Peo v. Russell

23CA1048 Peo v Russell 10-16-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1048
Las Animas County District Court No. 21CR192
Honorable Pierce L. Fowler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cynthia Russell,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE BROWN
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 16, 2025

Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Cynthia Russell, appeals the judgment of

conviction entered on a jury verdict finding her guilty of felony

menacing and harassment. Russell contends that (1) the district

court erred by admitting certain statements contained in a video

exhibit; (2) the prosecutor committed misconduct throughout trial;

and (3) the court’s reasonable doubt instruction unconstitutionally

lowered and shifted the burden of proof. Russell also contends that

these alleged errors cumulatively deprived her of a fair trial. We

affirm.

I. Background

¶2 Alisha Keyes and her boyfriend live at the end of a long dirt

road on property neighboring that of Russell and her husband,

Floyd Russell.1 The road leading to Keyes’ property partially runs

through land owned by Russell, but a recorded easement grants the

residents living along the road rights to, among other things, use it

for “ingress and egress.”

¶3 One evening in September 2021, Keyes and her boyfriend were

planning to sell a car to Nathan Thompson, a Northglenn police

1 Because Cynthia Russell and Floyd Russell share a last name, we

refer to Floyd by his first name. We mean no disrespect in doing so.

1
officer. In preparation for the sale, Keyes rolled the car down her

driveway and positioned it just outside the gate that connects her

driveway to the road. Thompson, his brother, and another friend

arrived at approximately 10:00 p.m. Thompson’s brother drove the

group in a large truck towing a flatbed trailer. Thompson’s brother

parked the truck in front of Keyes’ gate, and Thompson met Keyes’

boyfriend to examine the car. Satisfied with the condition of the

vehicle, Thompson and his brother tried to turn the truck around

so they could load the car onto the trailer, but the trailer

“jackknifed” and became stuck across the road.

¶4 Around the same time, Floyd emerged from the darkness

carrying a handgun and shouting for the group to get “off [his]

property.” Thompson explained that he was an off-duty police

officer there to buy a car and that nothing suspicious was

happening. Shortly after Thompson calmed Floyd down, Russell

appeared waving a gun and demanding that Thompson and his

brother put their hands up. Thompson showed Russell his badge

and explained that he was there to purchase a car, but Russell

continued to wave her gun and insist that Thompson could not do

anything because he was outside of his jurisdiction.

2
¶5 Meanwhile, Keyes walked down to the gate to investigate

because she heard “screaming and hollering.” Keyes explained to

Russell and Floyd that she was just selling a car and told them to

“put [their] guns away.” Russell responded by waving her gun,

pointing it at Keyes, and saying she would shoot Keyes “in her

fucking face.” Russell continued shouting things like, “I’m a good

shot,” “I will fucking kill her,” “I can get her from here,” and “I’m

going to shoot this fucking bitch,” all while waving her gun around.

Russell also said that “if she knew the vehicle was there, she would

have went out there and shot the vehicle up.”

¶6 After some time, Thompson was able to de-escalate the

situation, buy the car, load it onto the trailer, and drive away down

the road. Once Thompson returned to an area with cell service, he

called 911 to report what had happened.

¶7 The prosecution charged Russell with felony menacing and

harassment, and a jury convicted her as charged. The district court

sentenced her to two years of supervised probation and twenty-four

hours of useful public service.

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II. Evidentiary Contentions

¶8 Russell contends that the district court erred by admitting a

video recording that contained (1) Thompson’s opinions on Russell’s

guilt and (2) CRE 404(b) evidence. We discern no basis to reverse.

A. Standard of Review

¶9 We review a trial court’s evidentiary rulings for an abuse of

discretion. People v. Hard, 2014 COA 132, ¶ 22. A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair, or when it misapplies the law. People v. Sims, 2019 COA 66,

¶ 44.

¶ 10 If a defendant objected to the admission of evidence at trial, we

review any error under the harmless error standard. Hard, ¶ 23.

But if a defendant failed to object, we review for plain error. Hagos

v. People, 2012 CO 63, ¶ 14. Plain error is error that is both

obvious and substantial, such that it so undermines the

fundamental fairness of the trial itself as to cast serious doubt on

the reliability of the judgment of conviction. Id.

B. Additional Background

¶ 11 Russell filed a pretrial motion in limine to exclude CRE 404(b)

evidence of her prior aggressive conduct, including evidence relating

4
to an “incident between [Keyes] and [Russell] about a year prior”

that involved roofers. At a motions hearing, the prosecutor

indicated that he had no intention of bringing the incident up but

reserved the right to discuss it should it become relevant at trial.

