Peo v. Muniz

22CA0448 Peo v Muniz 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0448
Adams County District Court No. 21CR670
Honorable Priscilla J. Loew, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Steven Ray Muniz,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII
Opinion by JUDGE PAWAR
Tow and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Mark G. Walta, Alternate Defense Counsel, Littleton, Colorado, for Defendant-
Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Steven Ray Muniz, appeals the judgment of

conviction entered after a jury found him guilty of two counts of

first degree murder. We affirm.

I. Background

¶2 This case arises from a shooting that occurred outside a bar

whose regular customers include members of the North Side Mafia

(NSM) gang. The evidence presented at trial showed that Muniz, a

respected member of NSM, was at the bar with family members and

friends, some of whom were also NSM-affiliated, including Robert

Manzanares. Three security guards, including Bogdan Tocarciuc,

were on duty. The bar was equipped with a video surveillance

system that monitored portions of the bar’s interior and exterior.

¶3 One of the victims, William Keith Ames, arrived at the bar with

Marcos Garfio and other friends and family members. After some

time, one of Muniz’s friends, Brandon Johns, began conversing with

Garfio and the conversation became animated. While details were

disputed at trial, surveillance video showed Muniz approach with a

group of individuals and punch Garfio.

¶4 Security escorted Garfio out of the bar. Ames exited a few

seconds later, followed by Muniz and several others. The

1
disagreement escalated once outside, and one of the security

guards deployed pepper spray. According to video surveillance and

audio taken from a nearby doorbell camera, five seconds after the

pepper spray was deployed, Muniz fired four shots. Two bullets hit

Ames and two hit Jessica Ybarra, another bar patron who

happened to be in the line of fire. Both victims died from their

injuries.

¶5 Tocarciuc ran after Muniz with his gun drawn. Another shot

was fired from Muniz’s vicinity in Tocarciuc’s direction, missing

him. Muniz then left the scene with Manzanares.

¶6 The prosecution charged Muniz with two counts of first degree

murder with intent after deliberation, two counts of first degree

murder with extreme indifference, and one count of attempted first

degree murder. At trial, it presented evidence that all five shots

were fired from a handgun with an extended magazine, and Muniz

was captured on video holding the handgun. Muniz testified that

he shot Ames in self-defense or defense of others after seeing Ames

cock a gun and point it at a group of people, including Muniz’s

friends and family. He testified that the last shot, toward

Tocarciuc, happened accidentally when he tried to unload the gun.

2
¶7 The jury found Muniz guilty of all four counts of first degree

murder and not guilty of attempted murder.

¶8 On appeal, Muniz argues that law enforcement and the

prosecution collectively deprived him of a fair trial by destroying

material evidence and engaging in prosecutorial misconduct. He

further asserts that the trial court improperly admitted evidence of

gang affiliation, made unfair evidentiary rulings, and placed

unreasonable time restrictions on his ability to present a defense.

Finally, Muniz argues that cumulative error warrants a new trial.

II. Destruction of Evidence

A. Applicable Law

¶9 To establish a due process violation based on the state’s

failure to preserve potentially exculpatory evidence, the defendant

must prove that (1) the state suppressed or destroyed the evidence;

(2) the evidence had an exculpatory value that was apparent before

it was destroyed; and (3) he was unable to obtain comparable

evidence by other reasonably available means. People v. Eason,

2022 COA 54, ¶ 37. Exculpatory evidence is evidence tending to

establish a defendant’s innocence. Black’s Law Dictionary 698

(12th ed. 2024). It includes evidence that “bears on the credibility

3
of a witness the prosecution intends to call at trial.” People v.

Braunthal, 31 P.3d 167, 174 (Colo. 2001).

¶ 10 Alternatively, if the evidence in question wasn’t apparently

exculpatory, but only potentially useful, a defendant may establish

a due process violation if he shows that the state acted in bad faith.

Eason, ¶ 38.

¶ 11 In evaluating a due process claim based on destruction of

evidence, we review the trial court’s factual findings for clear error

and its legal conclusions de novo. See People v. Abdu, 215 P.3d

1265, 1270 (Colo. App. 2009).

B. Additional Facts

¶ 12 As part of their investigation, police took possession of the

bar’s video surveillance system. They successfully recovered twenty

minutes of video capturing some of the altercation inside the bar

and some of what occurred outside immediately before and after the

shooting, but they received an error message when they attempted

to download the video in its entirety. They then disassembled the

system and attempted to extract data from the hard drive, but no

additional footage was available. When they attempted to access

4
the system’s contents a few months later, they discovered that all of

the data was missing or inaccessible.

