Peo v. McDonald

24CA0029 Peo v McDonald 03-05-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0029
Douglas County District Court No. 22CR1211
Honorable Ryan J. Stuart, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Paul McDonald,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE SULLIVAN
Fox and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 5, 2026

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chloe Sovinee-Dyroff, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, James Paul McDonald, appeals the judgment of

conviction entered on a jury verdict finding him guilty of vehicular

homicide. We reverse and remand for a new trial.

I. Background

¶2 In November 2022, McDonald crashed a vehicle after driving

over 100 miles per hour. As a result of the crash, a female

passenger was ejected from the vehicle. The passenger died at a

hospital approximately seven hours later.

¶3 The prosecution charged McDonald with reckless vehicular

homicide, § 18-3-106(1)(a), C.R.S. 2025, and speeding, § 42-4-

1101(1), C.R.S. 2025. McDonald didn’t deny that he was speeding

or driving recklessly; rather, his theory of the case was that the car

crash didn’t cause the passenger’s death.

¶4 At trial, the prosecution called as an expert witness the

forensic pathologist who performed a postmortem examination of

the passenger. The pathologist’s autopsy report listed twenty-two

signs of external injury and seventeen signs of internal injury in the

passenger. The pathologist testified, however, that none of these

injuries were lethal when the passenger first arrived at the hospital.

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¶5 The pathologist also testified that the passenger’s blood

sample taken upon admission to the hospital contained

2,100 ng/mL of methamphetamine and 5 ng/mL of fentanyl. But

the pathologist’s postmortem blood samples showed that these drug

levels later increased, climbing to 4,800 ng/mL of

methamphetamine and 21 ng/mL of fentanyl.1 According to the

pathologist, the passenger could have died from the amount of

drugs in her system upon admission to the hospital and at death,

even if she hadn’t been in the car crash.

¶6 The pathologist offered three possible explanations for the

increases in methamphetamine and fentanyl in the passenger’s

system between her admission to the hospital and the autopsy.

First, the passenger could have used drugs “during or around the

time of the accident,” but her blood hadn’t yet reached a “steady

state” when she arrived at the hospital. Second, postmortem

redistribution could have caused the drug levels to become falsely

1 The pathologist performed the autopsy three days after the

passenger died, which she testified is normal in Douglas County,
Colorado.

2
elevated.2 The pathologist clarified, however, that postmortem

redistribution could only account for approximately one-half of the

increase in methamphetamine (specifically, she estimated

postmortem redistribution could have taken the methamphetamine

level to 3,200 ng/mL). Thus, she opined that the passenger “could

also have been potentially using while she was in the hospital at the

time. I don’t know.” Finally, the pathologist explained that the

hospital administered more fentanyl to the passenger in treating

her. The pathologist added, however, that the hospital wouldn’t

have given her methamphetamine, so her medical treatment

couldn’t account for the increase in both drugs.

¶7 When asked about the passenger’s cause of death, the

pathologist opined that she died from “[c]ombined drug intoxication

and multiple injuries sustained in a motor vehicle collision.”

¶8 At the jury instruction conference, McDonald’s counsel

requested that the trial court instruct the jury on independent

intervening causation. While defense counsel focused primarily on

the theory that the passenger’s body continued to metabolize drugs

2 Postmortem redistribution of drugs occurs when drugs seep out of

organs and soft tissue and into the bloodstream after death.

3
she had consumed before the crash, counsel added that the parties

presented evidence that the passenger may have used drugs while

at the hospital.

¶9 The trial court initially said that “this seems exactly like the

type of independent intervening cause that case law talks about as

allowing.” But after hearing from the prosecution, the court denied

McDonald’s request for an intervening cause instruction. The court

first rejected the defense’s metabolization theory, explaining that

the independent intervening act — here, the passenger’s alleged

consumption of drugs before the crash — can’t occur before the

criminal conduct. Next, the court reasoned that the parties

presented “no evidence,” only “speculation,” that the passenger

used drugs while at the hospital. While it denied the defense’s

requested instruction, the court ruled that McDonald could still

argue that the drugs, rather than the crash, caused the passenger’s

death.

¶ 10 The jury found McDonald guilty of vehicular homicide and

speeding. The trial court sentenced him to twelve years in the

custody of the Department of Corrections.

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¶ 11 McDonald appeals only the vehicular homicide conviction. He

contends that the trial court reversibly erred by denying his request

for an independent intervening cause instruction. He also asserts

that the prosecutor committed multiple instances of misconduct

that warrant reversal.

