Peo v. Brophy

23CA0083 Peo v Brophy 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0083
Mesa County District Court No. 21CA1934
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mary Catherine Brophy,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Lipinsky and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 26, 2024

Philip J. Weiser, Attorney General, Abigail Armstrong, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Mary Catherine Brophy, appeals the judgment of

conviction entered on jury verdicts finding her guilty of attempted

first degree murder, attempted second degree murder, first degree

assault, menacing, and reckless endangerment. We affirm.

I. Background

¶2 Mary and her husband, Brad, lived together with Ryan, Brad’s

intellectually disabled adult son.1 Although Mary and Brad slept in

different bedrooms, Brad would often go into Mary’s bedroom to use

the adjoining bathroom.

¶3 While in her bedroom one evening, Mary sent Brad a text

message saying that he could take a shower in the adjoining

bathroom. After Brad took his shower, he walked into Mary’s

bedroom and sat next to her on the bed. They argued. Mary pulled

out a revolver from her bedside table, stood, walked around the bed,

and, as she was leaving the bedroom to go into the living room,

turned around in the doorway to face Brad.

1 Because Mary, Brad, and Ryan share the same last name, we refer

to them by their first names to avoid confusion. We mean no
disrespect in doing so.

1
¶4 Video surveillance footage from the living room showed Mary

pointing the gun at Brad’s chest, Brad grabbing her wrist to shove

the gun down, and Mary shooting Brad in the upper thigh —

breaking his femur — as he did so. Brad fell. Ryan called 911 (he

incorrectly told the dispatcher that his father had fallen and hurt

his leg) while Mary put away the gun, pulled up a chair, sat next to

Brad, and offered no assistance during the thirteen minutes it took

the first responders to arrive. Mary later told the police that Brad

had attacked her by grabbing her wrists, so she had grabbed her

gun and told him, “[G]et out of my fucking bedroom . . . or I will

shoot you.”

¶5 The People charged Mary with attempted first degree murder,

attempted second degree murder, first degree assault, menacing,

reckless endangerment, and prohibited use of a weapon. The

People charged all the offenses as acts of domestic violence.

¶6 At trial, defense counsel argued that Mary pointed the gun at

Brad in self-defense after he refused her demand to leave her alone

but that the shooting had been accidental.

2
¶7 The jury found Mary guilty as charged.2 The district court

sentenced her to a controlling term of thirty-two years in the

custody of the Department of Corrections.

II. Discussion

¶8 Mary contends that (1) the district court abused its discretion

by admitting improper character evidence; (2) the court plainly

erred by instructing the jury on the initial aggressor and

provocation exceptions to self-defense; (3) the prosecution

presented insufficient evidence to sustain her attempted first and

second degree murder convictions; and (4) prosecutorial

misconduct deprived her of a fair trial. We address the sufficiency

of the evidence first and then turn to Mary’s other contentions.3

A. Sufficiency of the Evidence

¶9 Mary contends that we must vacate her convictions for

attempted first and second degree murder because the prosecution

2 Although the jury found Mary guilty of the prohibited use of a

weapon charge, the court dismissed this count at the People’s
request during sentencing because of a notice issue.
3 We address the sufficiency of the evidence first because “if a

defendant is entitled to reversal of her convictions on appeal due to
insufficient evidence, the guarantees against double jeopardy in the
United States and Colorado Constitutions may preclude retrial.”
People v. Marciano, 2014 COA 92M-2, ¶ 42.

3
presented insufficient evidence to prove that she possessed the

requisite mens rea to commit those offenses. We disagree.

1. Standard of Review

¶ 10 “In reviewing the sufficiency of the evidence, we determine

whether the evidence, viewed as a whole and in the light most

favorable to the prosecution, is both ‘substantial and sufficient’ to

support the defendant’s guilt beyond a reasonable doubt.” People v.

Douglas, 2015 COA 155, ¶ 8 (quoting Dempsey v. People, 117 P.3d

800, 807 (Colo. 2005)).

2. Applicable Law

¶ 11 To convict Mary of attempted first degree murder, the

prosecution needed to prove that she intentionally “engage[d] in

conduct constituting a substantial step toward” causing Brad’s

death. § 18-2-101(1), C.R.S. 2024; see § 18-3-102(1)(a), C.R.S.

2024 (a person commits first degree murder if, “[a]fter deliberation

and with the intent to cause the death of a person other than

[her]self, [s]he causes the death of that person”) (emphasis added);

see also § 18-1-501(5), C.R.S. 2024 (“A person acts ‘intentionally’ or

‘with intent’ when [her] conscious objective is to cause the specific

4
result proscribed by the statute defining the offense.”).4 To convict

Mary of attempted second degree murder, the prosecution needed to

prove that she knowingly engaged in such conduct. See § 18-2-

101(1); § 18-3-103(1)(a), C.R.S. 2024; see also § 18-1-501(6), C.R.S.

