Peo v. Counterman

21CA1982 Peo v Counterman 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1982
Jefferson County District Court No. 20CR1644
Honorable Lily W. Oeffler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael David Counterman,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Michael David Counterman, appeals the judgment

of conviction and sentence entered on a jury verdict finding him

guilty of first degree murder. We affirm.

I. Background

¶2 On the evening of April 4, 2020, Counterman fatally shot

Randi Ackerman outside of Ackerman’s apartment. Counterman,

who was attending a party nearby at his girlfriend’s house, was

drinking in the backyard when he learned that Ackerman, his

girlfriend’s former boyfriend, drove past the front of the house.

Counterman heard his girlfriend yell, “That’s my ex,” after which

point he got into his own truck and headed toward Ackerman’s

apartment. Counterman said he went to Ackerman’s apartment to

“speak [his] piece” and tell Ackerman to stay away from his

girlfriend.

¶3 The two got into a heated argument in the parking lot. The

argument became physical and Counterman “hit [Ackerman] in

[the] chest and [swept] his legs,” knocking Ackerman to the ground.

After the physical fight, Counterman said he walked back to his

truck and heard Ackerman tell him to “turn around.” When he

turned, he saw Ackerman with a gun at his side. Counterman

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claimed that he tried to turn and leave when Ackerman fired the

gun at him and missed. Counterman said he then disarmed

Ackerman and tried to leave with Ackerman’s gun.

¶4 As Counterman opened his truck door, Ackerman grabbed him

and pulled him away from the truck. Ackerman yelled for his gun

back, to which Counterman responded, “No . . . I don’t want to die

tonight. Do you want to die tonight?”

¶5 Ackerman continued to attempt to pull Counterman out of his

truck, at which point Counterman said he “[pulled] the trigger until

it stopp[ed] firing.” Once the gun stopped firing, Counterman felt

Ackerman let go. Counterman said he dropped the gun and left,

but the gun was never recovered.

¶6 Ackerman yelled for help. His girlfriend and several others

came to his aid. Ackerman told them that Counterman had shot

him. Once police and paramedics arrived, Ackerman was taken to

the hospital.

¶7 Shortly thereafter, neighbors saw Counterman drive back to

his girlfriend’s house, and one of them overheard Counterman tell

his girlfriend “I shot [Ackerman], I shot him.” That neighbor then

2
called 911, and the police took Counterman and his girlfriend to the

police station for questioning.

¶8 The prosecution charged Counterman with first degree murder

and a jury convicted him. The trial court sentenced him to the

custody of the Department of Corrections for life without the

possibility of parole.

¶9 Counterman contends the trial court erroneously (1) denied

his intervening cause defense and accompanying instruction as well

as his non-deadly force self-defense jury instruction; (2) precluded

expert testimony concerning the drugs and alcohol found in

Ackerman’s system; (3) admitted evidence that Counterman was

part of a motorcycle club and lived in a house with weapons

unrelated to the offense that should have been excluded under CRE

404(b); and (4) committed cumulative errors that deprived him of a

fair trial. We address and reject each of his contentions and affirm

the judgment.

II. Intervening Cause

¶ 10 Counterman contends that because he presented credible

evidence that Ackerman died from grossly negligent medical care,

3
the trial court erred by excluding his intervening cause defense and

related jury instruction. We disagree.

A. Additional Facts

¶ 11 Ackerman sustained gunshot wounds to the arm, legs, back,

and chest. The wounds to his arm, legs, and back were superficial

and nonfatal. The bullet that entered Ackerman’s chest pierced his

lungs. Several days later, Ackerman died from sepsis.

¶ 12 The parties offered conflicting expert opinions regarding

Ackerman’s perforated esophagus. The forensic pathologist testified

that these injuries were consistent with Ackerman’s bullet wound to

the chest and that the resulting sepsis was a complication of this

injury. By contrast, defense expert Dr. Michael Arnall opined

pretrial that medical personnel caused the perforation during a

later intubation and that delays in treating Ackerman with

antibiotics resulted in Ackerman’s respiratory failure and death.

¶ 13 Before trial, the defense moved to allow an intervening cause

defense and submitted Dr. Arnall’s affidavit and medical records as

evidence of gross negligence. The prosecution responded with their

own medical records and the opinions of the forensic pathologist

4
and treating physician that sepsis was caused by the gunshot

wounds.

