Peo v. Cotter

22CA1071 Peo v Cotter 12-04-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1071
Weld County District Court No. 19CR3082
Honorable Vincente G. Vigil, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew Cotter,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE YUN
Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 4, 2025

Philip J. Weiser, Attorney General, Cata A. Cuneo, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Matthew Cotter appeals the judgment of conviction entered

after a jury found him guilty of attempted first degree murder,

attempted first degree assault, and other crimes. He contends that

(1) the prosecution presented insufficient evidence to sustain three

of his attempted murder and assault convictions; (2) the court

erroneously denied his motion to suppress; and (3) the court

admitted improper evidence during trial. We disagree and affirm

the convictions.

I. Background

¶2 One evening, Cotter went on a long drive to “get away.”

During the drive, Cotter drank gin, called friends, and texted his

ex-girlfriend, A.C.

¶3 Later that evening, 911 dispatchers received three calls about

Cotter. The first call, around 8 or 9 p.m., came from A.C.’s mother,

who reported that he was harassing A.C. Cotter had driven to

A.C.’s house and was waiting outside. A friend of Cotter’s had told

A.C. that Cotter had a gun. In response to this call, police officers,

including Officer Jeremy Sagner, arrived at A.C.’s house. They were

unable to locate Cotter, but Officer Sagner left a voicemail,

informing Cotter that A.C. did not want any contact and offering his

1
own contact information if Cotter needed to talk to someone. Cotter

did not answer, but at 9:31 p.m., he texted a friend: “If the cops are

where I’m going to I guess I’m dying tonight[.]”

¶4 Around 10 or 11 p.m., A.C. and her father made the second

and third 911 calls, after Cotter returned to their house with a

loaded gun. As police responded again, A.C.’s family hid in a closet.

Upon hearing the approaching sirens and seeing the flashing police

lights, Cotter also hid, crouching behind the gated fence beside

A.C.’s house with a loaded gun.

¶5 Around 10:50 p.m., five officers arrived, turned off their sirens

to avoid an ambush, and split up to search the area. Through a

crack in the gate, Cotter saw at least three armed, uniformed

officers approaching with flashlights. The following photographs

show the front patio and gated fence:

2
The photograph on the left shows two units; the unlit entryway on

the left is A.C.’s. The photograph on the right shows the gated

fence between the two units.

¶6 One officer approached the front patio, with the gated fence on

his right, followed closely by Officer Sagner. This officer stepped off

the front patio to inspect the fence and was temporarily blocked

from Officer Sagner’s view by a corner pillar. At that moment,

Cotter, in his own words, “caught them off guard” and fired three

shots through a crack in the gate. The first shot struck the

approaching officer in the head.

¶7 Officer Sagner observed this officer fall onto his back and

instructed two others to pull him to safety. While the wounded

officer was dragged out of the line of fire, Officer Sagner caught

sight of a figure through the fence and returned fire, striking Cotter

three times. Although one of Cotter’s three shots had hit the pillar

where Officer Sagner was positioned, Officer Sagner was not

injured. The officers arrested Cotter.

¶8 Cotter received treatment for his wounds at the hospital.

While there, a detective from the police department interviewed

Cotter about the incident, during which Cotter remarked, “I know I

3
hit the first one. I don’t know if I hit him again after that.” Cotter

also said that he had “blacked out” but later recalled firing at least

three shots.

¶9 The People charged Cotter with (1) two counts of attempted

first degree murder (after deliberation); (2) two counts of attempted

first degree murder (extreme indifference); (3) first degree assault;

(4) attempted first degree assault; and (5) six crime of violence

sentence enhancers. Cotter was convicted on all counts and

received two consecutive forty-eight-year prison sentences.

¶ 10 Cotter now appeals.

II. Sufficiency of the Evidence

¶ 11 Cotter contends that his convictions for the attempted first

degree murder (after deliberation), attempted first degree murder

(extreme indifference), and attempted first degree assault (serious

bodily injury) of Officer Sagner should be vacated because the

evidence was insufficient to establish his mental culpability for each

of these offenses. After discussing the standard of review, we

address each conviction in turn.

4
A. Standard of Review

¶ 12 We review the record de novo to determine whether the

evidence was sufficient to sustain the defendant’s conviction.

Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). Evidence will

sustain a conviction if the direct and circumstantial evidence,

“‘when viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty of the charge

beyond a reasonable doubt.’” Id. (citation omitted).