II. Independent Intervening Cause Instruction

¶ 12 We first address McDonald’s contention that he was entitled to

an independent intervening cause instruction. Specifically,

McDonald argues that at least some credible evidence suggested

that either the passenger’s intervening consumption or the

hospital’s administration of drugs constituted an independent

intervening cause of the passenger’s death.

¶ 13 We conclude that the evidence suggesting that the passenger

used methamphetamine at the hospital after the crash was

sufficient to entitle McDonald to an independent intervening cause

instruction. As a result, the trial court erred by denying

McDonald’s requested jury instruction. We also conclude that the

court’s error wasn’t harmless. We therefore reverse McDonald’s

vehicular homicide conviction and remand the case for a new trial

on that charge.

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A. Applicable Law and Standard of Review

¶ 14 A person commits vehicular homicide if they operate or drive a

motor vehicle “in a reckless manner, and such conduct is the

proximate cause of the death of another.” § 18-3-106(1)(a).

Proximate cause means a “cause which in natural and probable

sequence produced the claimed injury . . . [and] without which the

claimed injury would not have been sustained.” People v. Stewart,

55 P.3d 107, 116 (Colo. 2002) (quoting CJI-Crim. 9:10 (1983)).

A person’s death may have more than one proximate cause. People

v. Lopez, 97 P.3d 277, 280 (Colo. App. 2004).

¶ 15 But an independent intervening act may destroy the causal

connection between the defendant’s act and the victim’s injury.

People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26 (Colo. 1998).

If such an act occurs, the defendant is relieved from liability.

Auman v. People, 109 P.3d 647, 662 (Colo. 2005).

¶ 16 To receive an independent intervening cause instruction, the

defendant must establish three elements: (1) the ultimate harm

wouldn’t have occurred absent the claimed intervening cause;

(2) the intervening cause wasn’t reasonably foreseeable by the

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defendant; and (3) the defendant didn’t participate in the

intervening cause. Id.

¶ 17 An intervening cause defense is treated like an affirmative

defense “for the purpose of determining the quantum of evidence

necessary to submit the issue to the jury.” Saavedra-Rodriguez,

971 P.2d at 228. Thus, a defendant need only offer “[s]ome credible

evidence” on each element to receive the instruction.3 Id. (citation

omitted); see § 18-1-407(1), C.R.S. 2025. This standard requires

only a “small quantum of evidence,” and the evidence may come

from any source, even from the prosecution. People v. Newell, 2017

COA 27, ¶ 21. The court must view the evidence in the light most

favorable to the defendant and draw all reasonable inferences from

the evidence. See id.; Saavedra-Rodriguez, 971 P.2d at 228.

¶ 18 Whether a defendant has met this evidentiary burden is a

question of law that we review de novo. People v. Reynolds, 252

P.3d 1128, 1131 (Colo. App. 2010).

3 Colorado appellate courts “have understood ‘some credible

evidence’ to be interchangeable with ‘some evidence,’ ‘any credible
[even if highly improbable] evidence,’ ‘a scintilla of evidence,’ a
‘small quantum of evidence,’ and ‘any evidence.’” Galvan v. People,
2020 CO 82, ¶ 24 (citations omitted). For consistency, we adhere to
the “some credible evidence” formulation throughout this opinion.

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B. Some Credible Evidence Supported McDonald’s Intervening
Causation Theory

¶ 19 We start by assessing whether some credible evidence

supported McDonald’s claimed independent intervening cause. The

trial court concluded that, “[a]t most,” the evidence suggested that

the passenger had the “opportunity” to use drugs while at the

hospital, and “no evidence” suggested she actually used drugs after

arriving at the hospital. We disagree and conclude that McDonald

elicited some credible evidence to support his theory that the

passenger used methamphetamine after the crash.4

¶ 20 While neither party presented direct evidence that the

passenger used methamphetamine while at the hospital, sufficient

circumstantial evidence supported McDonald’s theory. Specifically,

the pathologist testified that (1) the amount of methamphetamine in

the passenger’s blood increased significantly while she was at the

hospital; (2) after accounting for postmortem redistribution, only

4 We don’t address McDonald’s separate arguments that he was

also entitled to an independent intervening cause instruction based
on either the passenger’s alleged consumption of fentanyl after the
crash or the hospital’s alleged gross negligence in administering
additional fentanyl. We also offer no opinion on McDonald’s
metabolization theory.