¶ 14 The trial court denied Counterman’s motion and noted that

Dr. Arnall assessed Ackerman based on his condition when he had

already received significant medical treatment. The trial court

found that the Ackerman’s injuries, including the gunshot wound to

his chest, “would have certainly caused his death with little or no

medical treatment.” After the supreme court denied Counterman’s

C.A.R. 21 petition on this issue, the case proceeded to trial and the

trial court instructed the jury on intervening cause as follows:

A defendant is not relieved of liability if the
original wound would likely have been fatal
without medical treatment. One who has
inflicted a wound or injury upon another is
criminally responsible for the victim’s death
even where different or more skillful medical
treatment might have saved the victim’s life.

¶ 15 After trial, Counterman moved for a new trial and argued, in

part, that the trial court erred by not allowing evidence of

intervening cause. The trial court denied the motion.

B. Standard of Review and Applicable Law

¶ 16 The right to due process and a fair trial guarantee defendants

the right to present a defense. U.S. Const. amends. V, VI, XIV;

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Colo. Const. art. II, §§ 16, 25. Accordingly, trial courts must

properly instruct the jury on every element of the crime charged,

and the prosecution must prove each of those elements beyond a

reasonable doubt. Griego v. People, 19 P.3d 1, 7 (Colo. 2001).

¶ 17 As relevant here, to prove homicide, the prosecution must

prove “that the defendant’s conduct was the actual cause of death,

in the sense that it began a chain of events the natural and

probable consequence of which was the victim’s death.” People v.

Saavedra-Rodriguez, 971 P.2d 223, 225 (Colo. 1998); People v.

Gentry, 738 P.2d 1188, 1190 (Colo. 1987); Hamrick v. People, 624

P.2d 1320, 1323-24 (Colo. 1981). “[U]nder certain circumstances,

the defendant may be relieved of liability for the death of the victim

if there has been an independent intervening act.” Saavedra-

Rodriguez, 971 P.2d at 225. But only an intervening cause that is

not reasonably foreseeable will relieve a defendant of liability. Id. at

226. Unlawful conduct that is broken by an independent

intervening cause cannot be the proximate cause of injury to

another. Gentry, 738 P.2d at 1190; People v. Calvaresi, 534 P.2d

316, 319 (Colo. 1975), aff’d, 600 P.2d 57 (Colo. 1979).

6
¶ 18 An independent intervening cause “is an act of an independent

person or entity that destroys the causal connection between the

defendant’s act and the victim’s injury and, thereby becomes the

cause of the victim’s injury.” Saavedra-Rodriguez, 971 P.2d at 225-

26. “Three elements must be satisfied to establish an independent

intervening cause sufficient to relieve a defendant of responsibility”

for another’s death or injury. People v. Lopez, 97 P.3d 277, 282

(Colo. App. 2004). First, the defendant must not participate in the

intervening cause. Id. Second, the intervening cause must be one

but for which the death or injury would not have occurred. Id.

Finally, the intervening cause must not have been reasonably

foreseeable. Id. “A foreseeable act is one that ‘is likely enough in

the setting of modern life that a reasonably thoughtful person

would take account of it in guiding practical conduct.’” Garcia v.

Colo. Cab Co., 2023 CO 56, ¶ 22 (quoting Taco Bell, Inc. v. Lannon,

744 P.2d 43, 48 (Colo. 1987)). “[F]oreseeability is based on common

sense perceptions of the risks created by various conditions and

circumstances.” Id. (quoting Taco Bell, 744 P.2d at 48). Because a

defendant must satisfy all three elements to receive an intervening

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cause instruction, his failure to establish one element deprives him

of the affirmative defense. Lopez, 97 P.3d at 282.

¶ 19 In the case of medical treatment, mere negligence on the part

of a physician is foreseeable and does not constitute a defense.

Calvaresi, 534 P.2d at 318; People v. Stewart, 55 P.3d 107, 121

(Colo. 2002). However, “[g]ross negligence . . . is unforeseeable

behavior that may serve as an intervening cause.” Stewart, 55 P.3d

at 121; see People v. Sieck, 2014 COA 23, ¶¶ 9–11.

¶ 20 Gross negligence is abnormal human behavior that constitutes

“an extreme departure from the ordinary standard of care.” Lopez,

97 P.3d at 282; Calvaresi, 534 P.2d at 319. Put another way, gross

negligence is “willful and wanton conduct, that is, action committed

recklessly, with conscious disregard for the safety of others.”

