Peo v. McKain

23CA1074 Peo v McKain 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1074
El Paso County District Court No. 22CR5894
Honorable Erin Sokol, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Matthew McKain,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE LIPINSKY
Johnson and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced February 13, 2025

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General & Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Amanda Bishop, Deputy State
Public Defender, Colorado Springs, Colorado, for Defendant-Appellant
¶1 Matthew McKain appeals his convictions for third degree

assault and harassment. We affirm.

I. Background

¶2 A jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 McKain rented an upstairs room in a house in which four

other people lived. Lillie Graber and her partner lived in the

basement. McKain’s landlord, Crystal James, also lived upstairs.

¶4 After returning home one night, McKain started banging on

the basement door and “shouting profanities.” Graber went up the

basement stairs with her cell phone to record her interaction with

McKain. McKain swung at Graber, knocking the phone out of her

hand. Graber’s partner witnessed the interaction, which was

recorded on Graber’s phone, from the bottom of the basement

stairs.

¶5 Graber testified that McKain “then thr[ew] [her] to the ground.”

Graber’s partner said he ran up the basement stairs and “jumped

on [McKain’s] back” to “restrain” him. Graber then “ran upstairs to

grab [James, the landlord].” McKain and Graber’s partner

1
“wrestl[ed] around” until Graber’s partner could safely “r[u]n to [his

basement] bedroom.”

¶6 James testified that, while still in bed, she heard “yelling,

screaming, banging, [and] stomping around” immediately after

hearing McKain come through the front door. She then heard “a

really loud crack and bang.” James got out of bed to “see what was

happening.” As James was preparing to head downstairs, she

heard Graber “screaming, ‘[James], help us. [James], help us.’”

James called 911.

¶7 Sergeant Vincent Sapp and Deputy Brent Yelton (the officers)

of the El Paso County Sheriff’s Department (the Department)

responded to James’s 911 call. The officers saw overturned items

in the kitchen and a hole in the basement door. They spoke to

McKain and other residents of the house. The officers did not

arrest McKain but gave him a summons to appear in court. When

the officers asked McKain to sign the summons, he refused and

used “very foul language.” He called them “different types of

names” and used a “racial slur.” Because the officers did not “want

to press the issue,” they marked “refuse[d] to sign” on the

summons, left a copy for him, and departed from the house.

2
¶8 Graber testified that, after the officers left, McKain was “being

very aggressive”; he “banged on [her] door[,] . . . jumped down the

stairs, . . . [and] slammed his feet on the ground.” Shortly after

leaving the house, Deputy Yelton texted Graber to inform her of

McKain’s court date. Graber responded that McKain “ha[d] been

assaulting [her]” since the officers left and sent Deputy Yelton a

video depicting McKain’s actions after the officers had left. Graber

told Deputy Yelton that she was in fear of her life, could not get to

her car, and wanted to go to a hospital.

¶9 The officers returned to the house and told McKain that he

was under arrest. McKain tried to pull away as the officers

attempted to handcuff him. With some difficulty, the officers

handcuffed McKain and walked him toward their patrol car. When

the officers told McKain to sit in the patrol car, he “put his foot on

the side of the vehicle and pushed away.” Deputy Yelton responded

by swinging his right arm across the front of McKain’s body and

taking him “to the ground.” McKain “landed on his stomach with

[Deputy Yelton’s] left leg under [McKain].” McKain “began to move

around, and [Deputy Yelton’s] knee twisted under [McKain].”

Deputy Yelton shouted that McKain “ha[d] [his] leg,” and Sergeant

3
Sapp yelled at McKain to “let go.” McKain “did not comply, and

[Sergeant Sapp] hit [McKain] twice in the face.” McKain “rolled to

his right side, and [Deputy Yelton] was able to pull [his] leg away.”

The officers took McKain into custody and booked him into the El

Paso County Jail.

¶ 10 Graber suffered bruises and abrasions during her initial

confrontation with McKain. In addition, James alleged that McKain

had assaulted her.

¶ 11 McKain was initially charged in two separate cases with

second degree assault on a peace officer (the second degree assault

count), two counts of third degree assault concerning Graber and

James, menacing and harassment relating to Graber, and resisting

arrest.

¶ 12 As explained further below, during McKain’s trial, the court

dismissed the second degree assault and resisting arrest counts

because defense counsel had not been provided with the use of

force reports (the reports) concerning Sergeant Sapp’s use of force

against McKain. The jury found McKain guilty of harassment and

third degree assault of Graber. It acquitted McKain of menacing

Graber and third degree assault of James.

4
¶ 13 On appeal, McKain contends that the court erred by joining

the two cases filed against him; not dismissing the entire case as a

sanction for the prosecution’s failure to provide defense counsel

with the reports; not dismissing the case as a sanction for the

prosecution’s failure to provide defense counsel with the victims’

medical reports and unedited photos of Graber’s injuries; giving the

jury an initial aggressor instruction and, after deciding to give such

instruction, not giving McKain’s proposed initial aggressor

instruction; and not giving his proposed jury instructions on the

First Amendment and implicit bias. Lastly, McKain argues that we

should reverse his conviction for cumulative error.

II. Analysis

A. The Court Acted Within Its Discretion
by Joining McKain’s Two Cases

1. Standard of Review

¶ 14 “We review a trial court’s decision to consolidate separate

charges under Crim. P. 13 for an abuse of discretion.” Buell v.

People, 2019 CO 27, ¶ 14, 439 P.3d 857, 860. “A trial court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

5
or unfair, or when it misapplies the law.” People v. Johnson, 2021

CO 35, ¶ 16, 486 P.3d 1154, 1158 (citations omitted).

2. Controlling Law

¶ 15 Crim. P. 13 says,

Subject to the provisions of Rule 14, the court
may order two or more indictments,
informations, complaints, or summons and
complaints to be tried together if the offenses,
and the defendants, if there are more than
one, could have been joined in a single
indictment, information, complaint, or
summons and complaint.

“[C]onsolidation requires both that joinder would have been proper

under Crim. P. 8(a)(2) and that the consolidation would not result in

prejudice within the meaning of Crim. P. 14.” Buell, ¶ 16, 439 P.3d

at 860.

¶ 16 Crim. P. 8 governs mandatory and permissive joinder. Joinder

is mandatory “if [several offenses] are based on the same act or

series of acts arising from the same criminal episode.” Crim. P.

8(a)(1). In contrast, joinder is permissive “if the offenses charged,

whether felonies or misdemeanors or both, are of the same or

similar character or are based on two or more acts or transactions

6
connected together or constituting parts of a common scheme or

plan.” Crim. P. 8(a)(2).

