Peo v. Krutitskiy

22CA0207 Peo v Krutitskiy 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0207
El Paso County District Court No. 20CR3647
Honorable David Prince, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Nikolay Anatolevic Krutitskiy,

Defendant-Appellant.

JUDGMENT AFFIRMED

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

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

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meghan M. Morris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Nikolay Anatolevic Krutitskiy, appeals the

judgment of conviction entered on a jury verdict finding him guilty

of various offenses arising out of the shooting and killing of his

youngest son. We affirm.

I. Background

¶2 Krutitskiy was at home, intoxicated, showing his three

children one of his guns. The two surviving children, twelve and

ten years old respectively, stated in separate forensic interviews

that Krutitskiy pointed the gun first at the oldest child, second at

the middle child, and third at the youngest child. The twelve-year-

old said that when he pointed the gun at each child, he asked that

child, “[G]ood or no”? or “[S]afe or no”? The ten-year-old said that

he asked each child whether the child wanted Krutitskiy to kill

them.

¶3 When Krutitskiy pointed the gun at his youngest child, the

gun fired and shot the child in the neck. Both surviving children

told forensic interviewers that nobody was in trouble leading up to

the shooting and that the shooting was an accident.

¶4 As soon as the gun fired, Krutitskiy and his wife (who was in

another room) rushed to the youngest child to try to help him.

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According to the ten-year-old, Krutitskiy immediately said he was

sorry and that he did not mean to pull the trigger. The whole family

got in their car and rushed the youngest child to emergency medical

care (they lived in a rural area). The child later died in the hospital

from his gunshot wound.

¶5 Krutitskiy was charged with first degree murder and child

abuse resulting in death for killing his youngest child. He was also

charged with two counts each of felony menacing and child abuse

for pointing the gun at the two surviving children.

¶6 At trial, the court admitted evidence that Krutitskiy kept

various firearms and weapons that were not involved in the

shooting in an unlocked plastic storage bin at the house.

¶7 The jury found Krutitskiy guilty of the charged offenses

described above. He was convicted and sentenced to life in prison.

The trial court also ordered Krutitskiy to pay restitution to the

Crime Victim Compensation Board (CVCB).

¶8 Krutitskiy appeals. He argues the trial court erred by

(1) admitting evidence of Krutitskiy’s other firearms and weapons;

(2) improperly instructing the jury on the presumption of innocence;

(3) allowing the prosecutor to engage in misconduct during closing

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argument; and (4) ordering restitution based on insufficient

evidence. We conclude that none of these arguments warrant relief.

II. Admission of Other Weapons

¶9 Krutitskiy argues that the evidence of his other weapons was

irrelevant and therefore inadmissible. He argues that the erroneous

admission of this evidence requires reversal of his murder and child

abuse resulting in death convictions. We disagree.

A. Governing Law

¶ 10 We review evidentiary rulings for an abuse of discretion.

People v. Elmarr, 2015 CO 53, ¶ 20. If a court abuses its discretion

by admitting irrelevant evidence, we must reverse unless the error

was harmless, meaning it did not substantially influence the verdict

or affect the fairness of the trial. Hagos v. People, 2012 CO 63,

¶ 12. Erroneously admitted evidence is harmless if the properly

admitted evidence overwhelmingly establishes the defendant’s guilt.

Pernell v. People, 2018 CO 13, ¶ 25. On appeal, it is the

prosecution’s burden to show that an error was harmless, and if the

prosecution fails to carry that burden we must reverse. See James

v. People, 2018 CO 72, ¶ 19.

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¶ 11 In general, evidence is relevant and therefore admissible if it

has any tendency to make the existence of any fact of consequence

to the determination of the action more or less probable. CRE 401,

402.

B. Any Error in Admitting the Evidence Was Harmless

¶ 12 As charged here, first degree murder required the prosecution

to prove that Krutitskiy knowingly caused the death of his son. See

§ 18-3-102(1)(f), C.R.S. 2024. The main issue at trial was whether

Krutitskiy shot his son knowingly. The trial court admitted the

evidence of Krutitskiy’s other weapons because, in its view, that

evidence was relevant to this main issue. The court ruled that

possessing the other weapons suggested that Krutitskiy knew how

to use weapons, which made it more likely that Krutitskiy

knowingly killed his son.

¶ 13 Krutitskiy argues that our supreme court rejected this

relevance reasoning in Kaufman v. People, 202 P.3d 542, 547 (Colo.

