Peo v. Rogers

21CA1666 Peo v Rogers 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1666
El Paso County District Court No. 20CR3368
Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daveon Artez Rogers,

Defendant-Appellant.

JUDGMENT AND ORDER AFFIRMED

Division III
Opinion by JUDGE DUNN
Gomez and Taubman*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 2, 2025

Philip J. Weiser, Attorney General, Joshua J. Luna, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, 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 A jury convicted defendant, Daveon Artez Rogers, of first

degree murder, tampering with a deceased human body, and two

counts of tampering with physical evidence. Because of those

convictions, the trial court revoked Rogers’s probation in four

unrelated cases. Rogers appeals both the convictions and the

probation revocations. We affirm.

I. Background

¶2 Rogers and E.K. shared two children and lived together until

January 2020 when E.K. began living with another man. After E.K.

left, the children lived with Rogers, but E.K. filed a proceeding

seeking joint custody. The domestic relations court scheduled a

hearing for the custody case in March 2020.

¶3 But on March 8 — before the scheduled hearing — E.K. and

her car went missing. Later that month, teenagers found E.K.’s

body in a plastic storage crate with a missing handle at the bottom

of a cliff near Gold Camp Road (outside of Colorado Springs). A few

months after that, police found E.K.’s car in a Colorado Springs

neighborhood. In it, police discovered the missing handle from the

storage crate along with Rogers’s ID card.

1
¶4 During an initial police interview, Rogers said E.K. came to his

apartment on March 8 to pick up the children for a few hours. He

then claimed that, after E.K. returned with the children, the two got

into an argument, and E.K. left.

¶5 Also during the interview, Rogers consented to a search of his

electronic devices. Rogers’s Google search history showed that,

before E.K. disappeared, he had searched topics like “[h]ow to get

away with a murder,” “[h]ow to kill someone and make it look like

accident,” “[h]ow do murder investigations work in Colorado

Springs,” “[w]hat time does gold camp close,” and “how long does it

take to choke someone out.” And after she disappeared, Rogers

searched for “[h]ow to get out of the country without a passport.”

The devices also showed two YouTube videos about how to perform

choke holds. The coroner ruled E.K.’s death a homicide and

concluded that she died in a manner consistent with manual

strangulation.

¶6 Police later arrested Rogers and interviewed him a second

time. Rogers initially maintained his innocence, but after being

confronted with incriminating evidence, he confessed to choking

E.K. in his apartment, putting her body in a storage crate, putting

2
the crate in her car, driving to Gold Camp Road, pushing the crate

off a cliff, and abandoning her car in a different location in Colorado

Springs.

¶7 As relevant, the prosecution charged Rogers with first degree

murder, tampering with a deceased human body, and two counts of

tampering with physical evidence.

¶8 The jury convicted Rogers as charged. The trial court

sentenced him to a controlling sentence of life in prison without the

possibility of parole and, because of these convictions, revoked his

probation in four unrelated cases.

¶9 On appeal, Rogers primarily contends that the trial court erred

by refusing to suppress his confession. He also raises two

instructional challenges and a prosecutorial misconduct claim.

And, finally, in the event we reverse his convictions, he asks us to

reinstate his probation sentences.

II. The Motion to Suppress

¶ 10 Rogers contends that his confession was involuntary because

it (1) resulted from “hours of intense police interrogation”; (2) “was

fed to him by police”; and (3) conflicted with other evidence and was

3
therefore “unreliable.” Thus, he says the trial court erred by

refusing to suppress it. We disagree.

A. The Suppression Hearing

¶ 11 Before trial, Rogers moved to suppress the confession he made

during the second interview. He argued only that the confession

was involuntary, not that it was false.

¶ 12 At the suppression hearing, the two detectives who had

interviewed Rogers testified, and the prosecution introduced the

recorded video interview. Detective Brent Jacobsen testified that he

first interviewed Rogers one-on-one and advised him of his rights

under Miranda v. Arizona, 384 U.S. 436 (1966). Detective Jacobsen

explained that Rogers appeared to understand the advisement and

agreed to speak with him. He described the interview as “casual”

and said that Rogers never asked to stop the interview.

¶ 13 Detective Jerry Schiffelbein then testified that he joined the

interview to initiate a “direct confrontation” with Rogers about

certain evidence, particularly the reports from Rogers’s electronic

devices. From those reports, Detective Schiffelbein stated that he

covered a “few specific points but not nearly all of it.” Despite

confronting Rogers, Detective Schiffelbein said that he didn’t yell at

4
Rogers. And he explained that Rogers wasn’t handcuffed during the

interview and, at one point, that Rogers voluntarily demonstrated

on the detective the choke hold he had used on E.K.

