Peo v. Kalan

23CA1347 Peo v Kalan 06-25-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1347
Jefferson County District Court No. 21CR3150
Honorable Robert Lochary, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sarah Anne Kalan,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE LIPINSKY
Yun and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced June 25, 2026

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Sarah Anne Kalan appeals her convictions for second degree

murder, menacing, and second degree aggravated motor vehicle

theft. We affirm.

I. Background

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

the evidence introduced at trial.

¶3 Kalan lived with Wayne Nichols in his trailer. Tracy Ahee, a

friend of Kalan, was also staying there when, late on November 27,

2021, Kalan and Nichols began arguing about moving the trailer

and Kalan’s use of Nichols’s truck.

¶4 The argument escalated, resulting in Kalan fatally shooting

Nichols. Ahee witnessed the shooting.

¶5 Ahee offered multiple accounts of the events leading to the

shooting. In a recorded interview with police played for the jury,

she recounted that, after Nichols told Kalan to “[s]hut the fuck up,”

Kalan became angry and struck him with a pot multiple times.

Nichols tried to protect himself with his hands and asked, “What

are you doing? What is wrong with you?”

¶6 According to Ahee, Kalan picked up a gun, cocked it, and

pointed it at Nichols. After setting the gun down, Kalan grabbed the

1
pot and continued striking Nichols with it. Ahee said that Kalan

picked up the gun again and told Ahee, “Close your eyes, bitch.”

After shooting Nichols in the leg, Kalan told him, “You’re just gonna

sit there and bleed to death,” and she warned Ahee, “You’re gonna

be next because you’re a witness.”

¶7 Ahee also said that she believed Kalan had been plotting

against Nichols, though she offered no specifics. After the shooting,

Ahee left the trailer. Kalan loaded belongings into Nichols’s truck

and drove off.

¶8 At trial, Ahee testified that the argument between Kalan and

Nichols became physical, with both “throwing punches at each

other.” She said, “[T]hey were both being physical, and they were

both being aggressive towards each other.” Ahee asserted that

Kalan “decided to scare” Nichols by pointing a gun at him.

¶9 The bullet struck Nichols in the right leg near the groin,

severing the femoral artery, “the major blood vessel supplying blood

to the leg,” and causing him to bleed to death. He also sustained

injuries to his scalp, upper lip, left arm, left forearm, and left wrist.

¶ 10 Kalan was charged with first degree murder (after

deliberation), felony menacing, possession of a weapon by a

2
previous offender, second degree aggravated motor vehicle theft,

and two crime of violence enhancement counts.

¶ 11 Kalan did not testify at trial. Defense counsel argued that

Kalan pointed the gun at Nichols only to scare him and that it

discharged accidentally. The trial court gave the jury a general

self‑defense instruction.

¶ 12 The jury convicted Kalan of second degree murder, menacing,

and second degree aggravated motor vehicle theft. The trial court

sentenced her to forty‑five years in the custody of the Department of

Corrections.

¶ 13 On appeal, Kalan contends that the trial court (1) violated

Batson v. Kentucky, 476 U.S. 79 (1986), by permitting the

prosecutor to use a peremptory challenge to strike a prospective

juror based on her race; (2) erred by refusing to instruct the jury on

the use of nondeadly force in self-defense; and (3) improperly

allowed prosecutorial misconduct during closing argument. Kalan

also argues that we should reverse her conviction under the

doctrine of cumulative error. We affirm the judgment of conviction.

3
II. Analysis

A. The Trial Court Properly Denied Kalan’s Batson Challenge

1. Standard of Review

¶ 14 “Batson outlines a three-step process for evaluating claims of

racial discrimination in jury selection under the Equal Protection

Clause.” People v. Cerrone, 854 P.2d 178, 185 (Colo. 1993). “On

appeal, each step of the trial court’s Batson analysis is subject to a

separate standard of review.” People v. Rodriguez, 2015 CO 55,

¶ 13, 351 P.3d 423, 429.

¶ 15 We “review de novo a trial court’s conclusions regarding

whether the objecting party established a prima facie case at step

one and whether the striking party has articulated a race-neutral

reason at step two.” People v. Johnson, 2024 CO 35, ¶ 21, 549 P.3d

985, 991. But we “review the trial court’s ultimate step-three

conclusion, regarding ‘whether the objecting party proved

purposeful discrimination by a preponderance of the evidence,’ for

clear error.” Id. (quoting People v. Beauvais, 2017 CO 34, ¶ 2, 393

P.3d 509, 512). Under that standard, we “defer to the trial court’s

ruling ‘so long as the record reflects that the trial court weighed all

of the pertinent circumstances.’” Id. (quoting Beauvais, ¶ 2, 393

4
P.3d at 512). “Given this deferential standard, reversal is only

proper under ‘exceptional circumstances.’” Beauvais, ¶ 22, 393

P.3d at 517 (quoting Snyder v. Louisiana, 552 U.S. 472, 477

(2008)).