¶ 17 Crim. P. 14 provides that

[i]f it appears that a defendant or the
prosecution is prejudiced by a joinder of
offenses or of defendants in any indictment or
information, or by such joinder for trial
together, the court may order an election or
separate trials of counts, grant a severance of
defendants, or provide whatever other relief
justice requires.

3. Procedural History

¶ 18 The prosecution initially charged McKain with third degree

assault and harassment of Graber based on his actions that

prompted James to call 911. It also charged him with third degree

assault of James in this case. McKain was later charged in a

separate case with menacing Graber, second degree assault on a

peace officer, and resisting arrest. The charges in that case arose

from McKain’s conduct that led the officers to return to the house

in response to Graber’s text message and his conduct toward the

officers during his arrest.

¶ 19 The prosecution moved to consolidate the two cases under the

mandatory joinder rule, Crim. P. 8(a)(1), on the grounds that the

7
“incident really constitute[d] one continuous sequence of events.”

Alternatively, the prosecution requested that the court permissively

join the cases under Crim. P. 8(a)(2) because McKain was “alleged

to assault [Graber], and it [was] his continued harassment of

[Graber] that [led] to his arrest and the eventual assault of Deputy

Yelton.” The prosecution asserted that the assaults were “similar in

character and seem[ed] to be part of a common scheme.” McKain

objected to consolidating the cases, arguing that they arose from

“separate acts, with completely different characteristics.”

¶ 20 The court granted the motion to consolidate. It found that

joinder was mandatory because “the two cases [were] based on the

same act or series of acts arising out of the same criminal episode.”

Alternatively, the court said that the joinder was permissive, as the

cases involved “the same victims, the same police officers, the same

address, and almost a continuous time frame separated by ten

minutes . . . [a] continuous sequence of events.”

4. Permissive Joinder

¶ 21 McKain contends the court abused its discretion by joining the

cases and that the joinder prejudiced him. We disagree.

8
¶ 22 McKain argues that joinder was improper because there was a

“substantial temporal break in the two incidents,” noting Sergeant

Sapp’s testimony that he and Deputy Yelton returned to the house

“later in the night” following McKain’s initial confrontation with

Graber. The record, however, does not support McKain’s position.

¶ 23 McKain’s fight with his housemates began shortly before

11 p.m. In response to James’s 911 call, the officers arrived, spoke

to McKain’s housemates, and issued a summons to McKain. The

evidence at trial showed that Deputy Yelton realized, within

minutes of leaving the house, that he had forgotten to provide

Graber with McKain’s court date, which he texted to her. He noted

in his text message, “I just left your home.” Graber responded by

asking the officers to return to the house because McKain was

being aggressive and she wanted to drive herself to the hospital.

The officers returned and arrested McKain.

¶ 24 The evidence established that the respective acts underlying

the two cases against McKain occurred in close sequence and

involved the same dispute, the same location, and the same

individuals and officers. The officers returned to the house in close

temporal proximity to their first visit.

9
¶ 25 Crim. P. 8(a)(2) “establishes three disjunctive bases” for

permissive joinder: (1) whether the offenses are of the “same or

similar character”; (2) whether they are “based on two or more acts

or transactions connected together”; or (3) whether the acts

“constitut[ed] parts of a common scheme or plan.” Buell, ¶ 21, 439

P.3d at 861. The meaning of “same or similar character” for

purposes of Crim. P. 8(a)(2) “does not impose onerous restrictions

on joinder.” Bondsteel v. People, 2019 CO 26, ¶ 37, 439 P.3d 847,

853.

In assessing whether two cases are of a “same
or similar character,” courts have considered
factors such as the elements of the offenses at
issue, the temporal proximity of the underlying
acts, the likelihood that the evidence will
overlap, the physical location of the acts, the
modus operandi of the crimes, and the identity
of the victims.

Id. at ¶ 38, 439 P.3d at 853. These factors support the court’s

decision to consolidate the cases under Crim. P. 8(a)(2).

¶ 26 In addition, McKain fails to establish that joinder of the cases

caused him “actual prejudice.”

The discretionary nature of a [Crim. P.] 14
decision creates a high bar for a defendant
hoping for reversal. The defendant bears the
burden of demonstrating (1) “actual prejudice”

10
caused by the joinder and (2) “that the trier of
fact was unable to separate the facts and legal
principles applicable to each offense.”

Washington v. People, 2024 CO 26, ¶ 37, 547 P.3d 1087, 1094

(quoting Bondsteel, ¶ 59, 439 P.3d at 856).

¶ 27 The record does not show that the jury was unable to separate

the facts and legal principles applicable to each count against

McKain, particularly as the court dismissed two of the counts

stemming from the officers’ second visit to the house — the second

degree assault and resisting arrest counts — and the jury acquitted

McKain of the third count arising from the second visit —

menacing. In addition, the jury acquitted McKain of assaulting

James, one of the counts relating to the officers’ first visit. “These

verdicts suggest to us that the jury carefully considered each count

and did not blur together the facts and legal theories involved in

each case but rather kept them separate.” Bondsteel, ¶ 62, 439

P.3d at 856-57.

¶ 28 McKain further argues that joinder of his cases prejudiced him

because evidence of the counts relating to the officers’ second visit

to the house was inadmissible under CRE 404(b) at the portion of

his trial concerning the events that led to the officers’ first visit. He

11
asserts that such evidence was inadmissible at that portion of the

trial because it improperly “prove[d] [his] character in order to

show” that, earlier in the night, he had “acted in conformity with

the character.” See CRE 404(b).

¶ 29 However, the jury never heard evidence that McKain resisted

arrest or assaulted Deputy Yelton because, before the prosecution

called its first witness, the court dismissed the counts relating to

McKain’s interaction with the officers. Accordingly, evidence of

McKain’s actions after the officers left the house following their first

visit could not have prejudiced him at a trial of the counts relating

to that first visit.

¶ 30 McKain also argues that his counsel would have allotted her

voir dire time differently had evidence of McKain’s interactions with

the officers during their second visit not been part of the case. He

asserts that, because defense counsel spent significant time

questioning the jurors about their ability to be fair and impartial

when a person is accused of assaulting a peace officer, defense

counsel did not have time to speak with the jurors about “basic

principles of law with respect to self-defense,” implicit bias, and

freedom of speech. However, McKain does not assert that the lack

12
of such voir dire resulted in the seating of a biased juror. See Clark

v. People, 2024 CO 55, ¶ 42, 553 P.3d 215, 226 (“Absent bad faith,

any such error that does not result in [a] biased juror actually

participating on the jury is necessarily harmless.”).