Martinez v. People, 2024 CO 6M, ¶ 14 (quoting Hamill v. Cheley

Colo. Camps, Inc., 262 P.3d 945, 954 (Colo. App. 2011)); People v.

Smoots, 2013 COA 152, ¶ 10, aff’d sub nom. Reyna-Abarca v.

People, 2017 CO 15. But even an intentionally tortious or criminal

act will not immunize the defendant from liability if it was

reasonably foreseeable. Ekberg v. Greene, 588 P.2d 375, 376 (Colo.

1978). Indeed, “[a] failure to provide or select the best treatment,

8
and therefore save the victim, should not relieve the original

assailant of liability if the wound was of the type likely to result in

death if little or no treatment had been provided.” Saavedra-

Rodriguez, 971 P.2d at 228. Moreover, for gross negligence to

constitute a defense in a homicide case, “the maltreatment must

also be the cause but for which death would not have occurred.” Id.

at 226.

¶ 21 An intervening cause defense is treated like an affirmative

defense for the purpose of determining the quantum of evidence

necessary to submit the issue to the jury. Id. at 228; Smoots, ¶ 9.

Therefore, the defendant must produce a scintilla of evidence to

warrant the instruction. Saavedra-Rodriguez, 971 P.2d at 228.

However, it is the court, not the jury, that must determine, as a

threshold matter, whether sufficient evidence supports the

instruction. Id.

¶ 22 We review jury instructions de novo to determine whether the

instructions, as a whole, accurately informed the jury of the

governing law. People v. Theus-Roberts, 2015 COA 32, ¶ 18. If they

do, the trial court enjoys substantial discretion in formulating the

instructions and deciding whether additional instructions are

9
required. Id. We also review de novo whether sufficient evidence

exists to support a requested jury instruction, reviewing the

evidence in the light most favorable to giving the instruction.

Castillo v. People, 2018 CO 62, ¶ 32; People v. Silva, 987 P.2d 909,

914 (Colo. App. 1999). Additionally, we review a trial court’s

decision to give a particular jury instruction for an abuse of

discretion. People v. Singley, 2015 COA 78M, ¶ 40. A trial court

abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair or is based on a misapplication of the law.

People v. Maloy, 2020 COA 71, ¶ 54.

C. Analysis

¶ 23 Applying the three elements required to relieve a defendant of

liability due to an intervening cause, we conclude that Counterman

presented insufficient evidence to warrant an intervening cause

instruction.

¶ 24 Even assuming, without deciding, that Counterman showed

that he did not participate in the intervening cause and that

medical personnel provided Ackerman grossly negligent care that

was not foreseeable when his esophagus was perforated, we find

Saavedra-Rodriguez instructive and conclude that Counterman

10
failed to present any evidence that Ackerman would have survived

without treatment.

¶ 25 In Saavedra-Rodriguez, the defendant stabbed the victim in

the chest. 971 P.2d at 224. The victim was taken to the hospital

and later died. Id. The defendant then requested an intervening

cause instruction and made an offer of proof that several medical

practitioners would opine that the treating physician made errors in

his diagnosis and treatment and unnecessarily delayed treatment,

and that the victim would have had a better chance of survival

given proper and timely treatment. Id. at 225. He did not, however,

offer evidence that the substandard care was the cause of the

victim’s death. Id. Indeed, all the doctors would have testified that

the cause of death was the stab wound inflicted by the defendant.

Id. And the court held that grossly negligent medical care is not an

intervening cause unless the “initial wound would not have been

fatal without treatment.” Id. at 227. The court concluded that the

defendant failed to meet the foundational requirements necessary to

present the intervening cause defense because while he offered

evidence of improper medical care, he failed to show that the

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victim’s stab wound was unlikely to have killed the victim had little

or no treatment been provided. Id. at 228.

¶ 26 Here, no one disputes that the gunshot wound to Ackerman’s

chest was serious. The record shows that upon admission to the

emergency room, Ackerman required immediate intubation to assist

with his breathing, due to the significant chest trauma. Indeed,

hospital staff believed that Ackerman would have died within an

hour of the gunshot wound if he had not received treatment.

Ackerman then underwent bilateral surgeries to his chest from the

blast wounds, as well as a partial lung resection. The forensic

pathologist testified that the gunshot went through Ackerman’s

lungs and esophagus and that death would have occurred had little

or no treatment been provided. The trial court found, and the

record supports, that Counterman’s conduct (the act of shooting)

would have resulted in Ackerman’s death if little or no treatment

had been provided, including the delayed treatment of his sepsis.