The court ruled that “anything that could go to [Russell’s] state of

mind on the night of [the altercation] will be considered appropriate

as it may be used in an affirmative defense,” but that it did not

want to hear “a witness stating that [Russell] used or engaged in a

use of force previously as a . . . previous act or wrong.”

¶ 12 During Keyes’ direct examination, the prosecutor moved to

admit Exhibit 4, a cell phone recording that Keyes took of a

conversation she had with Thompson immediately following the

altercation. Defense counsel objected to the exhibit as irrelevant

and because it contained hearsay and “improper legal

conclusions.”2 The court overruled Russell’s objections as to

relevance and hearsay but deferred ruling on the objection to

2 Although Russell argued at trial that the recording was irrelevant

and contained inadmissible hearsay, she does not reassert those
arguments on appeal. Thus, we deem those arguments abandoned.
See People v. Brooks, 250 P.3d 771, 772 (Colo. App. 2010).

5
improper legal conclusions, instructing counsel, “[Y]ou can object if

we start to hear anything that would require legal conclusions.”

¶ 13 The court admitted Exhibit 4 into evidence. The video is

mostly black due to the dark conditions at the time it was recorded,

but the audio includes the following:

• After Thompson asked Keyes if she wanted to press charges,

Keyes asked Thompson what he “would recommend living

so close to” Russell. Thompson replied, “I just had a gun

pointed at me, I think that’s one fucking thousand percent

uncalled for considering that we are backing a car up and

there’s no actual threat here, so one hundred percent she

just committed a felony.”

• Keyes stated that Russell is “horribly violent” and recounted

an instance where “roofers got stuck in the winter and

[Russell] threatened to hurt them, too.”

¶ 14 Before Exhibit 4 was played at trial, the prosecutor asked the

court to instruct the jury to disregard any legal conclusions

contained in the recording. The court instructed the jurors that

they were “the final arbiters of the decisions of law and fact in this

case” and that they should not “put greater weight onto what Officer

6
Thompson may or may not say [i]n this video.” Defense counsel

renewed his hearsay objection “to Officer Thompson’s statements,”

but the court overruled the objection.

¶ 15 The trial transcript reflects that at least a portion of Exhibit 4

was then played for the jury, but we do not know what part. We do

know that the prosecutor asked someone to “rewind it all the way”

and then played sixty-nine seconds of the recording. The only

challenged evidence that can be heard in the first sixty-nine

seconds is Keyes’ statement that Russell is “horribly violent.”

Thompson’s statements and Keyes’ statement about Russell

threatening the roofers are more than two minutes into the

recording. Defense counsel did not object to any statements as the

exhibit was played at trial, nor after.

C. Russell’s Evidentiary Contentions Are Unpreserved

¶ 16 We have “an independent, affirmative duty to determine

whether a claim is preserved and what standard of review should

apply, regardless of the positions taken by the parties.” People v.

Tallent, 2021 CO 68, ¶ 11. Based on our review of the record, we

conclude that Russell failed to preserve her contentions that the

7
district court erred by admitting Thompson’s “legal conclusions” or

any CRE 404(b) evidence contained in Exhibit 4.

¶ 17 To preserve an issue for appeal, the defendant must raise the

issue and provide the district court with “an adequate opportunity

to make findings of fact and conclusions of law.” People v.

Melendez, 102 P.3d 315, 322 (Colo. 2004); see CRE 103(a)(1). And

“it is incumbent on the moving party to see to it that the court rules

on the matter [s]he urges.” Feldstein v. People, 410 P.2d 188, 191

(Colo. 1966), abrogated on other grounds by, Deeds v. People, 747

P.2d 1266, 1269-72 (Colo. 1987). A timely, specific objection

“allows the trial court a meaningful chance to prevent or correct the

error and creates a record for appellate review.” Martinez v. People,

2015 CO 16, ¶ 14.

¶ 18 With respect to the potential “legal conclusions” contained in

Exhibit 4, the district court expressly reserved its ruling and

instructed defense counsel to object when the video was played for

the jury. Because the court did not make a definitive ruling when

counsel first raised the issue, counsel had to object again if any of

Thompson’s statements amounted to improper legal conclusions.