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two explanations could account for the large increase in

methamphetamine — one being that the passenger used

methamphetamine while at the hospital; and (3) the passenger had

a history of methamphetamine use.5 This evidence, taken together

and viewed in the light most favorable to McDonald, was sufficient

to satisfy the low “some credible evidence” standard. See People v.

Gallegos, 2023 COA 47, ¶ 47 (circumstantial evidence can satisfy

the exceedingly low some credible evidence standard), aff’d, 2025

CO 41M.

¶ 21 For two reasons, we aren’t convinced by the People’s

arguments that the pathologist’s testimony was too speculative to

satisfy the some credible evidence standard.

¶ 22 First, divisions of this court have rejected similar attempts to

cast circumstantial evidence as mere speculation. In Newell, ¶ 29,

for example, the division rejected the People’s argument that the

evidence supporting a self-defense instruction amounted to “‘mere

5 An investigator also testified that three syringes and an arm

tourniquet were found in the passenger’s purse at the hospital. But
the trial court sustained the prosecution’s objection to this line of
questioning for lack of foundation, so we don’t consider it in our
analysis.

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speculation’ equivalent to ‘no evidence.’” The division explained

that (1) a witness saw the victim holding a pair of scissors; (2) the

defendant had a cut on his face that could be consistent with a cut

from a pair of scissors; (3) no witness explained how the defendant

was injured; and (4) the victim scuffled with and threw a chair at

the defendant. Id. at ¶ 26. This circumstantial evidence, the

division concluded, constituted sufficient evidence to entitle the

defendant to a self-defense instruction. See id. at ¶ 29.

¶ 23 Newell’s reasoning applies here. Although no one witnessed

the passenger use methamphetamine at the hospital, the

pathologist testified that the drug’s increased level in the

passenger’s blood was consistent with her using methamphetamine

after arriving at the hospital. Moreover, the evidence suggested that

the passenger had a history of methamphetamine use, and no

witness offered a definitive alternative explanation for the increase.

Even if other explanations remained possible, this circumstantial

evidence was sufficient to permit the jury to infer that the increase

in methamphetamine was attributable to the passenger’s drug use

after the crash. See id. at ¶¶ 27-28 (explaining “slight,

unreasonable, or improbable” circumstantial evidence may support

10
an affirmative defense instruction, even if conflicting); cf. Kulik v.

Pub. Serv. Co. of Colo., 605 P.2d 475, 478-79 (Colo. App. 1979)

(intervening cause instruction was proper when the evidence “raised

a number of potential intervening causes, including the possibility”

that someone broke a safety valve that eventually failed), aff’d sub

nom., Metro. Gas Repair Serv., Inc. v. Kulik, 621 P.2d 313 (Colo.

1980).

¶ 24 Second, the pathologist’s testimony that the passenger may

have used methamphetamine at the hospital doesn’t fit the

definition of speculative testimony under People v. Ramirez, 155

P.3d 371, 378 (Colo. 2007). In Ramirez, the supreme court

explained that an expert’s opinion testimony is speculative if it “has

no analytically sound basis.” Id. On the flip side, an expert’s

testimony isn’t speculative if the method employed by the expert is

scientifically sound, and the opinion is based on facts that

sufficiently satisfy CRE 702’s reliability requirements. Id.

¶ 25 In this case, the pathologist based her expert testimony on the

reliable fact that the level of methamphetamine in the passenger’s

blood increased while at the hospital. And we perceive no basis for

concluding — and the People don’t develop any argument to

11
suggest — that the pathologist used scientifically unsound

methodologies in reaching her opinion. While the pathologist

relayed her opinion about the two possible explanations for the

increased level of methamphetamine with less than absolute

certainty (adding, “I don’t know,” after providing her opinion), such

confidence isn’t required. See id. (expert’s statements signaling

“less than certainty, i.e., ‘I think’ or ‘it is possible’” don’t render the

testimony speculative).

¶ 26 Finally, we aren’t persuaded by the People’s argument that

other evidence established that it would have been “very difficult”

for the passenger to use drugs while at the hospital. Our task isn’t

to weigh the contrary evidence that may rebut the defendant’s

affirmative defense; that job falls to the jury. Rather, we need only

determine whether some credible evidence supported McDonald’s

requested intervening cause instruction. See Gallegos, ¶ 52 (“[W]e

do not consider the persuasiveness of the evidence in reviewing

whether a defendant was entitled to an affirmative defense.”).

