Peo v. Stearns

23CA0125 Peo v Stearns 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0125
La Plata County District Court No. 21CR481
Honorable Suzanne F. Carlson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kenneth Allen Stearns,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE GROVE
J. Jones and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 18, 2025

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

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Kenneth Allen Stearns, appeals his judgment of

conviction entered after a jury found him guilty of felony vehicular

eluding.1 We affirm.

I. Background

¶2 A reasonable jury could have found the following facts based

on the evidence presented at trial.

¶3 One afternoon in the fall of 2021, Stearns was driving his

motorcycle when a La Plata County sheriff’s deputy, Dean Brown,

recognized him and determined that Stearns had outstanding arrest

warrants. As Stearns drove on U.S. Highway 160 with a passenger,

later identified as Y.A., seated behind him, Brown (who was

accompanied by a trainee, Deputy Ryan Davis) began following.

After confirming that the motorcycle was registered to Stearns, the

deputies attempted a traffic stop, first by turning on their patrol

car’s red and blue lights, then by sounding its horn, and finally by

turning on its sirens. Stearns ignored the deputies, which led them

to pursue him.

1 At trial, Stearns was also found guilty of two counts of violating a

protection order. He does not challenge those convictions on
appeal.

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¶4 The pursuit — which was captured in its entirety on the

deputies’ dashboard camera — began near Durango, continued east

on U.S. Highway 160 and then turned south and eventually east on

State Highway 172 before being discontinued due to safety

considerations. Speeds varied, but at times the deputies were going

ten to thirty miles per hour over the speed limit. At their fastest,

deputies hit eighty-seven miles per hour with Stearns still “pulling

away . . . slightly.”

¶5 The dashcam footage begins when Stearns exited U.S.

Highway 160 and entered a parking lot from a side street. The

deputies turned on their patrol car’s lights to initiate a traffic stop,

but instead of slowing, Stearns accelerated, circled the parking lot,

and ran a stop sign back onto the side street.

¶6 Stearns then re-approached U.S. Highway 160 on the side

street. As he neared a stop sign, an SUV was stopped in the left

lane with its left turn signal on, apparently waiting to turn onto the

highway. Stearns approached the stop sign in the right lane and,

without stopping or otherwise yielding to the SUV, turned left from

the right lane onto U.S. Highway 160.

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¶7 The deputies followed Stearns onto U.S. Highway 160 going

east. At one point, as Stearns approached an intersection with a

red light, he drifted into the left turn lane but moved back to the

right when the light turned green. After several miles, Stearns

turned right onto State Highway 172. There were signs indicating

road work ahead and also signs marking a school zone, although

the school zone’s reduced speed limits were not in effect at that

time. At one point, Stearns moved into a passing-prohibited turn

lane to pass several cars, which had pulled over to the shoulder to

allow him and the deputies to pass. Later, Stearns approached

another car, which pulled onto the shoulder to let him pass. About

six minutes into the pursuit, the deputies were instructed to

discontinue.

¶8 An hour later, Stearns was arrested by the Southern Ute

Police Department at a gas station. When the police contacted him,

they discovered that he was subject to two protection orders

prohibiting him from contacting Y.A., his passenger. Compliance

with these orders was also a bond condition in one of his two

pending misdemeanor cases.

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¶9 At trial, Stearns conceded that he was guilty of the lesser

included offense of careless driving, a misdemeanor, but maintained

that he was not guilty of vehicular eluding. His argument focused

on the lack of risk his flight posed to others and his “efforts to avoid

and slow down for other vehicles on the road.” The jury found

Stearns guilty of vehicular eluding and he was sentenced to four

years of probation.

¶ 10 Stearns now appeals his vehicular eluding conviction,

contending that the district court erred by (1) allowing the deputies

to provide expert testimony without first being qualified as expert

witnesses and allowing them to usurp the jury’s function as fact

finder; and (2) overlooking prosecutorial misconduct in closing

argument. Stearns also contends that these errors cumulatively

deprived him of a fair trial.

II. Deputies’ Testimony

¶ 11 Stearns contends that the district court plainly erred by

allowing certain testimony from Deputies Brown and Davis. We are

not persuaded.