2009). Kaufman fatally stabbed the victim with a knife during an

altercation on the street. The prosecution successfully introduced

evidence that Kaufman possessed eight knives and other weapons

at his home. Id. at 554. On appeal, the prosecution argued that

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admitting this evidence was proper because it was relevant to show

Kaufman’s intent: “Kaufman’s experience with knives tended to

show that he knew what the result would be” when he stabbed

someone in the manner that he stabbed the victim. Id. The

supreme court rejected this argument, explaining that a person’s

weapons collection does not make it more probable that the person

is experienced in the use of those weapons. Id. at 555. As the

supreme court put it, “[a] weapons collection alone has nothing to

do with being able to handle knives. As an analogy, the fact that a

person displays many books on a bookshelf does not necessarily

mean that the person has ever read the books.” Id.

¶ 14 Krutitskiy may have a point. But ultimately, we need not

decide whether it was an abuse of discretion to admit the evidence

of the other weapons here. Even if we assume that it was, we

conclude that any error was harmless.

¶ 15 As noted above, we must reverse unless the prosecution

carries its burden to establish that the error was harmless. See

James, ¶ 19. The substance of the prosecution’s harmlessness

argument spans a mere two sentences:

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This was not a close case; rather, the evidence
of Krutitskiy’s guilt was overwhelming. Most
significantly, both his daughter and older son
testified as to the events that they witnessed,
describing their father pointing a gun at each
of child [sic], asking them if they wanted to die,
and then shooting [his son].

¶ 16 From this general statement, it is clear that the prosecution

argues the error was harmless because there was overwhelming

evidence the Krutitskiy was guilty of both first degree murder and

child abuse resulting in death. But as will become evident below,

the overwhelming evidence analysis is different for each offense

because the elements of each offense are different. Though the

prosecution did not articulate separate overwhelming evidence

arguments for each offense, we nevertheless conclude that the

prosecution did just enough to carry its burden.

¶ 17 The first degree murder count required that Krutitskiy

knowingly caused his son’s death — that he was aware that his

conduct was practically certain to kill his son. See § 18-3-102(1)(f)

(elements of first degree murder); § 18-1-501(6), C.R.S. 2024

(defining “knowingly”). This offense did not require specific intent.

See § 18-1-501(6) (offenses that require knowing conduct are

general intent offenses). In other words, the offense did not require

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that Krutitskiy specifically intended to cause his son’s death. All it

required was Krutitskiy’s awareness that his conduct was

practically certain to kill his son. Thus, it was possible that

Krutitskiy was aware that his conduct was practically certain to kill

his son yet causing his son’s death was nevertheless unintentional.

We conclude that the evidence overwhelmingly established exactly

this.

¶ 18 The evidence was clear that Krutitskiy pointed a revolver,

loaded, cocked, and with a very light trigger, at his son. Krutitskiy

was intoxicated, suggesting his fine motor skills were diminished.

Krutitskiy may not have intended for the gun to fire. But pointing

that gun, loaded and cocked, at his son while intoxicated was

practically certain to cause his son’s death. And the evidence

overwhelmingly established that Krutitskiy was aware that this

result was practically certain. He knew he was drunk and knew he

was pointing a cocked gun with a light trigger at his son. And

according to Krutitskiy’s statement to law enforcement, he was

unloading ammunition from the gun when it fired. In other words,

he knew there were live rounds in the gun. The evidence was

therefore overwhelming that he knowingly caused his son’s death.

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¶ 19 We recognize that there was also strong evidence that

Krutitskiy did not mean to kill his son — that the killing was

unintentional. Both surviving children testified that it was an

accident, and Krutitskiy was distraught in the shooting’s aftermath.

But, as explained above, this evidence does not conflict with the

evidence that Krutitskiy knowingly caused his son’s death. We

therefore must conclude that the evidence was overwhelming that

Krutitskiy was aware that his conduct was so dangerous that it was

practically certain to cause his son’s death even though he did not

intend for his son to die. In other words, the evidence was

overwhelming that Krutitskiy was guilty of first degree murder

under section 18-3-102(1)(f), and any error in admitting evidence of

the other weapons was harmless.

¶ 20 We reach the same conclusion about the child abuse resulting

in death conviction — and because this offense’s required mental

state is different, the analysis is not nearly so nuanced. Child

abuse resulting in death did not require the prosecution to prove

that Krutitskiy knowingly caused his son’s death. Instead, the

prosecution had to prove only that he recklessly permitted his son

to be placed in a situation that posed a threat of injury and that his

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son died as a result. See § 18-6-401(1)(a), (7)(a)(I), C.R.S. 2024. A

person acts recklessly by consciously disregarding a substantial

and unjustifiable risk that a result will occur. § 18-1-501(8).

¶ 21 At the very least, the evidence overwhelmingly established that

Krutitskiy recklessly placed his son in a situation that posed a

threat of injury to his son (while drunk, Krutitskiy pointed a cocked

and loaded gun with a light trigger at his son). And there is no

question that this resulted in his son’s death. We therefore

conclude any error was also harmless to the child abuse resulting

in death conviction.