¶ 13 In applying this “substantial evidence” test, we must, as

relevant here, give the prosecution the benefit of every reasonable

inference that can be fairly drawn from the evidence and refrain

from acting as a thirteenth juror. People v. Gonzales, 666 P.2d 123,

128 (Colo. 1983). Because direct proof of the defendant’s state of

mind is rarely available, a defendant’s mental culpability “can, and

often must, be proved by circumstantial evidence.” People v.

Johnson, 2024 CO 32, ¶ 36 (quoting People in Interest of J.O., 2022

COA 65M, ¶ 20).

5
B. Attempted First Degree Murder (After Deliberation)

¶ 14 Cotter contends that his conviction for attempted first degree

murder (after deliberation) of Officer Sagner should be vacated

because the prosecution failed to prove deliberation or intent.

Specifically, he argues that the jury could not reasonably infer

deliberation or intent because the “evidence established that

Mr. Cotter only shot toward [the approaching officer] and was

unaware that Sagner was behind the pillar.”

1. Applicable Law

¶ 15 For criminal attempt, the prosecution must prove that the

defendant took “a substantial step toward the commission of the

offense” and possessed “the kind of culpability” required for the

underlying offense. § 18-2-101(1), C.R.S. 2025.

¶ 16 A person commits first degree murder (after deliberation) if,

“[a]fter deliberation and with the intent to cause the death of a

person other than himself, he causes the death of that person or of

another person.” § 18-3-102(1)(a), C.R.S. 2025. The phrase “after

deliberation” means “the decision to commit the act has been made

after the exercise of reflection and judgment concerning the act. An

act committed after deliberation is never one which has been

6
committed in a hasty or impulsive manner.” § 18-3-101(3), C.R.S.

2025. However, “while deliberation requires that a design to kill

precede the killing, the length of time required for deliberation need

not be long.” People v. Bartowsheski, 661 P.2d 235, 242 (Colo.

1983). The term “intent” means the defendant’s “conscious

objective is to cause the specific result proscribed by the statute

defining the offense.” § 18-1-501(5), C.R.S. 2025.

¶ 17 Evidence that can be considered in determining whether a

defendant acted intentionally and after deliberation in committing

murder includes, but is not limited to,

• the circumstances surrounding the killing, Bartowsheski,

661 P.2d at 242;

• the use of a deadly weapon, id. at 241-42;

• the retrieval and preparation of the deadly weapon,

People v. McBride, 228 P.3d 216, 226-27 (Colo. App. 2009);

• the manner in which the deadly weapon was used,

Bartowsheski, 661 P.2d at 242; and

• the location of the wounds, People v. Sanchez, 253 P.3d

1260, 1262 (Colo. App. 2010).

7
2. Discussion

¶ 18 The prosecution presented ample evidence from which a

reasonable jury could find that Cotter acted with deliberation and

intent toward Officer Sanger.

¶ 19 The circumstances surrounding the shooting support the

jury’s inference of deliberation and intent. After the police became

involved, Cotter texted a friend, “If the cops are where I’m going to I

guess I’m dying tonight[.]” Nevertheless, he returned to A.C.’s

house, disregarding police instructions to stay away. When he

heard police sirens and saw flashing lights, Cotter retrieved his gun

from the glovebox, loaded and racked it, and then hid behind a

fence where he “[didn’t] think they saw [him]” and where he could

“[catch] them off guard.” As in McBride, the evidence is sufficient to

support deliberation and intent because Cotter was “brooding the

day of the shooting,” had sufficient time to reflect on his actions in

the minutes before the shooting, and “had to aim and apply

pressure to shoot” three times at the officers. 228 P.3d at 226-27.

¶ 20 Cotter insists that this evidence is insufficient as to Officer

Sagner because he was “unaware that other officers were in the

area behind [the officer he shot]” and “there was no evidence he

8
could see or aimed at Sagner.” But a reasonable jury could

disagree for three reasons. First, Cotter’s own account suggests he

was aware of multiple officers. Cotter noted “three police officers

pulled up,” recalled seeing “their flashlights looking around,” and

admitted his shot “hit the first one,” after which he fired two more

shots. Second, while Cotter conceded he aimed at and “hit the first

one,” circumstantial evidence is sufficient to show he intended to

hit the second officer, Sagner. The prosecution showed that Cotter

fired three shots at the approaching officers, striking the pillar

where Officer Sagner was positioned. Third, insofar as Cotter

contends that he intended to shoot only the first officer, the jury

was not required to accept his version of events. See Gonzales,

666 P.2d at 128. And we will not act as a “thirteenth juror” by

crediting his version on appeal. Id. “It does not matter that, were

we the trier of fact, we might have reached a different conclusion.”