¶ 13 Before trial, Muniz moved to dismiss the charges based on the

state’s failure to preserve the entirety of the surveillance video.

Following a hearing, the trial court issued a written order finding

that “while law enforcement knew there was exculpatory

information on the videos,” they attempted to preserve the entire

contents of the video surveillance system and did not intend to

destroy any evidence. Because Muniz did not establish bad faith,

the court denied Muniz’s motion.

C. Discussion

¶ 14 Muniz argues the trial court erred by considering whether the

police acted in bad faith after determining the lost surveillance

video was apparently exculpatory. He further asserts that his due

process rights were violated because the lost video would have

conclusively established whether Ames and Garfio were searched

when they arrived at the bar and what the searches yielded. We are

not persuaded.

¶ 15 As an initial matter, it is unclear from the record whether the

unavailable portions of video were lost as a result of state action.

5
The trial court did not make specific findings on this point, and the

parties do not argue in their briefs whether the first element of a

due process violation was met. See Eason, ¶ 37. Because this

issue was not presented to us and we may decide this issue on

other grounds, we assume without deciding that the state destroyed

the evidence.

¶ 16 Regarding the second element — whether the evidence had an

exculpatory value that was apparent before it was destroyed —

Muniz argues that we must defer to the trial court’s finding that

“law enforcement knew there was exculpatory and relevant

information on the videos.” We disagree.

¶ 17 To the extent this is a factual finding, we conclude it is

unsupported by the record. The investigating detective testified at

the hearing that he did not know if the surveillance system “picked

up anything else in relationship to this or any other crime” and did

not “know what it would have shown.” We see no other evidence in

the record suggesting that police knew the unavailable portions of

video evidence were exculpatory. Because the court’s finding to the

contrary is without support in the record, we conclude it was clearly

erroneous. See Martinez v. People, 2024 CO 6M, ¶ 34.

6
¶ 18 To the extent the trial court’s finding that the lost evidence

had an apparently exculpatory value was a legal conclusion, we

disagree. Muniz argues that police knew the entire video was

exculpatory because it showed patrons arriving at the bar and

would have shown whether or not Ames and Garfio were searched.

But evidence of a search did not tend to establish Muniz’s

innocence. At most, the video of Ames and Garfio arriving at the

bar would have shown (1) that they were patted down and found to

be unarmed or (2) that they were not patted down and therefore

might have been armed. That is, even if the video showed Ames and

Garfio were not subjected to a pat-down, it would not illustrate that

they were necessarily armed.1 Muniz’s argument that the video

would have established whether Ames and Garfio were armed is

therefore speculative.

¶ 19 Moreover, whether Ames and Garfio were armed inside the bar

had no bearing — let alone an apparently exculpatory one — on

1 Indeed, Ames’s uncle testified that Ames typically kept his gun “on

his hip in the holster” but left it in the car because security was
frisking patrons at the bar. Muniz also testified that he pulled “an
item” (which he would not identify as a gun) out of Garfio’s
waistband.

7
whether Muniz acted in self-defense when he shot Ames later in the

parking lot. See Castillo v. People, 2018 CO 62, ¶ 38 (self-defense

using deadly physical force requires a reasonable belief that such

force was necessary to prevent an imminent risk of deadly harm).

We therefore conclude it was not reasonably foreseeable to police

that the footage was exculpatory. See Braunthal, 31 P.3d at 172.

¶ 20 If the video was only potentially useful to the defense, the trial

court properly determined that Muniz failed to establish bad faith.

See Eason, ¶ 38; see also People v. Dyer, 2019 COA 161, ¶ 39 (we

may affirm a lower court’s decision on any ground supported by the

record). At the hearing on Muniz’s motion to dismiss, the

investigating detective testified that he attempted to download the

entirety of the surveillance video from the night of the incident, but

“[i]t was providing errors.” He testified that, in an attempt to

problem solve, he “ended up taking a 20-minute time frame” to

cover the most relevant time frame and was “100% surprised” to

discover there were no other videos on the system when he went

back to conduct a more thorough review. He further testified that

he sought multiple forms of assistance to attempt to fix the

problem. Because this testimony supports the trial court’s

8
conclusion that law enforcement did not act in bad faith, Muniz is

not entitled to relief.2

III. Prosecutorial Misconduct

A. Standards of Review and Reversal

¶ 21 Reviewing a claim of prosecutorial misconduct involves a two-

step inquiry. People v. Rhea, 2014 COA 60, ¶ 40. We first

determine whether misconduct occurred based on the totality of the

circumstances. Id. If we conclude it did, we determine whether it

warrants reversal according to the proper standard of review. Id.

