball bat, and M.M.’s

neighbor hit Lovato with a shovel. Eventually, Lovato retreated to

his car and remained there until police arrived.

¶4 The officer at the scene noticed that Lovato smelled like

alcohol, was slurring his speech, and was unsteady on his feet.

Lovato was arrested and taken to jail. While he was being booked,

he made several comments to the booking officer, including, “I

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should have finished the job,” and “When I get out, I’m going to kill

that bitch.”

¶5 Lovato was charged with felony menacing, third degree

assault, and driving under the influence of alcohol. The jury found

him guilty of felony menacing, third degree assault, and driving

while ability impaired. He was convicted and sentenced

accordingly.

¶6 Lovato appeals, arguing that the trial court made no fewer

than seven errors that entitle him to relief, either individually or

considered cumulatively. We conclude that none of Lovato’s

arguments warrant relief and affirm.

II. Constructive Amendment

¶7 A constructive amendment happens when a jury instruction

“changes an essential element of the charged offense and thereby

alters the substance of the charging instrument.” People v. Rediger,

2018 CO 32, ¶ 48 (quoting People v. Rodriguez, 914 P.2d 230, 257

(Colo. 1996)). To qualify as a constructive amendment, the jury

instruction must effectively expose a defendant to criminal liability

for an offense that was not originally charged. People v. Pahl, 169

P.3d 169, 177 (Colo. App. 2006).

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¶8 Lovato argues that the jury instructions on felony menacing

constructively amended that count. Reviewing de novo, Bock v.

People, 2024 CO 61, ¶ 16 n.3, we disagree.

¶9 Lovato argues that the instructions constructively amended

the deadly weapon element of felony menacing. The complaint

alleged that Lovato committed felony menacing “by use of a deadly

weapon or any article used or fashioned in a manner to cause a

person to reasonably believe that the article was a deadly weapon.”

The jury instructions articulated this element in an interrogatory,

but added the language italicized below:

The menacing involved the use or suggested
use of a deadly weapon only if . . . the
defendant committed the menacing by the use
of a deadly weapon or any article used or
fashioned in a manner to cause a person to
reasonably believe that the article was a deadly
weapon, or by representing verbally or
otherwise that he was armed with a deadly
weapon.

¶ 10 The added language in the jury instruction did not expose

Lovato to additional criminal liability. It simply articulated different

ways the prosecution could prove the deadly weapon element of

felony menacing. It did not expand or change that element. See

Rodriguez, 914 P.2d at 258 (finding no constructive amendment

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where jury instruction articulated more ways of satisfying sexual

penetration element of first degree sexual assault than complaint

did). We therefore conclude that this additional language did not

constitute a constructive amendment.

¶ 11 We also disagree with Lovato’s argument that the jury

instructions constructively amended the complaint because the

complaint named M.M. as the victim of felony menacing whereas

the jury instructions did not name a specific victim. As above, we

do not see how this language changed an essential element of the

offense in a way that exposed Lovato to possible conviction of a

noncharged offense.

¶ 12 But even if we were to agree with Lovato that the absence of

the named victim in the felony menacing instructions was

problematic for this or another reason, any unpreserved error was

not plain. See Bock, ¶ 14 (reviewing unpreserved constructive

amendment argument for plain error). Plain error must be

substantial, which means it must have so undermined the

fundamental fairness of the trial that it casts serious doubt on the

reliability of the conviction. See Hagos v. People, 2012 CO 63, ¶ 14.

That did not happen here.

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¶ 13 The prosecution’s closing argument made clear that M.M. was

the only victim of felony menacing. During closing argument, the

prosecutor recounted the evidence that supported the felony

menacing count:

Immediately after [Lovato] gets out of his car,
he starts yelling, “I’m going to kill you, you
bitch.”

And multiple people heard that threat. He
threatened [M.M.] with something worse than
serious bodily injury — with death.

And [M.M.] heard those threats. [Other
witnesses] heard those threats . . . they all
heard him threatening “I’m going to kill you.
You’re dead.”

¶ 14 Based on this argument, we conclude that any error in

omitting M.M. from the elemental jury instruction did not cast

serious doubt on the reliability of the conviction and therefore did

not constitute plain error. See Hagos, ¶ 14.

III. Legislative Amendment

¶ 15 Lovato next argues that he is entitled to the benefit of an

amendment to the felony menacing statute that took effect after his

conviction. We disagree.

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¶ 16 The act containing the amendment at issue provided that it

“applies to offenses committed on or after the applicable effective

date of this act.” Ch. 462, sec. 803(2), 2021 Colo. Sess. Laws 3332.

The act’s effective date was March 1, 2022. Sec. 803(1), 2021 Colo.

Sess. Laws at 3332. Because Lovato committed felony menacing in

2019, he was not entitled to the benefit of the act, including the

amendment to the felony menacing statute.

IV. Sufficiency of the Evidence

¶ 17 Lovato argues that the evidence was insufficient to support his

felony menacing conviction. He concedes that a screwdriver like the

one he held during the incident can be a deadly weapon. But he

argues it did not qualify as one because he was never in a position

to injure M.M. with it.