Clark, 232 P.3d at 1291.

¶ 21 Thus, we conclude that the evidence in this case, when viewed

in the light most favorable to the prosecution, is sufficient to

sustain the conviction for attempted first degree murder (after

deliberation) of Officer Sagner.

9
C. Attempted First Degree Murder (Extreme Indifference)

¶ 22 Cotter contends that his conviction for attempted first degree

murder (extreme indifference) of Officer Sagner should be vacated

because the prosecution failed to prove he knowingly created a

grave risk to Officer Sagner or manifested extreme indifference to

human life generally. Cotter insists that he was unaware of other

officers nearby and directed all three shots toward the first officer.

1. Applicable Law

¶ 23 To sustain a conviction for attempted extreme indifference

murder, there must be evidence from which the jury “can find that

the actor was aware he was engaging in conduct strongly

corroborative of the firmness of his purpose to complete the

commission of the crime of extreme indifference murder.”

Montoya v. People, 2017 CO 40, ¶ 17.

¶ 24 A person commits first degree murder (extreme indifference) if,

“[u]nder circumstances evidencing an attitude of universal malice

manifesting extreme indifference to the value of human life

generally, he knowingly engages in conduct which creates a grave

risk of death to a person, or persons, other than himself, and

thereby causes the death of another.” § 18-3-102(1)(d). Extreme

10
indifference murder encompasses both “‘acts putting at risk a single

victim, without knowing or caring who that may be,’ as well as

those acts ‘put[ting] at grave risk a number of individuals not

targeted by the defendant.” People v. Anderson, 2019 CO 34, ¶ 14

(quoting Candelaria v. People, 148 P.3d 178, 182-83 (Colo. 2006)).

¶ 25 The statutory language “universal malice” requires the

prosecution to prove that the defendant’s conduct objectively

demonstrated “a willingness to take human life indiscriminately,

without knowing or caring who the victim may be or without having

an understandable motive or provocation.” Garcia v. People, 2023

CO 30, ¶ 16 (quoting Candelaria, 148 P.3d at 181). Our supreme

court has clarified that “the question for the trier of fact is whether

the act by which death is knowingly caused, by its very nature or

the surrounding circumstances of its commission, objectively

evidences such a willingness [to take human life indiscriminately]”

and not “[w]hether the conduct in question actually endangers more

than a single targeted person, or even whether the actor subjectively

intends to or is aware that his conduct may ultimately take life

indiscriminately.” Anderson, ¶ 15 (emphases added).

11
¶ 26 Colorado courts have upheld convictions for attempted or

completed extreme indifference murder not only when the

defendant misses his intended victim to hit an unintended

bystander, Candelaria, 148 P.3d at 180, but also when the

defendant

• fires a lethal firearm indiscriminately in the general

direction of a visible crowd, Montoya, ¶ 20;

• fires at the doors of a house full of people, People v. Ellis,

30 P.3d 774, 779 (Colo. App. 2001);

• fires at intended targets with nontargets nearby, People v.

Stovall, 2012 COA 7M, ¶ 40;

• sprays gunfire at an empty car but wounds nearby

neighbors inside their homes, People v. Rubio, 222 P.3d

355, 359 (Colo. App. 2009); and

• repeatedly shoots at his intended target when bystanders

could have been within shooting range, Anderson, ¶ 20.

¶ 27 Our supreme court’s holding in Anderson is instructive.

There, the defendant exited his car to fire thirteen times at the

officer who pulled him over. Id. at ¶¶ 6-7. The evidence did not

show anyone else was “in the vicinity during the shooting” — the

12
shooting took place beside a highway around 2 a.m. and the officer

was patrolling alone. Id. at ¶¶ 5, 8. Still, the court concluded that

reasonable jurors could interpret the defendant’s “flurry of gunfire

aimed in [the officer’s] direction,” id. at ¶ 17, as demonstrating a

willingness to take life indiscriminately “because it objectively

evidenced a willingness to kill as many as thirteen bystanders

within range of the defendant’s indiscriminate shooting, or simply

because it evidenced a willingness to kill whoever was pursuing

him.” Id. at ¶ 20.