¶ 22 We review a preserved claim of prosecutorial misconduct for

an abuse of discretion and “will only reverse if there is a reasonable

probability that the error contributed to the defendant’s conviction.”

People v. Monroe, 2018 COA 110, ¶ 11, aff’d, 2020 CO 67.

2 We reach this conclusion because Muniz has not established that

the evidence was apparently exculpatory or that police acted in bad
faith. But we note that Muniz does not argue in his opening brief —
let alone establish — that “he was unable to obtain comparable
evidence by other reasonably available means.” People v. Eason,
2022 COA 54, ¶ 37; see also People v. Braunthal, 31 P.3d 167, 173
(Colo. 2001) (all three elements must be met). Nor does he
challenge the trial court’s finding that, while he could not “obtain
comparable video evidence,” he could conduct “other means of
investigation, including witness interviews [of] the people who were
[there] that night and what they saw.” (Emphasis added.)

9
¶ 23 We review unpreserved claims of prosecutorial misconduct for

plain error, and we will not reverse unless the misconduct was

obvious and substantial, casting serious doubt on the reliability of

the judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.

B. Preserved Arguments

1. Applicable Law

¶ 24 During closing argument, a prosecutor has wide latitude to

comment on the strength and significance of the evidence, as well

as conflicts in that evidence, and to argue all reasonable inferences

that may be drawn from evidence in the record. Rhea, ¶ 46.

However, a prosecutor may not intentionally misstate or

misinterpret the law, refer to facts not in evidence, or make

arguments that are calculated to appeal to the jury’s prejudices. Id.

at ¶ 47; see also People v. Cuellar, 2023 COA 20, ¶ 66. Nor may a

prosecutor suggest that the defense has presented its case in bad

faith or make remarks for the purpose denigrating defense counsel.

People v. McMinn, 2013 COA 94, ¶ 62.

2. Additional Facts

¶ 25 Muniz objected to the following statements by the prosecutor

during closing argument:

10
• “The surveillance video is critical for you for purposes of

analyzing Mr. Muniz’s fantastic tale of how he rescued a bar

full of people.”

• The following statements referring to defense counsel’s

attempt to admit evidence under an exception to the

prohibition against hearsay: “[T]hat isn’t evidence. That

was something to try to get you to take the guy who was

dealing drugs and link them up with Mr. Ames. It’s a smear

attempt at a dead man.”3

• “You heard that Mr. Muniz is a shotcaller . . . . [H]e’s the

shotcaller of that gang . . . .”

3. Discussion

¶ 26 Muniz argues that he is entitled to a new trial because these

comments belittled him, denigrated defense counsel, and

mischaracterized the evidence. We are not persuaded.

3 This comment referred to the prosecutor’s objection to hearsay

when Muniz testified that a man named Alexander Moore — who
had drugs in his car — told him he was friends with Ames. Defense
counsel argued that the statement was offered for its effect on the
listener, and the trial court overruled the objection.

11
¶ 27 The prosecutor used the word “fantastic” to describe Muniz’s

account while arguing that the physical evidence did not support

Muniz’s testimony that the gun accidentally went off on the fifth

shot. He went on to argue that the surveillance video supported the

prosecution’s theory and belied Muniz’s claim of self-defense.

Because these statements were anchored in the facts in evidence,

they were not improper. See Rhea, ¶ 46.

¶ 28 Likewise, the prosecutor’s characterization of Muniz as a

“shotcaller” was a reasonable inference drawn from the evidence. A

security guard made a prior statement to police that there were “two

shotcallers” at the bar on the night of the incident. One of Muniz’s

friends testified that some people think there are “a couple

shotcallers” in NSM. And two security guards testified that they

looked to Muniz and Manzanares to help keep the NSM group

under control, with one testifying that he identified them as “the

people who were most highly respected in that bar area with that

group of people.” In response to Muniz’s objection, the trial court

also properly instructed the jury to use its own memory of the

testimony at trial.

12
¶ 29 We agree with Muniz that the prosecutor’s statement that

defense counsel made a “smear attempt at a dead man” was

improper. This statement improperly implied that defense counsel

presented her case in bad faith and appears calculated to inflame

the passions of the jury. See McMinn, ¶ 62; Domingo-Gomez v.

People, 125 P.3d 1043, 1052 (Colo. 2005). Therefore, the trial court

erred by allowing it.

¶ 30 Nevertheless, the error was harmless. The prosecutor’s

comment, while improper, was brief and isolated, and he did not

return to it. See United States v. Delgado, 672 F.3d 320, 338 (5th

Cir. 2012) (en banc) (a single statement at closing will rarely justify

reversal).

¶ 31 Furthermore, the evidence against Muniz was strong.

