Peo v. Kukat

24CA1341 Peo v Kukat 12-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1341
Gilpin County District Court No. 23CR38
Honorable Jeffrey R. Pilkington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Pkemoi Kukat,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Brown and Meirink, JJ., concur

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

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lauren Rae Bushong, Deputy
State Public Defender, Golden, Colorado, for Defendant-Appellant
¶1 Defendant, James Pkemoi Kukat, appeals his menacing and

harassment convictions arising from emails he sent to Monarch

Casino (Monarch) in April 2023. Kukat contends that the trial

court undermined his Fifth Amendment right to remain silent and

right against self-incrimination by allowing a police officer to testify

about Kukat’s pre-arrest silence. Kukat also argues that the trial

court erred by denying his request to instruct the jury on “true

threats” under Counterman v. Colorado, 600 U.S. 66 (2023), and by

failing to supply a corresponding limiting instruction for the

menacing and harassment charges. For the reasons below, we

affirm.

I. Background

¶2 Monarch owns and operates a casino in Black Hawk,

Colorado, and a mobile sports betting application called

BetMonarch. Kukat held a BetMonarch account. On March 30,

2023, Monarch received a message from the email address

associated with Kukat’s account requesting that his account be

closed “due to a history of gambling addiction.” Monarch complied.

¶3 In April 2023, Kukat emailed Monarch from the same address

saying he did not send the March 30 message. He asked Monarch

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to reinstate his account, or alternatively, refund his winnings to a

debit card. In a later phone call, a Monarch employee explained to

Kukat that before reinstating the account, Monarch had to conduct

an internal investigation to verify the conflicting requests. Kukat

then sent the following emails to Monarch:

• If I don’t get my money refunded back I will
make an armed entry into your casino and
cause mayhem. Return my money back to
the card that I used to make [the] deposit
and we are done. The longer I am asked to
wait, the more I become agitated assholes.

• Fucking assholes left and right. I will hurt
your business soon. We will all make news
for the bad assholes.

• Pieces of shit. Fucking greedy ass bitches.
I am preparing now to come.

• I am not on any exclusion list anywhere in
the state of Colorado, and your casino
closes my betting account because I am
good at betting and because I am meant to
cleanse your house for your sins. Soon and
very soon.

¶4 Alarmed by these communications, Monarch alerted casino

staff and law enforcement. Detective Kevin Sagar, the officer who

received the report, attempted to contact Kukat by phone and email

but received no response. Sagar also located a physical address for

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Kukat in Durango, Colorado, sought assistance from the Durango

Police Department, and issued a “be on the lookout” alert for Kukat.

Contemporaneously, Sagar sought an arrest warrant.

¶5 The People charged Kukat with criminal extortion, § 18-3-

207(1)(a), (b)(1), C.R.S. 2025; menacing, § 18-3-206, C.R.S. 2025;

and harassment, § 18-9-111(1)(e), C.R.S. 2025. The jury acquitted

Kukat of extortion but found him guilty of menacing and

harassment, and the trial court sentenced him to sixty days in the

Department of Corrections’ custody. On appeal, Kukat argues that

Sagar’s testimony about Kukat’s failure to respond to law

enforcement violated his Fifth Amendment rights. Kukat also

challenges the tendered jury instructions. We reject both

contentions.

II. Officer Testimony

A. Additional Background

¶6 After Monarch elevated Kukat’s communications to law

enforcement, Sagar attempted to contact Kukat via phone and email

but received no response. Before trial, defense counsel asked the

court to prohibit the prosecution from eliciting testimony from

Sagar about Kukat’s failure to respond. Defense counsel argued

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that such testimony implicated Kukat’s Fifth Amendment right to

remain silent and would lead the jury to infer guilt from Kukat’s

evasiveness. The court asked defense counsel to provide support

that Kukat’s Fifth Amendment right was implicated prior to arrest,

but she offered none. The prosecution countered that it planned to

elicit the testimony to demonstrate law enforcement’s sense of

urgency and the seriousness of the investigation. Noting that jurors

may have lingering questions about law enforcement’s attempts to

contact Kukat if the court were to omit the question, the court

concluded that the testimony was admissible.