2. Discussion

¶ 28 The prosecution presented ample evidence from which a

reasonable jury could find Cotter guilty of attempted first degree

murder (extreme indifference).

¶ 29 The circumstances of the shooting, along with Cotter’s

interview statements, support the jury’s findings that he

demonstrated a willingness to take life indiscriminately and was

aware that his actions posed a grave risk to others. Beyond the

evidence discussed above, the prosecution introduced testimony

about loud footsteps on ice-packed snow and the officers’ flashlights

repeatedly shining on Cotter’s hiding place. Viewing the evidence in

13
the light most favorable to the prosecution, a reasonable jury could

infer “universal malice” because, when Cotter fired three shots after

hearing and seeing multiple officers nearby, he “objectively

evidenced a willingness to kill as many as [three officers] within

range of [his] indiscriminate shooting.” Id. at ¶ 20. A reasonable

jury could also infer Cotter acted knowingly because, after he “hit

the first one,” knocking him to the ground, he still fired two more

shots.

¶ 30 We are not persuaded by Cotter’s arguments that he lacked

awareness of Officer Sagner because he directed all three shots at

the first officer. The jury was not required to credit his statement

that he did not see or target Officer Sagner. But even if we were to

credit Cotter’s claim that he was unaware of Officer Sagner,

Colorado courts have upheld convictions for attempted or

completed extreme indifference murder in analogous situations —

for example, when a defendant sprays gunfire at an empty car but

wounds nearby neighbors inside their homes, Rubio, 222 P.3d at

358-59, or when a defendant repeatedly shoots at an intended

target when bystanders could have been within shooting range,

Anderson, ¶ 20.

14
¶ 31 Viewing the evidence in the light most favorable to the

prosecution, a reasonable jury could find beyond a reasonable

doubt that Cotter knowingly created a grave risk to Officer Sagner,

under circumstances evincing a willingness to take human life

indiscriminately. Thus, sufficient evidence supports the jury’s

verdict.

D. Attempted First Degree Assault (Serious Bodily Injury)

¶ 32 Cotter contends that his conviction for attempted first degree

assault (serious bodily injury) of Officer Sagner should be vacated

because the prosecution failed to prove intent or deliberation.

Again, we disagree.

1. Applicable Law

¶ 33 A person commits attempted first degree assault (serious

bodily injury) if, “[w]ith intent to cause serious bodily injury to

another person, he causes serious bodily injury to any person by

means of a deadly weapon.” § 18-3-202(1)(a), C.R.S. 2025. A

defendant can possess intent to cause serious bodily injury and

death at the same time. Sanchez, 253 P.3d at 1264.

15
2. Discussion

¶ 34 Our earlier analysis of intent for attempted first degree murder

(after deliberation) applies with equal force here. The intent to

commit attempted first degree murder necessarily includes the

intent to cause serious bodily harm. Therefore, as discussed above,

the evidence in this case, when viewed in the light most favorable to

the prosecution, is sufficient to sustain the conviction for attempted

first degree assault (serious bodily injury).

III. Motion To Suppress

¶ 35 Cotter contends that his convictions should be reversed

because the court admitted his involuntary statements, which

contributed to the guilty verdicts. He argues that his statements

during the hospital interview were involuntary because the detective

“deliberately exploited his mental and physical weakness” since he

had blacked out the night before, undergone surgery, received

fentanyl, changed his mind about the interview, expressed suicidal

thoughts, and generally lacked experience with law enforcement.

We disagree.

16
A. Additional Facts

¶ 36 At approximately 6:40 a.m. on the morning after the shooting,

a detective went to interview Cotter at the hospital. A nurse told the

detective that Cotter had been given fentanyl but that its effects

“should have worn off by then.” But Cotter told the detective he

would “answer [his] questions with an attorney present.” So the

detective ended the interview and left the hospital.

¶ 37 Around 9:30 a.m., after receiving a text from another officer

saying that Cotter now wanted to talk, the detective returned to the

hospital to interview Cotter. At the start of the recorded interview,

the detective confirmed why he had returned: “I received a text

message that said you had approached the officers and said you do

want to make a statement to me. Is that correct, and do you want

to do that without an attorney present?” Cotter replied, “Yes.”