See Feldstein, 410 P.2d at 191; cf. People v. Dinapoli, 2015 COA 9,

8
¶ 20 (“A pretrial motion may preserve an evidentiary objection for

appellate review if the moving party fairly presents the issue to the

court and the court issues a definitive ruling.” (emphasis added));

CRE 103(a) (“Once the court makes a definitive ruling on the record

admitting or excluding evidence, either at or before trial, a party

need not renew an objection or offer of proof to preserve a claim of

error for appeal.” (emphasis added)). But counsel did not

contemporaneously object to any statement in Exhibit 4 on the

ground that it amounted to an improper legal conclusion. Absent

such an objection, the court was deprived of a meaningful

opportunity to correct the error. See Martinez, ¶ 14.

¶ 19 With respect to the CRE 404(b) evidence, although the court

partially granted Russell’s pretrial motion to exclude that evidence,

“when a party violates the court’s pretrial order at trial, the

opposing party must contemporaneously object to preserve the

issue for appeal.” Dinapoli, ¶ 19; see People v. Richardson, 2019

COA 120, ¶ 64. Such an objection “allows the court to determine,

at the relevant time, whether the admission of evidence . . . actually

violates the pretrial order.” Caylao-Do v. Logue, 2025 COA 42, ¶ 30.

Defense counsel did not contemporaneously object to any statement

9
in Exhibit 4 on the grounds that it was inadmissible under CRE

404(b) or violated the court’s pretrial ruling. Absent such an

objection, the court was deprived of an opportunity to determine in

real time whether admission of the statements violated its pretrial

order or CRE 404(b). See Caylao-Do, ¶ 30.

¶ 20 We conclude that Russell failed to preserve her evidentiary

contentions. As a result, we review them only for plain error.

Hagos, ¶ 14.

D. The District Court Did Not Plainly Err by Admitting the
Challenged Statements

¶ 21 Russell argues that Thompson’s statements — namely, that

Russell’s conduct was “one . . . thousand percent uncalled for” and

that she “one hundred percent . . . just committed a felony” — were

inadmissible because they amounted to an improper opinion on

whether a legal standard had been met in the case. See People v.

Beilke, 232 P.3d 146, 152 (Colo. App. 2009) (“[A] witness may not

testify that a particular legal standard has or has not been met.”).

She further argues that Keyes’ statements that Russell was

“horribly violent” and previously threatened roofers were

inadmissible under CRE 404(b) and precluded by the court’s

10
pretrial ruling. See CRE 404(b)(1) (“Evidence of any other crime,

wrong, or act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

conformity with the character.”).

¶ 22 Even assuming that the court erred by admitting the

challenged statements when it admitted Exhibit 4, we conclude that

any error was not plain because it did not so undermine the

fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction. Hagos, ¶ 14. We reach

this conclusion for three reasons.

¶ 23 First, we are unable to determine whether the jury even heard

the challenged statements. As noted, the record does not establish,

and neither party is able to clarify, what part of Exhibit 4 was

played during trial. If the first sixty-nine seconds of the video were

played, which is the most likely inference drawn from the trial

transcript, the jury heard only Keyes’ statement that Russell is

“horribly violent” — which Keyes said after Russell had just pointed

a gun at her and repeatedly threatened to shoot her in the face.

¶ 24 In addition, despite the court’s earlier rulings (1) instructing

defense counsel to contemporaneously object to any improper legal

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conclusions and (2) precluding CRE 404(b) evidence, counsel did

not object while the exhibit was played at trial or after. The lack of

any objection suggests that the portions of the video containing

Thompson’s opinions on Russell’s guilt or Keyes’ reference to the

incident involving roofers were not played in open court. And

although the district court admitted Exhibit 4 in its entirety,

nothing in the record indicates that the jury asked to view the

exhibit during deliberations or had the exhibit and the necessary

technology required to play it in the jury room. We cannot conclude

that the admission of the challenged evidence undermined the

fundamental fairness of Russell’s trial without knowing whether the

jury was even exposed to it.

¶ 25 Second, the district court contemporaneously instructed the

jury not to give greater weight to any statements Thompson made in

the video and instructed the jury in its final written instructions to

disregard any conclusions of law it may have heard from witnesses

at trial. Absent evidence to the contrary, we presume that the jury

understood and followed the court’s instructions. People v. Chase,

2013 COA 27, ¶ 37.

12
¶ 26 Third, the prosecution presented overwhelming evidence that

Russell committed felony menacing and harassment. See People v.

Munoz-Casteneda, 2012 COA 109, ¶ 39 (unpreserved evidentiary

errors will not be reversed under the plain error standard if the jury

was presented with overwhelming evidence of the defendant’s guilt).