2024 (“A person acts ‘knowingly’ . . . , with respect to a result of

[her] conduct, when [s]he is aware that [her] conduct is practically

certain to cause the result.”).

3. Analysis

¶ 12 We conclude that substantial evidence supported the intent

and knowledge requirements of Mary’s attempted first and second

degree murder convictions.

¶ 13 As noted, the jury watched video surveillance footage of the

shooting: Mary stood in the doorway — blocking Brad from leaving

her bedroom — and pointed the gun at Brad’s chest, Brad shoved

the gun down, and Mary shot him at close range in the upper thigh

as he did so. Brad also testified about the manner in which Mary

shot him. See People v. Webster, 987 P.2d 836, 843 (Colo. App.

1998) (“Evidence of the manner and method of the killing, or

4 Mary doesn’t challenge the sufficiency of the evidence as to the

deliberation requirement of attempted first degree murder.

5
attempted killing, may be sufficient to support an inference of the

necessary intention” for attempted first degree murder.).

¶ 14 The prosecution also introduced other circumstantial evidence

to prove that Mary acted intentionally and knowingly. That

evidence — which, as explained below, the court properly

admitted — included audio recordings from one year before the

shooting of Mary threatening to murder Brad and “make it look like

an accident”; Brad’s testimony about Mary’s mood swings and

“violently mad” demeanor, their increasingly tumultuous

relationship, and their previous fights; pictures of injuries Mary had

previously caused Brad; pictures of Mary’s text messages to Brad

on the days leading up to the shooting; and video surveillance

footage showing Mary’s disregard for Brad after she shot him. See

People v. Dist. Ct., 926 P.2d 567, 571 (Colo. 1996) (“[I]ntent[] can

rarely be proven other than through circumstantial or indirect

evidence. Such evidence may include . . . the existence of hostility

between the accused and the victim.”) (citation omitted).

¶ 15 Based on this evidence, the jury could reasonably have

inferred that Mary possessed the requisite intent and knowledge for

attempted first and second degree murder. See People v. Grant, 174

6
P.3d 798, 812 (Colo. App. 2007) (“If there is evidence upon which

one may reasonably infer an element of the crime, the evidence is

sufficient to sustain that element.”).

¶ 16 Mary asserts, however, that she retained control of the gun as

she lowered it and shot Brad and that she couldn’t have been

practically certain that shooting him in the leg would kill him

because “someone dying as a result of a leg injury is exceedingly

rare.” But the jury interpreted the evidence differently, and we

won’t second-guess its interpretation. See Clark v. People, 232 P.3d

1287, 1293 (Colo. 2010) (“Jurors must rely on the evidence

presented at trial and their own common sense to determine the

question of guilt. . . . We do not sit as a thirteenth juror to

determine the weight of the evidence presented to the jury.”)

(citations omitted).

B. Character Evidence

¶ 17 Mary next contends that the district court abused its

discretion by admitting certain character evidence in violation of

CRE 401, CRE 403, and CRE 404(b). Again, we disagree.

7
1. Standard of Review and Applicable Law

¶ 18 We review a district court’s evidentiary rulings for an abuse of

discretion. Nicholls v. People, 2017 CO 71, ¶ 17. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair or based on a misunderstanding or misapplication of the

law. People v. Thompson, 2017 COA 56, ¶ 91. We may affirm a

court’s evidentiary ruling on any basis supported by the record.

People v. Quintana, 882 P.2d 1366, 1371 (Colo. 1994), abrogated on

other grounds by Rojas v. People, 2022 CO 8.

¶ 19 Mary’s counsel objected to the district court’s admission of

most, but not all, of the evidence that Mary challenges on appeal.

We review any claim of error that counsel preserved by objection for

harmlessness. Hagos v. People, 2012 CO 63, ¶ 12. Under this

standard, “we reverse if the error ‘substantially influenced the

verdict or affected the fairness of the trial proceedings.’” Id.

(quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)). We

review any claim of error that counsel didn’t preserve by objection

for plain error. Id. at ¶ 14. Plain error is error that is obvious and

that so undermined the fundamental fairness of the trial itself as to

8
cast serious doubt on the reliability of the judgment of conviction.

Id.