When the detective asked who initiated contact, Cotter said, “I had

the nurse do it . . . . I saw [the officers] out the window so I had the

nurse grab them.” The detective double-checked, “No one told you

‘You have to do this’ or anything like that?” Cotter confirmed, “Just

me.” The detective then asked, “Did anyone coerce you, threaten

17
you, intimidate you, or tell you that you have to give a statement to

me?” Cotter answered, “No.”

¶ 38 The detective then read Cotter his Miranda rights, showing

him a written copy to follow along. Cotter said he understood each

right and signed the waiver form.

B. Standard of Review

¶ 39 The district court’s suppression order “presents a mixed

question of fact and law” on review. People v. Thompson, 2021 CO

15, ¶ 15. Accordingly, we review the court’s factual findings for

clear error, accepting them if they are “supported by competent

evidence, but we assess the legal significance of the facts de novo.”

Id. (citation omitted). Additionally, when, as here, the challenged

interview is video recorded and there are no relevant disputed facts

outside of the recording, “we are in essentially the same position as

the trial court to determine the question of suppression.” People v.

Taylor, 2018 CO 35, ¶ 7. Thus, we may conduct an independent

review of the detective’s recorded interview to determine whether

Cotter’s statements should have been suppressed under controlling

law. See id.

18
C. Applicable Law

¶ 40 Under the Due Process Clauses of the United States and

Colorado Constitutions, a defendant’s statements must be

voluntary to be admitted into evidence. U.S. Const. amends. V,

XIV; Colo. Const. art. II, § 25; Effland v. People, 240 P.3d 868, 878

(Colo. 2010). The prosecution bears the burden of proving, by a

preponderance of the evidence, that the defendant’s statements

were voluntary. Effland, 240 P.3d at 878.

¶ 41 When a defendant challenges the voluntariness of his

statements, the critical question on appeal is whether, under the

totality of the circumstances, the interviewing officer “actually

overbore the defendant’s will.” People v. McIntyre, 2014 CO 39,

¶ 19. To answer this, we follow a two-step inquiry. People v.

Ramadon, 2013 CO 68, ¶ 20. First, the court must determine

whether the totality of the circumstances shows that the police

conduct was coercive. Id. “[C]oercive police activity is a necessary

predicate to the finding that a confession is not ‘voluntary.’” Id. at

¶ 19 (quoting Colorado v. Connelly, 479 U.S. 157, 167 (1986)).

Second, if police conduct was coercive, the court must determine

19
whether that conduct played a significant role in inducing the

statement. Id.

¶ 42 Both steps of the voluntariness inquiry require that we weigh

the following nonexhaustive factors:

(1) whether the defendant was in custody;

(2) whether the defendant was free to leave;

(3) whether the defendant was aware of the
situation;

(4) whether the police read Miranda rights to
the defendant;

(5) whether the defendant understood and
waived Miranda rights;

(6) whether the defendant had an
opportunity to confer with counsel or
anyone else prior to or during the
interrogation;

(7) whether the statement was made during
the interrogation or volunteered later;

(8) whether the police threatened [the]
defendant or promised anything directly
or impliedly;

(9) the method or style of the interrogation;

(10) the defendant’s mental and physical
condition just prior to the interrogation;

(11) the length of the interrogation;

20
(12) the location of the interrogation; and

(13) the physical conditions of the
location where the interrogation occurred.

Id. at ¶ 20 (quoting People v. Medina, 25 P.3d 1216, 1222-23 (Colo.

2001)). “While a defendant’s mental condition, by itself and apart

from its relationship to official coercion, does not resolve the issue

of constitutional voluntariness, the deliberate exploitation of a

person’s weakness by psychological intimidation can under some

circumstances constitute a form of governmental coercion that

renders a statement involuntary.” Effland, 240 P.3d at 877

(quoting People v. Gennings, 808 P.2d 839, 844 (Colo. 1991)).

D. Discussion

¶ 43 Applying the nonexhaustive factors to this case, we conclude

there was no evidence of police coercion. Though Cotter’s hospital

room was guarded by police, the district court found, and our

independent review of the recorded interview confirms, the

following:

• Cotter was aware of the situation. He asked about the

condition of the officer he shot and requested a lawyer

during his first encounter with the detective.

21
• Cotter then voluntarily re-initiated contact with the

detective, confirming that he now wanted to make a

statement without an attorney present.

• The detective read Cotter his Miranda rights and

“methodically verified” that Cotter wanted to speak with him

voluntarily.