¶ 31 Further, McKain argues that, as a result of the joinder of the

cases, his counsel focused on the second degree assault count

during opening statements and the jury heard, early in the case,

that McKain assaulted an officer. But defense counsel’s references

in her opening statement to the counts related to McKain’s second

interaction with the officers did not prejudice him because the court

later instructed the jury not to consider those counts after the court

dismissed them. McKain does not point to any evidence indicating

that the jurors disregarded the instruction. “Absent evidence to the

contrary, a jury is presumed to understand and follow the trial

court’s instructions.” People v. Chase, 2013 COA 27, ¶ 37, 411

P.3d 740, 750.

¶ 32 Accordingly, the court’s decision to consolidate the cases was

not manifestly arbitrary, unreasonable, or unfair. Thus, we

conclude that the court did not abuse its discretion by

consolidating McKain’s cases under Crim. P. 8(a)(2). And given our

13
disposition on permissive joinder, we need not consider whether the

cases could also have been consolidated under the mandatory

joinder rule.

B. The Court Did Not Abuse Its Discretion by Dismissing
Two Counts Rather than the Entire Case
as a Sanction for the Prosecution’s Untimely Disclosure of
the Reports

1. Standard of Review

¶ 33 “In the event that a discovery violation is found, the decision

whether to impose a sanction is within the sound discretion of the

trial court.” People v. Lee, 18 P.3d 192, 196 (Colo. 2001). If the

court decides to impose a sanction, “[c]hoosing an appropriate

sanction for discovery violations lies within the sound discretion of

the trial court.” People v. Tippet, 2023 CO 61, ¶ 34, 539 P.3d 547,

554. “Because of the multiplicity of considerations involved and the

uniqueness of each case, great deference is owed to trial courts in

this regard, and therefore an order imposing a discovery sanction

will not be disturbed on appeal unless it is manifestly arbitrary,

unreasonable, or unfair.” Lee, 18 P.3d at 196.

14
2. Additional Facts

¶ 34 The day before trial, McKain filed a motion for sanctions under

Crim. P. 16 asserting, among other things, that the prosecution had

failed to provide the defense with discovery concerning Sergeant

Sapp’s use of force, “even though he punched [McKain] in the face,

with a closed fist, twice, while [McKain] was handcuffed.”

¶ 35 Outside the jury’s presence, the court questioned Otis Habert

and Jason Hess, two lieutenants at the Department who the

defense believed had knowledge of Sergeant Sapp’s use of force

against McKain. Lieutenant Habert testified that he was not

Sergeant Sapp’s supervisor and that he did not “specifically” recall

whether Sergeant Sapp had told him about using force against

McKain. Lieutenant Hess said that he was Sergeant Sapp’s

supervisor and that Sergeant Sapp had reported his use of force

during McKain’s arrest through the Department’s “Blue Team

reporting system.” Lieutenant Hess said he had reviewed the report

and found “[t]here were no policy violations or violations of state

law.” Lieutenant Hess added that his finding was reflected in the

Department’s tracking system.

15
¶ 36 After Lieutenant Hess testified, defense counsel moved to

dismiss the case for outrageous government conduct, asserting that

Sergeant Sapp had lied when he previously said he had reported his

use of force to Lieutenant Habert. Counsel said that the defense’s

investigator, Shaffer Kirschenmann, had requested “that exact

record” from the Department but that no such records had been

provided to the defense.

¶ 37 The court then questioned Kirschenmann about her requests

for the reports. Kirschenmann testified that she submitted requests

to the Department under the Colorado Open Records Act (CORA)

and the Colorado Criminal Justice Records Act (CCJRA) for

documents relating to Sergeant Sapp’s use of force against McKain,

including “Blue Team reports,” which the Department requires

whenever an officer uses force. Kirschenmann said that a records

custodian for the Department told her there were no responsive

documents.

¶ 38 After Kirschenmann testified, the court said it “definitely”

found a Crim. P. 16 violation and that it had “real concerns about

the fact that the investigator asked specifically for this [use of force]

information, that Lieutenant Hess has that information, and . . . it

16
wasn’t disclosed.” The prosecution then asked for a continuance to

“try and figure out where these reports [were] and how to get them.”

Defense counsel repeated her request that the case be dismissed

and said that, if the court was not “inclined to dismiss the case,”

she would ask the court to dismiss the second degree assault

count.

¶ 39 The court also questioned Chris Strider, an assistant county

attorney and a legal advisor for the Department, about “the Blue

Team system” that the Department used “to report use of force.”

Strider testified that “the Blue Team system or Blue Team recording

process” is part of the Internal Affairs Division in the Department.

He said that, “[t]o my knowledge, we did not receive a subpoena

duces tecum [from the defense] for Blue Team or for an internal

affairs file.”

¶ 40 The court asked Strider what would have occurred “if a CCJRA

request was made in this case and a CORA request.” Strider

responded:

My understanding is that there was some sort
of communication with . . . somebody from
[Internal Affairs]. These don’t all come to me
for review, so I’m not exactly sure what was
disclosed or what was requested, whether it

17
was conducted through the actual CCJRA or
CORA form that is available to the public on
the website. I’m not sure.

¶ 41 In response to Strider’s testimony, the court asked

Kirschenmann whether she had requested the use of force reports

through CORA and the CCJRA. She explained that she first made

an internal affairs request and later submitted “CORA and CCJRA”

requests to the records department “after there were no responsive

documents.”

¶ 42 The court asked Strider to speak with Kirschenmann “to see

what the request was and then” to “advise” it of the discussions.

Strider responded that he preferred to “speak to the records

department and get the request from them.” The court proceeded

with the trial while Strider looked into the status of Kirschenmann’s

requests for the reports.

¶ 43 Strider returned to the court later that day with the reports,

which Sergeant Sapp and Deputy Yelton had drafted. In addition,

Strider confirmed to the court that the defense had requested the

reports but that a records custodian had told the defense that the

reports did not exist.

18
¶ 44 Following Strider’s testimony, the court asked the parties to

examine the reports and determine whether their late disclosure

prejudiced the defense. The court said that the untimely disclosure

was “not a [Crim. P.] 16 issue” because the prosecution was not “on

notice that they were supposed to be going and getting” the reports,

“but it may still be a discovery issue.”

¶ 45 Later that day, the court said it had found material differences

between the information in the reports and the information

provided to the defense through discovery earlier in the case. The

court said, “This is a very different story about what may have

happened here with respect to” the second degree assault count.