¶ 20 Evidence of “other crime[s], wrong[s], or act[s]” is inadmissible

to show that a defendant has a bad character and acted in

conformity therewith. CRE 404(b)(1). But such evidence may be

admissible to prove, for instance, “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” CRE 404(b)(2). Similarly, “evidence of any other acts

of domestic violence between the defendant and the victim” may be

admissible in domestic violence cases. § 18-6-801.5(2), C.R.S.

2024; see § 18-6-801.5(1) (“[E]vidence of similar transactions can

be helpful and is necessary in some situations in prosecuting

crimes involving domestic violence” because “domestic violence is

frequently cyclical in nature, involves patterns of abuse, and can

consist of harm with escalating levels of seriousness.”).

¶ 21 Evidence of a defendant’s other acts, including other acts of

domestic violence under section 18-6-801.5(2), is subject to the

four-part test articulated in People v. Spoto, 795 P.2d 1314, 1318

(Colo. 1990). That test asks whether (1) the evidence relates to a

material fact; (2) the evidence is logically relevant; (3) the evidence’s

9
logical relevance is independent of the inference that the defendant

acted in conformity with a bad character; and (4) the evidence’s

probative value is substantially outweighed by the danger of unfair

prejudice. Id.

2. Analysis

¶ 22 Mary challenges the district court’s admission of the following

evidence:

• An audio recording from the day of the shooting in which

Mary told Brad, “I fucking hate you,” because he couldn’t

“control” Ryan, whom she called “retarded” six times.

• An audio recording from the day of the shooting in which

Mary told Brad, “You’re going to die on the table in two

weeks anyways, and [Ryan] can get kicked out of the

fucking house.”

• Pictures of Mary’s text messages to Brad on the days

leading up to the shooting saying, “[C]ongratulations on

making yourself the a****** of the day”; “I can’t believe

what a f****** loser you are that you can’t even get that

little jerk [Ryan] to pick up the s*** that you asked him to

when I f****** heard you ask him to pick it up yesterday

10
what is your f****** problem control that dick face”; “If

that s*** isn’t picked up today off the back patio I will

throw every single one of the Christmas presents for

Ryan under the tree in the trash”; “Sure hope that pup

likes 29° weather cuz he’s locked in the backyard f*****”;

and, “[Y]ou have failed to f****** provide your wife with

medical insurance cuz you’re too f****** cheap but do you

have medical insurance yes and does the retard have

medical insurance yes do the dogs get treated at the

veterinarian of course they do but do I f*** you.”5

• Brad’s testimony about six of his previous fights with

Mary and pictures of his resulting injuries establishing

that (1) Mary hit Brad’s face and neck with a pan;

(2) Mary pushed Brad; (3) Mary punched Brad’s face;

(4) Mary clawed at Brad’s collarbone; (5) Mary hit Brad’s

hand with a yardstick; and (6) Mary burned Brad’s chin

and chest by throwing hot tea on him, then yelled, “I was

aiming for your fucking eyes.”

5 The asterisks appear in the original text messages Mary sent

Brad.

11
• An audio recording from one year before the shooting in

which Mary told Brad, “Get out of my fucking face or I

will go get that fucking gun.”

• An audio recording from one year before the shooting in

which Mary told Brad, “I will stab you with this [knife] if

you touch me,” and called Ryan “retarded.”

• An audio recording from one year before the shooting in

which Mary told Brad, “I [would] put you in a fucking

home and let Ryan live there with you to wipe your ass.”

• An audio recording from one year before the shooting in

which Mary told Brad, “Get the fuck out of my way or I’ll

fucking murder you, I swear to God I will. . . . Honey,

there [are] so many ways to make it look like an

accident.”

• An audio recording from one year before the shooting in

which Mary mocked Brad about the dishes in the sink.

¶ 23 Mary contends that her statements in the audio recordings

from the day of the shooting were inadmissible under CRE 401 and

CRE 403, which generally provide that relevant evidence is

admissible unless the evidence’s probative value is substantially

12
outweighed by the danger of unfair prejudice. She asserts that her

statement to Brad (“You’re going to die on the table in two weeks

anyways.”) painted her as a vindictive person, and her statements

about Ryan (desiring to kick him out of the house, calling him

retarded, and saying that Brad couldn’t control him) were irrelevant

because Ryan wasn’t the victim and were highly prejudicial because

“any juror who has a loved one with an intellectual disability would

have become emotional hearing Mary talk about Ryan in such

terms.”

¶ 24 The district court determined that Mary’s statements were

admissible under CRE 401 and CRE 403. We don’t see any abuse

of discretion in that ruling. Mary’s statements to Brad that she

hated him because he couldn’t control Ryan were relevant to prove

her motive and intent — issues the defense contested at trial.

