Peo v. Montoya

22CA1470 Peo v Montoya 12-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1470
Jefferson County District Court No. 21CR1900
Honorable Tamara S. Russell, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Jacob Montoya,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE SCHOCK
Fox and Johnson, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 5, 2024

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, James Jacob Montoya, appeals his conviction for

sexual assault on a child by one in a position of trust. We affirm.

I. Background

¶2 The charge in this case stemmed from a report by Montoya’s

former stepdaughter, B.M., that Montoya sexually assaulted her by

touching her over her clothing when she was in seventh grade.

¶3 According to B.M.’s trial testimony, Montoya picked her up

from school one day after she was sent home because a classmate

reported she had purposefully cut herself the night before. When

the two got home, they sat on the living room couch. As Montoya

initially tried to comfort B.M., he began rubbing her leg, shoulders,

and back. He then moved his hands over her vagina and across her

breasts. B.M. left the couch and went to her sister’s room. She did

not tell anyone what had happened because Montoya threatened

that “he would hurt [her] or [her] siblings or [her] mom” if she did.

¶4 Two years later, when B.M. was in ninth grade and Montoya

and B.M.’s mother had divorced, B.M. disclosed the assault to a

teacher. As part of a school assignment, B.M. wrote that she

identified with a particular political party because she had been

“raped twice.” The teacher spoke with B.M., and B.M. revealed that

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one incident had involved her mother’s ex-husband. The teacher

reported what B.M. had told him, and the police became involved.

¶5 B.M. agreed to allow a detective to contact Montoya through

an Instagram account in B.M.’s name. The detective, pretending to

be B.M., exchanged a series of messages with Montoya. In that

conversation, Montoya admitted he had been sexually attracted to

B.M. but repeatedly denied any wrongdoing. Eventually, however,

Montoya admitted he touched B.M.’s vagina over her clothes.

¶6 Montoya was charged with sexual assault on a child by one in

a position of trust. A jury convicted him, and he was sentenced to

seven years to life in the custody of the Department of Corrections.

II. Impeachment Evidence

¶7 Montoya first contends that the district court erred by

excluding evidence of B.M.’s inconsistent statements about the

order of the two alleged sexual assaults she had referenced in her

school assignment. We perceive no abuse of discretion.

A. Additional Background

¶8 After B.M. wrote in her school assignment that she had been

“raped twice,” she told a social worker she was “first raped by a

stranger” and later by Montoya. In a subsequent forensic interview,

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B.M. reported that the assault by Montoya had occurred when she

was twelve years old and that the other had occurred at a sleepover

when she was fourteen years old. As to the latter, B.M. said she

woke up to “an unknown person running his hands up and down

her back and hips and thrusting their pelvis into her backside.”

¶9 Montoya moved before trial to admit these statements under

section 18-3-407, C.R.S. 2022 (the rape shield statute).1 Defense

counsel’s primary argument was that the sleepover incident had

been fabricated and demonstrated a history of false reporting by

B.M.2 But defense counsel also argued that the statements were

relevant to B.M.’s credibility because they showed B.M. had given

inconsistent timelines of the two assaults. She originally said she

was raped by a stranger and then assaulted by Montoya, but later

said she was assaulted by Montoya two years before the sleepover.

¶ 10 The district court denied Montoya’s motion and excluded

B.M.’s statements about the sleepover. The court found that there

1 The rape shield statute has been amended since Montoya’s trial.

See § 18-3-407, C.R.S. 2024. We apply the version of the statute in
effect at the time of trial. People v. Ramcharan, 2024 COA 110, ¶ 2.
2 Montoya does not pursue his argument that the sleepover incident

was admissible as a prior incident of false reporting on appeal.

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was no evidence the report of the sleepover incident was false and

that the incident was “completely irrelevant” if it was true.

¶ 11 As to the timing of the two incidents, the court noted that a

change in the timeline “would be of evidentiary value,” and it asked

defense counsel if it would be possible to bring out the apparent

inconsistency without referring to the sleepover. When defense

counsel said it would not be, the court excluded all evidence of

B.M.’s statements about the second alleged assault. The court

explained: “I do know there’s some value to that information . . .

that she got it out of the wrong timeline, but I think that it is way

more prejudicial than it is probative, so we’re not letting that in.”

B. Applicable Law and Standard of Review

¶ 12 The rape shield statute deems most evidence of a victim’s prior

or subsequent sexual conduct presumptively irrelevant. See § 18-3-

407(1); People v. Weiss, 133 P.3d 1180, 1185 (Colo. 2006). Before

such evidence may be offered at trial, it must go through a pretrial

procedure that requires a written motion, an affidavit, an offer of

proof, and if necessary, an in camera hearing on disputed facts.

§ 18-3-407(2). Such evidence is admissible only if the court finds

that it is “relevant to a material issue to the case.” § 18-3-407(2)(e).

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¶ 13 Evidence proffered under the rape shield statute is “subject to

relevancy and prejudice limitations under CRE 401 and 403.”