¶ 46 The court concluded that the untimely disclosure of the

reports prejudiced the defense, saying to the prosecutors:

[Y]ou haven’t done anything wrong here. You
weren’t even aware of this because there were
no requests made to you. But the fact that law
enforcement didn’t advise the Defense about
these reports when they were requested and
didn’t even give the Defense the opportunity to
challenge the custodial — the record — the
custodian of records’ decision, apparently, not
to tell them about it or not to disclose these
documents is truly problematic, extremely
prejudicial on this charge. And I’m looking for
the least restrictive sanction.

19
¶ 47 Defense counsel requested that the court dismiss the second

degree assault count. The court agreed, saying, “I think that

[dismissing the count] is the least restrictive sanction given the

circumstances. I don’t do that lightly by any stretch of the

imagination, but I have real concerns about what’s happened here.”

¶ 48 The court noted that the untimely disclosure of the use of

force reports prejudiced McKain because his counsel’s “opening

statement didn’t incorporate these changes and these differences”

between the information in the reports and the information in the

discovery previously provided to the defense. As the court

explained, a continuance would not remedy the prejudice to the

defense because the failure to provide the reports “put[] the Defense

under an unnecessary and undue prejudice of trying to change

their entire cross-examination and accommodate these changes on

this short notice.”

¶ 49 After the court announced it would dismiss the second degree

assault count, the prosecutor moved to dismiss the resisting arrest

count, as well, because it was “sort of part and parcel” of the second

degree assault count. The court agreed and dismissed the resisting

arrest count.

20
¶ 50 The court instructed the jury that it had dismissed two of the

counts and told the jury it would “no longer be considering the

evidence with respect to those” counts.

3. McKain Did Not “Abandon” His Request for
Dismissal of the Entire Case

¶ 51 The People argue that McKain “abandoned” his “request that

the entire case be dismissed” because the court granted his

requested relief when it dismissed the second degree assault count.

Although defense counsel asked the court to dismiss the second

degree assault count after moving for dismissal of the case, and did

not reiterate the request to dismiss the entire case when the court

discussed possible sanctions, defense counsel’s statement regarding

dismissal of the single count was a direct response to the court’s

assertion that it was “looking for the least restrictive sanction.”

¶ 52 The case law does not support the People’s argument that

McKain “abandoned” his request that the entire case be dismissed

because his counsel had not reasserted that request after the court

focused on the “least restrictive sanction.” See Forgette v. People,

2023 CO 4, ¶¶ 25-35, 524 P.3d 1, 6-8 (holding that the defendant

waived his objection to a sleeping juror by failing to request that the

21
court take any action after defense counsel brought the matter to

the court’s attention); Richardson v. People, 2020 CO 46, ¶¶ 26-30,

481 P.3d 1, 5-7 (holding that the defendant waived the right to

challenge a juror on appeal because defense counsel knew the juror

was the judge’s wife but did not make any attempt to remove her

from the jury); Stackhouse v. People, 2015 CO 48, ¶¶ 5-16, 386 P.3d

440, 442-46 (holding that the defendant waived his objection to

closure of the courtroom by standing by silently when the court

ordered closure). Accordingly, we conclude that McKain did not

abandon his argument that the court erred by not dismissing the

entire case as a sanction for the untimely disclosure of the reports.

4. The Sanction Was Appropriate

¶ 53 Although McKain did not abandon his request for outright

dismissal of the case, we disagree with his contention that the court

abused its discretion by limiting the sanction to the dismissal of the

two counts affected by the untimely disclosure of the reports.

¶ 54 McKain argues that the prosecution violated Crim. P. 16 by

not disclosing the reports. The People respond that there was no

Crim. P. 16 violation because defense counsel was required to

subpoena the reports from the Department’s internal affairs

22
department and to make a sufficient showing under People v.

Spykstra, 234 P.3d 662 (Colo. 2010), that the subpoena was not

“unreasonable or oppressive.” People v. Cline, 2022 COA 135,

¶¶ 22-28, 525 P.3d 303, 308-09.

¶ 55 The Colorado appellate courts have never decided whether the

prosecution must provide the defense with use of force reports

under Crim. P. 16’s mandatory disclosure requirement when such

reports are relevant to one of the charges pending against the

defendant. Cf. Solano v. Newman, 2024 COA 93M, ¶¶ 31-33, 559

P.3d 259, 267-68 (citing out-of-state and federal authorities in

support of its conclusion that a sheriff’s department is deemed part

of the prosecution team for purposes of assisting with the provision

of mandatory disclosures under Crim. P. 16(a)). Even so, we do not

need to resolve this question because the People do not contest that

the Department’s conduct was sanctionable. As a result, we need

only review whether the court chose an appropriate sanction. We

conclude that it did so.

¶ 56 “We may properly conclude that the trial court abused its

discretion only if we can say with fair assurance that, based on the

particular circumstances confronting the court, the decision [to

23
impose a specific sanction] was manifestly arbitrary, unreasonable,

or unfair.” People v. Milton, 732 P.2d 1199, 1207 (Colo. 1987). “In

imposing discovery sanctions, the trial court must exercise its

discretion ‘with due regard for the purposes of the discovery rules

themselves and the manner in which those purposes can be

furthered by discovery sanctions.’” Tippet, ¶ 35, 539 P.3d at 554-55

(quoting Lee, 18 P.3d at 196).

¶ 57 The purpose of the discovery process is “to advance the search

for truth.” People v. Dist. Ct., 793 P.2d 163, 168 (Colo. 1990).

Discovery sanctions are intended to “protect[] the integrity of the

truth-finding process and deter[] discovery-related misconduct.”

Lee, 18 P.3d at 196. In addressing a discovery violation, “the trial

court must strike a balance by ‘impos[ing] the least severe sanction

that will ensure that there is full compliance with the court’s

discovery orders.’” Tippet, ¶ 37, 539 P.3d at 555 (quoting Dist. Ct.,

793 P.2d at 168). The Colorado Supreme Court

laid out several factors that a court must
consider when fashioning discovery sanctions:
“(1) the reason for and degree of culpability
associated with the violation; (2) the extent of
resulting prejudice to the other party; (3) any
events after the violation that mitigate such
prejudice; (4) reasonable and less drastic

24
alternatives to exclusion; and (5) any other
relevant facts.”

Id. (quoting People v. Cobb, 962 P.2d 944, 949 (Colo. 1998)).

¶ 58 The court did not reach the issue of whether the prosecution

violated Crim. P. 16 by failing to provide the use of force reports to

the defense because the court determined that the Department’s

actions were sufficiently egregious to warrant a sanction.

Accordingly, the court dismissed the two counts relating to

McKain’s interactions with the officers but not the counts relating

to Graber and James.