According to timestamps on the bar’s surveillance video footage, the

time between when security deployed pepper spray and when Muniz

fired his first shot was five seconds. Muniz testified that during this

time — that is, after he saw a cloud of pepper spray moving in the

wind — he (1) saw a man point a gun at Manzanares’ head and pull

the trigger four times; (2) ran up to the man; (3) punched him to the

ground; (4) punched him twice more on the ground; (5) grabbed the

13
gun; (6) moved to the place where he saw Ames pointing his gun;

and (5) then shot. The prosecutor emphasized that this account

was not credible in view of the physical evidence, particularly given

that it would have taken some time for the cloud of pepper spray to

move through the parking lot before Muniz saw it.4

¶ 32 In light of this evidence, we conclude there is no reasonable

probability that the prosecutor’s single improper comment

contributed to Muniz’s convictions. See Monroe, ¶ 11.

C. Unpreserved Arguments

¶ 33 Muniz also argues that the trial court plainly erred by allowing

the prosecutor to make generic tailoring arguments, comment on

sentencing, refer to facts not in evidence, and belittle the defense.

We disagree.

4 Casting further doubt on Muniz’s theory that he acted in self-

defense, Muniz’s wife posted a photo of Bonnie and Clyde on
Facebook shortly after Muniz was arrested. The photo showed the
couple armed, back-to-back against a circle of police officers.
Muniz’s wife testified that she was aware they “were an outlaw
couple that positioned themselves contrary to the police.”

14
1. Generic Tailoring

a. Applicable Law

¶ 34 A prosecutor may not make generic tailoring arguments by

attacking the defendant’s credibility based simply on his presence

at trial and resultant opportunity to tailor his testimony. Martinez

v. People, 244 P.3d 135, 141 (Colo. 2010). However, a prosecutor

may argue that a defendant has specifically tailored his testimony

to particular evidence introduced at trial. Id. Tailoring arguments

are specific and therefore appropriate “when the prosecutor cites to

an evidentiary basis in the record.” Id.

b. Additional Facts

¶ 35 During cross-examination, the prosecutor asked Muniz, “Your

story’s changed quite a bit since [your police interview], hasn’t it?”

He pointed to the fact that, at that time, Muniz “didn’t have a lot of

information about the evidence that was collected” against him and

“now, several months later,” knew all the evidence that was

collected. The prosecutor continued, “You now know the physical

evidence . . . . That four shots were shot in rapid succession . . . .

And then about 10 seconds later, there’s a single shot fired from

15
that same gun, right?” He repeated, “This is all the information

that you didn’t have . . . when you were arrested.”

¶ 36 During closing argument, the prosecutor also argued the

following:

• “Mr. Tocarciuc gave a statement. He did so

immediately . . . . He did this without the benefit that

[Muniz] got which is 13 days to hear about what

everybody else saw and heard . . . . He did this without

the benefit of watching the surveillance camera a lot and

matching up his story to that camera.”

• “The shortest summary of [Muniz]’s testimony is that his

stories are vague. They’re a reflection of access to

information.”

• Muniz’s statements to police were not credible, “[u]ntil

he ha[d] a chance to review all the evidence.”

• “Mr. Muniz can’t escape the truth. That’s why his

testimony matches the physical evidence because he

cannot escape it.”

16
c. Discussion

¶ 37 With one exception, we conclude that the prosecutor’s tailoring

arguments were specifically linked to the evidence and therefore

proper. Rather than being generally based on Muniz’s presence at

trial, the questions during cross-examination properly drew the

jury’s attention to the inconsistencies between Muniz’s initial

statements to police — when he evaded questions and did not

mention shooting a gun — and the detailed self-defense argument

he presented at trial. See Martinez, 244 P.3d at 141 (a prosecutor

may properly point to inconsistencies between a defendant’s

statements to police and testimony at trial).

¶ 38 Likewise, the arguments that Muniz’s testimony was based on

having watched the surveillance video, reviewed all the evidence,

and ensured that his story matched the physical evidence were

properly specific. These comments contrasted Muniz’s vague

statements to police with his testimony at trial and were linked to

17
an evidentiary basis in the record — namely, the surveillance video

and other physical evidence.5 See id.

¶ 39 By contrast, we conclude that the argument that Muniz’s

testimony was “a reflection of access to information” improperly

attacked his credibility based solely on his presence at trial. See id.

But while this comment amounted to improper generic tailoring, the

error was not plain. Particularly when viewed in the context of the

prosecutor’s multiple proper specific tailoring arguments, this single

generic tailoring comment was not so obvious that the trial court

should have been able to avoid it without the benefit of objection.

See People v. Pollard, 2013 COA 31M, ¶ 39; see also People v.

