Peo v. Drake

23CA1699 Peo v Drake 08-07-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1699
Weld County District Court No. 22CR355
Honorable Meghan Patrice Saleebey, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dakota Drake,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUSTICE MARTINEZ*
Pawar and Lum, JJ., concur

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

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Joseph Paul Hough, 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 Dakota Drake appeals his conviction of sexual assault. We

affirm.

I. Background

¶2 On the night of the assault, M.S. went to a parking lot party

for a “truck meet” that had around fifty people in attendance. M.S.

met Drake for the first time at the truck meet when he accepted her

offer to briefly leave the party to get food from a fast-food

restaurant.

¶3 After returning to the truck meet, Drake said he needed to use

the restroom, and M.S. followed him to also use “the restroom after

he went.” When M.S. left the restroom, she saw Drake “on the

grass side of the fence[d]” parking lot where the truck meet was

occurring. She walked over to meet him, and while the two were

talking, Drake “leaned in to kiss” M.S., who, in response, “put [her]

arms up” and said, “[N]o.” Then, Drake’s shirt “ended up on the

ground,” and “he kind of moved [M.S.] to the ground” so that she

was lying on her back on his shirt.

¶4 M.S. said no multiple times to Drake while he worked to “pull

[M.S.’s pants] down.” When Drake got M.S.’s pants “down around

[her] knees,” he positioned himself “on his knees and between

1
[M.S.’s] legs” and started touching M.S.’s vagina with his fingers.

Then, Drake penetrated M.S.’s vagina with his penis. When Drake

“came out” of M.S.’s vagina, M.S. “was finally able to get up,” so she

“pulled [her] pants up and [she] ran towards the parking lot” of the

truck meet.

¶5 Once in the crowd of partygoers, M.S. asked an acquaintance

to call Lexi Inskeep, M.S.’s friend, so Inskeep could pick M.S. up

from the truck meet. After picking up M.S., Inskeep drove her to a

hospital where M.S.’s mother met them.

¶6 A sexual assault nurse examiner (SANE) examined M.S. at the

hospital. M.S. told the SANE that she would like to talk to the

police about the assault. When speaking with officers, M.S.

identified Drake as her attacker and described his appearance.

¶7 Sergeant Erin Gooch, Officer Edward Kubala, and Officer

Lindsay Deming went to the parking lot where the truck meet

occurred. The three officers found two men sleeping inside the

cabin of a truck and Drake sleeping in the bed of that truck. Officer

Kubala questioned Drake, and Officer Deming “transported [Drake]

to the Greeley Police Department” (the station) so Detective Jackson

2
Brunmeier, the lead detective on M.S.’s assault case, could speak

with Drake further.

¶8 Detective Brunmeier interviewed Drake at the station. Under

a warrant for the collection of nontestimonial evidence, officers

collected buccal swabs and blood from Drake to complete a male

sexual assault kit.

¶9 After the sexual assault kits were processed, about seven

months later, Drake was charged with sexual assault through the

application of physical force or physical violence, in violation of

section 18-3-402(1)(a), (4)(a), C.R.S. 2021, a class 3 felony.

¶ 10 A jury convicted Drake as charged, and the court sentenced

Drake to 270 days of work release with an ankle monitor and

twenty years to life on sex offender probation and ordered his

registration as a sex offender.

¶ 11 In his opening brief, Drake says that, after he violated the

terms of his probation, which was subsequently revoked, he was

resentenced to a term of eight years to life in the custody of the

Department of Corrections. This appeal followed.

¶ 12 Drake contends that the trial court reversibly erred by failing

to grant his motion to suppress his incriminating statements

3
allegedly gathered in violation of Miranda v. Arizona, 384 U.S. 436

(1966), and allowing the prosecution’s generalized expert to offer

testimony that improperly bolstered M.S.’s credibility and claims.

In addition, Drake asserts that the trial court reversibly erred by

instructing the jury that “self-induced intoxication” could not be

considered and that the prosecutor’s argument on the issue was

misconduct. Lastly, Drake argues that the errors he raises on

appeal warrant reversal under the doctrine of cumulative error.

II. Analysis

A. Drake’s Motion to Suppress

1. Standard of Review

¶ 13 A court’s “determination that an individual was in custody for

purposes of Miranda presents a mixed question of law and fact.”