¶ 14 After the hearing, the court viewed the recorded interview

three times. It then denied the motion to suppress, finding that

Rogers’s confession was voluntary.

B. Standard of Review

¶ 15 We review a trial court’s suppression order as a mixed

question of fact and law, meaning we defer to the court’s factual

findings if supported by the record but review its legal conclusions

de novo. People v. Cerda, 2024 CO 49, ¶ 22. When, as here, the

statements sought to be suppressed are recorded, we independently

review the recording. See People v. Kutlak, 2016 CO 1, ¶ 13.

C. Rogers’s Confession Was Voluntary

¶ 16 To be admissible as evidence, a defendant’s statements must

be voluntary. See Cerda, ¶ 36. A statement is involuntary if (1) the

defendant’s will was overborne by coercive police conduct and (2)

that coercion played a significant role in inducing the statement.

See id. at ¶ 37.

5
¶ 17 To assess voluntariness, we consider the totality of the

circumstances, including

• whether the defendant was in custody;

• whether the defendant was free to leave;

• whether the defendant was aware of the situation;

• whether the police read Miranda rights to the defendant;

• whether the defendant understood and waived Miranda

rights;

• whether the defendant had an opportunity to confer with

counsel or anyone else before or during the interrogation;

• whether the statement was made during the interrogation

or volunteered later;

• whether the police threatened the defendant or promised

anything directly or impliedly;

• the method or style of the interrogation;

• the defendant’s mental and physical condition just before

the interrogation;

6
• the defendant’s educational background, employment

status, and prior experience with law enforcement and the

criminal justice system;

• the length of the interrogation;

• the location of the interrogation; and

• the physical condition of the location where the

interrogation occurred.

Id. at ¶ 38; People v. Sanders, 2023 CO 62, ¶ 14.

¶ 18 After reviewing the recorded interview and considering the

totality of the circumstances, we conclude that Rogers’s confession

was voluntary.

¶ 19 True, Rogers’s interview took place at the police station, and

he was in custody and not free to leave. But Rogers knew the

gravity of the situation. Before he confessed, the detectives told him

that they were investigating E.K.’s death and that he was “under

arrest for [E.K.’s] death.” And Rogers had previous experience with

the criminal justice system. Indeed, before questioning, Detective

Jacobsen advised Rogers of his Miranda rights, and Rogers

confirmed that he had been advised of his rights before, understood

those rights, and agreed to waive them.

7
¶ 20 During questioning, Rogers was alert, responsive, and

coherent, and nothing suggested that he was under the influence of

drugs or alcohol. Rogers responded appropriately to questions,

pushed back occasionally, maintained his composure, and showed

no sign of physical or emotional distress. He never asked to consult

with counsel (or anyone else). And neither detective directly or

indirectly threatened or promised Rogers anything for his

confession.

¶ 21 The interview conditions were also appropriate. The interview

occurred in the middle of the day in a reasonably sized room.

Rogers wasn’t handcuffed or otherwise restrained. Only one

detective questioned Rogers for most of the interview, and all but

about forty-five minutes of the interview was nonconfrontational.

Each detective had a handgun that, while visible, remained

holstered. The detectives gave Rogers food and water, allowed him

to leave the room to use the bathroom, and provided multiple

breaks. With breaks, the interview lasted about four hours and

forty-five minutes.

¶ 22 Under these circumstances, we reject Rogers’s argument that

his confession resulted from “hours of intense police interrogation.”

8
To be sure, for the roughly forty-five minutes when Detective

Schiffelbein joined the interview, the detective directly confronted

Rogers with some of the incriminating evidence against him. And

during that period, the detectives alternated between sympathy for

Rogers at how E.K. had treated him and disbelief that he wasn’t

involved in E.K.’s death. They also accused Rogers of lying and

implored him to tell the truth because his children were “going to

ask questions about what happened to their mom” and “so maybe

people can understand you’re not a dark monster.”