Walker, 2022 COA 15, ¶ 28 (prosecutorial misconduct must be

“flagrantly, glaringly, or tremendously improper” to require reversal

for plain error (quoting People v. Dominguez-Castor, 2020 COA 1,

¶ 85)). And, in view of the strong evidence against Muniz at trial —

including the inconsistencies between his initial statements to

5 The prosecutor’s argument that Muniz had thirteen days to

develop his story was not a tailoring argument at all. This comment
referred to Muniz’s ability to shape his account based on
information obtained between the shooting and his custodial
interview, not based on his presence at trial.

18
police and his later testimony — we cannot conclude this single

comment casts serious doubt on the reliability of the jury’s verdict.

See Hagos, ¶ 14. Indeed, the jury’s split verdict, finding Muniz not

guilty of attempted murder, reflects that it considered the evidence

and was not unduly influenced by a fleeting instance of generic

tailoring.

2. Remaining Unpreserved Arguments

¶ 40 We are not persuaded that the following arguments resulted in

plain error:

• “[I]t’s natural for a jury to wonder why Mr. Muniz is

being charged with two counts of murder relative to each

victim . . . . [F]or purposes of your consideration, the

sentences will merge.”

• “The absence of live .45-caliber rounds lying around the

scene which had to have happened if Mr. Ames cocked

his gun multiple times.”

• The following statement referencing a photo of a gun

magazine with a red substance splattered on it: “This is

Mr. Ames’ magazine . . . . Now, . . . how does this blood

get up here? If he had the gun out all along, how would

19
there be blood on the inside of the gun?” “If there was

blood on that magazine, we knew exactly when that gun

was picked up.”

• “It is incredible; that is to say not credible, that the only

man who sees a gun is [Muniz] and his wife and his

wife’s best friend. Packed multiple times.”

• The following statement referring to testimony that

Muniz wears red, white, and blue because he is a patriot

and Republican: “The patriot and Republican thing is

absurd.”

• “[Self-defense] isn’t a story full of riddles and could-bes

and nonresponses and games.”

• “He fired that gun four times yet gives you this fantastic

story of the minute that leads up to that . . . .”

¶ 41 To be sure, a jury “should be admonished to ‘reach its verdict

without regard to what sentence might be imposed.’” Shannon v.

United States, 512 U.S. 573, 579 (1994) (quoting Rogers v. United

States, 422 U.S. 35, 40 (1975)). But while the prosecutor

referenced sentencing, he did not point to any particular sentence

or suggest that the jury should base its decision on the sentence

20
Muniz would receive.6 See id. (The risk is that “providing jurors

sentencing information invites them to ponder matters that are not

within their province, distracts them from their factfinding

responsibilities, and creates a strong possibility of confusion.”).

Therefore, the prosecutor’s comment on sentencing was neither

obviously improper nor substantial. See Hagos, ¶ 14.

¶ 42 Muniz also argues that the prosecutor mischaracterized the

evidence by arguing that Ames did not “cock[] his gun multiple

times” and that there was blood on his magazine. But even if

Muniz didn’t clearly testify that Ames cocked his gun multiple

times, he did testify that he saw Ames “cock the gun [in the middle

of the alley], . . . . and he kind of moves in [and as he’s on the

driver’s side of a car,] [h]e cocked and pointed it pretty fast.” In

light of this testimony, the prosecutor’s summary of the evidence

was not so obviously improper that the trial court should have

intervened sua sponte. See Pollard, ¶ 39.

6 The trial court also repeatedly instructed the jury that closing

arguments are not evidence and that it should base its decision on
the evidence introduced at trial.

21
¶ 43 Likewise, the comment regarding blood on Ames’s magazine

was a reasonable inference drawn from the photograph presented to

the jury and a crime scene investigator’s testimony that “[w]e would

assume it was a blood-like substance.” See Rhea, ¶ 46. While

Muniz points to conflicting evidence that Ames’s arm was shattered,

the jury was able to weigh the evidence before it, and the

prosecution was entitled to emphasize the evidence that supported

its case.

¶ 44 As discussed, the prosecutor’s description of Muniz’s

testimony as “fantastic” and “not credible” was an appropriate

comment on the strength of the evidence refuting his account. See

Domingo-Gomez, 125 P.3d at 1051. Similarly, the description of his

testimony regarding why he wears red, white, and blue as “absurd”

was not improper. The prosecutor made this comment in the

context of pointing to a photograph of Muniz and other NSM

members dressed in red and arguing that “[r]ed is obviously the

color.” It was therefore a proper reference to the evidence.7

7 We do not consider Muniz’s argument that this comment was also

a mischaracterization of the evidence because he makes it for the
first time in his reply brief. See People v. Allman, 2012 COA 212,
¶ 14 n.3.