Saavedra-Rodriguez, 971 P.2d at 227.

¶ 27 We are not convinced otherwise by Dr. Arnall’s affidavit, which

only addresses the result of the medical treatment rather than

Counterman’s act, the nature of the wound, the location of the

12
wound, and the natural and probable causes of the injury. See id.

at 226-27. Indeed, Dr. Arnall opined that the esophagus was

perforated after the initial surgeries when Ackerman had to be

intubated again, that sepsis developed, and that delays in treating

Ackerman’s sepsis constituted gross negligence that resulted in

death. However, Dr. Arnall never opined that Ackerman would have

survived the chest wound without the treatment he received upon

admission to the emergency room. Therefore, as in Saavedra-

Rodriguez, Counterman “offered proof of improper medical care,”

rather than offering “any evidence that would show the victim’s

wound was unlikely to result in death had little or no treatment

been provided.” Id. at 228.

¶ 28 As the trial court noted, Counterman’s defense, and Dr.

Arnall’s opinion in particular, was predicated on Ackerman’s status

“after receiving extensive medical care and surgery to repair the

damage from the shooting, to include removal of part of his lung.

Only after all of this has happened, does the defense opine gross

negligence occurred and caused [Ackerman’s] death.” We agree and

conclude that Counterman failed to produce sufficient evidence to

support an intervening cause defense or accompanying instruction.

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III. Self-Defense Jury Instructions

¶ 29 Counterman next contends that he was entitled to a non-

deadly force self-defense jury instruction that the court wrongly

refused. We disagree.

A. Standard of Review and Applicable Law

¶ 30 The parties dispute preservation. While acknowledging that

Counterman tendered a non-deadly force self-defense instruction,

the People claim that he was required to do more by making

arguments at the jury instruction conference. We disagree and

conclude that tendering the instruction sufficiently preserved the

issue for our review. People v. Tardif, 2017 COA 136, ¶ 10. We

apply the standard of review set forth in the previous section.

¶ 31 If there is some evidence to show that the defendant acted in

self-defense, the court must give a self-defense instruction. Id. at ¶

20. The “some credible evidence” standard — sometimes referred to

as the “some evidence,” “any credible [even if highly improbable]

evidence,” “a scintilla of evidence,” “a small quantum of evidence,”

and “any evidence standard,” Galvan v. People, 2020 CO 82, ¶ 24

(citations omitted) — is “‘exceedingly low’ making [the] preclusion of

an affirmative defense appropriate only when there is ‘simply no

14
evidence . . . in th[e] record’” to support it, People v. Jacobson, 2017

COA 92, ¶ 15 (quoting People v. Platt, 170 P.3d 802, 806 (Colo. App.

2007)). However, the jury should not be instructed “on abstract

principles of law unrelated to the issues in controversy.” People v.

Knapp, 2020 COA 107, ¶ 20 (quoting Castillo, ¶ 34). The trial court

must determine whether there is sufficient evidence to warrant an

instruction on an affirmative defense and any exceptions to that

defense. Castillo, ¶ 34.

[A] person is justified in using physical force
upon another person in order to defend
himself or a third person from what he
reasonably believes to be the use or imminent
use of unlawful physical force by that other
person, and he may use a degree of force
which he reasonably believes to be necessary
for that purpose.

§ 18-1-704(1), C.R.S. 2024.

¶ 32 A person may use deadly force only if, among other

circumstances, there are reasonable grounds to believe that they

are in imminent danger of being killed or of sustaining great bodily

injury. See § 18-1-704(1)-(2). Whether physical force is properly

considered “deadly” does not turn on the subjective intent of the

person using the force, but rather on the “objective likelihood that,

15
in the absence of some intervening circumstance, a result will

occur.” People v. Opana, 2017 CO 56, ¶ 14.

¶ 33 Moreover,

the assessment [of] whether or not physical
force arguably used in self-defense constituted
“deadly physical force” ceases to be a matter
for the jury only where the credible evidence
permits no other finding than that the physical
force used by the defendant would normally be
expected to, and in fact did, produce death.

Id. at ¶ 16.

B. Analysis

¶ 34 Counterman argues that the force he used against Ackerman

was not deadly force because, as he testified, he was not facing

Ackerman at the time of the shooting, and “most of the shots

caused superficial wounds” to Ackerman’s legs, arms, and back.