¶ 23 But these interview tactics, including forceful questioning, are

neither uncommon nor inherently coercive. See People v. Theander,

2013 CO 15, ¶ 44 (concluding that “it was not coercive for

police . . . to suggest that [the defendant’s] children would want to

know that [the defendant] had helped find their father’s killer”);

People v. Medina, 25 P.3d 1216, 1224-25 (Colo. 2001) (explaining

that the “technique of alternating between sympathy and disbelief

and hand[ing] the questioning off” between officers does not,

without more, “render a defendant’s statements involuntary”);

People v. Villarreal, 131 P.3d 1119, 1123-24 (Colo. App. 2005)

(concluding that the defendant’s statements were voluntary despite

9
“aggressive and insistent” questioning by two detectives for two

hours). And even when the interview became confrontational,

Rogers remained composed and calm, exhibiting no distress. Only

when confronted with incriminating evidence did he confess. Thus,

the shift from conversational to confrontational interview tactics did

not overbear Rogers’s will.

¶ 24 To the extent Rogers claims the confession wasn’t voluntary

because the detectives shared certain facts and evidence about the

murder with Rogers, leading to a “false” confession, we don’t see

how that approach overbore Rogers’s will. After all, it generally isn’t

coercive “to inform a suspect of the potential charges or factual

allegations against him,” Cerda, ¶ 43, and even ploys or trickery are

insufficient to render a confession involuntary, see Illinois v.

Perkins, 496 U.S. 292, 297 (1990).

¶ 25 Nor are we persuaded that Detective Jacobson impliedly

promised Rogers leniency by saying, “The only thing that can help

you today is to tell us the truth, tell us what really happened, tell us

why it happened.” Encouraging a defendant to tell the truth

untethered to any outcome isn’t a promise of leniency. See People

v. Zadran, 2013 CO 69M, ¶¶ 15-19 (concluding an officer’s

10
statement that “it would be in [the defendant’s] best interest to talk

to [the officer]” was a “generic statement” that “did not amount to

any specific threat or promise”); People v. Springsted, 2016 COA

188, ¶¶ 32-33 (concluding an officer’s statement that the defendant

would receive “more slack” if he was honest wasn’t an implied

promise because it wasn’t linked to the “potential receipt of any

particular benefit”). In any event, Detective Schiffelbein

immediately clarified, “We’re not saying that . . . you’re never going

to face consequences for what happened. We don’t know that.”

Thus, the detectives didn’t promise Rogers leniency in exchange for

a confession.

¶ 26 Finally, to the extent that Rogers points to inconsistencies

between his confession and some of the evidence, as well as his

comments that he was struggling to remember what happened the

day of E.K.’s death, these details don’t render his confession

involuntary.1 The voluntariness of his confession turns on whether

the detectives coerced Rogers and whether that coercion induced

1 Rogers seems to argue that the confession was “unreliable”

because some details of the confession matched what the detectives
told him while other details did not. We focus on whether the
discrepancies impacted the confession’s voluntariness.

11
his confession. See Cerda, ¶ 37. That the details didn’t match the

evidence in every respect or that Rogers’s memory was imprecise

goes to the confession’s weight and credibility, not its admissibility.

And it’s the jury’s role to determine the weight and credibility of a

confession. People v. Lopez, 946 P.2d 478, 482-83 (Colo. App.

1997); see also People v. Flippo, 159 P.3d 100, 105-06 (Colo. 2007)

(“[G]enerally speaking, defendants may attack the credibility or

reliability of a confession and allow the jury to determine any weight

that should be given to such statements.”).2

¶ 27 All this said, the trial court didn’t err by refusing to suppress

Rogers’s confession.

III. Proposed Jury Instruction

¶ 28 Before trial, Rogers tendered several proposed jury

instructions, including one regarding the voluntariness of his

confession, which stated:

2 The recorded interview confirms that Rogers provided details

about the murder that the detectives had not shared with him,
including how he specifically choked E.K. and that he kicked the
storage crate off a cliff. And when the interview resumed after a
break, Rogers volunteered additional clarifying details, telling
Detective Jacobsen that he was “just trying to remember everything
cause . . . it’s been some time, and I smoke too much. So, I’m just
trying to remember everything that happened that day.”