2. Additional Facts

¶ 16 During voir dire, CDC, one of the prospective jurors, said, “I

have four kids, two working for the state and one for the phone

company. One is unemployed right now. I’m a proud grandma of a

police officer, and is soon to be a fire guy. . . . I’m married, and my

husband is retired . . . .”

¶ 17 In response to the court’s question regarding whether “serving

on a trial in this case for six days would be a hardship such that

you don’t think you could serve,” CDC explained:

[CDC]: My husband [unintelligible] bypass
surgery. He’s at home right now, and last
night it’s a little swollen, so we have to call the
doctor and see what’s going on.

THE COURT: Okay. Can you check in on him
during the break? We’re going to take our
break right after this.

[CDC]: Yes, I can.

THE COURT: Okay. Thank you.

5
¶ 18 Another prospective juror — F — also reported illness in her

family. She explained that her twenty-month-old twins were sick,

she was a stay‑at‑home mother, and her husband was an attorney.

When the court inquired about hardships, F said that her mother

had planned to watch the twins that morning but had fallen ill, so

her husband was staying home with them, despite being behind at

work, and she had no child care for the upcoming week. When

asked if her husband could take additional time off if she served on

the jury, F answered that she “assum[ed] he c[ould].”

¶ 19 The prosecutor then explored how jurors assess a person’s

mental state by offering a hypothetical about someone brushing

past her at a Starbucks and spilling her coffee. The prosecutor

asked, “How do we know whether that was on purpose or not on

purpose?” After another prospective juror suggested considering

whether the person “apologized” and “seemed remorseful,” the

prosecutor and CDC engaged in the following colloquy:

[PROSECUTOR]: . . . . So in that hypothetical,
how do you know if someone hit the coffee out
of my hand on purpose or if it was accidental?

....

6
[CDC]: Okay. Well, if that person [is] going to
push hard and they didn’t say I’m sorry, I
guess it was on purpose.

[PROSECUTOR]: Okay. So you think that
maybe how hard I was hit might come into
play?

[CDC]: Well, not — probably not that hard, but
they push you, like, okay. I don’t know.

[PROSECUTOR]: Okay.

[CDC]: I’m not good explaining stuff.

[PROSECUTOR]: Okay. Well, what else do you
look for in terms of determining what intent is?

[CDC]: Some people, especially when our age,
we don’t — we’re kind of clumsy, and I think
we get — I don’t know, we get pass [sic]
without looking what’s around us, and — but
if that happens, if that happens, we say I’m
sorry. But it’s people that is really rude, and,
yeah, and they can pass by you and push you,
and not hard but hard enough to spill your
coffee.

[PROSECUTOR]: Okay. And because you
brought it up this morning, how is your
husband?

[CDC]: It’s a little swollen on the right side,
which it was the blockage, so we have to call
the doctor. And I took some pictures last night
to see the difference, so —

[PROSECUTOR]: Were you able to call the
doctor over the break?

7
[CDC]: No. No. Because the papers are at
home. And he’s sore.

[PROSECUTOR]: Okay.

[CDC]: But thank you to remember.

(Emphasis added.)

¶ 20 Defense counsel then asked the entire panel, “Do you feel like

in a case that involves a homicide, the death of somebody, that the

prosecution should have to prove just a little less than they would,

say, in a forgery or a drug case because somebody lost their life?

Should they prove less?” One prospective juror responded no,

saying, “They still have to prove the same amount of beyond a

reasonable doubt.” Defense counsel then asked CDC for her view:

[DEFENSE COUNSEL]: [CDC], what do you
think?

[CDC]: I agree with her.

[DEFENSE COUNSEL]: Okay. I want to ask
you a question about your husband. Were you
able to talk with him?

[CDC]: Yes.

[DEFENSE COUNSEL]: Okay. And are things
okay?

[CDC]: Well, he was trying to call the doctor
and see if he needs to go back.

8
[DEFENSE COUNSEL]: Okay. So he’s capable
physically of making that call —

[CDC]: Yes.

[DEFENSE COUNSEL]: — and getting himself
there?

[CDC]: No.

[DEFENSE COUNSEL]: No?