¶ 59 McKain argues that the court erred by not considering the

motion for sanctions before the trial started and, thereby, allowing

the jurors to hear inadmissible evidence about McKain’s interaction

with the officers after they returned to the house. He further argues

that “[d]ismissal of the entire case was the only appropriate remedy”

in the absence of any reason for the delay in producing the reports

“besides negligence at best, or at worst, a cover-up of exculpatory

evidence.” But “dismissal . . . should be a disfavored remedy

reserved for rare cases.” Id. at ¶ 69, 539 P.3d at 560. In addition,

defense counsel did not file the motion for sanctions until the day

25
before trial, and the court began to address the sanctions issue the

next morning, before the prospective jurors entered the courtroom.

¶ 60 The record shows that the court appreciated the gravity of

McKain’s concerns and the frustration of the waiting venire. The

court allowed four witnesses to explain why the Department’s

records custodian had not produced the reports to the defense, it

did not admit evidence at trial showing that McKain physically

resisted arrest, it agreed with defense counsel that the untimely

disclosure of the use of force reports prejudiced McKain, and it

granted the defense relief by dismissing the two counts relating to

McKain’s interactions with the officers the second time they came to

the house.

¶ 61 In addition, the court instructed the jury not to consider any

evidence concerning the dismissed counts. “Absent evidence to the

contrary, a jury is presumed to understand and follow the trial

court’s instructions.” Chase, ¶ 37, 411 P.3d at 750. Nothing in the

record suggests that the jury did not understand or did not follow

the court’s instruction to disregard the evidence relating to the

dismissed counts. Under the circumstances, the court did not

abuse its discretion by declining to dismiss the entire case.

26
C. The Court Did Not Err by Denying McKain’s Motion to Dismiss
Based on the Prosecution’s Failure to Produce
Deputy Yelton’s and Graber’s Medical Records and
Unedited Versions of the Photos of Graber’s Injuries

1. Standard of Review

¶ 62 “[Q]uestions of rule interpretation are questions of law subject

to de novo review.” People v. Dye, 2024 CO 2, ¶ 34, 541 P.3d 1167,

1175. Trial courts possess the discretion to resolve discovery

issues. People v. Bueno, 2013 COA 151, ¶ 10, 411 P.3d 62, 67,

aff’d, 2018 CO 4, 409 P.3d 320. Similarly, “[w]e review a trial

court’s evidentiary rulings for an abuse of discretion.” Campbell v.

People, 2019 CO 66, ¶ 21, 443 P.3d 72, 76.

2. Additional Facts

¶ 63 Defense counsel also argued in the motion for sanctions that

the prosecution violated Crim. P. 16 by failing to produce Graber’s

and Deputy Yelton’s medical records (the medical records)

documenting the injuries they suffered on the night of the incident

and by producing edited photos of Graber’s injuries but not the

unedited photos.

¶ 64 The prosecutor told the court that the “medical records [were]

not in [her] possession or control.” She noted that she “could get a

27
waiver from the victims in this case” to obtain the records. If she

could not obtain such a waiver, however, she said she would need

to use a subpoena to get them, “which is exactly what [the defense]

would have to do” to obtain the medical records.

¶ 65 The court found that, under Crim. P. 16, the prosecution was

not required to “affirmatively go and get” the medical

records. Accordingly, the court denied the portion of the motion for

sanctions premised on the prosecution’s failure to produce the

medical records.

¶ 66 Defense counsel also argued that the prosecution violated

Crim. P. 16 by turning over photos of Graber’s injuries that Graber

edited to label the body parts depicted instead of producing the

original unedited photos. The prosecution explained that Graber

had not provided unedited copies of the photos.

¶ 67 In response to the court’s questions at trial, Graber said that

she added the text to the photos but made no other modifications.

Graber testified that the original versions of the photos “were on

[her] telephone” and that she had “probably not” saved them. She

said that she had tried to find the original photos on the “cloud” but

28
had been unable to locate them. The court admitted the edited

photos into evidence, finding they were sufficiently reliable.

3. The Medical Records

¶ 68 McKain contends the prosecution violated Crim. P. 16 by

“deliberately cho[osing] to not obtain medical records for either

listed victim, [Deputy Yelton] . . . in the felony case nor [Graber] in

the joined misdemeanor case.” He argues that “[t]he prosecution

had a duty to discover medical records pursuant to Crim. P[].

16(I)(a)(1)(III) and failed to do so.”

¶ 69 Crim. P. 16(I)(a)(1)(III) says,

(1) The prosecuting attorney shall make
available to the defense the following material
and information which is within the
possession or control of the prosecuting
attorney, and shall provide duplicates upon
request, and concerning the pending case:

....

(III) Any reports or statements of experts made
in connection with the particular case,
including results of physical or mental
examinations and of scientific tests,
experiments, or comparisons.

“Crim. P. 16 ensures that a defendant has access to material and

information in the government’s possession or control, but it does

not address a defendant’s ability to access material and information

29
held by private third parties.” People in Interest of E.G., 2016 CO

19, ¶ 14, 368 P.3d 946, 950; see also Solano, ¶ 49 n.4, 559 P.3d at

269 n.4 (“Generally, a court will not deem the prosecutor to be in

constructive possession of information from private entities or

individuals.”).

¶ 70 The record establishes that the medical records were not

within the prosecution’s possession or control. The prosecution did

not need the medical records to prove its case, as proof of “[b]odily

injury” for purposes of second degree and third degree assault

requires a showing of “physical pain, illness, or any impairment of

physical or mental condition.” § 18-1-901(3)(c), C.R.S. 2024. The

prosecution proved Graber’s bodily injuries through photos

depicting the injuries and her testimony that she suffered painful

bruises and scrapes as a result of her altercation with

McKain. Because the court dismissed the second degree assault

count, Deputy Yelton did not testify about his injuries resulting

from his interaction with McKain.

¶ 71 Although the prosecution and the court advised defense

counsel that she could subpoena the medical records, she insisted

that doing so was the prosecution’s responsibility. But the

30
prosecution did not violate the discovery rules by not producing

medical records that were not within its possession or control. See

Crim. P. 16(I)(a)(3) (“The prosecuting attorney’s obligations under

this section (a) extend to material and information in the possession

or control of members of his or her staff and of any others who have

participated in the investigation or evaluation of the case and who

either regularly report, or with reference to the particular case have

reported, to his or her office.”).

¶ 72 Therefore, the court did not abuse its discretion by concluding

that the prosecution did not violate Crim. P. 16 by not providing the

medical records to the defense.

