Peo v. Johnson

22CA1994 Peo v Johnson 03-12-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1994
Douglas County District Court No. 20CR333
Honorable Theresa Slade, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Debra Lyn Johnson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Lum and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 12, 2026

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

Megan A. Ring, Colorado State Public Defender, Kira L. Suyeishi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Debra Lyn Johnson, appeals the district court’s

judgment of conviction entered on a jury verdict finding her guilty of

felony driving under the influence (FDUI). We affirm.

I. Background

¶2 Early one morning, an officer spotted a car parked in a no-

parking zone. He approached the car and saw a sleeping woman

(later identified as Johnson) in the driver’s seat. The officer

knocked on the car’s window to wake up Johnson. She woke up

and opened the door. The officer then smelled alcohol from inside

the car and on Johnson’s breath. He also noticed that Johnson

was holding car keys in her hand. And in the unoccupied

passenger seat, he saw some small, half-empty bottles of alcohol

inside a bag.

¶3 Johnson made contradictory statements about whether she

had driven the car (as discussed in more detail below). At one

point, Johnson said that she hadn’t been driving the car, but that

her friend April had been driving when they got into a fight and

April got out of the car and left. Johnson called someone,

presumed to be April, on the phone and asked her to confirm that

1
she, not Johnson, had been driving the car. Someone answered the

phone but didn’t confirm who had been driving.

¶4 The officer conducted a roadside sobriety test, which Johnson

failed. The officer arrested Johnson and informed her that she

would need to consent to a breath or blood test to determine her

blood alcohol content. Johnson told the officer she had COVID-19,

which meant she couldn’t safely take a breath test. Johnson also

refused to take the blood test. The officer informed her that the

consequence for declining the blood test was that the state could

revoke her license. Johnson still refused.

¶5 Because Johnson had allegedly been convicted of driving

under the influence (DUI) or driving while ability impaired (DWAI)

on more than three prior occasions, the People charged her with

FDUI under section 42-4-1301(1)(a), C.R.S. 2025, charging five

prior convictions as predicates.1 The People also charged her with

violating her bail bond conditions and driving after license

revocation as a habitual traffic offender.

1 Section 42-4-1301(1)(a), (2)(a), C.R.S. 2025, provides that DUI is a

class 4 felony if it “occurred after three or more prior convictions”
for certain driving-related offenses, including DUI, DUI per se, and
DWAI.

2
¶6 A jury found Johnson guilty of FDUI. She subsequently

pleaded guilty to an added count of driving while under restraint in

exchange for dismissal of the other two charges.2

II. Analysis

¶7 Johnson contends that (1) the district court erred by admitting

certain evidence; (2) the prosecution didn’t introduce sufficient

evidence to prove FDUI; (3) prosecutorial misconduct warranting

reversal occurred during voir dire and closing argument; and (4) the

district court improperly gave the jury an instruction that

emphasized her refusal to submit to a blood test. We reject these

contentions.

A. Unauthenticated Evidence

¶8 Johnson contends that the district court erred by admitting an

unauthenticated court transcript. We disagree.

1. Additional Facts

¶9 At trial, the prosecution sought to admit a court transcript

from a 2020 Denver County case as evidence of four of Johnson’s

prior convictions. The transcript didn’t have a seal or signature of

2 The jury found that the prosecution proved all five of the prior

convictions beyond a reasonable doubt.

3
the county court clerk but had been certified by the court reporter

who prepared it. The filing officer for Johnson’s case testified that

the transcript was authentic. Johnson’s attorney didn’t object, and

the court admitted the redacted transcript into evidence as Exhibit

15(a).

2. Standard of Review and Applicable Law

¶ 10 “We review evidentiary rulings, including foundation and

authentication rulings, for an abuse of discretion.” People v.

Bernard, 2013 COA 79, ¶ 8 (first citing People v. Ibarra, 849 P.2d

33, 38 (Colo. 1993); and then citing People v. Huehn, 53 P.3d 733,

736 (Colo. App. 2002)). “A court abuses its discretion if it

misconstrues or misapplies the law or otherwise reaches a

manifestly arbitrary, unreasonable, or unfair result.” People v.