Mary’s statements were also relevant to rebut her claims that she

had acted in self-defense and accidentally shot Brad. And although

Mary’s statements may have carried a risk of unfair prejudice, CRE

403 strongly favors the admission of relevant evidence, see People v.

Dist. Ct., 869 P.2d 1281, 1286 (Colo. 1994), and “we must assume

the maximum probative value that a reasonable factfinder might

13
give to the evidence and the minimum unfair prejudice that might

reasonably be expected.” People v. Skinner, 53 P.3d 720, 723 (Colo.

App. 2002) (citing People v. Gibbens, 905 P.2d 604, 607 (Colo.

1995)).

¶ 25 Mary challenges the remaining evidence — her text messages

to Brad on the days leading up to the shooting, Brad’s testimony

about his previous fights with Mary, pictures of his resulting

injuries, and audio recordings from one year before the shooting —

on CRE 404(b) grounds. She asserts that this evidence was

inadmissible under Spoto because it was unduly prejudicial and

because any relevance of her prior acts depended on the prohibited

inference that she committed the charged offenses because she

acted in conformity with her bad character.

¶ 26 The district court determined that most of this evidence didn’t

implicate Spoto because it involved mere statements, which it

concluded aren’t “other acts” under CRE 404(b). We tend to agree

with the court that statements that themselves don’t constitute

crimes aren’t acts and therefore don’t fall under CRE 404(b). See

People v. Greenlee, 200 P.3d 363, 368 & n.9 (Colo. 2009) (holding

that CRE 404(b) didn’t apply to the defendant’s statements because

14
his “words are not conduct, do not amount to a crime, and do not

reveal prior bad acts” and clarifying that CRE 404(b) can apply to

statements that constitute crimes, such as witness tampering and

threatening a witness (first citing People v. Medina, 51 P.3d 1006,

1012-13 (Colo. App. 2001); and then citing People v. Eggert, 923

P.2d 230, 234 (Colo. App. 1995))), abrogated on other grounds by

Rojas, 2022 CO 8.6

¶ 27 We don’t need to resolve this question, however, because all

the evidence Mary challenges on appeal was admissible under CRE

404(b) and section 18-6-801.5(2). Mary’s text messages on the days

leading up to the shooting were relevant to show her anger toward

Brad and Ryan and, by further inference, her motive and intent to

kill Brad. Her previous statements, threats, and fights with Brad

6 Although the Colorado Supreme Court abrogated People v.

Greenlee, 200 P.3d 363 (Colo. 2009), in Rojas v. People, 2022 CO 8,
it didn’t address Greenlee’s holding that CRE 404(b) doesn’t apply
to statements that don’t constitute a crime or reveal a prior bad act.
Instead, the court overturned Greenlee’s holding that if extrinsic
evidence implicates a defendant’s character but has relevance
independent of the prohibited act-propensity inference, CRE 404(b)
doesn’t govern its admissibility. Rojas, ¶ 35 (citing Greenlee, 200
P.3d at 368). The court explained, “[T]his criterion is simply part of
the 404(b) analysis under [People v. Spoto, 795 P.2d 1314 (Colo.
1990)], not a basis for avoiding Rule 404(b).” Rojas, ¶ 35.

15
were also relevant to prove her state of mind because they made it

less likely that she acted in self-defense and accidentally shot him.

See CRE 404(b) (evidence of a defendant’s other acts may be

admissible to prove, among other things, motive, intent, absence of

mistake, and lack of accident); § 18-6-801.5(2) (evidence of “any

other acts of domestic violence between the defendant and the

victim” may be admissible in domestic violence cases). This

evidence’s relevance didn’t depend on the inference that Mary acted

in conformity with her bad character when she shot Brad. See

Spoto, 795 P.2d at 1318. And the danger of unfair prejudice didn’t

substantially outweigh the evidence’s probative value; the court

minimized the prejudicial effect of most of this evidence by

instructing the jury as follows:

[Y]ou are about to hear evidence regarding
prior acts or statements of [Mary]. You are
instructed that you cannot use this particular
evidence to show that [Mary] has a bad
character or that [Mary] acted in conformity
therewith on a particular occasion.

Rather, this evidence is being presented for the
purpose of showing [Mary]’s knowledge, intent,
deliberation, lack of mistake or accident, and
her attitude towards [Brad] only. You may not
consider it for any other purpose.