• Cotter understood and waived his Miranda rights because

the detective read aloud from a physical copy, pointing out

key aspects.

• The officers neither threatened Cotter nor directly or

impliedly promised him anything. When Cotter asked,

“How long will I get for this?” the detective declined to

answer.

• The detective’s interview remained “conversational”

throughout.

• Despite Cotter’s injuries, his mental condition appeared

adequate. The district court found, and we agree, that his

responses were “thoughtful” and “appropriate[],” and his

thinking was “complex.” For example, when the detective

22
inaccurately summarized Cotter’s answers, Cotter would

interject to correct him.

¶ 44 Although Cotter had been given fentanyl before the detective

first arrived, a nurse confirmed that, based on the dosage and

timing, its effects “should have worn off by” the time of the

interview. And, while Cotter may have struggled with suicidal

ideation as in Effland, there was no evidence of exploitation or

intimidation. Unlike in Effland, the detective here did not

repeatedly ignore Cotter’s multiple requests for an attorney, tell

Cotter that he was not entitled to an attorney, or confront Cotter

with evidence against his will. Cf. Effland, 240 P.3d at 878.

¶ 45 For these reasons, the district court did not err by finding that

Cotter’s statements were voluntary because the totality of the

circumstances does not suggest coercive police conduct.

IV. Evidentiary Issues

¶ 46 We next turn to Cotter’s arguments that the district court

reversibly erred by admitting 3-D images of the crime scene as

demonstrative aids and allowing the prosecutor to use an

intoxication pamphlet during cross-examination of the defense

toxicology expert.

23
A. Standard of Review

¶ 47 We review a district court’s evidentiary rulings for an abuse of

discretion. People v. Douglas, 2016 COA 59, ¶ 20. A district court

abuses its discretion if its decision is manifestly unreasonable,

arbitrary, or unfair, or based on an erroneous understanding or

application of the law. See Margerum v. People, 2019 CO 100, ¶ 9.

¶ 48 If we discern error under this standard of review, the standard

of reversal for preserved evidentiary issues is harmless error.

People v. Summitt, 132 P.3d 320, 327 (Colo. 2006). The harmless

error analysis asks “whether, viewing the evidence as a whole, the

contested evidence substantially influenced the verdict or affected

the fairness of the trial proceedings.” Id. “An error in a criminal

trial will be disregarded if there is not a reasonable possibility that

it contributed to the jury’s guilty verdict.” Id.

B. Demonstratives Aids of the Incident

¶ 49 Cotter contends that the district court reversibly erred by

admitting the prosecution’s demonstrative aids of the crime scene.

Specifically, Cotter argues that four exhibits “did not accurately

reflect the time of day or physical characteristics of the subjects,”

and that their probative value was low because the jury had access

24
to the underlying evidence on which the demonstrative aids were

based. We are not persuaded.

1. Additional Facts

¶ 50 The prosecution introduced several exhibits created through

“FARO,” a 3-D scanner software that generates images of the crime

scene, including four demonstrative aids in which featureless

mannequins had been superimposed onto images. Officer John

Tollefson, qualified as an expert in FARO computerized crime scene

imaging, explained that FARO produces accurate 3-D

representations of the scene and provides precise measurements

between reference points identified during the original scan.

¶ 51 After creating the crime scene images with FARO, Officer

Tollefson placed featureless mannequins in the images to show the

positions of the officer who was shot, Officer Sagner, and Cotter.

He based his placements on information from body-camera footage,

officers’ reports, witness testimony, the bullet’s entry point, the

officers’ heights, and Cotter’s interview statements.

¶ 52 Over Cotter’s objection, the district court admitted four FARO

exhibits as demonstrative aids but excluded others that purported

25
to show Cotter’s perspective or how far Officer Sagner’s body

protruded from behind the pillar.

¶ 53 When the four FARO exhibits were admitted, the court read

the jury a limiting instruction — approved by defense counsel —

which explained, “[T]he Court has admitted as demonstrative

exhibits those four exhibits only for the purpose of showing the

general location of individuals involved in this incident. You may

not consider the exhibits for any other reason.” During Officer

Tollefson’s testimony, the prosecution repeatedly clarified that these

exhibits depicted only general locations, not sight lines, lighting

conditions, or perspectives.