Glover, 2015 COA 16, ¶ 10.

¶ 11 Under CRE 901(a), the requirement that evidence be

authenticated “is satisfied by evidence sufficient to support a

finding that the matter in question is what its proponent claims.”

“The burden to authenticate ‘is not high — only a prima facie

showing is required . . . .’” Glover, ¶ 13 (quoting United States v.

Hassan, 742 F.3d 104, 133 (4th Cir. 2014)); accord Gonzales v.

4
People, 2020 CO 71, ¶ 13. Authenticity may be established by,

among other things, testimony from a witness with personal

knowledge of the matter, CRE 901(b)(1), or by the “[a]ppearance,

contents, substance, internal patterns, or other distinctive

characteristics [of the evidence], taken in conjunction with

circumstances,” CRE 901(b)(4).

¶ 12 Some records are self-authenticating, which means no

extrinsic evidence is required to prove authenticity. CRE 902. A

certified copy of public records may be self-authenticating if it is

“certified as correct by the custodian or other person authorized to

make the certification.” CRE 902(4) (emphasis added). Specifically

as to court transcripts, “[t]he official record of trial court

proceedings is the certified transcript.” People v. Harmon, 2025

COA 38M, ¶ 82. “There is a presumption that the record as

prepared by the court reporter correctly reflects the trial

proceedings because the court reporter has a duty to accurately

record all the testimony and rulings of the court.” People v.

Rodriguez, 794 P.2d 965, 990 (Colo. 1990) (first citing § 13-5-127,

C.R.S. 2025; and then citing Jones v. Dist. Ct., 780 P.2d 526, 528

(Colo. 1989)).

5
3. Analysis

¶ 13 Johnson argues that the transcript was unauthenticated

because it wasn’t “certified under seal by the clerk of court or the

deputy clerk of court who issued the document.” And though the

transcript was certified by the court transcriber, Johnson argues

that isn’t the same as a clerk of the court attesting that the

document is what the proponent claims it to be.

¶ 14 But certification by the clerk of the court is merely one way

that a transcript can be authenticated. Because a court transcript

certified by a court reporter is the official record of the proceedings,

a court reporter is authorized to make such a certification, and that

certification is deemed to be prima facie evidence that the transcript

is what it purports to be, we conclude that the transcript was self-

authenticating under CRE 902(4). See Rodriguez, 794 P.2d at 990;

Harmon, ¶ 82; see also People v. Martinez, 83 P.3d 1174, 1179

(Colo. App. 2003) (prior convictions may be proved by several

means, including by public records admissible under CRE 901(b)(7)

or by “self-authenticating documents under CRE 902(1) and (4)”).

¶ 15 And even if the transcript wasn’t self-authenticating under

CRE 902(4), the transcript was self-authenticating because of its

6
distinctive characteristics. See CRE 901(b)(4). The transcript

includes a complete, accurate case caption in the ordinary form of

such a caption, the identity of the company for whom the

transcriber worked (including pre-printed identifications of the

company on each page), a format consistent with court transcripts,

and a transcriber’s certification consistent with typical certifications

in both form and content. As well, the content and identifying

information of the transcript have distinctive characteristics

consistent with the content and identifying information of the plea

agreement to which it corresponds, which was certified by the

Denver County Clerk and admitted into evidence. (Johnson doesn’t

challenge the admissibility of that exhibit on appeal.)3

3 Even if the court erred by admitting the transcript, any error

wasn’t obvious given the multiple possible means of authentication
discussed above, see Hagos v. People, 2012 CO 63, ¶ 14, and any
error doesn’t cast serious doubt on the reliability of the judgment of
conviction, see id., given the other admissible evidence, most
notably the 2020 Denver County plea agreement — Exhibit 16(a) —
which identified four other prior convictions. The prosecution only
had to prove three prior convictions.

7
B. Sufficiency of the Evidence

¶ 16 Johnson contends that the People failed to prove FDUI

because they provided insufficient evidence to link her to the five

prior convictions. We disagree.