People v. Willoughby, 2023 CO 10, ¶ 18, 524 P.3d 1186, 1191. We

defer to the court’s “factual findings when there is competent

evidence in the record to support them.” Id. “However, we may also

rely upon undisputed facts in the record and ‘independently review

audio-recorded interrogations.’” Id. (quoting People v. Padilla, 2021

CO 18, ¶ 14, 482 P.3d 441, 445); see also People v. Kutlak, 2016 CO

4
1, ¶ 12, 364 P.3d 199, 203. “We review the legal effect of those

facts de novo.” Willoughby, ¶ 18, 524 P.3d at 1191.

¶ 14 The parties agree that Drake preserved this issue. We “review

trial errors of constitutional dimension that were preserved by

objection for constitutional harmless error.” Hagos v. People, 2012

CO 63, ¶ 11, 288 P.3d 116, 119. “These errors require reversal

unless the reviewing court is ‘able to declare a belief that [the error]

was harmless beyond a reasonable doubt.’” Id. (quoting Chapman

v. California, 386 U.S. 18, 24 (1967)). “In other words, we reverse if

‘there is a reasonable possibility that the [error] might have

contributed to the conviction.’” Id. (quoting Chapman, 386 U.S. at

24).

2. Additional Facts

¶ 15 As mentioned, after M.S. identified Drake as her attacker and

described his appearance to police, officers went to the truck meet’s

parking lot and found Drake sleeping in the bed of a parked truck.

Once Drake was awake, Officer Kubala asked him to identify

himself, explain why he was at the parking lot, name the people he

had been with the night before, and confirm whether he had been

drinking. After Drake answered that he had been drinking, Officer

5
Kubala asked “if [Drake] would do [him] a favor” and ride in Officer

Deming’s car to the station where Detective Brunmeier could

interview Drake as a witness to the truck meet. Drake agreed to

accept a ride to the station.

¶ 16 Once at the station, Detective Brunmeier questioned Drake,

and officers collected buccal swabs and a blood draw and

administered a male sexual assault kit. Drake was released from

the station about eight hours after the police first contacted him.

3. The Court Did Not Err in Its Miranda Analysis

¶ 17 Drake contends that “he was clearly detained in some form of

arrest-like custody,” and therefore, “Miranda’s mandated

procedures should have been followed”; thus, the court

“erroneously concluded that [a] Miranda advisement and waiver was

unnecessary.” We disagree.

¶ 18 Under the United States Constitution, no person “shall be

compelled in any criminal case to be a witness against himself.”

U.S. Const. amend. V. Before any questioning, an accused person

“must be warned that he has a right to remain silent, that any

statement he does make may be used as evidence against him, and

that he has a right to the presence of an attorney, either retained or

6
appointed.” Miranda, 384 U.S. at 444. “But when a suspect is not

in custody, Miranda warnings are not required.” People v. Bohler,

2024 CO 18, ¶ 18, 545 P.3d 509, 514.

¶ 19 “To determine whether an individual is in custody for purposes

of Miranda, ‘the ultimate inquiry is simply whether there is a

“formal arrest or restraint on freedom of movement” of the degree

associated with a formal arrest.’” Willoughby, ¶ 20, 524 P.3d at

1191 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).

This ultimate inquiry “depends on the objective circumstances of

the interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned.” Id. (quoting

Stansbury v. California, 511 U.S. 318, 323 (1994)). “Accordingly,

courts must look to the totality of the circumstances to determine

whether an individual was in custody.” Id. at ¶ 21, 524 P.3d at

1191. Some of the factors a court should consider in determining

the totality of the circumstances include the following:

(1) the time, place, and purpose of the
encounter;

(2) the persons present during the
interrogation;

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(3) the words spoken by the officer to the
defendant;

(4) the officer’s tone of voice and general
demeanor;

(5) the length and mood of the interrogation;

(6) whether any limitation of movement or
other form of restraint was placed on the
defendant during the interrogation;

(7) the officer’s response to any questions
asked by the defendant;

(8) whether directions were given to the
defendant during the interrogation; and

(9) the defendant’s verbal or nonverbal
response to such directions.

Mumford v. People, 2012 CO 2, ¶ 13, 270 P.3d 953, 957 (quoting

People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002)).

¶ 20 By weighing these factors and considering the totality of the

circumstances, we conclude that Drake was not in custody and,

therefore, not subject to a custodial interrogation.