4. The Edited Photos

¶ 73 Defense counsel moved for sanctions because the prosecution

only produced versions of the photos depicting Graber’s injuries

containing the “left leg” and “right hip” labels. For this reason,

defense counsel argued that the photos were inadmissible. McKain

contends on appeal that the court erred by not imposing sanctions

against the prosecution for its failure to produce unedited versions

of the photos and by admitting the photos into evidence. We

disagree.

31
¶ 74 Because the prosecution did not have the original photos in its

possession or control, there was no discovery violation and no

sanctionable conduct. See Crim. P. 16(I)(a)(1)(IV). The court did

not need to dismiss McKain’s case because the prosecution did not

provide the defense with versions of the photos that were not within

the prosecution’s possession or control. See Crim. P. 16(I)(a)(3).

¶ 75 McKain further contends that the photos were inadmissible

under CRE 1002 (“To prove the content of a writing, recording, or

photograph, the original writing, recording, or photograph is

required, except as otherwise provided in these rules or by statute

of the State of Colorado or of the United States.”) and CRE 1003 (“A

duplicate is admissible to the same extent as an original unless (1)

a genuine question is raised as to the authenticity of the original or

(2) in the circumstances it would be unfair to admit the duplicate in

lieu of the original.”). McKain specifically argues that, “[b]y allowing

the edited pictures to come in, the court incorrectly allowed

evidence into trial in violation of CRE 1002 and 1003, and

erroneously allowed testimony from [Graber] that the defense had

no opportunity to properly confront, cross-examine, and impeach.”

32
¶ 76 “[T]he standard for authentication is minimal — all that’s

required is a prima facie showing that the evidence is what its

proponent claims.” Gonzales v. People, 2020 CO 71, ¶ 42, 471 P.3d

1059, 1067. Because Graber testified that the photos accurately

depicted her injuries and she only edited the pictures by inserting

the labels, the prosecution made the required prima facie showing

that the evidence was what its proponent claimed. This showing,

“combined with rigorous cross-examination, sufficiently assure[d]

accuracy to submit the question of authenticity to the jury.” Id.

¶ 77 Further, the jury saw other, unedited photos of Graber’s

injuries (which were admitted without objection), it heard Graber’s

description of how she edited the photos by adding the “left leg” and

“right hip” labels, and defense counsel had the opportunity to

cross-examine Graber about the edited photos. For these reasons,

the court did not abuse its discretion by admitting the edited photos

into evidence.

33
5. The Court Did Not Violate
McKain’s Confrontation Clause Rights
by Not Requiring the Prosecution to Produce
the Medical Records and the Unedited Photos

¶ 78 McKain contends that the court violated his Confrontation

Clause rights under the United States and Colorado Constitutions

by not requiring the prosecution to produce the medical records

and unedited versions of photos of Graber’s injuries. See U.S.

Const. amend. VI; Colo. Const. art. II, § 16. “The right of a

defendant to confront adverse witnesses is guaranteed by the Sixth

and Fourteenth Amendments and includes an opportunity for

effective cross-examination.” People v. Herrera, 87 P.3d 240, 253

(Colo. App. 2003).

¶ 79 “[T]he right to confrontation is a trial right; it is not ‘a

constitutionally compelled rule of pretrial discovery.’” Spykstra,

234 P.3d at 670 (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 52

(1987) (plurality opinion)). “Accordingly, in guaranteeing an

opportunity for effective cross-examination, the Confrontation

Clause does not guarantee ‘access to every possible source of

information relevant to cross-examination.’” Id. (quoting Dill v.

People, 927 P.2d 1315, 1322 (Colo. 1996)).

34
¶ 80 McKain relies on People v. Tresco, 2019 COA 61, 457 P.3d 112,

to support his argument that the court violated his Confrontation

Clause rights by allowing Graber to testify about her hospitalization

and injuries without requiring the prosecution to produce the

medical records. However, Tresco does not support McKain’s

position.

¶ 81 The defendant in Tresco argued that the court violated his

Confrontation Clause rights by “admitting an expert’s testimony on

the victim’s nerve damage,” even though the expert’s notes and

medical reports disclosed to the defense “did not mention nerve

damage.” Id. at ¶ 25, 457 P.3d at 120. The Tresco division

concluded that the court did not violate the defendant’s

Confrontation Clause rights by admitting the expert’s testimony on

nerve damage because the defendant “had the opportunity to

cross-examine the expert witness” and “failed to follow up on his

discovery motion” seeking production of the prosecution’s summary

of the expert’s testimony. Id. at ¶ 27, 457 P.3d at 120.

¶ 82 Contrary to McKain’s reading of Tresco, the division did not

hold in that case that a defendant is entitled to medical records

whenever a victim testifies about his or her injuries. McKain did

35
not have the right under the Federal and Colorado Confrontation

Clauses to obtain Graber’s hospital records from the prosecution.

See Spykstra, 234 P.3d at 670. No representative of the hospital at

which Graber was treated testified at trial, Graber did not testify

about any diagnosis she received while hospitalized, there were no

expert disclosures in the case, and defense counsel cross-examined

Graber about her injuries, as well as regarding any edits she made

to the photos of her injuries. See Tresco, ¶¶ 25-27, 457 P.3d at

120.

¶ 83 Moreover, defense counsel did not need Deputy Yelton’s

medical records to test his credibility because, in light of the

dismissal of the second degree assault and resisting arrest counts,

the jury never heard about Deputy Yelton’s injuries.

¶ 84 For these reasons, we conclude that the court did not violate

McKain’s Confrontation Clause rights by not compelling the

prosecution to provide the defense with the medical records and

unedited versions of the photos depicting Graber’s injuries.

36
D. The Court Did Not Err by Giving
Its Initial Aggressor Jury Instruction

1. Standard of Review

¶ 85 “We review de novo the question of whether jury instructions

accurately informed the jury of the law,” Johnson v. People, 2019

CO 17, ¶ 8, 436 P.3d 529, 531, but “[w]e review a trial court’s

decision to give, or not to give, a particular jury instruction for an

abuse of discretion,” People v. Jones, 2023 COA 104, ¶ 16, 543 P.3d

419, 424.

2. Controlling Law

¶ 86 Colorado’s self-defense statute, section 18-1-704(1), C.R.S.

2024, says,

Except as provided in subsections (2) and (3) of
this section, a person is justified in using
physical force upon another person in order to
defend himself or a third person from what he
reasonably believes to be the use or imminent
use of unlawful physical force by that other
person, and he may use a degree of force
which he reasonably believes to be necessary
for that purpose.