1. Standard of Review and Applicable Law

¶ 17 “We review de novo whether the evidence was sufficient to

support the conviction.” Bernard, ¶ 15.

In assessing the sufficiency of the evidence, we
must determine whether the evidence, both
direct and circumstantial, when reviewed as a
whole and in the light most favorable to the
prosecution, is substantial and sufficient to
support a conclusion by a rational trier of fact
that the defendant is guilty beyond a
reasonable doubt.

Id. at ¶ 16; accord Dempsey v. People, 117 P.3d 800, 807 (Colo.

2005).

¶ 18 When proving FDUI, a defendant’s prior convictions become

elements of the offense that the prosecution must prove beyond a

reasonable doubt. People v. Herold, 2024 COA 53, ¶ 13; see People

v. Vidauri, 2021 CO 25, ¶ 10 (“In a criminal case, the prosecution

must prove every element of the charged offense beyond a

reasonable doubt.”). To prove prior convictions, the prosecution

8
must “introduce documentary evidence combined with specific

corroborating evidence of identification connecting the defendant to

the prior conviction[s].” Gorostieta v. People, 2022 CO 41, ¶ 25.

¶ 19 Evidence showing only that the defendant in the current case

has the same name and date of birth as the defendant in a prior

case, without more, is generally insufficient to prove the defendant’s

identity in the prior case. Id. at ¶ 28.

¶ 20 For FDUI offenses, the prosecution must prove at least three

prior convictions beyond a reasonable doubt. See § 42-4-

1301(1)(a), (2)(a). Therefore, in this case, Johnson must show that

the prosecution introduced insufficient evidence of at least three of

the alleged prior offenses.

2. Analysis

¶ 21 The People alleged that Johnson had five prior DUI/DWAI

convictions: one in Denver County, one in Jefferson County, two in

Adams County, and one in Boulder County. In support, the People

submitted seven records, all of which were admitted into evidence:

• Johnson’s Colorado Division of Motor Vehicles (DMV)

record;

9
• a sentencing document from Jefferson County showing a

DUI conviction in 1991;

• a notice that documentation for two convictions in Adams

County had been destroyed due to the age of the

convictions;

• case documentation from Denver County regarding a

DWAI conviction in 1994;

• a sentencing order from Boulder County for a DUI

conviction in 2001;

• a court transcript from a 2020 plea hearing in Denver

County during which Johnson admitted that she then

had four particular prior DUI/DWAI convictions — and

also admitted that she was then “52 years old,” which is

consistent with a 1968 birthdate; and

• a 2020 Denver County plea agreement, signed by

Johnson, corresponding with the 2020 Denver County

transcript, showing four prior DUI/DWAI convictions.

¶ 22 Also, Johnson told the officer her date of birth when he

questioned her at the scene, and that date of birth matches the one

10
shown on all the driving records. The officer’s body camera

recording was admitted into evidence.

¶ 23 Johnson argues that this evidence doesn’t prove beyond a

reasonable doubt that she had previously been convicted because

not all the documents contain sufficient information about her

identity. But, as shown below, each of Johnson’s prior DUI/DWAI

convictions is proved by some combination of the records admitted

into evidence.

¶ 24 Johnson’s DMV record, which, as discussed more below,

shows all five prior convictions, contains a photo of Johnson that

the jury could compare to her in the courtroom and mentions other

identifying features such as her date of birth, address, height,

weight, hair color, and eye color. The DMV record also says, “A

search of our records has revealed that this is the only subject with

this name and date of birth.” See People v. Burdette, 2024 COA 38,

¶¶ 57, 59 (finding that the DMV record supported identification of

the defendant, in part because “[t]he DMV records custodian’s

certificate stated that a ‘search of our records has revealed that this

is the only subject with this name and date of birth’”). Johnson

doesn’t contend that the DMV record is anyone’s but hers.

11
a. Evidence of the Denver County Conviction

¶ 25 The 1994 Denver County conviction is supported by the

following:

• The certified Denver County record shows Johnson’s full

name (Debra L. Johnson), date of birth (March 21, 1968),

and address.