[CDC]: No, he’s not able to drive.

[DEFENSE COUNSEL]: Is there somebody
besides yourself who can drive him, if
necessary?

[CDC]: Not really. My boys, they are working.

[DEFENSE COUNSEL]: Okay. Could he take
an Uber?

[CDC]: I don’t know.

[DEFENSE COUNSEL]: Okay.

[CDC]: But thank you.

¶ 21 Following voir dire, the prosecutor exercised a peremptory

strike to remove CDC but did not strike F from the panel. Defense

counsel then made a Batson objection, leading to the following

exchange:

[DEFENSE COUNSEL]: . . . . [CDC] is a
Hispanic lady. We only have two Hispanics on
our jury. . . .

9
THE COURT: Okay. And have you raised your
inference of racial motivation?

[DEFENSE COUNSEL]: I guess I should give
you a little bit more record. Because she is
only one of the two, she did not provide very
much information during jury selection, but
the information that she provided mostly had
to do with the state of health affairs for her
husband. Ultimately what she provided is that
her husband is able to take care of himself in
terms of calling the doctor. She wasn’t sure
about transportation, but she didn’t indicate
that was any sort of an issue. Outside of that,
there wasn’t a lot of discussion by the People
or myself with her.

THE COURT: Thank you. I think that raises it.

And over to the prosecution to articulate a race
neutral reason for excluding.

[PROSECUTOR]: Your Honor, she indicated
that her husband had recent open heart
surgery and that last night, it looked like it
was getting swollen. She took a picture of it
last night and was comparing it to the status
of the wound today. She was not able to touch
base with her husband over the first break,
and over the lunch break indicated he still
wasn’t feeling well and wanted to get in touch
with the doctor. She indicated there was no
one else to transport him, and that she would
need to do so. And so for that reason, that is
it. Additionally, Your Honor, the People did
question her with respect to the People’s initial
hypothetical regarding intent. She had
difficulty articulating what she thought intent
was, what she would be able to look at. She

10
wasn’t really able to give my [sic] any answers,
and that is an additional consideration.

THE COURT: All right. The Court will find that
the People have offered a few race neutral
reasons for excluding her from jury service,
particularly the husband having — I think he
had bypass surgery last night. He’s swollen,
she said, and she hasn’t been able to contact
him, and it appears he’s home alone. So I’ll
switch it back over to the defense for an
opportunity to rebut that explanation.

[DEFENSE COUNSEL]: I’ll address that and
what [the prosecutor] said for completeness of
the record. In terms of her responses, she was
responsive. She gave examples based on the
spilling of coffee. She said that people who are
older can be clumsy, that she would be looking
at that, she would be looking at whether
somebody said sorry, because generally saying
sorry will — happens when it’s an accident.

Yes, she did indicate that her husband is home
alone. She also told us in initial voir dire she
has four children. She — there’s not been an
indication that she is needed there to care for
him. She has certainly not pressed the issue
with this Court today. And, Your Honor, I
think if we look at her compared to [F], she is
an individual that has children, children who
are sick children, and the People have not
made an effort at this point to have her
dismissed. I don’t have anything further.

THE COURT: Okay. So the Court has to
examine whether, by preponderance of the
evidence, there was purposeful discrimination
here. Under recent U.S. Supreme Court
precedent, the resolution of the question turns

11
on the application of the substantial
motivating factor test. A peremptory strike is
purposefully discriminatory under Step 3 if the
strike is motivated in substantial part by
discriminatory intent.

The Court here, in evaluating the reasons that
the prosecutor gave, does not find that . . .
they were implausible pretexts for purposeful
discrimination. The Court also has to evaluate
the proponent’s credibility and plausibility of
her explanation. The Court doesn’t find that
this is a pretextual strike, especially in light of
— and I agree, Counsel, I think what you said
about — I think the answers to her questions
were fine, but her husband having bypass
surgery, he’s alone today, and he just had the
surgery last night, and she’s obviously
concerned about him, and no one else is there,
I think that those are race neutral reasons for
the strike. And so the Court will deny the
motion under Batson.