As relevant here, “[a] person commits the crime of [felony] menacing

if, by any threat or physical action, he or she knowingly places or

attempts to place another person in fear of imminent serious bodily

injury . . . by the use of a deadly weapon.” § 18-3-206, C.R.S.

2021.3 “A person commits harassment if, with intent to harass,

annoy, or alarm another person, the person . . . [r]epeatedly insults,

taunts, challenges, or makes communications in offensively coarse

language to another in a manner likely to provoke a violent or

disorderly response . . . .” § 18-9-111(1)(h), C.R.S. 2025. The

evidence at trial established that Keyes, Thompson, and the others

involved in the car sale were on an access road when Russell

emerged from her property, pointed a gun at Keyes, and threated to

shoot her.

3 We cite the 2021 version of the menacing statute because it was in

effect when the altercation occurred and has since been amended.

13
¶ 27 True, Russell asserted the affirmative defenses of (1) defense of

a person, § 18-1-704, C.R.S. 2025; (2) defense of premises,

§ 18-1-705, C.R.S. 2025; and (3) defense of property, § 18-1-706,

C.R.S. 2025. But for her conduct to be legally justified, Russell

must have reasonably believed that her use of force was necessary

to prevent Keyes from (1) using unlawful physical force on Russell

or Floyd, § 18-1-704(1); (2) unlawfully trespassing, § 18-1-705; or

(3) committing theft, criminal mischief, or tampering with Russell’s

property, § 18-1-706. Even if Russell initially believed she needed

to defend herself or her property, the evidence established that after

Thompson identified himself as an off-duty police officer and

explained his presence on the access road, Russell continued to

erratically wave her handgun and hurl threats at Keyes.

¶ 28 On this record, we conclude that any error by the district

court in admitting Thompson’s statements that Russell’s behavior

was “uncalled for” and “a felony” or Keyes’ statements that Russell

was “horribly violent” and had previously threated roofers did not

result in the level of prejudice required to reverse under the plain

error standard. Hagos, ¶ 14.

14
III. Prosecutorial Misconduct

¶ 29 Russell contends that the prosecutor committed misconduct

by (1) misstating the evidence; (2) asking a question that elicited an

inadmissible legal opinion; and (3) repeatedly discussing the access

easement, which misled the jury and confused the issues at trial.

We perceive no error.

A. Applicable Law and Standard of Review

¶ 30 We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine whether the prosecutor’s conduct

was improper based on the totality of the circumstances. Id. We

will not disturb a trial court’s rulings on alleged instances of

misconduct absent “a showing of gross abuse of discretion resulting

in prejudice and a denial of justice.” People v. Strock, 252 P.3d

1148, 1152 (Colo. App. 2010). Second, if the conduct was

improper, we decide whether it warrants reversal under the proper

standard of review. Wend, 235 P.3d at 1096.

¶ 31 While prosecutors can use every legitimate means to bring

about a just conviction, they have a duty to avoid using improper

methods intended to obtain an unjust result. Domingo-Gomez v.

15
People, 125 P.3d 1043, 1048 (Colo. 2005). When determining

whether a prosecutor’s statements were improper and whether

reversal is warranted, we may consider the language used, the

context of the statements, the strength of the evidence, whether the

prosecutor improperly appealed to the jurors’ sentiments, whether

the misconduct was repeated, and any other relevant factors.

People v. Walters, 148 P.3d 331, 335 (Colo. App. 2006).

B. The Prosecutor’s Misstatement During Closing Argument Does
Not Amount to Misconduct

¶ 32 At trial, Floyd testified that Thompson’s brother was “in front

of the truck peeing, whenever [Russell] came up” and disrupted

Thompson’s purchase of Keyes’ car. During closing argument, the

prosecutor stated that “when [Russell] came down with her

pistol[,] . . . Thompson’s brother went over to pee, because that’s

what we do in our common experience in life when two armed

people come from the darkness.” Russell’s counsel objected to the

prosecutor’s argument as a misstatement of the evidence, but the

district court overruled his objection.

¶ 33 Russell argues that the prosecutor misstated Floyd’s testimony

to discredit him by making his story sound ridiculous. She also

16
argues that “Floyd’s testimony was the only evidence the jury had to

support the defense’s theory that [Russell] acted in defense of Floyd

and her property,” so the misconduct likely contributed to Russell’s

conviction. We are not persuaded.