C. The Trial Court Erred by Denying the Instruction

¶ 27 Having concluded that some credible evidence supported

McDonald’s theory that the passenger used methamphetamine

12
while at the hospital, we must now determine whether that conduct

satisfied Auman’s three elements and therefore entitled McDonald

to an intervening cause instruction. See Auman, 109 P.3d at 662.

¶ 28 All agree that McDonald didn’t participate in the passenger’s

drug use. And the People don’t dispute that it would be

unforeseeable that the passenger would use more

methamphetamine at the hospital after the car crash and after

having already used a potentially lethal amount of

methamphetamine earlier in the day. Indeed, no evidence

suggested that McDonald knew the passenger had used drugs that

day or that she may use drugs again at the hospital. Our analysis

therefore zeros in on Auman’s first element: whether some credible

evidence established that the passenger’s death wouldn’t have

occurred if she hadn’t used methamphetamine at the hospital. See

id.

¶ 29 The pathologist testified that the passenger died due to

“[c]ombined drug intoxication and multiple injuries sustained in a

motor vehicle collision.” After the prosecutor asked whether she

was “saying that the cause of death was not one or the other, but a

combination of both,” the pathologist responded, “That is correct.”

13
The pathologist also explained that the passenger had enough

methamphetamine in her system at the time of her death that she

“easily” could have overdosed from that alone. And on cross-

examination, the pathologist confirmed that the passenger “had no

lethal injuries upon her arrival at the hospital.”

¶ 30 This testimony, if believed by the jury, established that the car

crash wasn’t the sole cause of the passenger’s death, that her death

was at least partially attributable to the methamphetamine in her

system, and that the level of methamphetamine in her blood

increased while at the hospital. Viewed together and in the light

most favorable to McDonald, this constitutes some credible

evidence that the passenger would have survived if the level of

methamphetamine in her body hadn’t increased while at the

hospital. And as we’ve already concluded, at least some credible

evidence suggested the passenger’s methamphetamine level

increased due to her own intervening drug use at the hospital.

¶ 31 We recognize, as the People emphasize, that the pathologist’s

statement that the passenger could have died from the drugs alone

doesn’t necessarily mean that the passenger would have survived

had she refrained from using more drugs after the crash. But the

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pathologist also testified that, in her opinion, (1) the passenger’s

injuries when she arrived at the hospital weren’t lethal; and (2) the

passenger died from a combination of the drugs and the crash, not

from either one individually. Thus, the pathologist made clear that

the crash alone likely wasn’t enough to cause the passenger’s death

and that, but for the drugs in her system, she would have

survived.6 See Saavedra-Rodriguez, 971 P.2d at 227 (If the

defendant caused an injury that “would probably not have been

fatal, but the victim dies as a result of [an intervening act, that

intervening act] relieves the defendant of criminal liability for the

death.”).

¶ 32 Accordingly, because McDonald satisfied the required

elements, the trial court erred by denying his request for an

independent intervening cause instruction.

D. The Error Wasn’t Harmless

¶ 33 The parties disagree over whether we should apply the

constitutional or nonconstitutional harmless error standard to

6 We also reject the People’s argument that “the record contains no

evidence that [the passenger] died from a drug overdose.” As
discussed, the pathologist testified that “drug intoxication” was one
of two causes that collectively led to the passenger’s death.

15
assess whether the trial court’s error requires reversal. We need

not decide this question because we conclude that the court’s error

is reversible under either standard. We therefore assume, for the

purpose of our analysis only, that the more demanding

nonconstitutional harmless error standard applies. See Hagos v.

People, 2012 CO 63, ¶ 12 (explaining that “[r]eversal is more

difficult to obtain under [the nonconstitutional harmless error]

standard than under the constitutional harmless error standard”).

¶ 34 Under the nonconstitutional harmless error standard, we

must reverse if “the error affects the substantial rights of the

parties.” Id. (citing Crim. P. 52(a)). Stated differently, we reverse if

“the error ‘substantially influenced the verdict or affected the

fairness of the trial proceedings.’” Id. (quoting Tevlin v. People, 715

P.2d 338, 342 (Colo. 1986)). But an error is harmless if “there is no

reasonable possibility that it contributed to the defendant’s

conviction.” Pernell v. People, 2018 CO 13, ¶ 22.

¶ 35 In urging us to find the trial court’s error harmless, the People

point out that the court still permitted McDonald to argue that the

passenger’s drug use, not the crash, proximately caused her death.

According to the People, providing the jury with an intervening

16
cause instruction “would have changed nothing,” and its omission

didn’t mislead the jury. We disagree.