3. Kalan Did Not Establish that
the Prosecutor’s Strike of CDC Was Substantially Motivated by
Discriminatory Intent

¶ 22 Kalan contends that the prosecutor’s use of a peremptory

challenge to strike CDC was substantially motivated by

discriminatory intent for five reasons:

(1) F, “a non-Hispanic individual who served on the jury,

was similarly experiencing health issues with her twin

twenty‑month‑year [sic] olds”;

12
(2) “from CDC’s voir dire, it appear[ed] she would have been

a good juror for the prosecution”;

(3) “the prosecutor never sought to get a definitive answer

from CDC about potential alternative transportation in

the event [her husband] had to see the doctor”;

(4) because the court did not credit the prosecutor’s

argument that she struck CDC based on CDC’s answers

to the prosecutor’s questions about intent, the court

necessarily found that the prosecutor misrepresented the

record, which “points to a discriminatory intent”; and

(5) because “the court didn’t credit the intent hypothetical

reason” for the strike, “half of the reasons [for striking

CDC] given by the prosecution” were pretextual “and this

evidences purposeful discrimination.”

We disagree.

¶ 23 “At Batson’s first step, ‘the objecting party must make a prima

facie showing that the striking party exercised a peremptory

challenge based on race or gender.’” Johnson, ¶ 18, 549 P.3d at

990-91 (quoting People v. Owens, 2024 CO 10, ¶ 76, 544 P.3d

1202, 1222). “The standard for doing so isn’t high and requires the

13
objecting party to present evidence sufficient to raise only an

inference of discrimination rather than proof by a preponderance of

the evidence that discrimination occurred.” Id. at ¶ 18, 549 P.3d at

991.

¶ 24 “At step two, the prosecutor must come forward with a

race-neutral explanation ‘related to the particular case to be tried.’”

Rodriguez, ¶ 11, 351 P.3d at 429 (quoting Batson, 476 U.S. at 98).

“At step three, after the defendant has a chance to rebut the

prosecutor’s race-neutral explanation, the trial court must decide

the ultimate question: whether the defendant has established

purposeful discrimination.” Id. at ¶ 12, 351 P.3d at 429. “A trial

court must presume initially that a prosecutor has exercised

peremptory challenges on constitutionally permissible

grounds . . . .” People v. Morales, 2014 COA 129, ¶ 19, 356 P.3d

972, 978.

¶ 25 We address each of the five prongs of Kalan’s argument in

turn.

¶ 26 First, the record does not support Kalan’s claim that F and

CDC faced similar hardships if selected to serve on the jury. When

the court asked F whether her husband could “take time off” to care

14
for their sick twenty-month-old twins, she said that she could serve

on the jury if selected. F added, “I mean, I’m assuming [my

husband] can. I mean, he’s an attorney, so I think they would have

to understand . . . .” The court remarked, “I think they of all people

would understand, because without you, we can’t do this, and the

system wouldn’t work.”

¶ 27 When responding to the prosecutor’s argument that CDC was

struck for a race-neutral reason, defense counsel did not

acknowledge that CDC said that no one besides herself could drive

her husband, that CDC said she did not know whether her

husband could take an Uber, or that F said her husband could stay

home with the children during the trial:

Yes, [CDC] did indicate that her husband is
home alone. She also told us in initial voir
dire she has four children. She — there’s not
been an indication that she is needed there to
care for him. She has certainly not pressed
the issue with this Court today. And, Your
Honor, I think if we look at her compared to
[F], she is an individual that has children,
children who are sick children, and the People
have not made an effort at this point to have
her dismissed.

¶ 28 We agree with the trial court that F was not similarly situated

to CDC. F’s husband was apparently able to care for the couple’s

15
ailing children during the trial, while CDC said she was the only

one able to drive her husband to the doctor if he continued to

experience post-operative complications. See Beauvais, ¶¶ 56-57,

393 P.3d at 524 (For purposes of deciding a Batson challenge, “an

empaneled juror is similarly situated to a dismissed potential juror

. . . if the empaneled juror shares the same characteristics for

which the striking party dismissed the potential juror,” but

“[i]solated similarities do not automatically render two jurors

‘similarly situated.’”).

¶ 29 Second, Kalan’s contention that the prosecutor’s use of a

peremptory challenge to strike CDC showed purposeful

discrimination because “she would have been a good juror for the

prosecution” lacks record support. In Miller-El v. Dretke, the United

States Supreme Court concluded that the subject juror — a Black

man who “unequivocally stated that he could impose the death

penalty regardless of the possibility of rehabilitation,” 545 U.S. 231,

244 (2005) — “should have been an ideal juror in the eyes of a

prosecutor seeking a death sentence,” id. at 247. In contrast, the

record does not show that CDC was a “good” or “ideal” juror for the

prosecution. Id. Kalan points to no statement from CDC that

16
sheds light on her views on the criminal justice system or

willingness to convict. Her description of herself as “a proud

grandma of a police officer” and soon-to-be “fire guy” did not, by

itself, make her favorable to the prosecution.