III. Presumption of Innocence Instruction

¶ 22 Krutitskiy argues that a comment by the trial court during voir

dire resulted in the jury being incorrectly instructed on the

presumption of innocence.

¶ 23 Trial courts have an affirmative duty to correctly instruct the

jury on the applicable law. People v. Jones, 2018 COA 112, ¶ 24.

To determine whether the trial court fulfilled this duty, we review all

the instructions together, as a whole, de novo. Id. Because

Krutitskiy failed to object to the court’s statement he now

challenges on appeal, we review for plain error. See Hagos, ¶ 14.

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This means that even if the court incorrectly instructed the jury, we

reverse only if the error was obvious and substantial. Id. We

perceive no error in the first place.

¶ 24 Due process requires that a defendant is presumed innocent

until proved guilty. Garcia v. People, 2022 CO 6, ¶ 15. This

presumption remains in place throughout the trial, “terminating

only if the jury concludes that the prosecution has proved beyond a

reasonable doubt that the defendant is guilty.” People v. Estes,

2012 COA 41, ¶ 32.

¶ 25 Krutitskiy argues that the trial court incorrectly told the jury

that the presumption terminates before the jury determines

whether a defendant is guilty. Considering the court’s challenged

statement in context with the rest of its statements about the

presumption of innocence, we conclude the court properly

instructed the jury.

¶ 26 During voir dire, the court explained the presumption of

innocence at length. The single comment Krutitskiy now challenges

came in the last paragraph of this explanation:

I’m going to talk about the presumption of
innocence. Most of these principles you’re
going to be familiar with because they’re talked

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about quite a bit in popular society. Everyone
[sic] person charge[d] with a crime is presumed
innocent. This presumption of innocence
remains with the Defendant through the trial
and should be given effect by the juror unless,
after considering all of the evidence, the juror
is then convinced that the Defendant is guilty
beyond a reasonable doubt.

Presumption of innocence is a cornerstone of
the criminal justice system in the United
States. Actually different than many systems
around the world. All that means in a simple
way is if you were magically a juror right now
and you had to enter a decision right now on
whether to find the person guilty or not, you
have heard no evidence because no trial has
started. And so by definition under the
presumption of innocence you would have to
find not guilty because you have heard not one
shred of evidence. And so the person is
presumed innocent until proven guilty.

Anybody have any objection to applying that
principle in this case?

Closely related to the presumption of
innocence is the burden of proof. Again, a
concept you hear talked about in popular
society all the time. The burden of proof is
upon the Prosecution to prove to the
satisfaction of the jury beyond a reasonable
doubt the existence of all of the elements
necessary to constitute the crime charged.
The Prosecution must prove its case. The
Defendant need not present any evidence and
is not required to prove anything in the case.
The Defendant is not required to testify. And if

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he does not testify, that fact cannot be held
against him in any regard by the jury.

Again, it’s a version of that presumption of
innocence. Until the Prosecutor actually
presents the evidence that proves guilt beyond
a reasonable doubt, the person by law is
presumed to be innocent. Part of that burden
of proof is that the Defense doesn’t actually
have to present any evidence, or prove
anything, or disprove anything.

(Emphasis added.)

¶ 27 According to Krutitskiy, the italicized statement was incorrect

because it told the jury that the presumption terminated as soon as

the prosecution presents sufficient evidence of guilt, not when the

jury concludes that the prosecution has presented sufficient

evidence of guilt. But the court made this statement in the context

of explaining why the defendant is not required to testify and why

the defense has no burden to prove anything. The court was not

commenting on the duration of the presumption of innocence, but

rather that the prosecution bears the burden of proof. Moreover,

the court had just explicitly and properly explained the

presumption’s duration (stating that it “remains with the Defendant

through the trial and should be given effect by the juror unless,

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after considering all of the evidence, the juror is then convinced that

the Defendant is guilty beyond a reasonable doubt”).

¶ 28 We therefore conclude that the instructions as a whole did not

mislead the jury about the presumption of innocence’s duration.

IV. Prosecutorial Misconduct

¶ 29 Krutitskiy next contends that the prosecutor engaged in

misconduct during rebuttal closing argument.

¶ 30 Reviewing a claim of prosecutorial misconduct involves 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. We perceive no

impropriety under step one.

¶ 31 Prosecutors are afforded wide latitude in choosing their

preferred language and style, “as well as in replying to an argument

by opposing counsel.” People v. McMinn, 2013 COA 94, ¶ 60.

Because arguments at trial are seldom perfectly scripted, we give

prosecutors the benefit of the doubt when their remarks are

ambiguous or inartful. Id.

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¶ 32 Krutitskiy argues that during rebuttal closing argument the

prosecutor improperly implied that defense counsel did not believe

in the defense and was attempting to trick the jury. We conclude

that the following argument from the prosecutor was within the

bounds of the wide latitude we must afford him:

Folks, this is not a case of confirmation bias.
This is a case of truth. And the Defense is
afraid of the truth, so they are inventing this
narrative of confirmation bias. They are
inventing reasonable doubt where none exists.