• The date of birth in the Denver County record matches

the date of birth Johnson gave to the officer at the scene

of the incident giving rise to the current charge and the

date of birth in Johnson’s DMV record.

• Johnson’s DMV record shows a DWAI conviction in

Denver County with a conviction date (January 28, 1994)

matching that of the Denver County record.4

4 Johnson argues that the prosecution asked the jury to engage in

speculation that the dates on the DMV record correspond with the
dates in the other records because the DMV record doesn’t say what
the dates shown therein refer to. But to assess the sufficiency of
the evidence, we must “give the prosecution the benefit of every
reasonable inference which might be fairly drawn from the
evidence.” People v. Perez, 2016 CO 12, ¶ 25 (quoting People v.
Gonzales, 666 P.2d 123, 128 (Colo. 1983)). The jurors reasonably
could have inferred that the dates shown in the DMV record are
offense (and/or filing) and conviction dates.

12
• Johnson’s address shown in the Denver County record

matches an address in the DMV record.

b. Evidence of the Jefferson County Conviction

¶ 26 The Jefferson County conviction is supported by the following:

• The certified Jefferson County sentencing record for a

DWAI conviction shows Johnson’s full name and home

address. It also bears a 1990 case number (90T19180), a

notation of “LWPD,” and a direction that traffic school is

to be completed by “3-14-91,” indicating that Johnson

was sentenced before that date.

• Johnson’s DMV record shows a Jefferson County DWAI

conviction with the same full name shown in the

Jefferson County sentencing record. The DMV record for

this conviction notes “Lakewood PD,” matching the

notation “LWPD” in the Jefferson County sentencing

record. It also shows a violation date of December 20,

1990, and a sentencing date of January 23, 1991. These

dates align with the case number of the Jefferson County

case and the time period of sentencing in the Jefferson

County sentencing record.

13
c. Evidence of the Adams County Convictions

¶ 27 The first Adams County conviction is supported by the

following:

• The DMV record shows an Adams County DWAI

conviction with dates of March 15, 1991, and January 8,

1993.

• Johnson expressly acknowledged in the 2020 Denver

County plea agreement that she had been previously

convicted twice in Adams County, both times for DWAI.

The plea agreement shows a date for one of those cases of

March 20, 1991, five days after one of the dates in the

DMV record. See Burdette, ¶ 58 (noting that while the

court records in that case “did not precisely match the

DMV records in all respects, the major details generally

synced up”; the dates in the court records “generally

line[d] up” with those in the DMV record).

• The transcript of the providency hearing on the 2020

Denver County plea agreement (captioned People v.

“Debra Lyn Johnson”) shows that Johnson admitted to

14
twice being previously convicted in Adams County for

DWAI.

• The Adams County notice of record destruction shows

the same case number (91T4273) as shown in the 2020

Denver County plea agreement.

¶ 28 The second Adams County conviction is supported by the

following:

• The DMV record shows an Adams County DWAI

conviction with dates of November 23, 1992, and June,

1994.

• Johnson expressly acknowledged in the 2020 Denver

County plea agreement that she had previously been

convicted twice in Adams County, both times for DWAI.

The plea agreement shows a case number for one of these

convictions, 93T3340, which generally aligns with the

offense/filing date in the DMV record.

• The transcript of the providency hearing on the 2020

Denver County plea agreement (captioned People v.

“Debra Lyn Johnson”) shows that Johnson admitted to

twice being convicted in Adams County for DWAI.

15
• The Adams County notice of record destruction shows

the same case number (93T3340) as shown in the Denver

County plea agreement.

d. Evidence of the Boulder County Conviction

¶ 29 The Boulder County conviction is supported by the following:

• The DMV record shows a conviction from a 2000 charge

referencing “Louisville PD.” (Louisville is in Boulder

County.) It has a date of November 26, 2000.

• The certified sentencing document (with a case number

of “2000CR002371”) for an early-2001 (January 22,

2001) DUI conviction in Boulder County shows

Johnson’s full name (Debra Lyn Johnson) and date of

birth (“03/21/1968”). The name and date of birth match

what are shown in the DMV record.