He argues this was sufficient to support a non-deadly force self-

defense instruction and to show that the force he used would not be

expected to produce death. We disagree and find Opana dispositive.

¶ 35 Counterman admitted firing the gun “until it stopped firing”

and presented nothing to show that multiple gunshots would not

normally be expected to produce death. The fact that some shots

proved nonfatal does not change the fact that the chest wound was

16
fatal. Indeed, hospital staff believed that without medical

intervention, Ackerman would have died within an hour of the

gunshot wound to his chest. Therefore, we discern no dispute

about whether the force used by Counterman was typical of what “a

normal or typical person would use only if he intended to produce

death” and instead conclude that Counterman’s multiple shots

“would normally be expected to, and in fact did, produce death.”

Opana, ¶¶ 15, 16. Accordingly, we discern no error in the trial

court’s decision not to instruct the jury on non-deadly self-defense.

IV. Expert Testimony

¶ 36 Counterman next contends the trial court abused its

discretion by not admitting expert testimony that Ackerman had

ingested cocaine and alcohol before the shooting. We disagree and

discern no abuse of discretion.

A. Additional Facts

¶ 37 Ackerman’s toxicology report upon admission to the hospital

revealed that he had alcohol, cocaine, and THC in his system. The

autopsy report also noted that blood tests revealed “recent cocaine

use.” The prosecution filed a motion to exclude this evidence as

17
irrelevant, and the court granted the motion, subject to

reconsideration if circumstances changed.

¶ 38 The defense endorsed self-defense and Sarah Urfer as an

expert in toxicology. Urfer opined that “a person such as

[Ackerman] could have displayed emotional volatility, emotional

lability, and aggression leading to a verbal altercation and physical

violence while under the influence of these drugs as described.”

¶ 39 At a pretrial conference, the trial court asked whether the

defense intended to call Urfer at trial and counsel said, “We haven’t

decided yet.” The trial court reserved ruling on the issue until

“Urfer is . . . brought forward as a witness.” The prosecutor noted

that Urfer was endorsed as an expert and “her opinion suggests

that somebody could be more aggressive if they have cocaine in

their system.” However, Urfer also noted that the effects of cocaine

wear off within a couple of hours, and the prosecutor argued that

“[h]er opinion is based entirely on the substances themselves, and

because the metabolites are so — they’re suggestive of use that is so

far removed from our incident, it’s just not relevant, and it would

prejudice the jury to hear that potentially he had used cocaine that

day.” The prosecutor also argued that “the existence of metabolites

18
doesn’t suggest that [Ackerman] was aggressive at the time of the

incident, and Ms. Urfer specifically cannot tie her opinion to any

indication in the evidence that [Ackerman] was aggressive.”

Defense counsel responded, “I think they should be able to consider

it, but I can’t disagree with what counsel said that Urfer reported.”

¶ 40 Ackerman’s blood sample was collected on April 4, 2020, at

10:19 p.m. The test results found cocaine metabolites at a level

such that Urfer thought the cocaine “would have been taken hours

prior to this incident.”

¶ 41 The court ultimately precluded Counterman from cross-

examining the forensic pathologist on Ackerman’s intoxication, and

it also precluded Urfer’s testimony, noting that Urfer referenced

possible behaviors the substances could cause, but “she doesn’t

relate it to the case itself.” It also noted that the presence of

cocaine metabolites in Ackerman’s system did not “provide the

Court with [a] sufficient basis to allow simple speculation on the

part of the expert to say how possibly something could have

impacted at some point in time.” The trial court found “just use of

the substance alone without more would simply be prejudicial

without providing a real scientific basis to Ms. Urfer’s statements.”

19
¶ 42 In denying Counterman’s motion for a new trial based on this

issue, the court again found that Urfer’s testimony “was vague and

inconclusive,” “didn’t give sufficient information for a jury to

evaluate wisely,” and “indicate[d] disparagement of the victim for no

reason.”

B. Standard of Review and Applicable Law

¶ 43 We review the admission of expert witness testimony for an

abuse of discretion and “will reverse only when that decision is

manifestly erroneous.” People v. Cooper, 2021 CO 69, ¶ 44 (quoting

People v. Rector, 248 P.3d 1196, 1200 (Colo. 2011)).