¶ 36 The trial court instructed the jury that, to find McDonald

guilty of vehicular homicide, it must conclude that his reckless

driving was “a proximate cause of the death of another.” The court

further instructed the jury on proximate causation as follows:

The phrase “proximate cause” means an act or
failure to act which in natural and probable
sequence produced the death of [the
passenger]. It is a cause without which the
death of [the passenger] would not have
occurred. There can be more than one
proximate cause of [the passenger’s] death,
and Mr. McDonald’s conduct does not have to
be the only, nearest, or last cause of death, so
long as it is a cause but for which the death
would not have occurred.

¶ 37 By contrast, an intervening cause instruction would have

informed the jury that McDonald’s conduct couldn’t be the cause of

the passenger’s injuries if, “in order to bring about such injuries, it

was necessary that his or her conduct combine or join with an

[unforeseeable] intervening cause that also contributed to cause the

injuries.” CJI-Civ. 9:20 (2025); see also COLJI-Crim. ch. H, cmt. 8

(2024) (referencing CJI-Civ. 9:20 when discussing instructional

language for an intervening cause defense). In other words, an

17
intervening cause instruction would have told the jury that

“conduct that is broken by an independent intervening cause

cannot be the proximate cause of injury to another.” Martinez v.

People, 2024 CO 6M, ¶ 13 (quoting Stewart, 55 P.3d at 121).

¶ 38 By finding McDonald guilty of vehicular homicide, the jury

necessarily concluded that McDonald’s reckless driving was a

proximate cause of the passenger’s death. See § 18-3-106(1)(a).

But we have no way of knowing whether the jury also believed

McDonald’s theory that the passenger used methamphetamine after

the crash and would have survived had she not done so. Had the

court provided an intervening cause instruction, the jury wouldn’t

have been able to find McDonald guilty if it also believed that the

passenger’s use of methamphetamine at the hospital constituted an

intervening cause that broke the causal connection between his

driving and the passenger’s death. But under the instructions

provided by the court, no such restriction was placed on the jury.

To the contrary, the jury could have believed McDonald’s theory

and still found him guilty because the given instructions (1) said

nothing about an intervening cause breaking the causal connection;

and (2) expressly contemplated a conviction even if McDonald’s

18
conduct wasn’t “the only, nearest, or last” cause of the passenger’s

death.

¶ 39 Because we don’t know whether the jury credited McDonald’s

theory, we can’t agree with the People that instructing the jury on

intervening causation “would have changed nothing.” Cf. People v.

Harris, 2015 COA 53, ¶ 36 (erroneous admission of evidence wasn’t

harmless under the nonconstitutional harmless error standard

because “it is impossible for us to know what evidence the jury

relied on in making [its] findings”); People v. Anderson, 991 P.2d

319, 321 (Colo. App. 1999) (error not harmless when the

prosecutor’s argument “improperly permitted the jury to adopt a

version of the law pursuant to which it could find defendant guilty,

regardless of when he formed the [requisite] intent”).

¶ 40 We also aren’t convinced by the People’s argument that other

explanations for the passenger’s elevated drug levels at the hospital

were “far more likely.” As discussed above, the task of weighing the

evidence and resolving conflicts falls to the jury, not us. See People

v. Vanderpauye, 2021 COA 121, ¶ 49 (rejecting the People’s

argument that the jury wouldn’t have credited certain statements

19
because “[w]e cannot say what weight the jury would have given the

evidence”), aff’d, 2023 CO 42.

¶ 41 Given all this, we conclude that there is a reasonable

possibility that the trial court’s error contributed to McDonald’s

conviction. See Pernell, ¶ 22. We therefore reverse the judgment of

conviction for vehicular homicide and remand for a new trial on

that charge.

III. Remaining Contentions

¶ 42 McDonald also contends that the prosecutor committed

multiple acts of misconduct during closing argument that require

reversal. We decline to address this contention because we can’t be

certain that it will arise again on remand. See People v. Gillespie,

2024 COA 98, ¶ 56.

¶ 43 Further, because we have concluded that the trial court’s

decision denying the intervening cause instruction requires

reversal, we need not address McDonald’s contention that the

cumulative impact of the trial court’s other alleged errors requires

reversal. See Vanderpauye, ¶ 71.

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IV. Disposition

¶ 44 We reverse the judgment of conviction for vehicular homicide

and remand the case to the trial court for a new trial on that

charge. We don’t disturb the portions of the judgment not

challenged on appeal.

JUDGE FOX and JUDGE KUHN concur.

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