16
See People v. Villa, 240 P.3d 343, 352 (Colo. App. 2009) (“Absent

evidence to the contrary, we assume the jury heeded the court’s

instructions.”).7

¶ 28 Although the court didn’t give limiting instructions for the

video surveillance footage from the day of the shooting or for Mary’s

text messages to Brad,8 it wasn’t required to do so because Mary’s

counsel didn’t request them for that evidence. See People v. Griffin,

224 P.3d 292, 298 (Colo. App. 2009) (“As a general rule, defense

counsel is charged with the task of deciding whether a limiting

instruction is desirable. . . . [A]bsent a special statutory

requirement, the supreme court has consistently held that trial

courts have no duty to give limiting instructions sua sponte.”)

7 To the extent Mary challenges the limiting instruction’s language

as “overly broad,” her attorney waived this argument by explicitly
assenting to such language. See People v. Carter, 2021 COA 29,
¶ 30 (the defendant waived his constructive amendment claim
because “[d]efense counsel expressly indicated that she had been
through the instructions” and verdict form at issue, “the court went
through each instruction and the verdict forms one by one with
counsel,” and “[d]efense counsel said she didn’t object to any of
them”). In any event, the language wasn’t overly broad. The court
told the jury to consider the evidence for only five purposes, all of
which were, under the circumstances, proper under CRE 404(b).
8 Mary also asserts that the district court didn’t give a limiting

instruction for one of the audio recordings from one year before the
shooting, but our review of the record shows that the court did so.

17
(citations omitted); see also People v. Torres, 141 P.3d 931, 935

(Colo. App. 2006) (“Section 18-6-801.5[(5)] requires a trial court to

instruct the jury on the limited purposes for which the evidence of

prior acts of domestic violence is being admitted. However, when,

as here, defendant does not object to the lack of contemporaneous

limiting instructions or request additional ones, reversal for lack of

a limiting instruction is not required.”) (citation omitted).

¶ 29 In sum, we conclude that the district court acted within its

discretion by admitting all of this evidence.

C. Initial Aggressor and Provocation Instructions

¶ 30 Next, Mary contends that the district court erred by

instructing the jury on the initial aggressor and provocation

exceptions to self-defense because the prosecution didn’t present

sufficient evidence to warrant giving these instructions. We aren’t

persuaded.

1. Applicable Law and Standard of Review

¶ 31 A defendant may claim self-defense as a justification for

criminal behavior if she defended herself from what she reasonably

believed to be the use or imminent use of unlawful physical force

and used a degree of force reasonably necessary to defend herself.

18
§ 18-1-704(1), C.R.S. 2024. But a defendant may not claim self-

defense if she was the initial aggressor. § 18-1-704(3)(b) An initial

aggressor is one who “initiated the physical conflict by using or

threatening the imminent use of unlawful physical force.” Castillo

v. People, 2018 CO 62, ¶ 41 (quoting People v. Castillo, 2014 COA

140M, ¶ 14). Nor may a defendant claim self-defense if, “[w]ith

intent to cause bodily injury or death to another person, [s]he

provoke[d] the use of unlawful physical force by that other person.”

§ 18-1-704(3)(a).

¶ 32 A court should instruct the jury regarding the initial aggressor

or provocation exceptions to self-defense if some evidence supports

the exceptions. Galvan v. People, 2020 CO 82, ¶ 25.

¶ 33 We review de novo whether sufficient evidence supports a jury

instruction. Castillo, 2018 CO 62, ¶ 32.

¶ 34 Because Mary’s counsel didn’t object to the jury instructions

at issue, we review any error for plain error. See Hagos, ¶ 14.

2. Analysis

¶ 35 With regard to the initial aggressor exception, Mary reasons

that the prosecution presented no evidence that she used unlawful

physical force against Brad before shooting him.

19
¶ 36 But this exception isn’t so limited; as noted, it applies if the

defendant initiated the physical contact “by using or threatening the

imminent use of unlawful physical force.” Castillo, 2018 CO 62,

¶ 41 (emphasis added) (quoting Castillo, 2014 COA 140M, ¶ 14).

¶ 37 Because the record contains sufficient evidence — the

admissibility of which Mary doesn’t challenge on appeal — that

Mary threatened the imminent use of unlawful physical force

against Brad, we conclude that the initial aggressor instruction was

proper. Brad testified, and video surveillance footage showed, that

Mary pointed her gun at Brad’s chest before shooting him at close

range. The prosecution also introduced into evidence an audio

recording in which Mary told the police that she had grabbed her

gun and said, “[G]et out of my fucking bedroom . . . or I will shoot

you,” before shooting Brad. See Griffin, 224 P.3d at 300 (“[The

defendant]’s initial verbal confrontation was insufficient to make

her the initial aggressor[,] [b]ut evidence of her other actions —

such as leaving the argument and returning with a gun — was

sufficient to warrant the instruction.”) (citation omitted).