¶ 18 We reject this argument because it alleges the evidence was

insufficient to prove something that the prosecution did not need to

prove to convict him of felony menacing. In 2019, felony menacing

required only that a defendant place or attempt to place another

person in fear of imminent serious bodily injury with a deadly

weapon. § 18-3-206(1), C.R.S. 2019. Felony menacing did not

require that a defendant actually cause a victim to fear for their

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safety, much less actually be in a position to injure the victim with

a deadly weapon. Because the prosecution did not have to prove

that Lovato was in a position to use a deadly weapon against M.M.,

the sufficiency of the evidence on this point does not matter.

V. Lovato’s Statements During Booking

¶ 19 Next, on various grounds, Lovato challenges the admission of

the threatening statements he made while being booked. We

address each challenge separately, reviewing each alleged

evidentiary error for an abuse of discretion. See People v. Dean,

2012 COA 106, ¶ 38, aff’d, 2016 CO 14.

A. CRE 404(b) Challenge

¶ 20 CRE 404(b) excludes evidence of an uncharged act whose sole

relevance hinges on proving the defendant’s bad character and

asking the jury to infer that the defendant acted in conformity with

that bad character in committing the charged offense. However, if

there is an alternate theory of relevance that does not implicate this

bad character inference, CRE 404(b) does not prohibit admitting the

evidence. See People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990).

¶ 21 The challenged statement Lovato made to the booking officer

was, “I should have finished the job. When I get out, I’m going to

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kill that bitch.” As the prosecution points out, this statement was

relevant to prove Lovato’s intent in threatening M.M. And that

relevance did not require the jury to first infer anything about

Lovato’s character. Instead, the statement directly revealed Lovato’s

intent. We therefore conclude that CRE 404(b) did not render these

statements inadmissible.

B. CRE 403 Challenge

¶ 22 To the extent that Lovato argues that the statement was

separately inadmissible under CRE 403, we disagree. CRE 403

provides that relevant evidence may nevertheless be inadmissible if

its probative value is substantially outweighed by the danger of

unfair prejudice. When assessing a CRE 403 argument, we assign

to the evidence the maximum probative value and the minimum

unfair prejudice. People v. Gibbens, 905 P.2d 604, 607 (Colo.

1995).

¶ 23 The challenged booking statement was probative of Lovato’s

intent. Nevertheless, Lovato argues that it encouraged the jury to

return a verdict on the improper bases of “bias, shock, anger, and

sympathy.” But he does not explain how it encouraged the jury to

do this. And we do not see how it could have because the properly

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admitted evidence included Lovato making very similar statements

while at M.M.’s house.

C. Other Grounds and Other Testimony

¶ 24 In a separate section of his opening brief, Lovato argues that

the court should have suppressed some of his statements to the

booking officer under the Fifth Amendment and Miranda v. Arizona,

384 U.S. 436 (1966). But Lovato does not specifically identify

which statements he is challenging on this ground. We therefore

reject this contention as unsupported by substantial argument.

See People v. Relaford, 2016 COA 99, ¶ 70 n.2 (“We do not consider

bare or conclusory assertions presented without argument or

development.”).

¶ 25 Lovato also seeks to challenge the admission of testimony from

the arresting officer, claiming that various portions of it violated one

or more rules, including CRE 401, CRE 403, the hearsay rules, and

Lovato’s constitutional confrontation rights. But aside from

referencing the statements and simply naming the rules, he

presents no additional argument. He does not explain why the

identified testimony was inadmissible under the rules. We therefore

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do not address these challenges to the arresting officer’s testimony.

See Relaford, ¶ 70 n.2.

VI. Alleged Expert Testimony

¶ 26 Lovato argues that the arresting officer was allowed to give

expert testimony — that Lovato was intoxicated — without being

qualified as an expert. We review for an abuse of discretion,

Venalonzo v. People, 2017 CO 9, ¶ 15, and disagree.

¶ 27 Lay witnesses can give opinion testimony that is (1) rationally

based on their own perceptions; (2) helpful to determine a fact at

issue; and (3) not based on scientific, technical, or other specialized

knowledge. CRE 701. If opinion testimony is based on scientific,

technical, or other specialized knowledge, it is expert testimony and

the witness must be qualified as an expert before offering it. CRE

702. Under these rules, “[a] lay witness who has had sufficient

opportunity to observe the demeanor and conduct of another may

express an opinion [about] whether the latter was intoxicated.”

Morris-Schindler, LLC v. City & Cnty. of Denver, 251 P.3d 1076,

1083 (Colo. App. 2010).

¶ 28 Lovato challenges this portion of the arresting officer’s

testimony:

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Prosecutor: When you first contacted the
defendant, what did you know or notice?
Sorry.

Officer: I had him step out of the vehicle which
he was compliant with. I could smell an odor
of an unknown alcoholic beverage. He had
slurred speech, and he was unsteady on his
feet.

Prosecutor: Have you received training on how
to recognize indicators of intoxication?