• The 2020 Denver County plea agreement, which Johnson

signed, shows the 2001 Boulder County DUI conviction

with a date (January 22, 2001) and case number

(“00CR02371”) matching the sentencing document from

Boulder County. At the providency hearing on that plea

agreement, Johnson admitted that she had been

16
convicted of DUI in Boulder County on January 22,

2001. Both the plea agreement and related transcript

use the same case number and date of conviction as the

Boulder County sentencing document.

¶ 30 In sum, we conclude that there was sufficient evidence from

which reasonable jurors could have found that Johnson committed

all five predicate offenses.5

C. Prosecutorial Misconduct

¶ 31 Johnson next contends that the prosecutor committed

misconduct during voir dire and closing argument warranting

reversal. We conclude that there was no misconduct.

1. Applicable Law and Standard of Review

¶ 32 We use a two-step analysis to review claims of prosecutorial

misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

First, we look at whether the challenged statement “was improper

based on the totality of the circumstances.” Id. Second, if a

5 Evidence of the two prior Adams County convictions is arguably

weaker than that for the other prior convictions given that the
records from those cases had been destroyed. But even if those two
prior convictions weren’t proved by sufficient evidence, the other
three prior convictions clearly were. Only three prior convictions
needed to be proved to convict Johnson of FDUI.

17
statement was improper, we determine whether it warrants reversal

under the proper standard of reversal. Id.

¶ 33 To determine whether a court erred by failing to remedy

alleged prosecutorial misconduct, we review for an abuse of

discretion. See People v. Garner, 2015 COA 175, ¶ 26, aff’d, 2019

CO 19. If defense counsel timely objected to asserted misconduct,

we review for harmless error. Crider v. People, 186 P.3d 39, 42

(Colo. 2008); People v. Denhartog, 2019 COA 23, ¶ 50. If not, we

review for plain error. Wend, 235 P.3d at 1097; Denhartog, ¶ 50.

¶ 34 Defense counsel didn’t object to any of the statements during

voir dire that Johnson now challenges on appeal. Defense counsel

did object to the prosecutor’s challenged statement during closing

argument.

2. Voir Dire

¶ 35 Johnson argues that the prosecutor committed misconduct

during voir dire by discussing the prosecution’s theory of the case,

indoctrinating prospective jurors, and inflaming the prospective

jurors’ passions and prejudices against her. We disagree.

18
a. Applicable Law

¶ 36 The purpose of voir dire is for counsel to determine whether

any prospective juror would be biased “in such a manner as to

prevent [either party] from obtaining a fair and impartial trial.”

Edwards v. People, 418 P.2d 174, 177 (Colo. 1966). The purpose

isn’t to “educate the prospective panel of jurors to a particular

theory of the case.” Id. Thus, “[i]n the context of voir dire, a

prosecutor commits misconduct when he or she misstates the law,

presents factual matter he or she knows will be inadmissible, or

argues the prosecution’s case to the jury.” People v. Carter, 2015

COA 24M-2, ¶ 71 (citing People v. Krueger, 2012 COA 80, ¶ 50). A

prosecutor should also refrain from inflaming the prospective

jurors’ passions or prejudices. Krueger, ¶ 50. “[T]he context in

which [the] challenged prosecutorial remarks are made is

significant.” Id. (quoting People v. Santana, 255 P.3d 1126, 1133

n.5 (Colo. 2011)).

b. Analysis

i. Discussing the Prosecution’s Theory of the Case

¶ 37 Johnson argues that the prosecutor improperly argued the

prosecution’s theory of the case during voir dire by

19
• analogizing the concept of actual physical control

(applicable to the FDUI charge and Colorado’s express

consent statute) to being drunk while in possession of a

gun;

• analogizing pulling the trigger of a gun to “press[ing] the

gas” pedal of a car, asserting that a car can be a

dangerous weapon, and then asking the prospective

jurors if anyone was “hearing me say this stuff” and not

understanding;

• asking a prospective juror, in relation to actual physical

control, “[L]et’s say that there was a situation where the

car wasn’t on and you were still in the driver’s seat but

you were intoxicated. Would that be an okay situation

for you?”; and

• asking if everyone had heard what a prospective juror

had just said about being in the front seat rather than

the back seat, and whether they disagreed.