2. Applicable Law

¶ 54 Demonstrative aids can include diagrams, maps, computer

animations, models, or mock-ups. People v. Palacios, 2018 COA

6M, ¶ 19. Their purpose is to “illustrate other admitted evidence

and thus to render it more comprehensible to the trier of fact.” Id.

(citation omitted). Demonstrative aids “should be encouraged since

they give the jury and the court a clear comprehension of the

physical facts, certainly much clearer than one would be able to

26
describe in words.” Id. (quoting Intermill v. Heumesser, 391 P.2d

684, 686 (Colo. 1964)).

¶ 55 A demonstrative aid is admissible if the proponent can

“(1) authenticate it; (2) show that it is relevant; (3) show that it is a

‘fair and accurate representation of the evidence to which it relates’;

and (4) show that its probative value is not substantially

outweighed by the danger of unfair prejudice.” Douglas, ¶ 22

(citation omitted). As to fair and accurate representation, a

demonstrative aid “need not be exact in every detail, but the

important elements must be identical or very similar to the scene.”

Id. at ¶ 45 (citation omitted). Additionally, absent contrary

evidence, the jury is presumed to have followed a court’s limiting

instructions. See People v. Perez, 2024 COA 94, ¶ 48.

3. Discussion

¶ 56 We are not persuaded that the district court abused its

discretion by admitting the four FARO exhibits as demonstrative

aids.

¶ 57 Officer Tollefson authenticated the exhibits, and the general

location of the parties was relevant to the charged offenses. As to

the exhibits’ fairness and accuracy, Cotter contends they were

27
fatally inaccurate because Officer Tollefson did not input Cotter’s

height, weight, or body type for the featureless mannequin that

represented him. However, demonstrative aids “need not be exact

in every detail,” and Cotter does not explain how omitting these

attributes bears on the exhibit’s admitted purpose: showing the

general locations of parties. Douglas, ¶ 45. Additionally, though

the exhibits showed daytime conditions, both the court’s limiting

instruction and the prosecution’s examination of Officer Tollefson

flagged this discrepancy. Such minor discrepancies do not render

the demonstrative aids so misleading that admitting them would

amount to an abuse of discretion.

¶ 58 Further, the probative value of the exhibits was not

substantially outweighed by any danger of unfair prejudice. The

court excluded exhibits purporting to show Cotter’s vantage point

and sight lines. The admitted exhibits simply helped the jury

visualize the general locations of parties at the crime scene — a

task not easily accomplished by testimony and body-camera footage

alone. Also, absent evidence to the contrary, we presume the jury

followed the court’s limiting instruction to consider the exhibits only

for general locations. Perez, ¶ 48.

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¶ 59 Even if we assume the district court abused its discretion in

admitting the demonstrative aids, we cannot say “the contested

evidence substantially influenced the verdict or affected the fairness

of the trial proceedings.” Summitt, 132 P.3d at 327. As Cotter

points out, the jury already had access to the underlying evidence

on which the exhibits were based, and Cotter does not claim that

these exhibits contradicted the underlying evidence.

¶ 60 In sum, the court did not reversibly err by admitting the four

FARO exhibits as demonstrative aids.

C. Intoxication Pamphlet

¶ 61 Lastly, Cotter contends that the district court reversibly erred

when it allowed the prosecutor to cross-examine the defense’s

toxicology expert using Professor Kurt Dubowski’s intoxication

pamphlet because the pamphlet was irrelevant and inadmissible

hearsay. We disagree.

1. Additional Facts

¶ 62 To support the position that Cotter’s intoxication negated

specific intent, the defense called a toxicology expert to testify about

the effects of blood alcohol content (BAC).

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¶ 63 The expert explained the significance of Cotter’s BAC by

referencing the so-called “Dubowski chart,” created by Professor

Dubowski. She described the chart as a summary of extensive

literature on the most common effects of alcohol at various BAC

levels. She relied on a 2006 version of the chart, published in a

peer-reviewed article.

¶ 64 Using the 2006 chart, the expert testified that Cotter’s

estimated BAC level of between .11 and .12 indicated that he was

“substantially intoxicated by alcohol at the time of the incident.”

She stated that this BAC level renders people “more likely to do

things they wouldn’t do if they were sober.”

¶ 65 The prosecutor cross-examined the expert with a pamphlet

authored by Professor Dubowski, featuring a 1989 version of the

chart, apparently prepared as a police training document. The

expert testified that she had never reviewed the pamphlet and saw

no indication it was peer-reviewed.