Subsection (3)(b) of section 18-1-704 explains that an “initial

aggressor” is not justified in using physical force unless “he or she

withdraws from the encounter and effectively communicates to the

37
other person his or her intent to do so, but the latter nevertheless

continues or threatens the use of unlawful physical force.”

¶ 87 “[T]o have the jury instructed on self-defense as an affirmative

defense, a defendant must present some credible evidence to

support that defense.” People v. DeGreat, 2018 CO 83, ¶ 22, 428

P.3d 541, 545. Similarly, “courts must ensure that there is some

evidence in support of an exception to the affirmative defense of

self-defense before instructing the jury on that exception.” Galvan

v. People, 2020 CO 82, ¶ 32, 476 P.3d 746, 755.

3. Additional Facts

¶ 88 Graber testified that, after hearing McKain “beating on [the

basement] door” and “shouting profanities,” she walked up the

basement stairs while her phone was recording. She testified that

McKain “slap[ped] [her] in the face, knocking [her] phone from [her]

hands” and causing her phone to “fall[] down the stairs.” The video

from Graber’s phone shows McKain saying, “Or what?” and then

swinging at Graber, causing the phone to fall partway down the

stairs, where it continued to record.

¶ 89 In addition, McKain testified that

38
while [Graber] [was] stepping towards [him],
she[] [was] pulling out her phone[,] and she[]
[was] going to kind of jam it in [his] face . . . .
[Then] [his] hand connected with the top of the
phone, causing it to kind of . . . cartwheel
down the steps.

McKain further said that, “immediately after [he] smacked the

phone out of her hands[,] . . . she started punching [him] in the

face . . . [and] got a good six shots in before [he] finally pushed her

off of [him].”

¶ 90 The appellate record does not include a transcript of the jury

instruction conference. However, at the defense’s request, the

parties made a record of their discussion of the initial aggressor

portion of the self-defense instruction. Defense counsel argued that

the court should not give the jury any initial aggressor instruction,

arguing that McKain’s testimony that Graber “essentially stuck the

phone in [his] face” was “sufficient for [McKain] to react in

self-defense.”

¶ 91 The court found that the prosecution had met its burden to

obtain an initial aggressor instruction because McKain

testified that he wanted to wake them [his
housemates] up, wanted to be a jerk, came
stomping in, was clearly insulting them[,] and
yelling at them and using those verbal

39
comments . . . . But he also hit a hole in the
door and smacked the phone out of [Graber’s]
hand.

¶ 92 Defense counsel tendered the following proposed “initial

aggressor” instruction after the court determined that the evidence

warranted such an instruction: “Words alone do not make a person

an initial aggressor. Neither do insults make a person an initial

aggressor. Finally, an aggressive step does not make a person an

initial aggressor. Only a threat to use unlawful, imminent, physical

force makes a person an initial aggressor.” The court declined to

give the tendered instruction. Rather, the court provided the jury

with the Colorado model self-defense instruction and the model

initial aggressor language. See COLJI-Crim. H:11 (2023).

¶ 93 During deliberations, the jury asked for a definition of “initial

aggressor.” The defense again tendered its proposed “initial

aggressor” instruction. Instead, the court provided the jury with a

“hybrid” definition that said “words alone” do not make a person an

initial aggressor, and it rejected the defense’s proposed language

that “an aggressive step doesn’t make a person an initial aggressor”

because such language was “vague.”

¶ 94 Accordingly, the court’s supplemental instruction said:

40
An “initial aggressor” is a person who initiates
the physical conflict by using or threatening
the imminent use of unlawful physical force.
Words alone do not make a person an initial
aggressor.

Except as provided herein, you have been
provided all of the evidence in this case[,] and I
direct you to the evidence presented during the
trial and the instructions you have already
been provided.

4. The Initial Aggressor Jury Instruction

¶ 95 The court correctly gave an initial aggressor instruction

because some evidence supported it.

¶ 96 In Galvan, the supreme court said that, “when the trial court

instructs the jury on the affirmative defense of self-defense, it

should instruct the jury on the provocation exception or any other

exception to that defense if the exception is supported by some

evidence.” Galvan, ¶ 25, 476 P.3d at 754. In addition, the evidence

must be “viewed in the light most favorable to giving the

instruction.” Id. at ¶ 33, 476 P.3d at 756.

¶ 97 In arguing that no evidence supported an initial aggressor

instruction, McKain focuses on his testimony that Graber put the

phone in his face and punched him after he knocked the phone out

of her hands. But Graber testified differently — that McKain

41
slapped her first — and the video shows McKain swinging at her.

Thus, the court did not err by giving a jury instruction on the initial

aggressor exception because some evidence supported it.

¶ 98 McKain also contends that, even if the court did not err by

deciding to give an initial aggressor instruction, the court erred by

not giving his proposed instruction on initial aggressor, which said

that “an aggressive step does not make a person an initial

aggressor.” The “aggressive step” language comes from Castillo v.

People, which addressed the evidence required to support an initial

aggressor instruction when the defendant “initiated the physical

conflict by threatening the imminent use of unlawful physical force.”

2018 CO 62, ¶ 51, 421 P.3d 1141, 1150.

¶ 99 The supreme court noted in Castillo that, “[v]iewing the

evidence in the light most favorable to the prosecution, [the

defendant] cursed at the man, popped his trunk, and then got out

of his car.” Id. at ¶ 53, 421 P.3d at 1150. The court determined

that “popping the trunk and getting out of the car [was], at most, an

aggressive step,” but that it did not “threaten[] the imminent use of

unlawful physical force.” Id. This conduct therefore did not

42
support an initial aggressor jury instruction. Id. at ¶ 54, 421 P.3d

at 1150.

¶ 100 We agree with the court that McKain’s tendered instruction

was vague. In Castillo, the supreme court did not create a new

“initial aggressor” definition for use in jury instructions. The

supreme court has long cautioned

that language used in an opinion pertinent to
the issues and the determined facts in that
case may be a proper expression of the law as
related to those facts and issues, and pertinent
to a decision of the case, and yet may not be
sufficiently general, clear, or accurate to serve
as a satisfactory or full instruction to a jury.

Cohen v. People, 103 P.2d 479, 480 (Colo. 1940). Therefore, the

court did not err by declining to instruct the jury that “an

aggressive step does not make a person an initial aggressor.”

¶ 101 For these reasons, the court did not err either by giving the

jury an instruction on initial aggressor or by rejecting McKain’s

version of such an instruction.

43
E. The Court Did Not Abuse Its Discretion by Declining to Give
First Amendment and Implicit Bias Jury Instructions

¶ 102 McKain further contends that the court erred by not giving the

jury his proposed First Amendment and implicit bias instructions.

We disagree.