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A. Additional Facts

¶ 12 Both deputies testified at trial as lay witnesses during direct

examination. Deputy Brown summarized his training and

experience as a police officer, including elaborating on his high-

speed and low-speed driving training. The prosecution then played

the patrol car’s dashcam video of the pursuit while Brown narrated

the events. In response to the prosecutor’s questions, Brown

characterized several of Stearns’s actions during the pursuit as

“dangerous maneuver[s],” including his failure to stop before

turning across U.S. Highway 160, his high rate of speed during the

pursuit, and his decision to pass four cars in a passing-prohibited

middle turning lane. Brown added that this last maneuver was “a

violation of the law.” On redirect, Brown clarified that, even though

Stearns used his turn signal at some points and that road

conditions were not bad, he was still driving dangerously because

he was excessively speeding and running stop signs with a

passenger on his motorcycle. Brown testified that neither personal

injury nor property damage were necessary for driving to be

considered dangerous.

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¶ 13 Deputy Davis also recounted his training and certifications on

the stand, including his driving training. Although his testimony

was briefer than Brown’s, he also characterized Stearns’s turn

across traffic onto U.S. Highway 160 and his decision to pass in a

passing-prohibited turning lane as “dangerous maneuver[s].” The

latter, he reiterated, was also a violation of the law.

B. Applicable Law and Standard of Review

¶ 14 CRE 701 defines the scope of lay witness opinion testimony. It

provides that lay witness testimony in the form of opinions or

inferences must be “(a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’[s]

testimony or the determination of a fact in issue, and (c) not based

on scientific, technical, or other specialized knowledge within the

scope of [CRE] 702.”

¶ 15 CRE 702, on the other hand, concerns the admissibility of

expert testimony. Under this rule, “[i]f 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.

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¶ 16 In determining whether testimony is lay testimony under CRE

701 or expert testimony under CRE 702, a district court must look

to the basis for the opinion. Venalonzo v. People, 2017 CO 9, ¶ 16.

If the witness provides testimony that could be expected to be based

on an ordinary person’s experience or knowledge, then the witness

is offering lay testimony. Id. If, on the other hand, the witness

provides testimony that could not be offered without specialized

experience, knowledge, or training, then the witness is offering

expert testimony. Id.

¶ 17 To establish the class 5 felony of vehicular eluding, the

prosecution must show that the defendant operating a motor

vehicle “knowingly elud[ed] or attempt[ed] to elude a peace officer

also operating a motor vehicle,” knew or reasonably should have

known that he was “being pursued by said peace officer,” and

operated his vehicle “in a reckless manner.” § 18-9-116.5(1), (2)(a),

C.R.S. 2025. In comparison, the statute for the lesser included

class 2 misdemeanor of careless driving requires the prosecution to

show that the defendant operated a motor vehicle “in a careless and

imprudent manner, without due regard for the width, grade, curves,

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corners, traffic, and use of the streets and highways.” § 42-4-

1402(1), (2)(a), C.R.S. 2025.

¶ 18 We review evidentiary decisions for an abuse of discretion.

People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). Because Stearns’s

attorney did not object to the testimony that Stearns now

challenges on appeal, we review for plain error. Hagos v. People,

2012 CO 63, ¶ 14. Under the plain error standard of review, a

defendant bears the burden of establishing that an error occurred

and that, at that time, the error was so clear cut and obvious that a

trial judge should have been able to avoid it without benefit of

objection. People v. Conyac, 2014 COA 8M, ¶ 54. And we reverse

only if such an error so undermined the fundamental fairness of the

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

of conviction. Hagos, ¶ 14.

C. Analysis

¶ 19 As Stearns puts it in his opening brief, the outcome of his trial

“ultimately boiled down to the jurors’ subjective judgment about

whether Stearns’s driving rose to the level of ‘recklessness’ or was

merely ‘careless.’” In other words, the main question that the jurors

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had to decide was whether or not Stearns drove “in a reckless

manner” during the pursuit. § 18-9-116.5(1).

¶ 20 Given that the jurors were shown dashcam footage depicting

the entire pursuit, we are confident they were able to reasonably

determine on their own whether Stearns drove recklessly during the

chase. Each incident that the deputies described as a “dangerous

maneuver” or a violation of the law was clearly shown in the

footage, and the deputies’ choice of words did not usurp the jury’s

role of determining whether Stearns’s driving qualified as “reckless.”

Nor did the deputies’ assertions regarding the legality of various

actions require any particular expertise. Venalonzo, ¶ 16. Any

licensed driver should know, for example, that running a stop sign

violates traffic laws, as does driving more than thirty miles per hour

over the posted limit.

¶ 21 We acknowledge that some of the deputies’ testimony —

particularly Brown’s description of the reasons for calling off the

chase — may have been closer to crossing the line between lay and

expert testimony. Nonetheless, even if we were to assume that

some of the testimony described above was improperly admitted,

reversal would not be required under the plain error standard.