¶ 38 These statements only indirectly implicated the prosecution’s

theory of the case. They were directly related to exploring the

20
prospective jurors’ views on important principles of law that the

jurors would have to apply.

¶ 39 For purposes of Colorado’s FDUI and express consent

statutes, a “driver” is “every person . . . who drives or is in actual

physical control of a vehicle.” § 42-1-102(27), C.R.S. 2025

(emphasis added). This doesn’t require that the “driver” actually

moved the vehicle or that the vehicle traveled any particular

distance. Colo. Div. of Revenue v. Lounsbury, 743 P.2d 23, 27 (Colo.

1987); People v. VanMatre, 190 P.3d 770, 772 (Colo. App. 2008).

¶ 40 The prosecutor was determining whether prospective jurors

would be comfortable applying this definition. See People v. Wilson,

2013 COA 75, ¶ 14 (“Here, the trial court permitted . . . counsel to

question the jurors about their biases and their willingness ‘to

accept the basic principles of criminal law.’” (citation omitted)).

Indeed, the prosecutor prefaced these statements by telling the

jurors they were going to have to apply a legal definition of driving

that only required actual physical control. And the prosecutor’s

analogy (to the gun) could have helped the prospective jurors

understand the definition.

21
¶ 41 As for asking whether any prospective juror needed

clarification, the prosecutor wasn’t trying his case to the prospective

jurors. In fact, one prospective juror responded that she hadn’t

been able to hear the exchange because of a hearing impairment

and needed the prosecutor to repeat it.

ii. Indoctrinating Prospective Jurors

¶ 42 Johnson argues that the prosecutor improperly indoctrinated

prospective jurors as to the prosecution’s theory of the case by

• “harp[ing] on this notion” that driving is a “big

responsibility”;

• responding to a prospective juror’s statement that there

might not have been actual physical control if someone is

drunk and sitting in the car in their driveway to be alone

by saying, “I think that’s a great answer . . . that shows

that kind of circumstantial evidence that we were

discussing earlier”;

• asking a prospective juror if getting in the back seat of a

car after drinking was the same as “having a gun on the

table while you’re drunk and being way over here [versus]

having it in your hand”; and

22
• asking whether Colorado’s express consent law was “a

good policy to have?” and asking, “[I]s there anyone here

who thinks there could be a good reason to say no” to

consenting to a chemical test?

¶ 43 The prosector discussed the responsibility of driving because a

prospective juror had said that, when she thought of driving, she

thought of the responsibility associated with it. Many jurors

nodded their heads in agreement. Discussing the prospective

jurors’ agreement with this statement was an acceptable exchange.

¶ 44 And the prosecutor made his other statements to clarify

prospective jurors’ statements for himself and others. The

prosecutor said that a prospective juror gave a great answer about

actual physical control because it showed how the jury can consider

different factors to determine actual physical control. And the

prosecutor used a prospective juror’s statement that he’d get in the

back seat of the car if he’d been drinking to segue to the gun

analogy because the analogy would help the prospective jurors

better understand what actual physical control means in this

context.

23
¶ 45 When the prosecutor asked prospective jurors whether the

express consent law was “a good policy to have,” he was re-wording

a previous question in which he had asked jurors, “If you were to be

pulled over and they said, hey, I’d like for you to take a blood or

breath test, would you -- would that be shocking to you?” Some

prospective jurors responded that it would shock them because

they didn’t drink and drive. The prosecutor was rephrasing his

question to determine whether any prospective juror could not hold

it against someone who refused a chemical test.

¶ 46 Again, these statements and questions went to whether

prospective jurors would follow the law.

iii. Inflaming the Passions and Prejudices of the Prospective
Jurors

¶ 47 At the end of the prosecutor’s voir dire, he asked the

prospective jurors, “Does anyone here have an experience with a

DUI in your own life?” A prospective juror responded that a drunk

driver had killed her cousin. The prosecutor responded, “I’m sorry

to hear that. That’s terrible. I think that’s exactly why we have

these laws to make sure that folks are held accountable for that

24
kind of thing.” Johnson argues that the prosecutor’s response only

served to bias the venire and inflamed the passions of the jury.