¶ 38 We also conclude that the provocation instruction was proper.

Mary asserts that the prosecution presented no evidence that she

20
“‘goad[ed]’ Brad into attacking her.” See Galvan, ¶ 19 (The

provocation exception defeats a defendant’s self-defense claim if,

among other things, “the defendant intended his provocation to

goad the other person into attacking him in order to provide a

pretext to injure or kill that person.”). The record shows otherwise.

In addition to Mary’s statement to police, the jury heard Brad’s

testimony that he shoved Mary’s wrist because she had pointed the

gun at his chest; Mary’s additional statement to the police that,

after Brad started arguing with her and before she shot him, he had

attacked her by grabbing her wrists, causing bruises and a scratch

mark; and audio recordings from one year before the shooting in

which Mary told Brad, “Get out of my fucking face or I will go get

that fucking gun,” and, “Get the fuck out of my way or I’ll fucking

murder you, I swear to God I will. . . . Honey, there [are] so many

ways to make it look like an accident.” See People v. Roberts-

Bicking, 2021 COA 12, ¶¶ 38-40 (sufficient evidence supported a

provocation instruction because the defendant’s statement, “If you

want to fuck with me, try it,” could be interpreted as an attempt to

provoke the victim to use force so that the defendant could shoot

the victim).

21
D. Prosecutor’s Statements

¶ 39 Lastly, Mary contends that the prosecutor engaged in five

instances of misconduct and that the alleged misconduct’s

cumulative effect deprived her of a fair trial. We don’t see any

misconduct.

1. Standard of Review

¶ 40 In reviewing Mary’s prosecutorial misconduct claim, we first

review the prosecutor’s remarks to determine whether they were

improper based on the totality of the circumstances. See Wend v.

People, 235 P.3d 1089, 1096 (Colo. 2010). If we determine that any

of the remarks were improper, we review them for plain error

because Mary’s counsel didn’t object to any of the allegedly

improper comments. See Hagos, ¶ 14; see also Wend, 235 P.3d at

1096 (if conduct was improper, we decide whether it requires

reversal under the appropriate standard of review).

¶ 41 “If we find multiple instances of prosecutorial misconduct, we

‘must carefully review whether the cumulative effect of the

prosecutor’s statements so prejudiced the jury’s verdict as to affect

the fundamental fairness’ of the trial.” People v. Buckner, 2022

22
COA 14, ¶ 20 (quoting Domingo-Gomez v. People, 125 P.3d 1043,

1053 (Colo. 2005)).

2. Analysis

a. Burden of Proof

¶ 42 Mary argues that, during opening statement, the prosecutor

impermissibly shifted the state’s burden of proof to the defense by

saying,

The defense does not have to give an opening
statement at the beginning of trial, or at all.
They do not have to provide evidence or reveal
strategic decisions or anything to the People at
all.

So just be aware the first time that the People
are hearing things from the defense, if we do, it
will be at the same time as you do.

¶ 43 But Mary’s opening brief omits the prosecutor’s statement that

immediately followed: “This is because the People always have the

burden. In our system of justice, we always have the burden of

proving the case, and there is never a requirement on a person who

is accused to prove their own innocence . . . .”

¶ 44 When viewed in context, the prosecutor’s statement accurately

informed the jury of the state’s burden of proof. See People v.

Santana, 255 P.3d 1126, 1131 (Colo. 2011) (we must evaluate the

23
prosecutor’s comments in light of the entire record to determine

whether the prosecution actually shifted the burden of proof). The

prosecutor didn’t say, or even imply, that Mary bore the burden of

proving her innocence. See id. at 1133 (finding no burden shifting

where “the prosecutor never explicitly argued that the defendant

ha[d] the burden of proof”). To the contrary, the prosecutor told the

jury that “the People always have the burden.” To the extent the

prosecutor commented on the lack of evidence supporting the

defense’s theory, this comment didn’t shift the state’s burden. See

People v. Walker, 2022 COA 15, ¶ 41 (“Commenting on the lack of

evidence supporting a defense theory does not shift the burden of

proof.”).

b. “Power and Control”

¶ 45 During closing argument, the prosecutor told the jury that

Mary’s behavior toward Brad was “all part of the power and control

in domestic violence.” Mary argues that this statement was

improper because the concept of “power and control” in domestic

violence implicates specialized information and because the

prosecution didn’t present any evidence at trial to support the

statement.