¶ 44 To determine whether such testimony is admissible, the trial

court should “focus on the reliability and relevance of the proffered

evidence.” People v. Shreck, 22 P.3d 68, 70 (Colo. 2001). The court

must determine “(1) the reliability of the scientific principles

[involved], (2) the qualifications of the witness, . . . (3) the

usefulness of the testimony to the jury,” and (4) whether the

evidence satisfies CRE 403. Id. A trial court’s “CRE 702

determination must be based upon specific findings on the record

as to the helpfulness and reliability of the evidence.” Id. at 78.

20
¶ 45 The court “must also issue specific findings as to its

consideration under CRE 403 as to whether the probative value of

the evidence is substantially outweighed by its prejudicial effect.”

Id. Absent such specific findings “or a record not only supporting

admission but virtually requiring it or precluding any reasonable

dispute as to the basis of the court’s admission, the trial court must

be considered to have abused its discretion in admitting expert

testimony.” Ruibal v. People, 2018 CO 93, ¶ 14.

¶ 46 A trial court’s decision to admit expert testimony is reviewed

under the nonconstitutional harmless error standard. Id. at ¶ 17;

People v. Wilson, 2013 COA 75, ¶ 24. An error is harmless if a

reviewing court can say with fair assurance that, in light of the

entire record, the error did not substantially influence the verdict or

impair the fairness of the trial. Wilson, ¶ 24. Reversal is required

only if the error affects the substantial rights of the parties. Hagos

v. People, 2012 CO 63, ¶ 12.

C. Analysis

¶ 47 As Counterman concedes, Urfer’s qualifications and expertise

were not at issue. Rather, the court found that her findings were

not helpful to the jury because she could not determine or opine on

21
the level of cocaine in Ackerman’s blood at the time of the offense.

The court noted that “[w]e don’t know when — if [Ackerman] used

cocaine that day, when it would have happened. We know that our

expert has said that cocaine wears off in a couple of hours.” Urfer

acknowledged that her analysis was based on “limited information”

and indicated that she could not “assign any of these impacts to the

victim.”

¶ 48 Urfer believed the cocaine “would have been taken hours prior

to this incident.” Therefore, we perceive no abuse of discretion in

the trial court’s determination that Urfer’s testimony would not

have helped the jury determine whether cocaine affected Ackerman

at the time of the offense and that it was therefore irrelevant. See

CRE 401, 402. Moreover, the trial court acted within its discretion

in finding that any minimum probative value of this evidence was

outweighed by the danger of unfair prejudice by casting Ackerman

as a drug user, an issue not relevant to the case.

¶ 49 Accordingly, we discern no abuse of discretion in the court’s

preclusion of this evidence.

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V. Motorcycle Club and Firearms Evidence

¶ 50 Counterman next contends that the trial court erroneously

admitted evidence of his membership in the Gringos Motorcycle

Club and evidence that he possessed firearms and ammunition. We

disagree.

A. Additional Facts

¶ 51 Counterman moved in limine to preclude any reference to his

affiliation with a motorcycle club called “Gringos Motorcycle Club,”

as well as any testimony or evidence of the ammunition and guns

found at his girlfriend’s home where they both lived. He argued

that the “mere mention of [his] affiliation with the Gringos

Motorcycle Club, an ‘outlaw motorcycle gang’, would create unfair

prejudice” and argued the same for the admission of the guns and

ammunition found at his home. Separately, Counterman requested

notice of any potential CRE 404(b) evidence the prosecution

intended to admit.

¶ 52 The prosecutor stated that the police found .357 revolver

rounds in the house but found no revolver; that the bullet found in

Ackerman was consistent “with a .357 Magnum round”; that the

prosecution believed Ackerman was killed with a revolver because

23
no shell casings were found at the scene; that a revolver holster was

recovered from the house; and that none of the three other firearms

found in the house could have fired revolver rounds. The murder

weapon was never recovered by the police. The prosecutor also

argued that possessing guns is not inherently prejudicial. Further,

receipts for two of the guns showed they were owned by

Counterman’s girlfriend.

¶ 53 The trial court found the firearms and ammunition satisfied

CRE 401 and 403. Specifically, the court found that “it makes it

more probable than not that the prosecution’s theory is supported

that [Counterman] used this gun, shot [Ackerman], and then

disposed of the gun, leaving ammunition in the home that could

also fit the gun.” The court limited the evidence and determined

that photographs could be used but that the guns themselves could

not be admitted. The court also noted, “If there’s a limiting

instruction being requested with regard to any kind of prejudice

about having other guns in the house, I’d certainly take a look at

that, give me an idea of what you would be requesting,” noting that

it would consider “something clarifying the fact that two of the guns

are registered to a different individual.”