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Hagos, ¶ 14. The deputies’ narration of the footage did not occur in

a vacuum. The defense extensively cross-examined Brown and,

while the dashcam video played, pointed out that many of Brown’s

opinions about the dangerousness of Stearns’s maneuvers were

based on hypothetical circumstances that did not actually occur.

Similarly, defense counsel’s cross-examination of Davis drew an

admission that the supposed risks related to Stearns’s dangerous

driving had not occurred. Most importantly, though, the jurors

viewed the dashcam footage themselves, and in our view, nothing in

either deputy’s testimony seriously undermined the jurors’ ability to

rely on their own observations to assess whether Stearns drove

recklessly during the pursuit. Accordingly, even if some of the

deputies’ testimony was improperly admitted, the error was not

plain.

III. Prosecutorial Misconduct

¶ 22 Stearns next argues that the district court erred by failing to

intervene when the prosecutor allegedly (1) expressed his personal

opinion that Stearns was guilty; (2) misstated the facts and law of

the case; and (3) made a “golden rule” argument during closing. We

disagree.

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A. Applicable Law and Standard of Review

¶ 23 In reviewing a claim of prosecutorial misconduct, we conduct a

two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). We determine first whether “the prosecutor’s questionable

conduct was improper based on the totality of the circumstances

and, second, whether such actions warrant reversal according to

the proper standard of review.” Id.

¶ 24 Because “[a]dvocates must be able to present their best case to

achieve just results,” prosecutors have “wide latitude in the

language and presentation style used to obtain justice.” Domingo-

Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). During closing

argument, a prosecutor “may refer to the strength and significance

of the evidence, conflicting evidence, and reasonable inferences that

may be drawn from the evidence.” People v. Walters, 148 P.3d 331,

334 (Colo. App. 2006). However, a prosecutor’s “arguments and

rhetorical flourishes must stay within the ethical boundaries” that

our supreme court has drawn. Domingo-Gomez, 125 P.3d at 1048.

¶ 25 Three of those ethical boundaries are not “express[ing] a

personal belief or opinion as to [the] truth or falsity of [a witness’s]

testimony,” Wilson v. People, 743 P.2d 415, 419 (Colo. 1987); not

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intentionally misstating the evidence or the law, Domingo-Gomez,

125 P.3d at 1048-49; and not making “golden rule” arguments

because “they encourage the jury to decide the case based on

personal interest . . . rather than on a rational assessment of the

evidence,” People v. Munsey, 232 P.3d 113, 123 (Colo. App. 2009).

¶ 26 Where, as here, a defendant did not preserve a claim of error

by objecting at trial, appellate review is circumscribed by the plain

error standard of Crim. P. 52(b). The defendant must show that the

prosecutor’s arguments were “flagrantly, glaringly, or tremendously

improper.” Domingo-Gomez, 125 P.3d at 1053 (citation omitted).

Also, because courts do not reverse convictions to punish

prosecutors, the defendant must show that the arguments so

undermined the trial’s fundamental fairness as to cast doubt on the

judgment’s reliability. People v. McBride, 228 P.3d 216, 221 (Colo.

App. 2009). Given these demanding requirements, “[p]rosecutorial

misconduct in closing argument rarely constitutes plain error.” Id.

(alteration in original) (quoting Liggett v. People, 135 P.3d 725, 735

(Colo. 2006)).

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B. Additional Facts

¶ 27 Stearns contends that the following statements, all of which

occurred during the prosecutor’s closing argument, require reversal

for plain error:

(1) “[T]he argument comes down to whether or not Mr.

Stearns’[s] driving was reckless, and I want to tell you his

driving was indeed reckless.”

(2) “[W]e heard . . . the police deemed [the pursuit] too

dangerous to continue. In their professional driving, they

deemed this too dangerous to continue. They terminated

due to a substantial and unjustifiable risk to the

defendant himself, to the passenger, to the public, and to

the officers themselves.”

(3) “[Stearns] consciously disregarded everyone’s safety and

he drove this way, this way that we all saw on the dash

cam.”

(4) “He drove this way . . . over the safety of everyone in La

Plata County.”

(5) “[Stearns’s driving was] a conscious disregard for a

substantial risk; a risk to himself, a risk to his

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passenger, and a risk to the public as a whole. He put

the community at risk when he made that conscious

decision.”

¶ 28 During rebuttal closing, the prosecutor made the following

statement:

(6) “The very nature of running from the police is a

conscious disregard for a substantial risk. There is a

substantial risk that something is going to happen when

you run from the police, and [Stearns] made that decision

consciously to continue driving.”