12
In evaluating [Rogers’s] statements to police
you should consider [voluntariness].

Courts determine voluntariness by considering
the totality of the circumstances under which
the statements were given, looking at the
significant details surrounding and inhering in
the interrogation under consideration. . . .
Courts examine both the defendant’s ability to
resist coercive pressures and the nature of the
police conduct, using a nonexclusive list of
factors that includes:

(1) whether the defendant was in custody;
(2) whether the defendant was free to leave;
(3) whether the defendant was aware of the
situation;
(4) whether the police advised the defendant of
his or her Miranda rights;
(5) whether the defendant understood and
waived Miranda rights;
(6) whether the defendant had an opportunity
to confer with counsel or anyone else prior to
or during the interrogation;
(7) whether the statement was made during
the interrogation or volunteered later;
(8) whether the police threatened [the]
defendant or promised anything directly or
impliedly;
(9) the method or style of the interrogation;
(10) the defendant's mental and physical
condition just prior to the interrogation;
(11) the length of the interrogation;
(12) the location of the interrogation; and
(13) the physical conditions of the location
where the interrogation occurred. . . .

Finally, [w]hen coercion produces a series of
statements, a court need not parse and dissect

13
them to determine which statements may or
may not be inculpatory. Instead, the entire
interrogation that follows the point at which
the police conduct becomes coercive under the
totality of the circumstances must be
suppressed in its entirety.

¶ 29 The court rejected that proposed instruction, observing that it

had already ruled that Rogers’s confession was voluntary and that

“it’s not within the jury’s province to decide the voluntariness or

involuntariness of an alleged confession that the [court] has found

should be admitted into evidence.”

¶ 30 But the court accepted Rogers’s theory of defense instruction,

which read:

[Rogers] asserts that he is not guilty of Murder
in the First Degree. He further asserts that the
statement he made to police was false, not
reliable, and not credible. [Rogers] generally
denies that he was in any way involved in the
death of [E.K.] and asserts that the State has
failed to prove that he caused the death of
[E.K.] beyond a reasonable doubt.

¶ 31 The court also accepted Rogers’s confession-specific credibility

instruction, which provided:

Although the confession in this case has been
admitted into evidence, it is the sole
prerogative of the jury to determine what
weight, if any, is to be given to the confession

14
and any testimony directly related to the
confession.

¶ 32 Rogers maintains that the trial court erred by rejecting his

proposed instruction regarding the voluntariness of his confession.

We disagree.

A. Standard of Review

¶ 33 While we review de novo whether a particular jury instruction

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

particular instruction for an abuse of discretion. People v. Garcia,

2021 COA 65, ¶ 45, aff’d, 2023 CO 41.

B. The Court Didn’t Err by Rejecting Rogers’s Voluntariness
Instruction

¶ 34 Rogers argues the court erred by rejecting his proposed

voluntariness instruction because the instruction was “necessary

for the jury to adequately assess whether Rogers[’s] confession was

reliable or arose from coercion.”

¶ 35 The problem with this argument, however, is that it wasn’t the

jury’s responsibility to assess whether Rogers’s confession was

voluntary. Rather, it’s for the court to decide whether a confession

is voluntary and admissible. See Deeds v. People, 747 P.2d 1266,

1271-72 (Colo. 1987). “If the [court] concludes that the confession

15
[is] voluntary” — as was the case here — “the confession is then

submitted to the jury solely for consideration of the credibility of the

testimony relating to the confession and the weight to be given to

the testimony and the confession.” Id. at 1272. Thus, “[b]ecause

the jury does not have to make a voluntariness determination, the

trial court need not submit instructions on the issue.” Id. The trial

court therefore didn’t err by rejecting Rogers’s proposed

voluntariness instruction.

¶ 36 Even so, Rogers says that without his proposed voluntariness

instruction, the jury had no way “to adequately assess the

credibility of Rogers[’s] confession.” Using language from Deeds,

however, the trial court specifically instructed the jury that it was

for the jury to determine what weight — if any — to give Rogers’s

confession. See id. at 1273. And Rogers doesn’t explain — and we

don’t see — how his proposed confession-specific credibility

instruction, together with his theory of defense instruction, failed to

allow the jury to adequately assess the credibility of his confession.

Indeed, in closing argument, defense counsel explained why the

jury shouldn’t credit the confession and emphasized that the

16
confession-specific credibility instruction allowed it to decide what

weight to assign the confession.

¶ 37 Shifting gears, Rogers characterizes his proposed

voluntariness instruction as a “companion to the theory-of-defense

instruction.” As a result, he says the court had an affirmative

obligation to cooperate with defense counsel to either correct the

proposed voluntariness instruction or incorporate its substance into

another instruction. See, e.g., People v. Martinez, 2020 COA 141,

¶ 82. But the court separately instructed the jury on Rogers’s

theory of defense. And because the jury doesn’t determine the

voluntariness of a confession, the court had no obligation to either

fix the proposed voluntariness instruction or incorporate its

substance elsewhere. See People v. Cox, 2023 COA 1, ¶ 42.