Officer: Yes.

Prosecutor: What are some of those indicators?

Officer: Blood-shot watery eyes, slurry speech,
unable to maintain balance, unable to use fine
motor functions, reaching for things, grabbing
things slurred — I think I already said slurred
speech.

....

Prosecutor: You mentioned that the defendant
was uneasy on his feet, slurring his words,
strong odor of alcohol, what did that
combination indicate to you?

Officer: That he was under the influence of
alcohol.

¶ 29 We recognize that this testimony could be read to imply that

the officer’s assessment of Lovato’s intoxication was based on the

officer’s training on recognizing indicators of intoxication. But the

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officer’s opinion — that Lovato was intoxicated — was based on his

observations that Lovato was unsteady on his feet, was slurring his

words, and smelled like alcohol. This opinion, based on these

observations, is one that any lay person would and could give. We

therefore conclude that it was not expert testimony.

¶ 30 Lovato also challenges the arresting officer’s testimony that he

did not collect the bat and shovel used against Lovato because, in

the officer’s view, those items were not “used in any type crime [sic]

other than self-defense.” It is unclear to us whether Lovato argues

on appeal that this was impermissible expert testimony or

testimony that improperly invaded the province of the jury.

Regardless, we conclude it was properly admitted.

¶ 31 Officers can testify “about the reasons they took certain

investigative steps, even where this testimony touches upon

prohibited subjects.” People v. Penn, 2016 CO 32, ¶ 32. That is

what happened here. The officer gave the challenged testimony in

response to a question about why he conducted his investigation

the way he did — specifically, why he did not collect certain items

as evidence. Given this context, we conclude the testimony was

properly admitted.

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VII. Prosecutorial Misconduct

¶ 32 Lovato argues that the prosecutor engaged in numerous

instances of misconduct during closing argument. We review

claims of prosecutorial misconduct using a two-step analysis.

Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we

determine whether the prosecutor’s conduct was improper based on

the totality of the circumstances. Id. Second, if the conduct was

improper, we determine whether reversal is required under the

applicable standard of review. Id.

¶ 33 Prosecutors are afforded wide latitude in their chosen

language and style in closing arguments. People v. McMinn, 2013

COA 94, ¶ 60. And we give prosecutors the benefit of the doubt

when their remarks are ambiguous or inartful because arguments

delivered in the heat of trial are seldom perfectly scripted. Id.

¶ 34 We conclude that, considered in context, the following

challenged statements were not improper because they accurately

reflected the law of self-defense and were within the prosecutor’s

broad latitude to argue that the prosecution satisfied its burden of

proof and to respond to the defense’s arguments.

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• “The defendant does not get to say that he acted in self-

defense. It is offensive that he gets to claim self-defense

because [M.M.] came out onto her porch . . . . [I]t is

offensive to suggest that she was required to cower in her

home . . . .”

• “If I disprove any one of these conditions [referring to the

elements of self-defense], just one, self-defense doesn’t

apply here, and the defendant is guilty.”

• “If he’s the initial aggressor, no self-defense for the

defendant. He is guilty. And the evidence is abundantly

clear that he was the initial aggressor.”

• “[Lovato] was the initial aggressor. He does not get to

claim self-defense here. Don’t let him claim self-defense.

Hold him accountable for his actions by finding him

guilty . . . .”

¶ 35 We conclude that these next challenged statements were

proper comments on facts in evidence. See People v. Jamison, 2018

COA 121, ¶ 31 (prosecutor can comment on reasonable inferences

from facts in evidence).

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• “Immediately after he gets out of his car, he starts yelling,

‘I’m going to kill you, you bitch.’ . . . [M.M.] heard those

threats. [Other people heard those threats] — they all

heard him threatening ‘I’m going to kill you. You’re

dead.’”

• “I agree that self-defense applies in this case. But the

only people in this case that get to claim self-defense are

[M.M.] and [her neighbor].”

• “[Upset about a family custody decision, Lovato] decides

to get drunk, to drive to [M.M.]’s house, to jump out of

his car, threatening to kill her, arm himself with a

screwdriver, pounds on her door, still threatening to kill

her. Once he’s managed to lure her out of her house, he

goes from the yard, up the stairs to the back of the

balcony where he assaults her.”

¶ 36 Lovato also seeks to challenge other statements the prosecutor

made during closing argument. We decline to address these

challenges because Lovato either fails to identify the specific

statement he seeks to challenge, or he fails to provide a

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nonconclusory argument for why it was improper. See Relaford,

¶ 70 n.2.

¶ 37 In sum, we perceive no impropriety in the prosecutor’s

challenged statements.

VIII. Cumulative Error

¶ 38 Lovato argues that if none of the alleged errors warrant relief

individually, their cumulative effect does. We necessarily reject this

argument because we have identified, at most, only a single

possible error. See People v. Palmer, 2018 COA 38, ¶ 27.

IX. Disposition

¶ 39 The judgment of conviction is affirmed.

JUDGE LIPINSKY and JUDGE LUM concur.

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