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¶ 54 Concerning the motorcycle club membership, the trial court

noted that unless there was a significant nexus between a

defendant’s membership in a gang and the crime, it would not allow

any discussion of gang affiliation or membership at trial. The court

explained that Counterman’s membership in the motorcycle club

was entwined with various witness descriptions of him but said it

would not allow such membership to be used to argue that he

committed murder. The court ordered that no one could refer to

the Gringos Motorcycle Gang as a “motorcycle gang “and could only

refer to it as a “club” or “group.” The court found no “evidential

reason” to allow discussion of the “gang.”

¶ 55 In a later hearing, Counterman expressed further concerns,

and the trial court asked the prosecution to submit copies of

evidence that included references to the motorcycle club. The court

then addressed the issue again at a third hearing. It decided it

would only permit mention of the motorcycle club “when necessary”

and would rule as the evidence was admitted. The court told

defense counsel, “[I]f you see something coming up that you’re

concerned that there is going to be discussion of the Gringos or

connection of the Gringos . . . , let the Court know . . . .” The court

25
ordered that while there would not be an absolute prohibition, the

prosecution would “have limited reference to [the motorcycle club]

only when necessary for a witness to be able to testify and [for it to]

make sense.”

¶ 56 Both the prosecution and the trial court agreed to consider a

limiting instruction if Counterman proposed one, but he never did.

¶ 57 The relevant motorcycle club evidence heard by the jury

included the following:

(1) During opening statements, the prosecutor said, “But the

defendant and [his girlfriend], they decided to throw a

party. He was a part of the Gringos Motorcycle Club, and

they had a gathering on April 4th, 2020.” The defense

did not object.

(2) Also during opening statements, defense counsel said,

“Oh, I was with my club brother. Oh, we went to [his]

house.”

(3) During Adam Wilson’s testimony, the prosecutor asked

whether he and Counterman were a part of the “Gringos

Motorcycle Club together” and he answered, “No, I’m not

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a member. I haven’t had any contact with the Gringos in

about a year.”

(4) A Snapchat video of the party was admitted into evidence

and showed references to motorcycle club paraphernalia.

(5) Pictures of Ackerman wearing “Gringos Motorcycle Club”

labeled clothing and other motorcycle club paraphernalia

was admitted into evidence.

(6) Counterman testified that he joined a motorcycle club in

2017 and met his girlfriend through one of the club

member’s wives. On cross-examination, he said some

party guests were members of the motorcycle club. He

also told police about the club when asked about his

relationship to Adam Wilson.

¶ 58 The trial court admitted this evidence and found it was

relevant to identity and was part of the res gestae of the case. It

further found that the firearms and ammunition were relevant to

show that a .357 revolver was missing.

B. Standard of Review and Applicable Law

¶ 59 All relevant evidence is admissible unless otherwise provided

by constitution, statute, or rule. CRE 402. Relevant evidence is

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that evidence “having any tendency 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.”

CRE 401. Relevant evidence can be excluded, however, if its

probative value is substantially outweighed by the danger of unfair

prejudice. CRE 403.

¶ 60 Additionally, relevant evidence can be excluded if it is used to

prove the character of a person to show that he acted in conformity

with that character on a particular occasion. CRE 404(b).

Notwithstanding these limitations on the admissibility of relevant

evidence, evidence of other crimes, wrongs, or acts is admissible if

used for purposes independent of an inference of bad character

such as proving motive, opportunity, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident. Id.

¶ 61 We review a court’s evidentiary ruling for an abuse of

discretion. People v. Sims, 2019 COA 66, ¶ 44. A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair or when it misapplies the law. Id.

¶ 62 The trial court’s ruling rested in part on the res gestae

doctrine, which the Colorado Supreme Court abolished in 2022.

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See Rojas v. People, 2022 CO 8, ¶¶ 40-41. This change occurred

after Counterman’s trial, but while his direct appeal was pending,

and is therefore proper for us to consider. See People v. Morse,

2023 COA 27, ¶ 51. Accordingly, we review the court’s ruling under

Rojas.

¶ 63 In Rojas, the Colorado Supreme Court established a

framework requiring courts to first determine whether the evidence

at issue is intrinsic or extrinsic to the crime charged. Rojas, ¶ 44.