¶ 38 Finally, we don’t consider Rogers’s undeveloped assertion that,

by rejecting his proposed voluntariness instruction, the court

violated his right to present a defense and have the jury accurately

instructed on his theory of defense. See People v. Liggett, 2021 COA

51, ¶ 53 (acknowledging appellate courts don’t address undeveloped

arguments), aff’d, 2023 CO 22.

17
¶ 39 Given all this, we conclude that the trial court didn’t abuse its

discretion by rejecting Rogers’s proposed voluntariness instruction.

IV. Prosecutorial Misconduct

¶ 40 We next reject Rogers’s contention that the trial court erred by

permitting the prosecutor to commit misconduct during closing

argument.

¶ 41 During closing argument, the prosecutor said:

We talked in jury selection about what is
reasonable doubt. You heard both sides share
with you ideas about how this can be the
cornerstone of your decision-making process.
This instruction is the literal definition under
the law. It’s not a vague, speculative, or
imaginary doubt but one that would cause you
to hesitate in matters of importance to
yourself. What is a vague, speculative, or
imaginary doubt? It’s some other random
person of our 700,000 citizens here who have
somehow at the same time snuck into
[Rogers’s] apartment, done what we know
happened to [E.K.], and then somehow
disappeared into the night while also having
access to her car, her keys, her cell phone, and
her body.

That is pure speculation because the reality is
there’s not a shred of evidence that suggests
anything to that.

¶ 42 Though Rogers didn’t object to this argument at trial, he now

contends that these statements “grossly distorted” the reasonable

18
doubt standard by informing the jury that, to find reasonable

doubt, Rogers had to present evidence that someone else killed E.K.

¶ 43 The prosecutor, however, neither misstated the law nor shifted

the burden of proof. The prosecutor’s explanation of reasonable

doubt tracked the jury instruction and was legally correct. And,

more fundamentally, the prosecutor never argued that Rogers had

the burden of proof. Rather, the prosecutor simply emphasized the

lack of evidence supporting Rogers’s theory that someone else killed

E.K. The prosecutor then argued that, without evidence to support

it, Rogers’s theory was “pure speculation” and therefore did not

create a reasonable doubt concerning his guilt. Linking the lack of

evidence to the reasonable doubt definition is proper argument.

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

evidence supporting a defense theory does not shift the burden of

proof.”); accord People v. Santana, 255 P.3d 1126, 1131 (Colo.

2011).

V. Modified Unanimity Instruction

¶ 44 Rogers asks us to reverse the two convictions for tampering

with physical evidence because, in his view, the trial court erred by

19
not sua sponte giving the jury a modified unanimity instruction.

We conclude there was no plain error.

A. Standard of Review and Applicable Law

¶ 45 A criminal defendant is entitled to a unanimous jury verdict.

People v. Archuleta, 2020 CO 63M, ¶ 20; § 16-10-108, C.R.S. 2024.

Unanimity is required “only with respect to the ultimate issue of the

defendant’s guilt or innocence of the crime charged and not with

respect to alternative means by which the crime was committed.”

Archuleta, ¶ 20 (citation omitted).

¶ 46 When, however, the prosecution presents evidence of multiple

distinct acts, any one of which could constitute the crime charged,

and the jury could reasonably disagree about which act was

committed, the trial court must either (1) require the prosecution to

elect the transaction that it relies on for the conviction or (2) give

the jury a modified unanimity instruction advising that it must

unanimously agree the defendant committed the same act or all of

the acts. Id. at ¶¶ 21-22; People v. Hines, 2021 COA 45, ¶ 50.

¶ 47 But neither a prosecutorial election nor a modified unanimity

instruction is required when a defendant is charged with crimes

20
occurring in a single transaction and the prosecution proceeds to

trial on that basis. Archuleta, ¶ 23; Hines, ¶ 50.

¶ 48 We review de novo whether the trial court should have given a

modified unanimity instruction. See Hines, ¶ 48. Because Rogers

didn’t request a modified unanimity instruction, this claim is

unpreserved, and we review for plain error. See People v. Wester-

Gravelle, 2020 CO 64, ¶ 27. To be plain, the alleged error must be

obvious, meaning the action challenged on appeal contravened a

clear statutory command, a well-settled legal principle, or Colorado

case law. Id. at ¶ 28.