24
¶ 46 Mary analogizes the prosecutor’s statement to those in People

v. Davis, 280 P.3d 51 (Colo. App. 2011), and People v. Nardine,

2016 COA 85. In Davis, the division determined that the

prosecutor’s slideshow on the “stages” experienced by trauma

victims in domestic violence situations and commentary on how the

victim’s behavior fit in those stages was improper because it

described “a variation of rape trauma syndrome,” evidence of which

is admissible only through expert testimony, and because it wasn’t

“wholly rooted in the evidence presented at trial.” 280 P.3d at 53-

54. In Nardine, the division determined that the prosecutor’s

statement that the victim’s failure to realize that she had been

sexually assaulted was “not an uncommon reaction among female

sexual assault victims” was improper because it “implicated

specialized information pertaining to social science that is not

commonly known to laypersons,” and because the prosecutor didn’t

present any evidence to support the statement. Nardine, ¶ 58.

¶ 47 We aren’t persuaded that the statement in this case was akin

to those in Davis and Nardine. Unlike the stages of trauma and

reactions of female sexual assault victims, the concept of power and

control in domestic violence is commonly understood. People v.

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Miller, 2024 COA 66, ¶¶ 25, 29 (the prosecutor’s references to

several domestic violence concepts, including “power and control,”

were proper, in part because they “reflected the jurors’ common

understanding of domestic violence concepts”); see Kendrick v.

Pippin, 252 P.3d 1052, 1064 (Colo. 2011) (“[J]urors may apply their

general knowledge and everyday experience when deciding

cases . . . .”), abrogated on other grounds by Bedor v. Johnson, 2013

CO 4. Because the People charged all the offenses as acts of

domestic violence, the concept was also reflected in the jury

instructions that defined “domestic violence” to include “crime[s]

against a person . . . when used as a method of coercion, control,

punishment, intimidation, or revenge directed against a person with

whom the actor is or has been involved in an intimate relationship.”

¶ 48 For these reasons, we conclude that the prosecutor’s “power

and control” reference was proper.

c. Reasonableness of Self-Defense

¶ 49 During closing argument, the prosecutor said,

Serious bodily injury, so we have again a kind
of wordy definition, but you did hear Dr. Meyer
who rendered emergency treatment to [Brad].
You heard him talk about that compound
fracture, the bone kind of overlapping, the

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substantial risk of serious disfigurement that
[Brad] faced and how close the bullet came to
his artery. That’s in self-defense. So when
you’re considering reasonableness, even the
statements of [Mary] as she says — as she —
as she tells them about what happened. That
[Brad] had been in the bedroom, grabbed her
wrist, injured her arm, and then left. Went
around to the bed. That’s five to six feet away
at the door. Was her waving a firearm
reasonable? Was her depressing the trigger
reasonable?

¶ 50 Mary argues that, by making this statement, the prosecutor

“improperly argu[ed] that, when assessing the reasonableness of

Mary’s self-defense, the jurors could take into account what could

have happened had Brad’s injury been worse.” We aren’t convinced

that the prosecutor made this argument. But even if she did, we

aren’t aware of any legal authority prohibiting the jury from

considering the risk of a defendant’s actions when assessing the

reasonableness of self-defense. To the contrary, the Colorado

Supreme Court has held that the jury “may consider all relevant

evidence when assessing the reasonableness of the defendant’s

[self-defense] actions.” Riley v. People, 266 P.3d 1089, 1094 (Colo.

2011) (citing People v. Jones, 675 P.2d 9, 14 (Colo. 1984)).

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¶ 51 People v. Monroe, 2020 CO 67, and People v. Vigil, 2021 CO

46, on which Mary relies, don’t require a different conclusion. In

Monroe, the supreme court reaffirmed the principle that the jury

should consider a defendant’s perception of events as they unfold,

Monroe, ¶ 34, but held that prosecutors may not argue that a

defendant’s failure to retreat undermines the reasonableness of

self-defense because such an argument “would cripple the no-duty-

to-retreat rule” and confuse and provide little value to the jury, id.

at ¶¶ 29-32. This case doesn’t involve retreat, much less an

argument that the jury should consider Mary’s failure to retreat

when assessing the reasonableness of her self-defense claim.

¶ 52 Vigil is likewise inapposite. In that case, the supreme court

held that “the facts of the actual injury control the substantial risk

of death determination under [the statute defining serious bodily

injury], not the risk generally associated with the type of conduct or

injury in question.” Vigil, ¶ 45. But Mary argues that the

prosecutor misstated the law only as to the reasonableness of her

self-defense claim, not as to the serious bodily injury requirement.