1. Additional Facts

¶ 103 McKain tendered the following implicit bias instruction:

You must follow certain rules while conducting
your deliberations and returning your verdict:

Do not decide the case based on “implicit
biases.” Everyone, including me, has feelings,
assumptions, perceptions, fears, and
stereotypes, that is, “implicit biases,” that we
may not be aware of.

These hidden thoughts can impact what we
see and hear, how we remember what we see
and hear, and how we make important
decisions. Because you are making very
important decisions in this case, I strongly
encourage you to evaluate the evidence
carefully and to resist jumping to conclusions
based on personal likes or dislikes,
generalizations, gut feelings, prejudices,
sympathies, stereotypes, or biases.

The law demands that you return a just
verdict, based solely on the evidence, your
individual evaluation of that evidence, your
reason and common sense, and the
instructions provided by the Court. Our
system of justice is counting on you to render

44
a fair decision based on the evidence, not on
biases.

¶ 104 McKain also tendered a First Amendment instruction:

The First Amendment to the United States
Constitution protects the Freedom of Speech.
Just because you might find the statements
made by Mr. Mckain [sic] offensive, does not
mean they were made in violation of his right
to Free Speech. You should not draw an
inference in this case from what you may
consider offensive speech.

¶ 105 The court rejected both instructions. The record does not

reflect McKain’s arguments for giving these instructions.

2. The Court’s Refusal to Give
McKain’s First Amendment and Implicit Bias Instructions

¶ 106 McKain contends the court abused its discretion by not giving

his proposed jury instructions on the First Amendment and implicit

bias because the jury heard testimony about, and saw videos of,

McKain cursing and using slurs while interacting with the officers.

¶ 107 Sergeant Sapp testified to the following:

At one point, I believe he said a racial slur.
And I asked him to repeat what he said, he
didn’t say it again, so I may have misheard
him. But he was using some very foul
language, calling us different types of names,
basically saying he was refusing to sign [the
summons], and we told him that, you know, if

45
we have to come back that this may escalate to
more charges.

The videos shown to the jury depict McKain uttering profanities and

using slurs against the officers.

¶ 108 We do not consider the merits of McKain’s argument regarding

the First Amendment instruction because he did not sufficiently

develop it in his opening brief. We will not review “contentions that

have not been ‘sufficiently developed.’” People v. Thompson, 2017

COA 56, ¶ 199, 413 P.3d 306, 337. He does not point to any

Colorado case holding that a court errs by failing to give a First

Amendment instruction, much less by not giving such an

instruction when the defendant employed harsh language while

interacting with peace officers.

¶ 109 In addition, the court was not required to give McKain’s

tendered implicit bias instructions. The court instructed the jury

not to let bias influence its decision: “Remember, you must not be

influenced by sympathy, bias, or prejudice in reaching your

decision. You should not allow bias or any kind of prejudice based

upon gender to influence your decision.”

46
¶ 110 McKain relies on People v. Toro-Ospina, 2023 COA 45, 535

P.3d 132, to support his contention that he was entitled to his

proposed implicit bias instruction. However, Toro-Ospina does not

establish that the court abused its discretion by not giving McKain’s

proposed instruction.

¶ 111 The facts in Toro-Ospina are materially different from those in

this case. In Toro-Ospina, the division noted that

[t]he importance of jurors being reminded of
the risk that their judgments may be skewed
by implicit biases is arguably more salient in a
case such as this, in which most of the
People’s witnesses testified in English, but
Toro-Ospina testified in Spanish, thus
necessitating translation of his testimony into
English.

Id. at ¶ 44, 535 P.3d at 141.

¶ 112 Nonetheless, the division concluded “for two independent

reasons” that “the court’s decision not to give the requested

instruction” did not require reversal of the defendant’s convictions.

Id. at ¶ 45, 535 P.3d at 141. First, “[u]ntil such time as the General

Assembly or the Colorado Supreme Court requires an implicit bias

instruction, the decision whether to give such an instruction rests

with the trial court.” Id. at ¶ 47, 535 P.3d at 141-42. Second,

47
during voir dire, an “exchange between [the defendant’s] counsel

and [a prospective juror] thoughtfully articulated the inherent risks

of implicit bias and the need to be mindful of those concerns in the

deliberative process.” Id. at ¶ 48, 535 P.3d at 142.

¶ 113 McKain argues that Toro-Ospina is distinguishable because, in

his case, there was no discussion of implicit bias during voir dire.

However, the division’s conclusion in Toro-Ospina rested on

independent rationales that also apply here. The General Assembly

and the supreme court chose not to require courts to give implicit

bias jury instructions. See id. at ¶ 47, 535 P.3d at 141-42. In

addition, implicit bias was a lesser concern in this case than in

Toro-Ospina. Unlike the defendant in Toro-Ospina, who sought to

counteract possible bias against him premised on his race or

nationality, McKain tendered his proposed implicit bias instruction

to soften the impact of the harsh language he directed toward the

officers.

¶ 114 For three reasons, the court did not abuse its discretion by

declining to give McKain’s proposed implicit bias jury instruction.

First, as noted above, the court instructed the jurors not to allow

bias to affect their decisions. Second, defense counsel argued in

48
closing that the jury must not consider McKain’s language when

deciding whether he was guilty. Third, defense counsel reiterated

the importance of abandoning biases when deliberating. Therefore,

on several occasions, the court and defense counsel reminded the

jury that it should not consider McKain’s words toward the officers

when deciding whether the prosecution had proved its case.

Furthermore, we are not aware of, and McKain does not cite, any

case holding that a court must give an implicit bias instruction to

ensure the jury does not convict the defendant based on his use of

offensive language.

¶ 115 Accordingly, the court did not abuse its discretion by not

giving McKain’s tendered instructions on the First Amendment and

implicit bias.

F. We Do Not Consider Whether the Cumulative Effect of
Any Errors Requires Reversal

¶ 116 Because we reject McKain’s contentions of error, we reject his

cumulative error argument, which he raises for the first time in his

reply brief. See People v. Shannon, 2024 COA 41, ¶ 34, 553 P.3d

239, 248 (“Because we haven’t found any errors, [the defendant’s]

contention that reversal is warranted under the cumulative error

49
doctrine is untenable.”). Moreover, we do not address the merits of

appellate arguments presented for the first time in a reply brief.

See People v. Fogle, 116 P.3d 1227, 1230 (Colo. App. 2004) (issues

raised for the first time in the reply brief on appeal will not be

considered).

III. Disposition

¶ 117 The judgment is affirmed.

JUDGE JOHNSON and JUDGE MOULTRIE concur.

50