¶7 Consistent with its ruling, the trial court allowed the

prosecution to question Sagar about his attempts to contact Kukat.

The prosecution asked whether Sagar received a response from

Kukat, to which he responded, “No.” The trial court instructed the

jury to consider that testimony only for the limited purpose of

understanding Sagar’s investigation. Throughout trial, Monarch

employees also testified about their reaction to Kukat’s emails and

how the matter was handled internally.

¶8 Kukat maintains on appeal that the trial court erred by

admitting Sagar’s testimony and that the limiting instruction did

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not cure the error. According to Kukat, this testimony (1) had little

relevance under CRE 401; (2) was unfairly prejudicial under CRE

403 because it allowed the jury to infer guilt from his silence; and

(3) violated his Fifth Amendment right to remain silent and right

against self-incrimination. The People counter that the testimony

showed how seriously law enforcement treated Kukat’s emails,

which was relevant to determining the credibility of the threats.

While we agree with Kukat’s CRE 401 and 403 contentions, we

conclude that any error in admitting the testimony was harmless

and did not undermine Kukat’s Fifth Amendment rights because

his silence did not occur in a custodial setting.

B. Standard of Review

¶9 “A district court has broad discretion in determining the

admissibility of evidence based on its relevance, probative value,

and prejudicial impact.” People v. Morse, 2023 COA 27, ¶ 39. We

review these evidentiary rulings for an abuse of discretion. Id. A

court “abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when it misapplies the law.” Id. An

appellate court reverses if the abuse of discretion “substantially

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influenced the verdict or affected the fairness of the trial

proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (citation omitted).

C. CRE 401 and 403

¶ 10 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Relevant evidence is generally admissible,

CRE 402, but may nevertheless be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice or the

needless presentation of cumulative evidence, CRE 403. We afford

evidence its “maximum reasonable probative value and minimum

reasonable prejudicial effect” because CRE 403 strongly favors

admissibility of relevant evidence. Morse, ¶ 41.

¶ 11 Sagar’s testimony had minimal relevance under CRE 401 and

little probative value under CRE 403 because the affected Monarch

witnesses testified about the seriousness of the threats, rendering

Sagar’s testimony unnecessarily cumulative. We are unpersuaded

by the People’s argument that the testimony served the relevant

purpose of rebutting Kukat’s claim that the threats were not

credible. Kukat’s failure to respond does little to show how

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seriously law enforcement took the threats because this speaks to

Kukat’s actions, not the level of care the police exercised. See

People v. Welsh, 80 P.3d 296, 306-07 (Colo. 2003) (the defendant’s

pre-arrest silence was not relevant to her insanity defense). The

testimony further posed a prejudicial risk under CRE 403, as the

jury could infer that Kukat did not respond because he had done

something wrong. Id. at 307.

¶ 12 However, we conclude that any error in admitting the

testimony was harmless. The jury saw copies of the emails Kukat

sent and heard testimony from Monarch employees about the

threatening nature of the communications. See Pernell v. People,

2018 CO 13, ¶ 22 (an error is harmless if there is no reasonable

possibility that it contributed to the conviction). Additionally, the

trial court provided the jury with a limiting instruction regarding

the testimony, and we presume that the jury understood and

followed the instruction. People v. Brown, 2022 COA 19, ¶ 62

(perceiving no abuse of discretion because the trial court gave a

proper limiting instruction); see also People v. Gillispie, 767 P.2d

778, 780 (Colo. App. 1988) (a curative instruction is generally

sufficient to overcome an evidentiary error). Finally, the jury

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acquitted Kukat of extortion, indicating that the jurors parsed the

evidence and were not substantially influenced by the challenged

testimony. People v. Quillen, 2023 COA 22M, ¶ 39 (a split verdict

indicates that improper evidence did not influence the jury).