People v. Sims, 2019 COA 66, ¶ 45. Evidence is relevant if it has

“any tendency to make the existence of a fact of consequence more

or less probable.” People v. Hood, 2024 COA 27, ¶ 19; see also CRE

401. Relevant evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, issue

confusion, or misleading the jury. CRE 403; see also Hood, ¶ 19.

¶ 14 The district court has broad discretion to determine the

admissibility of evidence based on its relevance, probative value,

and prejudicial impact. People v. Elmarr, 2015 CO 53, ¶ 20. In

particular, the district court exercises broad discretion in balancing

the probative value of the evidence against the danger of unfair

prejudice. People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995).

¶ 15 We review a district court’s evidentiary rulings, including

under the rape shield statute, for an abuse of discretion. Hood, ¶ 6.

A district court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.

Id. In reviewing a district court’s ruling under CRE 403, we afford

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the evidence its maximum reasonable probative value and its

minimum reasonable prejudicial effect. Gibbens, 905 P.2d at 607.

C. Analysis

¶ 16 Montoya acknowledges that the rape shield statute applies to

B.M.’s statements. But he argues that the district court erred by

excluding the statements because they were relevant and material

impeachment evidence and their relevance was not substantially

outweighed by the danger of unfair prejudice. We disagree.

¶ 17 We agree with the People that the probative value of the

inconsistent statements was low. It is true that a witness’s

credibility is always relevant, particularly in a case like this one that

turned on B.M.’s account. Margerum v. People, 2019 CO 100, ¶ 12.

And one way to challenge a witness’s credibility is by impeaching

the witness with prior inconsistent statements. CRE 613. But the

statements in question do not evince any inconsistency in B.M.’s

account of the charged assault, or even when it occurred. At most,

they concern a potential inconsistency in the timing of a different

assault — one the court found no reason to believe was fabricated

based on information presented by the prosecution — in relation to

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the charged assault. Such an inconsistency would have done little

to undermine B.M.’s credibility as to the charged assault.

¶ 18 Indeed, any inconsistency in the timing of a different assault

would have been less probative than the arguable inconsistencies in

B.M.’s account of the charged assault itself, on which defense

counsel did cross-examine B.M. For example, defense counsel

elicited that B.M. (1) did not state in her interview that Montoya had

threatened her; (2) initially described the assault as a “rape”;

(3) said in her statement that Montoya “had just brushed against

[her]”; and (4) indicated in her interview that Montoya had touched

the back of her thigh, even though they were sitting down at the

time. In light of these and other subjects of cross-examination, any

incremental probative value of showing B.M. might have mixed up

the sequence of another assault would have been marginal at best.

¶ 19 On the other hand, the prejudicial effect on B.M., including

the unnecessary invasion of her privacy, would have been

substantial. See People v. Melillo, 25 P.3d 769, 776-77 (Colo. 2001)

(holding that the CRE 403 balancing test may take into account the

policy concerns underlying the rape shield statute, including “the

unnecessary invasion of privacy and emotional abuse” of the

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victim). Defense counsel conceded that, if the statements in

question were admitted, B.M.’s account of the sleepover assault

would also need to be admitted. In other words, B.M. would be

required to testify about an entirely unrelated assault as the price

of testifying about this one. That is exactly the kind of prejudice the

rape shield statute was designed to protect against. Id.; see also

People v. McKenna, 585 P.2d 275, 278 (Colo. 1978) (noting that rape

shield statute reflects policy that “victims of sexual assaults should

not be subjected to psychological or emotional abuse in court as the

price of their cooperation in prosecuting sex offenders”).

¶ 20 Montoya contends that embarrassment to the victim is not a

proper consideration under CRE 403. But Melillo held that it is.3

25 P.3d at 776 (“The substantive policy concerns underlying the

rape shield statute speak to the prejudicial nature of evidence of a

rape victim’s prior sexual conduct.”). And Pierson v. People, 2012

CO 47, does not suggest otherwise. That case simply confirms that

3 Montoya incorrectly suggests that the discussion of prejudice in

People v. Melillo, 25 P.3d 769, 776-77 (Colo. 2001), was dicta. It
was not. The court held that the defendant’s offer of proof was
insufficient under the rape shield statute precisely because “the
probative value of the proffered evidence [was] substantially
outweighed by the risk of prejudice to the victim.” Id. at 777.