22
¶ 45 Finally, in view of the video recording of Muniz’s custodial

interview, we see no error in the prosecutor’s description of his

story as “full of riddles and could-bes and nonresponses and

games.” Muniz specifically told police that he was going to “speak

to [them] in could-bes.” He was nonresponsive to multiple

questions and repeatedly put questions back on police, asking,

“What do you think happened?” During cross-examination, Muniz

further testified that he “wanted to give [the police] hints” during his

interview and was “laying a trail for them to figure it out.” We

therefore conclude this statement, too, was a proper comment on

the evidence. See Rhea, ¶ 46.

IV. Admission of Gang Evidence

A. Applicable Law

¶ 46 Unless otherwise prohibited, all evidence is admissible if it is

relevant — that is, if it tends to make the existence of any

consequential fact more or less probable than it would be without

the evidence. CRE 401; CRE 402; Rojas v. People, 2022 CO 8, ¶ 25.

But relevant evidence can be excluded if (1) its probative value is

substantially outweighed by the danger of unfair prejudice, or (2) it

is used to prove the character of a person in order to show that he

23
or she acted in conformity with that character on a particular

occasion. People v. Trujillo, 2014 COA 72, ¶ 56 (citing CRE 403 and

CRE 404(b)).

¶ 47 “[B]ecause ‘gangs are regarded with considerable disfavor by

our society,’ gang-related evidence must be ‘admitted with care.’”

Id. at ¶ 72 (quoting People v. Morales, 2012 IL App (1st) 101911,

¶ 40). Where such evidence is extrinsic to the charged offense and

suggestive of bad character, it is admissible if it is (1) logically

relevant; (2) to a material fact; (3) independent of the prohibited

inference of the defendant’s bad character; and (4) the probative

value of the evidence must not be substantially outweighed by the

risk of unfair prejudice. Rojas, ¶¶ 27, 52; see also People v. Spoto,

795 P.2d 1314, 1318-19 (Colo. 1990).

¶ 48 We review the admission of evidence for an abuse of

discretion. Trujillo, ¶ 60. A trial court abuses its discretion when

its ruling is manifestly arbitrary, unreasonable, or unfair. Id.

B. Additional Facts

¶ 49 Before trial, the trial court concluded the following evidence

was admissible as res gestae: evidence that Muniz and Manzanares

were part of NSM; that the fight in the bar began because members

24
of NSM felt disrespected by Ames and Garfio; that the bar was

widely known as an NSM bar; and that part of NSM culture is that

“when you mess with one of them, you mess with all of them.” The

court concluded that this evidence illustrated Muniz’s motive to

shoot Ames and provided context for why many witnesses were

noncooperative with the investigation. It also found that the

relevance of this evidence was not outweighed by the danger of

unfair prejudice.

¶ 50 At trial, the prosecution introduced evidence from multiple

witnesses that the bar where the shooting occurred is frequented by

NSM members; that Muniz and Manzanares were part of NSM; that

other witnesses were also associated with NSM or with other gangs;

that Ames and Garfio were not affiliated with NSM; and that NSM

members wore similar colors and logos and used certain gang signs.

It also introduced evidence that when you mess with one NSM

member, you mess with all of them, and that, on the night of the

incident, there was gang-related tension in the bar. The prosecutor

also emphasized this evidence during closing argument, arguing

that there was “a turf war,” and the gang evidence proved that

“disrespect” was the motivation for the shooting.

25
C. Discussion

¶ 51 We conclude that the trial court did not abuse its discretion by

admitting limited gang-related evidence in this case.8 Despite

Muniz’s arguments to the contrary, there was substantial evidence

that the shooting began as a gang-related dispute. Ames’s uncle

testified that he believed “[s]omething [was] about to go down” when

a group of NSM members lined up and were “[m]ad-dogging” Ames,

with one of them saying, “[H]e’s disrespecting me.” A police officer

responding to the scene testified that security guards advised him

“it was a gang fight.” And Tocarciuc testified that on the night of

the incident, “there was tension, a lot of tension in the air and

people were posturing” and using “gang signs.” Because this

evidence served to directly prove the charged offenses (i.e., by

proving Muniz’s state of mind just before the shooting and his

8 Although the court admitted the evidence as res gestae, a doctrine

that has since been abolished, the evidence was otherwise
admissible. See Rojas v. People, 2022 CO 8, ¶ 41; see also People v.
Gonzalez-Quezada, 2023 COA 124M, ¶ 31 (we may affirm a trial
court’s evidentiary ruling on any basis supported by the record).