¶ 48 Even if we assume that the prosecutor’s comment was

improper under the first step of our analysis, we conclude that it

doesn’t rise to the level of plain error. This one comment wasn’t

flagrantly, glaringly, or tremendously improper. See Domingo-

Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (“Only

prosecutorial misconduct which is ‘flagrantly, glaringly, or

tremendously improper’ warrants reversal” under the plain error

standard. (quoting People v. Avila, 944 P.2d 673, 676 (Colo. App.

1997))). And Johnson’s counsel didn’t contemporaneously object to

this statement, indicating that counsel didn’t consider the

statement to be overly damaging. See id. at 1054; People v. Knapp,

2020 COA 107, ¶ 61.

3. Closing Argument

¶ 49 Johnson argues that the prosecutor committed misconduct

during closing argument by misstating the facts of the case. Again,

we disagree.

25
a. Applicable Law

¶ 50 During closing argument, a prosecutor “may highlight facts in

evidence and draw reasonable inferences.” People v. Vialpando,

2022 CO 28, ¶ 23 (citing Domingo-Gomez, 125 P.3d at 1048). But

“[a] prosecutor may not misstate the evidence.” Denhartog, ¶ 66

(citing People v. Nardine, 2016 COA 85, ¶ 35).

b. Analysis

¶ 51 In his closing argument, the prosecutor said that Johnson told

police, “I drove one or two blocks.” Johnson’s counsel objected to

this statement as a misstatement of fact.6 But the officer’s

bodycam recording captured Johnson saying, “It was a while ago

that I parked,” and “That’s why I did not drive. So, I just went from

across over there to right here. And I’ve been here ever since.” She

then said it was “maybe only two blocks.” One could reasonably

infer from those statements that Johnson admitted to driving two

6 The People argue that because defense counsel objected to this

statement and the court then told the jurors that they “should rely
on their own memory about what the evidence shows or does not
show,” there is no claim of error to review because “the trial court
effectively sustained the objection.” But telling the jurors to rely on
their own memories of the evidence isn’t the same as telling them to
disregard a prosecutor’s representation of evidence.

26
blocks: The fact Johnson didn’t use the word “drove” or some

variation thereof doesn’t preclude this inference. See People v.

Meils, 2019 COA 180, ¶ 25 (during closing, the prosecutor may

argue “all reasonable inferences from the evidence in the record”).

And the bodycam recording of the exchange was admitted at trial,

so the jurors had the opportunity to review it for themselves and

decide whether they agreed with the prosecutor’s inference. See

People v. Rodriguez, 2021 COA 38M, ¶ 12.7

D. Jury Instruction on Johnson’s Refusal

¶ 52 Johnson contends that the district court improperly

emphasized her refusal to take a blood test in its jury instructions.

We disagree.

1. Additional Facts

¶ 53 At trial, the prosecutor asked the court to give the jury the

following instruction:

7 In any event, the prosecution didn’t have to prove that Johnson

moved the car, only that she had physical control over it. She was
found in the driver’s seat of the car, which was operable, holding
the keys. See People v. VanMatre, 190 P.3d 770, 773-74 (Colo. App.
2008) (evidence that the defendant was found in the driver’s seat of
an operable vehicle and tried to start it with the key when an officer
approached was sufficient evidence of driving).

27
If you find that the defendant refused to take
and complete, and to cooperate in the taking
and completing of a chemical test of her breath
or blood, you may consider this refusal along
with other evidence in determining whether the
defendant is guilty of Driving Under the
Influence or Driving While Ability Impaired.

Johnson’s counsel objected, arguing that the instruction

“unnecessarily highlights a piece of positive evidence for the

People.” Counsel didn’t argue that it was an incorrect recitation of

the law. The prosecutor responded that the instruction’s purpose

was to tell the jury what the law is and how they could consider it

during its deliberations. The court gave the instruction to the jury.