¶ 30 Third, we are not persuaded by Kalan’s argument that the

prosecutor’s race‑neutral reason for striking CDC was pretextual

because the prosecutor “never sought to get a definitive answer

from CDC about potential alternative transportation.” CDC said

that her husband was unable to drive, no one else was available to

take him to the doctor, and she did not know whether he could use

an Uber. Kalan does not clarify what would have qualified as a

“definitive answer” or what additional steps the prosecutor should

have taken to obtain one. The prosecutor was not required to ask

CDC about every possible means of transportation in metro Denver

— public buses, light rail, taxis, Lyft, scooters, ambulances, and the

like. Further, during the colloquy regarding the defense’s Batson

challenge, defense counsel never contended that CDC’s responses

about her husband’s transportation challenges were inadequate or

less than “definitive.”

17
¶ 31 Accordingly, the trial court did not err by finding that the

prosecutor struck CDC for a race-neutral reason because CDC

“indicated there was no one else to transport [her husband], and

that she would need to do so.”

¶ 32 Fourth, we disagree with Kalan’s assertion that the trial

court’s rejection of the prosecutor’s alternative reason for striking

CDC — her struggle to articulate her thoughts — shows that the

prosecutor “misrepresent[ed]” the record or purposefully

discriminated against CDC. CDC’s admission that she was “not

good [at] explaining stuff” supported the prosecutor’s reasoning.

The trial court’s brief remark that CDC’s “answers to her questions

were fine” does not amount to a finding that the prosecutor

misrepresented the record or offered a pretextual justification for

the strike.

¶ 33 Fifth, Kalan’s Batson argument fails to the extent it relies on a

“per se approach,” which the supreme court rejected in Johnson.

See Johnson, ¶¶ 57-58, 549 P.3d at 997-98 (holding “that, in

resolving the question of purposeful discrimination at step three,

the trial court should use a substantial-motivating-factor

approach,” and rejecting “a per se approach” under which “a court

18
must sustain a Batson challenge when the striking party gives both

race-based and race-neutral reasons to support the strike”).

¶ 34 Thus, under the deferential standard of review for step-three

Batson determinations, Beauvais, ¶ 22, 393 P.3d at 517, we affirm

the trial court’s conclusion that Kalan did not prove “by a

preponderance of the evidence that discriminatory animus drove

the [prosecutor’s] use of [the] peremptory challenge[]” to CDC, id. at

¶ 32, 393 P.3d at 519.

B. The Trial Court Did Not Err by Declining to Give the Jury
a Nondeadly Force Self-Defense Instruction

1. Standard of Review

¶ 35 “[T]o present an affirmative defense for the jury to consider, a

defendant must offer ‘some credible evidence’ to support the

claimed defense.” Pearson v. People, 2022 CO 4, ¶ 16, 502 P.3d

1003, 1007 (quoting § 18-1-407(1), C.R.S. 2025).

¶ 36 We review de novo whether there is “sufficient evidence in the

record to support a self-defense jury instruction.” People v.

Coahran, 2019 COA 6, ¶ 15, 436 P.3d 617, 621. “When considering

an affirmative defense instruction, we consider the evidence in the

19
light most favorable to the defendant.” Id. (quoting People v. Newell,

2017 COA 27, ¶ 19, 395 P.3d 1203, 1207).

2. Additional Facts

¶ 37 At the jury instruction conference, defense counsel argued

that, because “the facts . . . indicate[d] that there was no intent to

use deadly physical force, only an intent to use physical force,”

Kalan was entitled to a nondeadly force self‑defense instruction.

Defense counsel asserted that

[h]ere what we have is a single gunshot wound
to the leg. Typically, most people don’t have
knowledge about the locations of various
arteries in the body. There’s no indication that
[Kalan], via the testimony, said anything in
advance of the shooting itself that she
intended to kill [Nichols]. The wound itself
seems to indicate that she did not.

¶ 38 Citing People v. Opana, 2017 CO 56, ¶¶ 3-17, 395 P.3d 757,

758-62, in which the defendant admitted he shot the victim in the

chest, and observing that “there’s evidence that [Kalan] . . . said

bleed out and die, that the door was locked [when Kalan left], and

. . . that [Kalan] had to go through [steps] to fire th[e] gun,” the

court concluded, “I don’t think I can give a general self-defense

instruction. I think it has to be a use of deadly physical force

20
instruction, given the facts and circumstances here and the holding

in Opana. So that’s what I will rule.”