D. The Fifth Amendment

¶ 13 During trial, a prosecutor cannot comment on a defendant’s

constitutionally protected right to remain silent. U.S. Const.

amend. V; Colo. Const. art. II, §§ 18, 25; People v. Rios, 2020 COA

2, ¶ 24. While a prosecutor should also avoid commenting on a

defendant’s pre-arrest silence, divisions of this court have held that

Fifth Amendment protections do not extend to conduct that occurs

in a noncustodial setting.1 Rios, ¶ 24; see also People v. Thomas,

2014 COA 64, ¶ 26 (concluding that admission of testimony about

the defendant’s pre-arrest silence did not violate his Fifth

Amendment right against self-incrimination because the silence did

not arise during a custodial interrogation). When a court admits

testimony about a defendant’s pre-arrest silence, “reversible error

1 “Noncustodial” silence refers to silence that occurs “while a person

is not in custody.” Black’s Law Dictionary 1260 (12th ed. 2024).

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exists only when the prosecutor uses the defendant’s silence as a

means of implying guilt.” Rios, ¶ 24.

¶ 14 Sagar’s attempts to contact Kukat and Kukat’s failure to

respond occurred before he was placed in custody. Because

Kukat’s silence did not occur in a custodial setting, and the

prosecutor did not use Kukat’s silence to imply guilt, Sagar’s

testimony did not implicate his Fifth Amendment rights, and we

reject the contention of error.

III. Jury Instructions

A. Additional Background

¶ 15 Before trial, Kukat moved to dismiss the charges as

unconstitutionally vague and overbroad as applied. He argued that

his communications did not constitute true threats and were

protected under the First Amendment. Applying the factors the

Colorado Supreme Court identified in People in Interest of R.D.,

2020 CO 44, ¶ 4, abrogated in part by, Counterman, 600 U.S. at 78,

the trial court concluded that Kukat’s “statements to Monarch

unquestionably constitute true threats” and denied Kukat’s

challenge.

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¶ 16 Initially focused on the extortion charge, Kukat later requested

that the trial court instruct the jury on the definition of a “true

threat” and related First Amendment freedom of speech principles.

The trial court, noting that it had already rejected Kukat’s

constitutional challenge, asked why the existing instruction for

extortion was insufficient. Kukat argued that the instruction,

which contained the language “substantial threat,” warranted

further guidance under the Supreme Court’s decision in

Counterman. In rejecting the proposal, the trial court cautioned

that a robust First Amendment instruction would confuse the jury

because uttering a “true threat” was not an element of the offense

and that it was inappropriate for the court to take selective

language from case law. However, it did provide the jury with

limiting Instruction No. 17 to ensure compliance with Counterman’s

“recklessness” mental state requirement:

For the purpose of the crime of extortion, in
order to find that the defendant made a
substantial threat through any form of
communication with another person, you must
find that the defendant consciously
disregarded a substantial risk that his
communications would be viewed as
threatening violence.

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¶ 17 Kukat later argued that this instruction would be useful for

the menacing charge, but the trial court declined to instruct the

jury accordingly because Kukat did not timely request the

instruction. As to harassment, the court stated that Colorado

Model Criminal Jury Instructions (COLJI-Crim.) guidance indicated

that Counterman did not apply, and in any event, Kukat never

requested the instruction relative to the harassment charge. The

jury acquitted Kukat of extortion but found him guilty of menacing

and harassment.

¶ 18 Kukat argues on appeal that the trial court erred by failing to

instruct the jury on the definition of a “true threat” and related First

Amendment principles. He further contends that the trial court

should have applied limiting Instruction No. 17 to the menacing

and harassment charges. We discern no error.

B. Standard of Review

¶ 19 “The trial court has broad discretion to formulate jury

instructions as long as they are correct statements of the law.”

People v. Carter, 2015 COA 24M-2, ¶ 39 (quoting People v. Oram,

217 P.3d 883, 893 (Colo. App. 2009)). While we review de novo

whether jury instructions accurately inform the jury of the

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governing law, we review the trial court’s decision to give a

particular instruction for an abuse of discretion. Id.

C. True Threats

¶ 20 True threats are ‘“serious expression[s]’ conveying that a

speaker means to ‘commit an act of unlawful violence’” and are not

entitled to First Amendment Protection. Counterman, 600 U.S. at

74 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)); People v.

Morris, 2025 COA 15, ¶ 26. In determining whether an electronic

communication amounts to a true threat, Colorado courts look to a

nonexhaustive list of factors: (1) the statement’s role in a broader

exchange; (2) the medium through which the statement was

communicated; (3) the manner in which the statement was

conveyed; (4) the relationship between the speaker and recipient;

and (5) the subjective reaction of the intended recipient. R.D., ¶ 4.