C. Analysis

1. Personal Opinion

¶ 29 Stearns first contends that the prosecutor impermissibly gave

his personal opinion that Stearns was driving recklessly when he

said, “I want to tell you his driving was indeed reckless.” After

considering this statement in context, we disagree. Rather than

representing an improper personal opinion, the prosecutor’s

assertion was instead a rhetorical device that served to introduce a

detailed discussion of the evidence. See People v. Esquivel-Alaniz,

985 P.2d 22, 23 (Colo. App. 1999) (“A contention that the

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prosecution engaged in improper argument must be evaluated in

the context of the argument as a whole and in light of the

evidence.”); People v. Ortega, 2016 COA 148, ¶ 27 (“[B]ecause

arguments delivered in the heat of trial are not always perfectly

scripted, reviewing courts accord prosecutors the benefit of the

doubt when their remarks are ambiguous or simply inartful.”

(citation omitted)). Consistent with that interpretation, we note that

the prosecutor’s subsequent remarks included highlighting

Stearns’s left turn from the right lane onto U.S. Highway 160, his

speeding, and his decision to pass in a no-passing lane.

Accordingly, the record does not support Stearns’s contention that

the prosecutor’s statement improperly injected his personal opinion

of Stearns’s guilt. See People v. Kendall, 174 P.3d 791, 798 (Colo.

App. 2007) (holding that the prosecutor’s statement, “[F]ind the

defendant guilty of kidnapping, because that’s what he did,” was

not a personal opinion but rather a reiteration of the prosecution’s

position that the defendant was guilty of kidnapping).

2. Misstating the Facts and Law

¶ 30 Stearns next asserts that the prosecutor misstated the facts

when he said, “[I]n [the deputies’] professional driving experience,

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they deemed [the pursuit] too dangerous to continue.” He contends

that this statement implied that the deputies provided expert

testimony rather than lay testimony, and that it therefore “imbued

the officers’ testimony with the weight of expertise.” Again, we

disagree. The challenged statement was a reference to the reasons

that the deputies were ordered to call off the chase, which included

factors like traffic conditions, the type of vehicle Stearns was

driving, and the fact that he had a passenger, among others. It was

a practical summation of the deputies’ description of the pursuit

and an accurate explanation for why it was terminated after six

minutes.

¶ 31 Even assuming the prosecutor’s phrasing could have been

understood as suggesting that the deputies gave expert rather than

lay testimony, reversal would not be required under the plain error

standard. See Hagos, ¶ 14; Ortega, ¶ 27. Many of the factors that

led to the termination of the pursuit were visible on the dashcam

footage, and the reasoning underlying that decision was just one of

many pieces of evidence that the prosecutor urged the jury to

consider when deciding whether Stearns drove recklessly.

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¶ 32 Stearns also argues that the prosecutor lowered the burden of

proof during rebuttal closing when he said, “The very nature of

running from the police is a conscious disregard for a substantial

risk.” He contends that this statement suggested to the jury that

any flight from the police qualifies as vehicular eluding, regardless

of whether it is done recklessly. But when this statement is read

together with the remainder of the closing argument, it becomes

clear that the prosecutor was not suggesting that the jury should

minimize — much less dispense with — the requirement that

Stearns drove recklessly during his flight from police. Indeed, the

prosecutor repeatedly highlighted Stearns’s actions throughout his

closing and rebuttal arguments, urging the jury each time to find

that those acts were done recklessly. Given this context, we

conclude that this statement does not substantially undermine our

faith in his conviction.

3. Golden Rule

¶ 33 Finally, Stearns asserts that the prosecutor made an

impermissible “golden rule” argument when he argued that Stearns

put running from his warrants “over the safety of everyone in La

Plata County” and “put the community at risk” by choosing to flee

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from the deputies. This generalized statement accurately reflected

the “clear intent” of the vehicular eluding statute: “[T]o protect

members of the public from the dangers created by a driver

attempting to elude a police officer.” People v. Fury, 872 P.2d 1280,

1283 (Colo. App. 1993). It did not ask the jurors “to place

themselves in the victim’s position” or otherwise “encourage the jury

to decide the case based on personal interest and emotion rather

than on a rational assessment of the evidence.” Munsey, 232 P.3d

at 123. It was therefore not improper.

IV. Cumulative Error

¶ 34 Because the district court did not commit multiple errors,

reversal is not warranted for cumulative error. Howard-Walker v.

People, 2019 CO 69, ¶ 26 (“[R]eversal is warranted when numerous

errors in the aggregate show the absence of a fair trial, even if

individually the errors were harmless or did not affect the

defendant’s substantial rights.”).

V. Disposition

¶ 35 We affirm Stearns’s judgment of conviction.

JUDGE J. JONES and JUDGE SCHUTZ concur.

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