¶ 66 Defense counsel objected to the pamphlet, arguing it was

irrelevant hearsay. Counsel contended the prosecution needed an

expert to establish the learned treatise exception, since the defense

expert did not consider the pamphlet authoritative. The district

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court overruled the objection, concluding that the defense expert

had relied on Professor Dubowski’s materials and that the

pamphlet, which featured a 1989 version of the chart, qualified as a

learned treatise.

¶ 67 The court allowed the prosecutor to have the expert read aloud

the following passage from the pamphlet:

Ethanol does not cause people to perform an
act which they fundamentally oppose. But if
fear is the only thing keeping them from
committing an act, the alcohol consumption
will take away the fear and it is more likely
that they will commit an act they would not
commit when sober. The ethics of robbing a
bank are not changed by being drunk.

The pamphlet itself was not admitted as an exhibit, and the jury did

not review it.

2. Applicable Law

¶ 68 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). However, “[e]vidence

presented to impeach the witness rather than establish the truth of

the matter asserted is not hearsay.” Foster v. Ward, 182 F.3d 1177,

1188 (10th Cir. 1999). A witness who takes the stand puts her

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credibility in issue, and the opposing party is entitled to impeach

the witness’s credibility. People v. Segovia, 196 P.3d 1126, 1130

(Colo. 2008).

¶ 69 Under CRE 705, “it is fundamental that an expert witness may

be cross-examined concerning the basis of his opinion.” People v.

Alward, 654 P.2d 327, 331 (Colo. App. 1982). This rule allows the

cross-examiner to probe the expert’s knowledge, elicit the facts

underlying the opinion, and explore any other matters that may

shed light on the weight to be given to the opinion. See 23 Sheila K.

Hyatt, Colorado Practice Series, Evidence Law § 705:3 (3d ed. 2023).

The scope of cross-examination for expert witnesses is traditionally

broader than it is with lay witnesses. Id.

3. Discussion

¶ 70 Although the district court found that Professor Dubowski’s

intoxication pamphlet was a learned treatise — an exception to the

hearsay rule — we may affirm on any ground supported by the

record, even if it was not relied on or considered by the district

court. See People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006).

We conclude that the pamphlet was not offered for the truth of the

matter asserted but for impeachment purposes.

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¶ 71 The toxicology expert’s testimony relied almost exclusively on

the work of Professor Dubowski. Using Professor Dubowski’s chart,

the expert testified that Cotter was “on the more extreme side of the

intoxication curve,” indicating that he would have been “more likely

to do things [he] wouldn’t do if [he was] sober.” In response, the

prosecutor introduced Professor Dubowski’s pamphlet — not to

prove the truth of its statements, but to challenge the expert’s

interpretation of the chart and to point out weaknesses in the bases

of her testimony. Contrary to the expert’s testimony, the pamphlet

indicated that BAC levels above .08 do not “cause people to perform

an act which they fundamentally oppose.” As the district court

observed, the expert “relied in part on the expertise of Mr. Kurt

Dubowski to reach a portion of her conclusion, specifically the chart

of intoxication.” Professor Dubowski’s own interpretation of his

chart, even an older version, was thus relevant for the jury to

assess the credibility of the expert’s testimony.

¶ 72 Moreover, even if the district court erred by allowing the

prosecutor to cross-examine using the pamphlet, the error was

harmless. The contested statement was brief and made up only a

small part of the seven-day trial. See People v. Daley, 2021 COA

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85, ¶ 98 (“The fact that improperly admitted testimony was brief

and fleeting supports a conclusion that it was harmless.”). During

cross-examination, the expert repeatedly warned that the pamphlet

was not peer-reviewed. On redirect, the expert had ample

opportunity to clarify and counter the statement. She emphasized

the lack of context, noted the progress of research since 1989, and

shared an anecdote to demonstrate how BAC affects judgment.

Under these circumstances, the challenged statement was not so

prejudicial to the expert’s testimony that it substantially influenced

the verdict or undermined the trial’s basic fairness. Summitt,

132 P.3d at 327.

¶ 73 Accordingly, the district court did not reversibly err by

allowing the prosecution to cross-examine the toxicology expert with

Professor Dubowski’s pamphlet.

V. Disposition

¶ 74 The judgment is affirmed.

JUDGE FREYRE and JUDGE PAWAR concur.

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