¶ 39 Later that day, the court gave the jury the general self‑defense

instruction that the defense had tendered. That instruction

provided, in relevant part:

The evidence presented in this case has raised
the affirmative defense of “Defense Of Person”
as a defense to 1st Degree Murder and 2nd
Degree Murder.

The defendant was legally authorized to use
physical force upon another person without
first retreating if:

1. She used that physical force in order to
defend herself or a third person from
what she reasonably believed to be the
use or imminent use of unlawful physical
force by that other person, and

2. She used a degree of force which she
reasonably believed to be necessary for
that purpose, and

3. She had a reasonable ground to believe,
and did believe, that she or another
person was in imminent danger of being
killed or of receiving great bodily
injury . . . .

(Emphases added.)

21
3. The Self-Defense Instruction Did Not Lower
the Prosecution’s Burden of Proof

¶ 40 Kalan contends that, “[b]ecause the district court didn’t

instruct the jury on the affirmative defense of use of non-deadly

force in self-defense, the prosecution didn’t bear the burden of

disproving it,” which “impermissibly lowered” the prosecution’s

burden of proof. We disagree.

¶ 41 “An affirmative defense essentially admits the defendant’s

commission of the elements of the charged act but seeks to justify,

excuse, or mitigate the commission of the act.” Roberts v. People,

2017 CO 76, ¶ 20, 399 P.3d 702, 705; see People v. Pickering, 276

P.3d 553, 555 (Colo. 2011) (noting that affirmative defenses admit

“the defendant’s commission of the elements of the charged act, but

seek to justify, excuse, or mitigate the commission of the act”).

¶ 42 The elements of first and second degree murder, coupled with

the facts surrounding Nichols’s death, demonstrate why a

nondeadly force jury instruction was not warranted in this case.

¶ 43 A person commits first degree murder “[a]fter deliberation and

with the intent to cause the death of a person,” § 18-3-102(1)(a),

C.R.S. 2025, and a person commits second degree murder by

22
“knowingly caus[ing] the death of a person,” § 18-3-103(1)(a), C.R.S.

2025. A person acts knowingly, “with respect to a result of h[er]

conduct, when [s]he is aware that h[er] conduct is practically

certain to cause the result.” § 18-1-501(6), C.R.S. 2025. And “if

one has acted ‘with intent,’ one has necessarily acted ‘knowingly.’”

People v. Snider, 2021 COA 19, ¶ 63, 491 P.3d 423, 436.

¶ 44 “Deadly physical force” means “force, the intended, natural,

and probable consequence of which is to produce death, and which

does, in fact, produce death.” § 18-1-901(3)(d), C.R.S. 2025.

Whether physical force qualifies as “deadly” turns on the nature of

the force itself, and not the actor’s subjective intent. Opana,

¶¶ 16-17, 395 P.3d at 761-62.

¶ 45 “[I]f the record contains any evidence to support [a

defendant’s] theory” of the case, then the trial court must give “an

instruction embodying” that theory. People v. Garcia, 28 P.3d 340,

347 (Colo. 2001). “[W]hether there is credible evidence to support

each element of an affirmative defense is a question for the court

rather than the jury.” People v. Speer, 255 P.3d 1115, 1119 (Colo.

2011). In addition, when “credible evidence permits no other

finding than that the physical force used by the defendant would

23
normally be expected to, and in fact did, produce death,” the

assessment of “whether or not physical force arguably used in

self-defense constituted ‘deadly physical force’” is not a question for

the jury. Opana, ¶ 16, 395 P.3d at 762.

¶ 46 We reject Kalan’s argument that she was entitled to a

nondeadly force instruction for three reasons.

¶ 47 First, to be convicted of murder, Kalan had to engage in

conduct with an awareness that her conduct was practically certain

to, and did, cause Nichols’s death. See §§ 18-3-102(1)(a),

18-3-103(1)(a). Force that is “practically certain,” § 18-1-501(6), to

cause death satisfies — if not surpasses — the standard for “deadly

physical force,” meaning force that is “normally . . . expected” to

cause death, Opana, ¶ 16, 395 P.3d at 762. Kalan’s self-defense

argument could not rely on nondeadly force because any affirmative

defense to murder requires an admission that the defendant

committed the elements of murder — including that she used force

normally expected to cause death. See Roberts, ¶ 20, 399 P.3d at

705. Thus, in a murder prosecution, the force supporting self-

defense is necessarily deadly force; a defendant cannot seek

acquittal for murder based on using only nondeadly force. Such an

24
argument cannot be squared with the concept of an affirmative

defense. See id.