26
motive to shoot Ames), it was intrinsic evidence exempt from

analysis under Rule 404(b).9 See id. at ¶ 52.

¶ 52 We are not persuaded that the other gang-related evidence

was suggestive of bad character. The testimony at trial related to

generic information about NSM and gang dynamics (such as the

value placed on respect). None of it pertained to other bad acts or

acts of violence committed by Muniz or other members of NSM. See

Rojas, ¶ 52 (if extrinsic evidence does not suggest bad character,

Rule 404(b) does not apply, and admissibility is governed by Rules

401-403).

¶ 53 Moreover, evidence that Muniz and others at the bar were

members of NSM, and that NSM members respond to disrespect as

a group, was highly relevant to prove that Muniz was motivated to

shoot Ames because he and Garfio disrespected NSM. See Trujillo,

¶¶ 72, 74, 80 (while gang evidence may not be used as a backdoor

means of associating the defendant with the gang and describing

9 Muniz does not assert that any intrinsic evidence was

inadmissible under CRE 403 or otherwise. In any event, like the
extrinsic evidence discussed in greater detail below, we conclude
the probative value of this evidence was not substantially
outweighed by any danger of unfair prejudice.

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the gang’s bad acts, testimony about gang affiliation may be

admissible to prove motive). And because evidence related to

motive is crucial in a case involving self-defense, its probative value

was not substantially outweighed by the risk of unfair prejudice.

See Rojas, ¶ 27. The trial court also properly instructed the jury

that it could not infer Muniz’s guilt based on his mere association

with a gang. Accordingly, we discern no error.

V. Evidentiary Rulings

¶ 54 Muniz next argues that other “questionable evidentiary

rulings” deprived him of a fair trial. He asserts that the court

“almost reflexively” sustained prosecution objections while

overruling meritorious defense objections, impermissibly limited his

ability to cross-examine witnesses, and allowed the jury to be

misled.

¶ 55 But while Muniz’s opening brief includes a lengthy string cite

to examples of apparently unfair treatment at trial, he does not

explain how any of the trial court’s “reflexive” evidentiary rulings

were an abuse of discretion. Because this is an undeveloped

assertion of error lacking support in legal authority, we decline to

address it. See People v. Lowe, 2021 CO 51, ¶ 20 n.4.

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¶ 56 Likewise, we reject as undeveloped Muniz’s claims that the

trial court misled the jury by allowing testimony that (1) the case

would have been dismissed if Muniz made a viable self-defense

claim during his custodial interview, and (2) Muniz’s wife didn’t

come forward with evidence that Ames was holding a gun before

trial. Muniz’s arguments on these points are conclusory. He

presents no citation to legal authority and does not develop any

argument regarding why this testimony was improper. See People

v. Sanders, 2023 CO 62, ¶ 18 (rejecting conclusory arguments

made without “any legally supported argument” or citation to

relevant authorities).

¶ 57 Muniz lends more development to his argument that the court

improperly restricted him from cross-examining witnesses who

testified that Ames lawfully possessed a gun.10 But, again, he does

not explain why the trial court’s rulings regarding this evidence

10 He points to his right under the Confrontation Clause to conduct

effective cross-examination in his opening brief and, in his reply
brief, asserts that the court allowed the prosecution to paint Ames
as a law-abiding citizen even when this was false.

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were improper.11 In any event, even if we assume without deciding

that the trial court erred, any error was harmless. It was not

disputed that Ames had a gun in his possession at the time of the

shooting. Whether or not he lawfully owned a gun had no relevance

whatsoever to whether Muniz shot him in self-defense. And the

testimony suggesting lawful gun ownership was brief and not

emphasized during closing argument. We therefore conclude that

the court’s evidentiary rulings did not substantially influence the

verdict or affect the fairness of the trial proceedings.12 See Hagos,

¶ 12.

11 For example, Muniz does not discuss the trial court’s ruling that,

while Ames had previously been involved in a domestic violence
incident, evidence of that incident was inadmissible because the
case had been dismissed, and the relevant law preventing
ownership of a gun was not in place when it occurred. Nor does he
address the court’s conclusion that asking whether “it is legal to
have a gun while you are drunk” would go to whether or not the
victim committed an uncharged crime, which was not relevant. The
trial court also permitted Ames’s uncle to testify that he believed
Ames had a permit for his gun, but it noted that this testimony was
limited to personal belief and defense counsel could cross-examine
on that point.
12 For the same reasons, any error under the Confrontation Clause,

which Muniz did not preserve, could not have been plain error. See
Hagos v. People, 2012 CO 63, ¶ 14; see also Kinney v. People, 187
P.3d 548, 559 (Colo. 2008) (even under the Confrontation Clause,
judges have wide latitude to impose reasonable limits on cross-
examination based on concerns about relevance).