¶ 34 To be sure, a prosecutor may not misstate the evidence.

People v. Payne, 2019 COA 167, ¶ 46; see Domingo-Gomez, 125

P.3d at 1049 (“The prosecutor should not intentionally misstate the

evidence or mislead the jury as to the inferences it may draw.”).

And the prosecutor’s argument here could be seen as a slight

misstatement as to when Floyd said Thompson’s brother

purportedly urinated — Floyd’s testimony suggested it happened

shortly before Russell approached while the prosecutor’s statement

suggested it happened shortly after Russell approached. But the

thrust of the prosecutor’s argument was that Floyd’s testimony was

not credible because no one would feel comfortable urinating in the

middle of a stressful conflict where guns had been drawn —

regardless of the timing. In context, the prosecutor’s argument

appears to be an inartful attempt to discredit a defense witness

rather than an intentional misstatement intended to mislead the

jury. See Domingo-Gomez, 125 P.3d at 1049.

17
¶ 35 Moreover, the prosecutor’s statement related to an ancillary

issue; when Thompson’s brother may have urinated implicates

none of the elements of the charged offenses or asserted affirmative

defenses. See §§ 18-1-704, 18-1-705, 18-1-706, 18-3-206(1)(a)-

(b), 18-9-111(1)(h). Thus, we conclude that the court did not

grossly abuse its discretion by determining that the prosecutor’s

slight misstatement did not amount to prosecutorial misconduct.

See Wend, 235 P.3d at 1096; Strock, 252 P.3d at 1152.

C. The Prosecutor Could Not Have Foreseen that His Question
Would Elicit an Inadmissible Response

¶ 36 During direct examination, the prosecutor asked Thompson

why he called 911 following the incident. Thompson responded,

“Because . . . a felony event had just occurred.” Defense counsel

objected to Thompson’s answer as an improper legal conclusion,

and the district court sustained the objection. Even so, Russell

argues that the prosecutor committed misconduct by asking

Thompson a question the prosecutor knew would elicit an

inadmissible response. We disagree.

¶ 37 Nothing about how the prosecutor phrased the question

suggested Thompson should respond by opining that Russell had

18
committed a felony. There are several other relevant and admissible

reasons that Thompson could have given for why he called 911. In

other words, the question did not elicit a prohibited response. That

Thompson offered an improper opinion does not mean that the

prosecutor committed misconduct. See Wend, 235 P.3d at 1096.

D. The Prosecutor’s Questions About Russell’s Easement Do Not
Amount to Prosecutorial Misconduct

¶ 38 Russell contends that the prosecutor committed misconduct

by repeatedly asking potential jurors and witnesses questions about

easements that were misleading and confused the issues. She

notes that four out of the nine exhibits the prosecutor admitted at

trial related to the access easement,4 the prosecutor had Keyes read

the easement descriptions out loud, and the prosecutor asked

Keyes and Thompson numerous questions about the easement’s

scope. She argues that questions about the easement were so

pervasive that “the jurors were likely to believe that whether anyone

went past the easement boundaries was a determining factor in

4 People’s Exhibits 5-8 provided the jury with information about

Keyes’ and Russell’s properties and the easement that provided
ingress and egress to Keyes’ property. When the prosecution
introduced the exhibits, defense counsel objected only to Exhibit 8,
a certified property record, on the basis that it was irrelevant.

19
whether [Russell’s] conduct was reasonable.” We discern no

misconduct.

¶ 39 Evidence relating to the access easement across Russell’s

property was relevant because she asserted the use of physical

force in defense of premises as an affirmative defense. See

§ 18-1-705. Whether Russell was “in possession or control of

any . . . realty” and whether she reasonably believed Keyes was

committing or attempting to commit “unlawful trespass” were

squarely at issue based on that affirmative defense. Id.

Consequently, the prosecutor was free to ask questions and make

arguments about the easement and to respond to the theory of

defense. See Strock, 252 P.3d at 1153 (“A prosecutor has wide

latitude to make arguments based on facts in evidence and

reasonable inferences drawn from those facts.”).

¶ 40 On appeal, Russell does not contend that the evidence was

inadmissible, only that the amount of time the prosecutor spent

discussing it had the effect of misleading and confusing the jury.

But based on our review of the record, we disagree with Russell’s

characterization of this evidence as having “pervaded the trial from

voir dire through closing argument.” Although the easement was a

20
feature of the prosecution’s evidence, it did not dominate the

narrative so as to mislead or confuse the jury. And no one

suggested to the jury that the reasonableness of Russell’s conduct

hinged on the precise contours of the easement. Thus, we conclude

the prosecutor did not commit misconduct by admitting evidence

and asking questions about the easement. See Wend, 235 P.3d

at 1096.