B. The Court Didn’t Plainly Err by Not Giving a Modified
Unanimity Instruction

¶ 49 Rogers identifies three possible acts that could have supported

the two counts of tampering with physical evidence: (1) that he

disposed of E.K.’s clothes; (2) that he abandoned E.K.’s car; and (3)

that he cleaned a blood stain in his apartment. Because the

prosecution didn’t specify which of the three acts it relied on, and

because the jury could have reasonably disagreed about which acts

Rogers committed, he now says the court should have given the

jury a modified unanimity instruction.

21
¶ 50 In response, the prosecution argues that a modified unanimity

instruction wasn’t required because the two tampering counts

occurred in a single transaction. More specifically, the prosecution

says that Rogers performed the three acts on the same day, against

the same victim, and as part of a single objective to kill E.K. and

conceal her death.

¶ 51 But we need not decide whether the court erred by not giving a

modified unanimity instruction because any such error was not

obvious and therefore not plain. See People v. Burdette, 2024 COA

38, ¶ 32.

¶ 52 True, as Rogers emphasizes, it’s unclear which of the three

acts the prosecution relied on for the two tampering counts. The

prosecution’s closing argument was imprecise on this point, and the

verdict forms didn’t specify which act each count corresponded to.

That lack of precision apparently led to the jury asking the court,

22
“Why are there two (2) charges for tampering with physical

evidence, and what are the specifics for each charge?”3

¶ 53 This gives us some pause. But a modified unanimity

instruction isn’t required when a defendant is charged with crimes

occurring in a single transaction and the prosecution proceeds to

trial on that basis. Archuleta, ¶ 23; Hines, ¶ 50. And what

constitutes a single transaction when there are multiple counts of

the same charge (or similar charges) is hazy. See People v. Collins,

730 P.2d 293, 301 (Colo. 1986) (concluding that modified unanimity

instruction was not required for attempted second degree murder

and first degree assault charges because “evidence was presented

regarding a single transaction”); accord People v. Jacobs, 91 P.3d

438, 443 (Colo. App. 2003) (applying Collins to conclude that two

counts of soliciting for child prostitution arose from a single

transaction because, despite evidence of numerous

3 The court responded to the jury as follows: “The evidence in this

case has been completed. You must base your verdicts on the
evidence that has or has not been presented for each of these two
charges.” Defense counsel agreed with this response. To the extent
Rogers suggests the court responded inadequately to the jury’s
question, this contention is undeveloped, and we don’t consider it.
See People v. Liggett, 2021 COA 51, ¶ 53, aff’d, 2023 CO 22.

23
communications, those communications concerned arranging one

“date”); People v. Hanson, 928 P.2d 776, 779-80 (Colo. App. 1996)

(applying Collins to conclude that two counts of felony menacing

arose from a single transaction because, despite two separate

confrontations, the confrontations involved the same victim,

occurred in the same location a few minutes apart, and concerned

the same dispute).4

¶ 54 Because E.K.’s murder and the tampering counts arguably

occurred as part of a single criminal transaction, it was not

obviously wrong for the trial court to not, on its own, give a

modified unanimity instruction. And, at any rate, Rogers doesn’t

explain why the tampering acts — which occurred on the same day

and against the same victim — were not part of a single criminal

transaction. See People v. Ryan, 2022 COA 136, ¶ 24 (concluding

4 At least one division of this court has held that a trial court plainly

erred by not giving a modified unanimity instruction under similar
circumstances. See People v. Serna-Lopez, 2023 COA 21, ¶¶ 28-38
(concluding a prosecutorial election or modified unanimity
instruction was required because the defendant was charged with
two sentence enhancers that each involved a distinct act). But an
error must be plain at the time of trial, see People v. Crabtree, 2024
CO 40M, ¶¶ 4-8, and Serna-Lopez was announced after Rogers’s
trial. Thus, it has no bearing on our analysis.

24
failure to give modified unanimity instruction was not obvious

because, among other things, the defendant didn’t explain why his

conduct was not part of a single criminal transaction).

¶ 55 For these reasons, we conclude that the trial court didn’t

plainly err by not sua sponte offering a modified unanimity

instruction.

VI. Probation Revocations

¶ 56 Recall that, because of Rogers’s convictions in this case, the

trial court revoked his probation in four unrelated cases. Because

we’re affirming his convictions, we necessarily affirm the probation

revocations.

VII. Disposition

¶ 57 We affirm the judgment and the order revoking Rogers’s

probation sentences.

JUDGE GOMEZ and JUDGE TAUBMAN concur.

25