2. Applicable Law and Standard of Review

¶ 54 “The trial court must accurately instruct the jury on the law

relevant to every issue presented, but it must not give the jury an

instruction which misstates the law or which unduly emphasizes

some part of the evidence.” People v. Ellsworth, 15 P.3d 1111, 1116

(Colo. App. 2000). “The purpose of jury instructions is to provide

the jury with the applicable law and direct its attention to the

specific issues to be determined.” Mier v. McCoy, 119 P.3d 519, 524

(Colo. App. 2004). Instructions that emphasize specific evidence

are disfavored because of their potential to confuse and misdirect

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the jury. People v. Garcia, 2021 COA 65, ¶ 46, aff’d, 2023 CO 41.

But a court also has “substantial discretion in formulating the jury

instructions, so long as they are correct statements of the law and

fairly and adequately cover the issues presented.” People v. Medina,

260 P.3d 42, 47 (Colo. App. 2010) (quoting People v. Gallegos, 226

P.3d 1112, 1115 (Colo. App. 2009)).

¶ 55 “[T]he refusal to take or to complete, or to cooperate with the

completing of, any test or tests shall be admissible into evidence at

the trial.” § 42-4-1301(6)(d). A jury may consider a defendant’s

refusal to submit to testing as evidence of consciousness of guilt.

People v. Montoya, 2024 CO 20, ¶ 32 (citing Cox v. People, 735 P.2d

153, 158 (Colo. 1987)).

¶ 56 “We review a court’s decision whether to give a particular jury

instruction for an abuse of discretion.” People v. Cochran, 2019

COA 6, ¶ 14. “A court abuses its discretion if it bases its ruling on

an erroneous understanding or application of the law.” Id.

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3. Analysis

¶ 57 Johnson argues that, even though Colorado juries are free to

consider a defendant’s refusal, putting that in a jury instruction

improperly emphasizes it.8 We discern no error for two reasons.

¶ 58 First, the district court didn’t unduly emphasize Johnson’s

refusal. The instruction, which accurately stated the law, said that

the jury “may consider this refusal along with other evidence.” This

instruction didn’t emphasize Johnson’s refusal but merely told the

jurors how they could consider it during deliberations.

¶ 59 Second, the Colorado Supreme Court and divisions of this

court have held that a court doesn’t err by giving a jury such an

8 We observe that Johnson’s counsel admitted during both opening

statement and closing argument that Johnson had “been drinking”
(enough to be “confused”) and was “drunk.” Her sole defense was
that she wasn’t in actual physical control of the car. The
instruction she challenges on appeal related to whether she was
intoxicated, not whether she was driving.

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instruction. Cox, 735 P.2d at 159; People v. Mersman, 148 P.3d

199, 201 (Colo. App. 2006).9

E. Cumulative Error

¶ 60 We reject Johnson’s cumulative error argument. Because

there was, at most, one error, the cumulative error doctrine doesn’t

apply. See Howard-Walker v. People, 2019 CO 69, ¶ 24; People v.

Jones, 2025 COA 43, ¶ 56 (cert. granted on other grounds Jan. 20,

2026); People v. Thames, 2019 COA 124, ¶ 69.

III. Disposition

¶ 61 We affirm the judgment.

JUDGE LUM and JUDGE MEIRINK concur.

9 Johnson also argues that a division of this court has suggested

that an express consent instruction shouldn’t be given at all. To
support this assertion, Johnson refers to Judge Welling’s
concurrence in People v. Montoya, 2022 COA 55M, aff’d in part and
rev’d in part on other grounds, 2024 CO 20, in which he said that
the instruction isn’t required and is unnecessary. Id. at ¶¶ 55-56
(Welling, J., concurring). But Johnson fails to note that in that
same concurrence, Judge Welling said, “To be sure, it’s well
established that it isn’t improper for a trial court to instruct a jury
in a DUI or DWAI case that it may consider ‘refusal along with other
competent evidence’ in determining a defendant’s guilt or
innocence.” Id. at ¶ 57 (quoting Cox v. People, 735 P.2d 153, 155
(Colo. 1987)).

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