Think carefully about what they said during
their closing argument. Maybe it was
somebody else. Maybe it wasn’t this gun.
Maybe that other gun was something else.
Those maybes are all speculative doubts. It’s
not evidence. It doesn’t show anything. It’s
designed specifically to confuse you from the
truth in this case. Again, a truth they’re afraid
of because it shows beyond a reasonable doubt
that the Defendant acted knowingly
throughout the course of his actions on June
23rd of 2020.

Let’s think all the way back to jury selection.
Okay? Think about — about the questions
Defense asked you during their jury selection.
Could you believe this was an accident. Well,
they realized pretty quick that wasn’t going to
work. So then what they told in their opening
statement is it was a tragic accident. It wasn’t
him. He didn’t do it. So now we’re walking
way [sic] from he accidentally shot him. Now

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we’re going to say he’s not even the one who
shot him.

¶ 33 These remarks did not denigrate defense counsel as Krutitskiy

contends. Instead, they responded to the defense theory of the case

by attempting to explain why that theory was implausible. The

comments may have been inartful and somewhat harsh, but they

were within the wide latitude we afford prosecutors during closing

argument.

V. Cumulative Error

¶ 34 Because we have identified only a single error, we necessarily

reject Krutitskiy’s argument that the combined effect of multiple

errors warrants relief from his convictions.

VI. Restitution

¶ 35 Finally, Krutitskiy argues that the evidence was insufficient to

support the court’s award of restitution to the CVCB. Specifically,

he argues that the prosecution failed to meet the statutory

requirements to receive the causation presumption available under

section 18-1.3-603(10)(a), C.R.S. 2024, and the evidence of

causation was therefore insufficient. We review the record de novo

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to determine whether the evidence was sufficient to support a

restitution award. People v. Fregosi, 2024 COA 6, ¶ 40.

¶ 36 To secure a restitution award, the prosecution must establish

by a preponderance of the evidence that the defendant’s criminal

conduct caused the pecuniary loss for which restitution is awarded.

Id. When, as here, a CVCB provides assistance to or on behalf of a

victim, the CVCB qualifies as a victim for purposes of restitution.

§ 18-1.3-602(4)(a)(IV), C.R.S. 2024. And section 18-1.3-603(10)(a)

provides that when a CVCB pays a victim compensation claim, a

rebuttable presumption arises that the defendant’s criminal

conduct caused a loss in the amount paid out by the CVCB.

Fregosi, ¶¶ 43-44. To establish the amount of the loss, section 18-

1.3-603(10)(b) requires that the prosecution either (1) list the

amount of money paid to each provider or (2) provide a summary of

payments made for categories of expenses if the identity or location

of a provider would threaten the victim’s safety or welfare.

¶ 37 Here, a CVCB paid victim compensation claims for

funeral/burial expenses and therapy for Krutitskiy’s wife and two

surviving children. The prosecution provided only a summary of

payments made for different categories of expenses. But the court

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made no finding, and we are unaware of any evidence tending to

show, that providing Krutitskiy the identity or location of any

provider would threaten the safety or welfare of any victim. In other

words, the prosecution did not establish the amount of assistance

provided in compliance with subsection (10)(b). According to

Krutitskiy, this noncompliance with subsection (10)(b) meant that

the prosecution was not entitled to the causation presumption in

subsection (10)(a). See § 18-1.3-603(10)(a)-(b). Without the benefit

of the causation presumption, Krutitskiy argues that the evidence

was insufficient to establish causation and, therefore, restitution.

¶ 38 We disagree because we conclude that the evidence was

sufficient to support the restitution award independently of

subsection (10) and the causation presumption. The prosecution

did not rely only on subsection (10)(a)’s causation presumption to

establish causation. Instead, the CVCB administrator testified to

the general policies the CVCB follows when evaluating whether to

pay a victim compensation claim. She explained that before paying

a claim, the CVCB is required “to get documentation that those bills

are directly related to the criminal incident.” She testified that all

the policies were adhered to in this case. This was sufficient to

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establish causation — it was sufficient evidence that it was more

likely than not that Krutitskiy’s criminal conduct proximately

caused the losses covered by the CVCB payments. Moreover, the

administrator verified the specific amounts that the CVCB paid for

funeral/burial expenses and therapy for Krutitskiy’s wife and

surviving children.

¶ 39 Thus, even if we assume without deciding that Krutitskiy is

correct and the prosecution was not entitled to the subsection

(10)(a) causation presumption, the evidence was nevertheless

sufficient to support the restitution award.

VII. Disposition

¶ 40 The judgment of conviction is affirmed.

JUDGE LUM and JUSTICE MARTINEZ concur.

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