¶ 21 Although the three officers went to the truck meet’s parking lot

based on M.S.’s report that she was sexually assaulted at that

location the night before, see Niemeyer v. People, 2024 CO 58, ¶ 35,

555 P.3d 607, 617 (explaining that an encounter with the purpose

“to investigate a suspect in a criminal investigation” weighs in favor

8
of custody and that “the dispatch of police for the general public

welfare or safety weighs against custody”), within the first two

minutes of the officers arriving at the parking lot, Officer Kubala

told Drake, “No one [was] in trouble,” see Matheny, 46 P.3d at 467

(holding that the defendant was not in custody because officers told

the defendant that “he was not under arrest” and that “he was free

to go at any[ time]”). In addition, at the station, Drake asked

Detective Brunmeier if he was under arrest or detained, and

Detective Brunmeier, who was unarmed and not wearing a uniform,

said: “Detained . . . you’re not under arrest. . . . Just detained until

they get the search warrant stuff done.” See Mumford, ¶ 16, 270

P.3d at 957 (concluding that the defendant’s “temporary detention

during the execution of . . . warrants was consistent with the

Fourth Amendment” and under the totality of the circumstances,

the defendant’s “temporary detention [did] not escalate[] to the point

that an objective, reasonable person in [the defendant]’s position

would feel restrained to a degree associated with a formal arrest”

and holding that no Miranda warnings were required). Thus,

Officer Kubala’s and Detective Brunmeier’s words and responses to

Drake weigh against a finding that Drake was in custody.

9
¶ 22 Further, even though Drake spent about five and a half hours

in the interview room at the station, see Niemeyer, ¶ 28, 555 P.3d at

616 (explaining that interrogations that are “closer to or exceeding

ninety minutes weigh in favor of custody”); Willoughby, ¶ 33, 524

P.3d at 1193 (“A lengthy interrogation may indicate custody.”), no

one handcuffed Drake or restrained him in a manner related to a

formal arrest, see People v. Clark, 2020 CO 36, ¶ 33, 500 P.3d 356,

362 (discussing cases that held that “the absence of handcuffs or

other restraints” suggested “that the suspect was not in custody”).

Moreover, Drake left the station without being arrested.

Accordingly, Drake’s limitation of movement weighs against a

finding that he was in custody.

¶ 23 In addition, while Detective Brunmeier questioned Drake at

the station, see People v. Cline, 2019 CO 33, ¶ 21, 439 P.3d 1232,

1238 (noting that “Miranda warnings were expressly developed as

an added protection against ‘incommunicado interrogation of

individuals in a police-dominated atmosphere,’” such as a police

station (quoting People v. Figueroa-Ortega, 2012 CO 51, ¶ 7, 283

P.3d 691, 693)), Drake expressly agreed to do Officer Kubala a

10
“favor” and ride with Officer Deming to the station to continue his

questioning.

¶ 24 In sum, although the purpose of questioning Drake was to

investigate a suspect in a criminal investigation and the period of

time Drake spent at the station was lengthy, Drake was told more

than once that he was not under arrest, was never restrained in a

manner related to a formal arrest, and voluntarily agreed to do

Officer Kubala a “favor” and continue to be questioned at the

station.

¶ 25 Thus, the trial court properly denied Drake’s motion to

suppress his statements to officers and Detective Brunmeier on the

day after the assault. See Willoughby, ¶ 20, 524 P.3d at 1191.

Accordingly, we affirm the trial court’s decision to deny Drake’s

motion to suppress.

B. The Generalized Expert’s Testimony

1. Standard of Review

¶ 26 “We review a trial court’s admission of expert testimony for an

abuse of discretion and will reverse only when that decision is

manifestly erroneous.” People v. Cooper, 2021 CO 69, ¶ 44, 496

P.3d 430, 439 (quoting People v. Rector, 248 P.3d 1196, 1200 (Colo.

11
2011)); see also People v. Coons, 2021 CO 70, ¶ 41, 495 P.3d 961,

969. “This is a deferential standard that reflects the superior

opportunity a trial court has to assess both the competence of an

expert witness and whether that witness’s anticipated opinions

would be helpful to the jury.” Cooper, ¶ 44, 496 P.3d at 439; see

also Coons, ¶ 41, 495 P.3d at 969.