¶ 53 We agree with the People that Dr. Meyer’s testimony regarding

the risk associated with Mary’s conduct was relevant to the jury’s

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assessment whether Mary’s self-defense was reasonable and that

the prosecutor’s statement was thus permissible. See Riley, 266

P.3d at 1094 (the jury “may consider all relevant evidence” in

assessing the reasonableness of self-defense).

d. “Knowingly” Definition

¶ 54 Mary argues that, during closing argument, the prosecutor

misstated the definition of “knowingly” for attempted second degree

murder. She reasons, “[T]he prosecutor was arguing that the

mental state element was met because [Mary] knew that depressing

the trigger would fire a bullet. But knowing that a revolver will fire

a bullet is a far cry from being ‘practically certain’ that death will

result when the revolver is pointed at a leg.”

¶ 55 We disagree with Mary’s characterization of the prosecutor’s

argument. When discussing the elements of first degree assault,

the prosecutor said,

Knowingly. . . . She’s aware her conduct is
practically certain to cause the results.
Someone who has training — well or at least
as a group, you know, familiar with firearms,
right? She’s been to the range. She’s a better
shot than Brad. They have firearms. They
know how to use . . . [and] load them. She
depresses that trigger, that 7-1/2 to 8-1/2
pound pull. She traps him. Did she know

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what was going to happen when she pulled
that trigger? Certainly she acted knowingly
and that knowingly is the standard for
menacing.

The prosecutor then discussed the remaining elements of menacing.

Thus, in context, the prosecutor defined “knowingly” as to first

degree assault and menacing.

¶ 56 To be sure, when the prosecutor later discussed attempted

second degree murder, she said, “[T]his is going to be back to that

knowingly standard.” But the prosecutor never said, or even

implied, that Mary met the knowingly requirement for attempted

second degree murder because she knew that pulling the trigger

would fire a bullet. In fact, she never said or implied that Mary met

the knowingly requirements for first degree assault and menacing

by knowing as much. Rather, the prosecutor correctly defined

“knowingly” as being aware that one’s conduct is practically certain

to cause the result, see § 18-1-501(6), and asked the jurors the

more open-ended question, “Did she know what was going to

happen when she pulled that trigger?” We don’t see anything wrong

with this language. See Domingo-Gomez, 125 P.3d at 1048-49

(While a prosecutor may not intentionally misstate the law,

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“[a]dvocates must be able to present their best case to achieve just

results. For this reason, a prosecutor has wide latitude in the

language and presentation style used to obtain justice.”).

e. Emotional Appeal

¶ 57 Mary argues that the prosecutor impermissibly appealed to the

jurors’ sympathy for Ryan during closing argument by saying,

Ryan makes [the 911] call, and Ryan, who
Mary will later say has the mentality of a six
year old, she doesn’t even trust him to take
care of the dogs. He can’t handle that, but
he’s the one making this emergency phone
call. He’s the one on the line with dispatch for
13 minutes. He’s left to the task to try to
explain the severity of the situation. Mary is
the only person — the only functioning adult
who is able to talk to 911 and relay the proper
information, but she leaves it to whom she
believes is a six year old.

¶ 58 But the jury could reasonably have interpreted the

prosecutor’s argument as concerning Mary’s disregard for Brad

after she shot him, which was relevant to prove that she possessed

the requisite mens rea to commit the charged offenses. Indeed,

right before the prosecutor referenced Ryan’s 911 call, she argued,

[Brad] needs help. He needs 911. [Mary]’s in
the bedroom. Well, she comes back. She
points at the floor, at the door. You got in my
space. You were in the room. I told you to get

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out. I punished you. It goes on for . . . 13
minutes until help arrives.

Her body language tells us a lot. Even though
we can’t hear what she’s saying, the double
hand wave that she does leaning over him,
looking at him but pointing at the ground, at
the floor, pointing at the lock. She’s mocking
him. She’s not surprised. She’s not afraid.

Considered in context, the prosecutor’s argument was proper. See

People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) (“A

prosecutor has wide latitude to make arguments based on facts in

evidence and reasonable inferences drawn from those facts.”).

f. Cumulative Effect

¶ 59 Mary argues that the cumulative effect of the prosecutor’s

statements deprived her of a fair trial. Because we haven’t

identified any misconduct, this argument fails. Cf. Buckner, ¶ 20

(“If we find multiple instances of prosecutorial misconduct, we

‘must carefully review whether the cumulative effect of the

prosecutor’s statements so prejudiced the jury’s verdict as to affect

the fundamental fairness’ of the trial.” (quoting Domingo-Gomez,

125 P.3d at 1053)).

III. Disposition

¶ 60 The judgment is affirmed.

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JUDGE LIPINSKY and JUDGE SULLIVAN concur.

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