¶ 48 Accordingly, by asserting self‑defense as an affirmative defense

to murder, Kalan effectively admitted that she used deadly force

against Nichols. For this reason, Kalan was not entitled to a

nondeadly force self‑defense instruction.

¶ 49 Second, Kalan was not entitled to a nondeadly force

self‑defense instruction because shooting Nichols in the leg, near

the groin, at close range — resulting in fatal blood loss —

constituted “force, the intended, natural, and probable consequence

of which [was] to produce death, and which d[id], in fact, produce

death.” § 18-1-901(3)(d) (emphasis added).

¶ 50 Third, even assuming that Kalan was entitled to a nondeadly

force self‑defense instruction, the court still allowed the jury to

consider Kalan’s possible use of nondeadly force by giving Kalan’s

tendered general self‑defense instruction.

¶ 51 In sum, we hold that the general self‑defense instruction the

court provided did not reduce the prosecution’s burden of proof.

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C. The Trial Court Correctly Found No Prosecutorial Misconduct

1. Standard of Review

¶ 52 “In a claim of prosecutorial misconduct, the reviewing court

engages in a two-step analysis.” Wend v. People, 235 P.3d 1089,

1096 (Colo. 2010). “First, it must determine whether the

prosecutor’s questionable conduct was improper based on the

totality of the circumstances and, second, whether such actions

warrant reversal according to the proper standard of review.” Id.

2. The Prosecutor’s Rebuttal Closing

¶ 53 Kalan contends that the prosecutor committed misconduct in

his rebuttal closing argument by (1) “argu[ing] matters outside the

record and inject[ing] his credibility into the case” and (2)

“misstat[ing] the law.” We disagree.

¶ 54 “[P]rosecutors have wide latitude in the language and style

they choose to employ, as well as in replying to an argument by

opposing counsel.” People v. Samson, 2012 COA 167, ¶ 30, 302

P.3d 311, 317. “In addition, because arguments delivered in the

heat of trial are not always perfectly scripted, reviewing courts

accord prosecutors the benefit of the doubt when their remarks are

ambiguous or simply inartful.” Id.

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¶ 55 “In closing argument, counsel may employ rhetorical devices

and engage in oratorical embellishment and metaphorical nuance,”

provided that counsel “does not thereby induce the jury to

determine guilt on the basis of passion or prejudice, attempt to

inject irrelevant issues into the case, or accomplish some other

improper purpose.” People v. Allee, 77 P.3d 831, 837 (Colo. App.

2003).

a. Arguing Matters Outside the Record

i. Additional Facts

¶ 56 In addressing the aggravated motor vehicle theft charge during

closing argument, defense counsel disputed the prosecution’s

assertion that Kalan took Nichols’s truck without authorization.

Defense counsel asserted that Kalan “ha[d] been using this truck

basically freely as much as she want[ed].”

¶ 57 In his rebuttal, the prosecutor addressed Kalan’s conduct after

the shooting — specifically, her decision to leave the scene in

Nichols’s truck rather than seek help from neighbors. To support

his argument that, even if Kalan once had permission to use the

truck, she no longer had authorization after killing him, the

prosecutor said: “Now, I had a friend in college, let him borrow my

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car a lot. It wasn’t a problem. We were friends. We had a big

argument one day.”

¶ 58 Defense counsel objected, arguing, “Your Honor, this gets into

his testifying as to his own personal experience, puts his credibility

on the line. That’s improper.” The court overruled the objection,

saying, “Well, I haven’t heard anything improper yet, so overruled.”

The prosecutor continued:

After the argument, he wasn’t allowed to use
my car. I didn’t have to tell him that. It was
common sense. When you murder a man, he’s
probably not going to consent to you driving off
in his truck. That’s common sense. That’s
what we’re asking you to take back into the
deliberation room.

(Emphasis added.)

ii. The Prosecutor’s Argument Was Permissible

¶ 59 Kalan contends that “[t]he prosecutor’s anecdote concerned

matters outside the record and beyond the jury’s experiences and

observations in life” and, therefore, was not a “proper

consideration[] for the jurors in rendering a verdict.” She further

asserts that “the prosecutor improperly used his story to suggest a

standard for assessing mental state, thereby injecting his own

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credibility and knowledge into the case.” This argument lacks

merit.

¶ 60 “[P]rosecutorial remarks that evidence personal opinion [or]

personal knowledge . . . are improper. Factors to consider when

determining the propriety of statements include the language used,

the context in which the statements were made, and the strength of

the evidence supporting the conviction.” Domingo-Gomez v. People,

125 P.3d 1043, 1050 (Colo. 2005). “The context in which

challenged prosecutorial remarks are made is significant, including

the nature of the alleged offenses and the asserted defenses, the

issues to be determined, the evidence in the case, and the point in

the proceedings at which the remarks were made.” Id. (quoting

Harris v. People, 888 P.2d 259, 266 (Colo. 1995)).