¶ 27 The parties agree that Drake did not preserve this issue for

appeal. We review all errors “that were not preserved by objection

for plain error.” Hagos, ¶ 14, 288 P.3d at 120. Plain error is

obvious and substantial, and we reverse under plain error only if

“the error ‘so undermined the fundamental fairness of the trial itself

so as to cast serious doubt on the reliability of the judgment of

conviction.’” Id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005)).

2. Additional Facts

¶ 28 During the trial, at the prosecution’s request, the trial court

qualified Jean McAllister as an expert in sexual assault victim

dynamics and behaviors. McAllister testified that she had a

bachelor’s degree and a master’s degree and received training “at

least every month.” She said her professional work related to

12
interpersonal violence, including sexual assault, child abuse, child

sexual abuse, and intimate partner violence and that she had

worked with over seven thousand trauma victims.

¶ 29 Before McAllister began her expert testimony, she confirmed

that she did not know M.S. or Drake. She also explained to the jury

what sources she used to develop her testimony: “I’ll be relying on

my direct experience over the years[] — my work with other

colleagues who do this kind of work in programs that I consult with,

and on the research literature and my training and education.” In

addition, McAllister informed the jury that she testified for anyone

who respected her requirements that her testimony was “based on

[her] knowledge, experience, and training” and that her testimony

was not “based on what anybody want[ed] [her] to say in any

particular setting.” Next, McAllister described the “basic

information” that she consistently utilized to prepare to testify in a

case:

I need to know the type of case for instance —
it’s a sex assault. I need to know if it’s a peer
adult age sex assault or if it’s a sexual assault
on a child because the dynamics can be very
different. I need to know the gender of the
victim because people behave differently based

13
on gender when they’ve been sexually
assaulted.

¶ 30 Then, the prosecutor requested that McAllister focus her

testimony on a sexual assault scenario where there was “no

preexisting relationship” between the parties at the time when one

assaulted the other, what McAllister called an “acquaintance sexual

assault.” Under such focus, the prosecutor asked McAllister if

sexual assaults happen when other people are nearby and “could

stumble upon” the assault, to which McAllister replied that such

assaults were ubiquitous, “especially in young adult and older

[teenage] groups.” In addition, McAllister explained how alcohol can

impact the person who perpetrates an acquaintance sexual assault

and the victim of such assault.

¶ 31 Most of McAllister’s testimony focused on the various trauma

responses that a sexual assault victim may manifest before, during,

and after an acquaintance sexual assault. Further, McAllister

described the physical and emotional consequences that a victim of

such assault may experience. But McAllister never discussed M.S.

or the credibility of her accusations against Drake.

14
3. The Court Did Not Abuse Its Discretion by Admitting
McAllister’s Expert Testimony

¶ 32 Drake contends that the trial court abused its discretion by

admitting McAllister’s testimony because it “impermissibly

bolster[ed] M.S.’s credibility and claims of assault.” We disagree.

¶ 33 “If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a

fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify thereto in the form of

an opinion or otherwise.” CRE 702.

¶ 34 Generalized expert testimony is “testimony aimed at educating

the jury about general concepts or principles without attempting to

discuss the particular facts of the case.” Cooper, ¶ 1, 496 P.3d at

432; see also Coons, ¶ 1, 495 P.3d at 963. Such testimony “may

not bolster the credibility of a victim by impermissibly implying that

she is telling, or has previously told, the truth about the charged

incident.” Cooper, ¶ 95, 496 P.3d at 447; see also CRE 608(a);

People v. Whitman, 205 P.3d 371, 383 (Colo. App. 2007).

¶ 35 However, “an expert may testify concerning whether a sexual

assault victim’s behavior or demeanor was consistent with the

15
typical behavior of victims of abuse.” People v. Marx, 2019 COA

138, ¶ 15, 467 P.3d 1196, 1202; see also People v. Relaford, 2016

COA 99, ¶ 28, 409 P.3d 490, 496 (explaining that an expert’s

testimony as to the typical demeanor and behavioral traits

displayed by a sexual assault victim is “generally admissible

because it assists the jury in understanding the victim’s behavior

after the incident”). “While such ‘testimony may incidentally give

rise to an inference that a victim is or is not telling the truth about

the specific incident,’ ‘this fact alone is insufficient to deny

admission of the evidence, because expert testimony generally tends

to bolster or attack the credibility of another witness.’” Relaford,

¶ 30, 409 P.3d at 496 (quoting People v. Koon, 724 P.2d 1367, 1370

(Colo. App. 1986)).