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VI. Time Restrictions

A. Standard of Review

¶ 58 Whether to grant or deny a motion for a continuance falls

within the trial court’s discretion. People v. Brown, 2014 CO 25,

¶ 19 (there are no mechanical tests for denying a continuance). A

trial court also has wide discretion in conducting a trial, including

determining the order and presentation of evidence and the scope of

closing arguments. People v. Hall, 2021 CO 71M, ¶ 16.

B. Discussion

¶ 59 Muniz argues that the trial court unreasonably restricted his

right to present a defense by denying his motion to continue,

placing unreasonable time restrictions on his presentation of

evidence, and limiting the parties’ closing arguments to thirty

minutes. But he makes no specific argument regarding the detailed

reasons the trial court provided for denying a continuance in its

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thoughtful written order.13 Based on the totality of the

circumstances considered by the court, we cannot conclude that its

decision was manifestly arbitrary, unreasonable, or unfair. See

Brown, ¶ 20.

¶ 60 We further conclude the trial court did not improperly halt

defense questioning or impose a “clock trial” in an effort to complete

trial before the end-of-year holidays. True, “[f]ew rights are more

fundamental than that of the accused to present witnesses in his

own defense, and to put before the jury evidence that might

influence the determination of guilt.” People v. Richards, 795 P.2d

1343, 1345 (Colo. App. 1989) (citation omitted). But in order to

meet situations as they arise, the trial court “must have broad

power to cope with the complexities and contingencies inherent in

the adversary process.” People v. Walden, 224 P.3d 369, 376 (Colo.

App. 2009) (quoting Geders v. United States, 425 U.S. 80, 86

13 The court denied the motion after weighing its own calendar, the

prejudice to the prosecution based on a difficulty subpoenaing
witnesses, the fact that counsel had already accepted the dates
which were set to be complete before the end-of-year holidays, the
fact that the court had already made accommodations to give
additional time to the parties, and Muniz’s unwillingness to waive
his right to a speedy trial.

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(1976)). Once again, Muniz does not address the specific rulings

the court made to ensure the timely completion of trial.14

¶ 61 Moreover, while Muniz argues that the court’s time restrictions

limited his ability to present a complete defense, he does not specify

what additional testimony he would have offered if given more time.

See People v. Johnson, 30 P.3d 718, 726 (Colo. App. 2000) (unless

prejudice is shown, error may not be predicated on discretionary

rulings related to how the trial court conducts a trial).15

14 Based on our review of the record, the court properly exercised its

discretion to limit defense counsel from “going line by line through
[Muniz’s] entire [custodial] interview” during cross-examination; to
allow the prosecutor to play the recording of Muniz’s custodial
interview on redirect (and allow defense counsel to recross) because
at least one juror was unable to understand it without a transcript;
to limit testimony related to “thousands of jail calls” between Muniz
and his wife because the questions were leading and counsel’s
questions were asked and answered; and to inform counsel that
Muniz’s redirect examination was going to eat into the time for
closing arguments, particularly given that it had to repeatedly
admonished him to answer the attorneys’ questions without
providing a narrative or addressing the gallery.
15 For the same reason, we reject Muniz’s argument that the trial

court improperly limited closing argument to thirty minutes per
side. Muniz does not indicate how he would have used additional
time for closing argument or cite to any authority indicating that a
thirty-minute limit is an abuse of discretion. See People v.
Rodriquez, 645 P.2d 857, 859 (Colo. App. 1982).

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VII. Cumulative Error

¶ 62 “For reversal to occur based on cumulative error, a reviewing

court must identify multiple errors that collectively prejudice the

substantial rights of the defendant, even if any single error does

not.” Howard-Walker v. People, 2019 CO 69, ¶ 25; see also People

v. Vialpando, 2020 COA 42, ¶ 67 (“[T]he ultimate question is

whether the errors deprived the defendant of a fair trial.”), rev’d on

other grounds, 2022 CO 28, ¶ 10.

¶ 63 Of the many errors Muniz asserts on appeal, we have

identified only three isolated instances of prosecutorial

misconduct — one preserved and two unpreserved. These

comments were brief and, in view of all of the evidence introduced

at trial and the fact that the jury found in Muniz’s favor on one of

the charges, we conclude they did not individually or cumulatively

deprive Muniz of a fair trial. See Vialpando, ¶ 67. Accordingly,

reversal is not warranted.

VIII. Disposition

¶ 64 The judgment is affirmed.

JUDGE TOW and JUDGE BERGER concur.

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