Intrinsic acts are those that (1) directly prove the charged offenses

or (2) occurred contemporaneously with the charged offenses and

facilitated their commission. Id. at ¶ 52. They are not “other” acts

and, therefore, fall outside the scope of CRE 404(b). Id. If

uncharged misconduct evidence is extrinsic to the charged offense

and suggests bad character, it is admissible only as provided by

CRE 404(b) and only after completing the analysis required by

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

¶ 64 The parties dispute preservation, but we need not resolve this

dispute because, even if preserved, we discern no abuse of

discretion in the court’s limited admission of this evidence.

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C. Analysis

¶ 65 We first conclude that the ammunition evidence is intrinsic to

the charged offense and that the court correctly evaluated its

admissibility under CRE 401 and CRE 403, for three reasons.

First, we reject Counterman’s assertion that the evidence was not

part of the commission of the crime. No one disputes that

Ackerman was shot with a .357 round of ammunition and that no

semi-automatic weapon shell cases were recovered from the

shooting location. Therefore, unlike Kaufman v. People, 202 P.3d

542, 554-55 (Colo. 2009), where the supreme court found that the

possession of knives and brass knuckles, weapons dissimilar to the

murder weapon, constituted bad character evidence, the presence

of such ammunition where Counterman lived made it more

probable than not that he was the shooter and is therefore relevant

to identity. CRE 401. Second, Counterman’s possession of the

ammunition occurred contemporaneously with the crime charged

and facilitated its commission, thereby exempting it from a CRE

404(b) analysis. Third, we reject Counterman’s criticism of the trial

court for failing to give a limiting instruction, because the record

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shows the court offered to do so if requested. Counterman never

requested the instruction.

¶ 66 To the extent the firearms evidence is extrinsic, we discern no

abuse of discretion in its admission, for three reasons. First, we

conclude it has some minimal relevance because the fact that none

of the three firearms in the home could fire the .357 ammunition

made it more likely that the weapon capable of firing such

ammunition had been discarded. Second, ownership of a firearm

does not constitute a “bad act” that required review under CRE

404(b), and nothing in the record shows that the presence of these

firearms was illegal. Third, the record shows that two of the three

firearms were registered to Counterman’s girlfriend, and the owner

of the third firearm was never identified. Under these facts, we

discern no abuse of discretion in the court’s admission of this

evidence.

¶ 67 We agree with Counterman that the motorcycle club evidence

is extrinsic to the crime charged, but we discern no error in the

court’s admission of it because it does not suggest bad character.

See Rojas, ¶ 52 (“[I]f extrinsic evidence does not suggest bad

character, Rule 404(b) does not apply . . . .”). As admitted, this

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evidence served only to explain how Counterman knew a witness,

how the attendees at the party knew one another, and the content

of some images. And as with the firearms and ammunition

evidence, the court offered to provide a limiting instruction if

requested, but Counterman never requested one.

¶ 68 Additionally, we are not persuaded that People v. Trujillo, 2014

COA 72, requires a different result. The Trujillo division noted that

“gang-related evidence must be admitted with care.” Id. at ¶¶ 71-72

(quoting People v. Morales, 966 N.E.2d 481, 492 (Ill. App. Ct. 2012)).

The court did just that by specifically precluding any reference to

“gangs,” which would have implied bad character. Moreover, for the

reasons explained above, we find this case distinguishable from

Kaufman. Finally, we note that the prosecution never argued

Counterman’s club membership as evidence of his guilt and

conclude that the evidence was “not so shocking that [its] probative

value was outweighed by the likelihood that [it] would inflame the

passions of the jury or cause them ‘to abandon their mental

processes and give expression to their emotions.’” People v. Thorpe,

641 P.2d 935, 943 (Colo. 1982) (quoting Archina v. People, 307 P.2d

1083, 1095 (Colo. 1957)).

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VI. Cumulative Error

¶ 69 Counterman last contends that the alleged errors, when taken

together, show that he did not receive a fair trial.

¶ 70 The cumulative error doctrine applies 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 (quoting

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

¶ 71 However, because we have found no errors, we necessarily

conclude the cumulative error doctrine does not apply. See People

v. Villa, 240 P.3d 343, 359 (Colo. App. 2009) (cumulative error

analysis is required only when multiple errors have been identified).

VII. Disposition

¶ 72 The judgment is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.

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