¶ 36 Thus, generalized expert testimony is admissible when it “(1)

relates to an issue apart from credibility and (2) only incidentally

tends to corroborate a witness’s testimony.” Id. at ¶ 31, 409 P.3d at

496 (quoting People v. Cernazanu, 2015 COA 122, ¶ 20, 410 P.3d

603, 607).

¶ 37 Drake contends that “while McAllister never explicitly testified

that M.S. and her accusations were credible, she might as well

16
have, as the effect of her testimony was just the same.” We

disagree.

¶ 38 To support his contention, Drake argues that McAllister’s

testimony was improper because it “track[ed]” M.S.’s testimony

that, at the time of the assault, M.S. and Drake “were both ‘young

adults’ and ‘acquaintances[s]’ who met in a ‘safe environment.’”

Yet, McAllister explained what information she requires to provide

relevant testimony to a case; she must know the broad

circumstances of the sexual assault because such circumstances

can produce “very different” dynamics in a victim’s response to

being sexually assaulted.

¶ 39 In addition, Drake asserts that the trial court should not have

admitted McAllister’s testimony because “it was irrelevant, highly

prejudicial, and improperly invaded the province of the jury.” He

claims that “McAllister’s testimony boiled down to this: Because

M.S.’s highly specific experiences matched exactly with the

experiences of thousands of other reliable sexual assault victims,

M.S. must then be telling the truth.” However, McAllister’s

testimony did not improperly invade the province of the jury

because it described in general terms the typical reactions of sexual

17
assault victims and how the relationship between victims and

perpetrators can impact a victim’s response. See Relaford, ¶ 33,

409 P.3d at 496. Accordingly, McAllister’s testimony “only

incidentally tend[ed] to corroborate [M.S.]’s testimony.” Id. at ¶ 31,

409 P.3d at 496.

¶ 40 Further, McAllister’s generalized expert testimony about

sexual assault “did not touch upon the truthfulness of [M.S.]’s

version of events.” Cooper, ¶ 97, 496 P.3d at 448. McAllister also

never testified about the infrequency of women falsely reporting

sexual assault, testimony that could have improperly bolstered

M.S.’s credibility. See People v. Snook, 745 P.2d 647, 649-50 (Colo.

1987). Moreover, McAllister did not include in her testimony any

hypotheticals that she closely tailored to the distinctive facts of this

case. See People v. Collins, 2021 COA 18, ¶ 67, 491 P.3d 438, 450

(“When a hypothetical is so closely tailored to the distinctive facts of

the case at hand, . . . the [testimony] ceases to be about any [victim]

and, instead, becomes a question about the particular [victim].).

¶ 41 Instead, McAllister’s testimony on the dynamics of sexual

assault victims around the time of an assault could have assisted

the jury in understanding, for example, M.S.’s inability to move

18
during the assault; M.S.’s subdued reaction when she returned to

the truck meet after the assault; and M.S.’s decision to leave the

truck meet and go to the hospital rather than a police station.

Thus, McAllister’s testimony related “to an issue apart from [M.S.’s]

credibility.” Relaford, ¶ 31, 409 P.3d at 496 (quoting Cernazanu,

¶ 20, 410 P.3d at 607).

¶ 42 Accordingly, we conclude that the trial court did not abuse its

discretion in admitting McAllister’s generalized expert testimony.

C. Evidence of Self-Induced Intoxication

1. Standard of Review

¶ 43 “We review de novo whether jury instructions accurately

reflect the law.” People v. Stone, 2020 COA 23, ¶ 54, 471 P.3d

1148, 1157. We review a court’s “decision regarding a particular

jury instruction for an abuse of discretion and will not disturb the

court’s decision unless it is manifestly arbitrary, unreasonable, or

unfair.” People v. Cuevas, 2024 COA 84, ¶ 36, 558 P.3d 1041,

1049.

¶ 44 The parties agree that Drake did not preserve this issue for

appellate review. Thus, we review the issue for plain error. See

Hagos, ¶ 14, 288 P.3d at 120. As mentioned, plain error is obvious

19
and substantial, and we “reverse under plain error review only if the

error ‘so undermined the fundamental fairness of the trial itself so

as to cast serious doubt on the reliability of the judgment of

conviction.’” Id. (quoting Miller, 113 P.3d at 750).