¶ 61 Although the prosecutor employed a personal anecdote, it

served only to illustrate that the jury should use its “common

sense” in deciding whether Kalan was still authorized to use the

truck after the shooting. The anecdote did not suggest that the

prosecutor had information outside the evidence presented to the

jury. For these reasons, the prosecutor’s argument properly rested

on a logical inference. See id.

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b. Misstating the Law

i. Additional Facts

¶ 62 During rebuttal closing argument, the prosecutor offered the

following remarks about self‑defense:

Self-defense requires that [Kalan] use[d]
reasonable force in response to a reasonable
threat, and because she used deadly force, it
had to have been a risk of serious bodily injury
or death to her or someone else by [Nichols].

What evidence do you have of that? None.
The closest you got to that this whole week
was [Ahee] sat up there on Monday and said,
then they started fighting. But what did [Ahee]
say [seventeen] months ago when she was still
affected by what she had just observed [Kalan]
do? You will get those videos from her
interview with [the police], and I want you to
look at them and see how emotional and
affected she still is. And what does she say?

We were laying [sic] in bed trying to sleep, and
[Nichols] said, Shut the fuck up, [Kalan].

You tell me to shut the fuck up? I’ll shut you
the fuck up.

She was the instigator. You don’t get to claim
self-defense if you start the fight, and you
definitely don’t get to exercise self-defense if
you are the one who drew the gun in the first
place.

(Emphasis added.)

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¶ 63 Defense counsel objected, “That misstates the law, Your

Honor. You can, in fact, do that.” In response, the court addressed

the jury, “Ladies and gentlemen, I’ll instruct you to rely on the jury

instructions that you will receive and that I read to you in terms of

what the law is.”

¶ 64 The prosecutor then continued:

What threat did that man pose to her that
night? What danger was she in? What danger
was so severe that, after hitting him with a pot
seven to nine times, she went and got her gun,
cocks it, and points at him? What danger is
he posing at that point when she puts the gun
back down? What danger is he posing when
she picks the pot back up and hits him again?
What danger is he posing when she picks her
gun back up one final time? What danger is
posed? There is no danger, so she doesn’t get
to claim self-defense.

ii. The Prosecutor’s Comments Did Not Rise to
the Level of Misconduct Based on
the Totality of the Circumstances

¶ 65 Relying on the prosecutor’s emphasized comments above and

the statutory phrase “imminent use of unlawful physical force,”

§ 18-1-704(1), C.R.S. 2025, Kalan contends that the “comments

misstated the law.” She asserts that they “suggest one has to let

31
the other person cause physical harm before they can act in

self-defense.” We are not persuaded.

¶ 66 Considering the totality of the circumstances, the challenged

comments were not improper. See Wend, 235 P.3d at 1096. Before

making those comments, the prosecutor accurately described the

governing principles of self-defense, including that a person may

use force in response to an imminent threat of unlawful force. The

prosecutor’s statement, made after the court referenced the jury

instructions, makes clear he was properly arguing that Kalan could

not rely on a self-defense theory under the circumstances because

Nichols posed no threat to her, let alone an imminent one.

¶ 67 In sum, the prosecutor did not commit misconduct.

D. The Doctrine of Cumulative Error Does Not Apply

¶ 68 “[N]umerous formal irregularities, each of which in itself might

be deemed harmless, may in the aggregate show the absence of a

fair trial, in which event a reversal would be required.” Howard-

Walker v. People, 2019 CO 69, ¶ 24, 443 P.3d 1007, 1011 (quoting

Oaks v. People, 371 P.2d 443, 446 (Colo. 1962)). To obtain relief, a

defendant must demonstrate that “the cumulative effect of

[multiple] errors and defects substantially affected the fairness of

32
the trial proceedings and the integrity of the fact-finding process.”

Id. (quoting People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).

¶ 69 But “[c]umulative error applies only if the trial court

committed numerous errors; defendant’s mere assertions of error

are insufficient to warrant reversal.” People v. Blackwell, 251 P.3d

468, 477 (Colo. App. 2010).

¶ 70 As explained above, we reject Kalan’s arguments that the trial

court erred. Accordingly, the doctrine of cumulative error does not

apply.

III. Disposition

¶ 71 The judgment is affirmed.

JUDGE YUN and JUDGE SCHUTZ concur.

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