IV. Reasonable Doubt Instruction

¶ 41 Russell contends that the district court erred by using a

reasonable doubt instruction that unconstitutionally lowered and

shifted the burden of proof. We disagree.

A. Additional Background

¶ 42 Over Russell’s objection, the district court gave the jury a

reasonable doubt instruction that tracks the 2022 model criminal

instruction:

Every person charged with a crime is
presumed innocent. This presumption of
innocence remains with the defendant
throughout the trial and should be given effect
by you unless, after considering all the
evidence, you are convinced that the defendant
is guilty beyond a reasonable doubt.

21
The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
than proof that something is highly probable,
but it does not require proof with absolute
certainty.

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty,
then the prosecution has failed to prove the
crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide
the prosecution has proven each of the
elements of a crime charged beyond a
reasonable doubt, you should find the
defendant guilty of that crime.

After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements of a crime charged
beyond a reasonable doubt, you should find
the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022).

B. Applicable Law and Standard of Review

¶ 43 The Due Process Clause of the United States Constitution

“protects the accused against conviction except upon proof beyond

22
a reasonable doubt of every fact necessary to constitute the crime

with which [s]he is charged.” Tibbels v. People, 2022 CO 1, ¶ 23

(quoting In re Winship, 397 U.S. 358, 364 (1970)). Accordingly, trial

courts “must properly instruct the jury on . . . the reasonable doubt

standard.” Id. at ¶ 25. Instructions that lower the prosecution’s

burden of proof constitute structural error and require automatic

reversal. Id. at ¶ 22. To determine whether a court’s instruction

lowered the burden of proof, we “must ask whether there is a

reasonable likelihood that the jury understood the court’s

statements, in the context of the instructions as a whole and the

trial record, to allow a conviction based on a standard lower than

beyond a reasonable doubt.” Id. at ¶ 43.

¶ 44 We review de novo whether a trial court’s instructions

improperly lowered the prosecution’s burden of proof. Id. at ¶ 22;

Johnson v. People, 2019 CO 17, ¶ 8.

C. The District Court’s Instruction on Reasonable Doubt Did Not
Lower or Shift the Prosecution’s Burden of Proof

¶ 45 Russell challenges three aspects of the district court’s

reasonable doubt instruction, contending that it (1) failed to inform

the jury that it can consider the “lack of evidence” when making its

23
decision; (2) instructed the jurors that the prosecution does not

meet its burden if they think there is “a real possibility that the

defendant is not guilty”; and (3) failed to instruct the jury that a

reasonable doubt is a doubt that would cause a reasonable person

to “hesitate to act.” As Russell concedes in her reply brief, however,

at least two divisions of this court have now rejected these

contentions. See People v. Melara, 2025 COA 48, ¶¶ 10-32; People

v. Schlehuber, 2025 COA 50, ¶¶ 7-34. For the reasons articulated

by those divisions, with which we agree, we reject Russell’s

contention that the district court’s reasonable doubt instruction

impermissibly lowered and shifted the burden of proof. See Melara,

¶ 32; Schlehuber, ¶ 7.

V. Cumulative Error

¶ 46 Russell contends that, even if the alleged errors individually do

not warrant reversal, their cumulative prejudice does. When

reviewing for cumulative error, we ask whether “numerous formal

irregularities, each of which in itself might be deemed harmless,

may in the aggregate show the absence of a fair trial.”

Howard-Walker v. People, 2019 CO 69, ¶ 24 (quoting Oaks v.

People, 371 P.2d 443, 446 (Colo. 1962)). For the doctrine to apply,

24
numerous errors must have been committed, not merely alleged.

People v. Shanks, 2019 COA 160, ¶ 76.

¶ 47 Although we have assumed for purposes of efficiently resolving

this appeal that the district court erred by admitting certain

statements contained in Exhibit 4, for the same reasons we have

concluded that the assumed errors were not plain, we also conclude

that they “did not substantially prejudice the defendant’s right to a

fair trial.” People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007);

see Hagos, ¶ 14 (Plain error so undermine[s] the fundamental

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

of the judgment of conviction.).

VI. Deposition

¶ 48 We affirm the judgment of conviction.

JUDGE FOX and JUDGE MEIRINK concur.

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