2. Additional Facts

¶ 45 At trial, the jury heard from several witnesses about Drake’s

intoxication, including whether he was slurring his words or

showing other signs of intoxication and how many drinks he had

that night.

¶ 46 During the jury instruction conference, the parties compared

an instruction offered by the prosecution to the Colorado model

criminal jury instructions, COLJI-Crim. H:34 (2024); COLJI-Crim.

F:330 (2024), and discussed the terms “self-induced” versus

“voluntary.” While the trial court considered the prosecution’s

instruction, the prosecutor said multiple times that the proposed

instruction was fair to Drake because it emphasized the

prosecution’s “burden to demonstrate [that Drake acted]

knowingly.”

¶ 47 After these discussions, the parties agreed on a final version of

the intoxication instruction that the trial court had drafted by

20
modifying the prosecution’s proposed instruction. The instruction

the trial court gave read:

Throughout this case you have heard evidence
that [Drake] was consuming alcohol on the
date these allegations are reported to have
occurred.

You are instructed that [Drake]’s self-induced
intoxication is not a defense to the crime of
sexual assault — overcoming the victim’s will.
In determining whether or not the element of
“knowingly” has been proved beyond a
reasonable doubt, you may consider any
evidence other than self-induced intoxication
presented in this case, or any lack of evidence
that you believe to bear on that element.

¶ 48 During closing arguments, the prosecutor further explained

the self-induced intoxication evidence:

It’s very important to remember that
intoxication is not a defense. And you cannot
consider whether you believe he was
intoxicated as he says he was the first time,
second time, and the third time. Each of those
times it changed but if you even believe this
guy took down 24 cans of beer and a half
bottle of Fireball and was up walking around
and talking to law enforcement less than two
hours later with no problem even if you believe
that, you do not get to consider anything about
self-induced intoxication as it relates to what
he knew.

You cannot come to the conclusion of he was
so drunk he didn’t know better. He was so

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drunk he didn’t know where his penis was. He
was so drunk he didn’t notice that she wasn’t
consenting. That is a really important matter
of law for you to understand and apply in this
case.

....

How do we know though that separate and
apart from any question of intoxication, since
that can’t be considered for knowingly, how do
we know that he . . . knew he was intruding
and penetrating? And what I submit to you is
that this is the most common sense thing in
the entire world. Right.

....

And we know that he did all of those things
because . . . we know that he did those things
to get his penis inside her. So there’s no
question of whether or not he knew that he
was penetrating her. So I would submit to you
that he knowingly inflicted sexual intrusion or
sexual penetration.

3. The Court Did Not Err

¶ 49 Drake contends the trial court erred by giving the intoxication

instruction, and the prosecution committed misconduct by “arguing

that ‘self-induced intoxication’ could not be considered.” We

disagree that the trial court committed error, and we do not review

Drake’s claim of prosecutorial misconduct because Drake did not

develop the argument.

22
¶ 50 “Intoxication of the accused is not a defense to a criminal

charge,” but, “in any prosecution for an offense, evidence of

intoxication of the defendant may be offered by the defendant when

it is relevant to negative the existence of a specific intent if such

intent is an element of the crime charged.” § 18-1-804(1), C.R.S.

2024. Offenses “in which the mental culpability requirement is

expressed as ‘intentionally’ or ‘with intent’ are declared to be

specific intent offenses,” § 18-1-501(5), C.R.S. 2024, and offenses

“in which the mental culpability requirement is expressed as

‘knowingly’ or ‘willfully’ are declared to be general intent crimes,”

§ 18-1-501(6).

¶ 51 Drake was charged with sexual assault, which has a mental

culpability requirement of “knowingly,” § 18-3-402(1), C.R.S. 2021;

thus, Drake was charged with a general intent crime, see

§ 18-1-501(6). It is “the settled law of [Colorado] that evidence of

self-induced intoxication is not admissible to negate the culpability

element of ‘knowingly.’” Stone, ¶ 5, 471 P.3d at 1151 (quoting

People v. Aragon, 653 P.2d 715, 719 (Colo. 1982)).