¶ 21 The trial judge weighed these factors before concluding that

Kukat’s statements to Monarch “unquestionably constitute[d] true

threats,” thereby rejecting Kukat’s constitutional challenge. The

case proceeded to trial, and the court provided the jury with

instructions for extortion, menacing, and harassment that tracked

the language of their respective statutes. We conclude that the trial

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court accurately informed the jury of the governing law. See People

v. Schnorenberg, 2025 CO 43, ¶ 60 (jury instructions that

substantially track the language of the statute describing the crime

are sufficient).

¶ 22 We further conclude that the trial court did not abuse its

discretion by failing to provide the jury with a different First

Amendment instruction. See id. Kukat cites no binding case law,

and we are aware of none, requiring a trial court to instruct on true

threats simply because the charges stem from the defendant’s

speech. See People v. Counterman, 2021 COA 97, ¶¶ 69-71

(explaining that neither People v. Chase, 2013 COA 27, nor People

v. Stanley, 170 P.3d 782 (Colo. App. 2007), addressed whether a

defendant is automatically entitled to an instruction on true threats

when facing charges that implicate speech), vacated on other

grounds, Counterman, 600 U.S. at 83. This, coupled with the trial

court’s correct determination that the charges were not

unconstitutional as applied, leads us to conclude that the court did

not abuse its discretion when it declined to instruct the jury on

broad First Amendment principles.

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D. Instruction No. 17

¶ 23 In true-threats cases, the People must prove that the

defendant had some subjective understanding of the statement’s

threatening nature, but under the First Amendment, a mental state

of recklessness is sufficient. Counterman, 600 U.S. at 69. So, the

People need only show that “the defendant consciously disregarded

a substantial risk that his communications would be viewed as

threatening violence.” Id.

¶ 24 Limiting Instruction No. 17 articulated this standard. The

trial court applied this instruction to the extortion charge — which

requires that the defendant make a “substantial threat” — to

prevent the jury from convicting Kukat for acting with a mental

state below the constitutional threshold. We are not persuaded by

Kukat’s argument that the court should have applied Instruction

No. 17 to the menacing and harassment charges as well.

¶ 25 Menacing requires that the defendant “knowingly . . . place[] or

attempt[] to place another person in fear of imminent serious bodily

injury.” § 18-3-206. Thus, to convict Kukat of menacing, the jury

must have found beyond a reasonable doubt that he acted

knowingly by issuing the threats. Because “knowingly” is a higher

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mental state than Counterman’s “recklessly,” there was no risk that

the jury would find Kukat guilty for speech protected by the First

Amendment. The trial court therefore did not err by denying

Kukat’s request to apply Instruction No. 17 to menacing. People v.

Casper, 2025 COA 69, ¶¶ 28-34 (holding that instructions requiring

the jury to determine whether the defendant knowingly made a

threat survive constitutional scrutiny and do not require a

Counterman instruction because “knowingly” is a more culpable

mental state than “recklessly”).

¶ 26 Finally, Kukat did not ask to apply Instruction No. 17 to the

harassment charge. The issue is therefore unpreserved and we

review for plain error. People v. Conyac, 2014 COA 8M, ¶ 53. An

error is plain if, at the time it arose, “it was so clear cut and so

obvious that a trial judge should have been able to avoid it” without

the benefit of the party’s action. Id. at ¶ 54. Such was not the case

here, as the comments to the harassment model instruction clearly

state that Counterman is not implicated. COLJI-Crim. 9-1:36

cmt. 4 (2024). While pattern jury instructions and accompanying

comments are not binding on us, People v. Hoskin, 2016 CO 63,

¶ 20, we cannot say that the trial court plainly erred by referring to

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this guidance from the Model Criminal Jury Instructions Committee

of the Colorado Supreme Court. See People v. Rester, 36 P.3d 98,

102 (Colo. App. 2001) (pattern jury instructions and accompanying

comments are meant to be guidelines).

IV. Disposition

¶ 27 The judgment is affirmed.

JUDGE BROWN and JUDGE MEIRINK concur.

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