¶ 52 Drake asserts that the trial court erred by giving the

intoxication instruction because such instruction erroneously

23
“create[d] an evidentiary rule that categorically prohibit[ed] [the]

jury from considering evidence that [was] both relevant and

exculpatory.” He argues that a proper intoxication instruction

would have explained section 18-1-804(1) to the jury and informed

it that such statute merely “re-define[d] the mental state of criminal

liability in certain circumstances.” We disagree.

¶ 53 Section 18-1-804(1) says that “a defendant may introduce

evidence of voluntary, self-induced intoxication to ‘negative the

existence’ of specific intent.” Stone, ¶ 4, 471 P.3d at 1151 (quoting

§ 18-1-804(1)). Still, “voluntary intoxication is not an affirmative

defense completely absolving a defendant of criminal liability.”

Brown v. People, 239 P.3d 764, 769 (Colo. 2010); see also People v.

Garcia, 113 P.3d 775, 780 n.4 (Colo. 2005); Stone, ¶ 4, 471 P.3d at

1151. “As a result, the introduction of such evidence establishes

only a partial defense.” Stone, ¶ 4, 471 P.3d at 1151. Moreover,

“[v]oluntary intoxication is not a true element-negating defense

because it is possible for an intoxicated person to form specific

intent.” Id. (quoting People v. Lara, 224 P.3d 388, 394 n.4 (Colo.

App. 2009)).

24
¶ 54 Drake relies on Hendershott v. People, 653 P.2d 385 (Colo.

1982), to assert that “a statute which renders evidence relevant for

one purpose — a defense to specific intent — does not render it

otherwise wholly irrelevant for the jury’s consideration.” We

disagree with Drake’s application of Hendershott. See Hendershott,

653 P.2d at 388 (concluding that the trial court erroneously

precluded the defendant from presenting any mental impairment

evidence and, therefore, reversing the defendant’s conviction).

¶ 55 In Hendershott, the trial court did not allow the jury to

consider the defendant’s mental impairment evidence. Id.

However, in this case, the trial court not only permitted the jury to

hear evidence on Drake’s self-induced intoxication but also

provided a jury instruction that explained how the jury must

consider such evidence in a legally permissible way.

¶ 56 It is “the settled law of [Colorado] that evidence of self-induced

intoxication is not admissible to negate the culpability element of

‘knowingly.’” Stone, ¶ 5, 471 P.3d at 1151 (quoting Aragon, 653

P.2d at 719). Thus, the intoxication instruction correctly informed

the jury that it could not consider Drake’s self-induced intoxication

evidence to negate Drake’s general intent of “knowingly.”

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¶ 57 In sum, we disagree with Drake’s contention that the

intoxication instruction was “overly broad and prejudicial.” We

conclude that the intoxication instruction accurately reflected the

law concerning self-induced intoxication evidence for general intent

crimes. Thus, the trial court did not err by giving the intoxication

instruction.

¶ 58 Drake also contends that the prosecutor committed

misconduct during closing arguments by telling the jury not to

consider “anything about self-induced intoxication as it relate[d] to

what [Drake] knew.” On appeal, Drake does not sufficiently address

his prosecutorial misconduct argument. He limits the presentation

of this issue to quoting the prosecutor’s argument and citing a case

for the proposition that misstating the law is improper. Because we

have decided that the trial court’s instruction on intoxication was

not improper, and Drake does not further develop his contention

regarding prosecutorial misconduct, we decline to review this

argument further. See People v. Larsen, 2023 COA 28, ¶ 26, 532

P.3d 387, 393 (concluding that the defendant’s argument was

conclusory and not reviewable on appeal because his contention

was without explanation or legal citation); People v. Wallin, 167 P.3d

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183, 187 (Colo. App. 2007) (determining that the defendant’s issues

were presented in “a perfunctory or conclusory manner” and

declining to review such issues).

D. Cumulative Error

¶ 59 “A cumulative error analysis aggregates all trial errors that

individually have been found harmless, and therefore not reversible,

and analyzes whether their cumulative effect is such that they can

no longer be deemed harmless.” People v. Clark, 214 P.3d 531, 543

(Colo. App. 2009), aff’d on other grounds, 232 P.3d 1287 (Colo.

2010). Because we have found that the trial court did not err, there

is no cumulative error.

III. Disposition

¶ 60 The judgment of conviction is affirmed.

JUDGE PAWAR and JUDGE LUM concur.

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