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the rape shield statute does not “alter[] the required balancing of

probativeness and countervailing considerations enumerated in

CRE 403.” Id. at ¶ 14. It does nothing to call into question Melillo’s

discussion of what those countervailing considerations are.4

¶ 21 Montoya also asserts that the statements should have been

admitted under the rule of completeness to avoid giving the jury a

misleading impression of B.M.’s allegations. See CRE 106. But the

rule of completeness has limited applicability in the rape shield

context “in light of the highly prejudicial nature of evidence relating

to a rape victim’s prior sexual conduct.” Melillo, 25 P.3d at 776; see

also People v. Villa, 240 P.3d 343, 356 (Colo. App. 2009) (“The rule

of completeness does not establish in and of itself the admissibility

of evidence that is protected by the rape shield statute.”). That is

because the rule of completeness is subject to “the same

considerations of relevancy and potential prejudice” that govern

4 We note that the recent amendment to the rape shield statute

makes this point explicit, providing that evidence may be
introduced only if the court finds “that the probative value of the
evidence is not substantially outweighed by the probability that its
admission will create unfair prejudice, confusion of the issues,
misleading of the jury, or unfair invasion of the privacy of the victim
or witness.” § 18-3-407(2)(e), C.R.S. 2024 (emphasis added).

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other evidence. Melillo, 25 P.3d at 775. Thus, because the record

supports that the probative value of the proffered evidence was

substantially outweighed by the risk of prejudice to the victim, that

evidence could not be saved by the rule of completeness. Id. at 777.

¶ 22 The district court therefore did not abuse its discretion in

excluding evidence of B.M.’s purportedly inconsistent statements

concerning the order of the two alleged sexual assaults.

III. Victim Impact Evidence

¶ 23 Montoya next contends that the district court reversibly erred

by admitting a portion of the Instagram conversation between him

and the detective pretending to be B.M., in which the detective said

she had “cut a lot more” the night of the incident. Montoya argues

that this statement was irrelevant victim impact evidence and was

unfairly prejudicial because it suggested that B.M. had engaged in

self-harm as a result of the sexual assault. We again disagree.

A. Additional Background

¶ 24 Before trial, the prosecution moved to admit the entirety of the

Instagram conversation between Montoya and the detective posing

as B.M. The prosecution argued that the messages included several

admissions by Montoya that were intrinsic to the charged offense,

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as well as statements about other acts that were admissible under

CRE 404(b) and section 16-10-301, C.R.S. 2024.

¶ 25 Defense counsel objected to the entire exhibit as “overly

prejudicial” and not sufficiently probative “to overcome the

prejudicial factor.” The district court opted to walk through the

conversation page by page, allowing the parties to make objections

or arguments concerning the admissibility of particular statements.

¶ 26 At one point in the conversation, the detective (acting as B.M.)

said to Montoya, “After you touched my boob I cut a lot more that

night because it was so confusing.” Montoya responded: “If I did

anything to harm you I’m very sorry it was unintentional and I

never intentionally did anything wrong to you girls.” Defense

counsel objected to the detective’s statement as follows:

[DEFENSE COUNSEL]: [I]t may be a limiting
instruction would be appropriate, if this is
going to come in. But it does make comments
like, “assuming that he had touched her boob”
or that “she had been cutting herself.”

THE COURT: “After you touched my boob.”

[DEFENSE COUNSEL]: Yeah. It almost implies
that those are factual –

THE COURT: Implies it happened.

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[DEFENSE COUNSEL]: Yes. So that is a
concern.

¶ 27 In a written order, the district court ruled that this statement

was admissible, concluding that it was (1) intrinsic to the charged

crime because it was a direct allegation regarding the charged crime

and (2) not more prejudicial than probative because Montoya denied

the accusation. The statement was included in the copy of the

Instagram conversation that was admitted as an exhibit at trial.

B. Preservation and Standard of Review

¶ 28 We first note that Montoya did not preserve his argument that

the challenged statement constituted inadmissible victim impact

evidence. See People v. Martinez, 2020 COA 141, ¶ 33. He objected

to the entirety of the conversation as “overly prejudicial” for several

reasons, none of which included the apparent impact of the crime

on B.M. Then, he objected to the specific statement only on the

ground that it implied the embedded factual assertions — including

the assertion that Montoya had “touched her boob” — were true.

¶ 29 Montoya did not argue, as he does on appeal, that the

statement was inadmissible because it described the impact of the

crime on the victim. Thus, while Montoya preserved his general

12
objections to relevancy and unfair prejudice, he did not preserve the

specific argument that the statement in question was victim impact

evidence.5 See People v. Tallent, 2021 CO 68, ¶ 12 (“When a party

presents a new argument or alters the grounds for an objection on

appeal, the issue is forfeited and reviewable only for plain error.”).

¶ 30 We review the district court’s evidentiary rulings for an abuse

of discretion. Martinez, ¶ 25. When an evidentiary argument is

unpreserved, we will reverse only for plain error. People v. Snelling,

2022 COA 116M, ¶ 33. Plain error is “obvious and substantial”

error that “so undermined the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of the judgment of

conviction.” Hagos v. People, 2012 CO 63, ¶ 18 (citation omitted).

C. Analysis

¶ 31 We first reject Montoya’s characterization of the message sent

by the detective, posing as B.M., as victim impact evidence. Victim

impact evidence is evidence that relates to “the victim’s personal

5 Because we conclude that the district court did not abuse its

discretion in admitting the statement, the result would be the same
even if the argument was preserved. See Hagos v. People, 2012 CO
63, ¶¶ 9, 14 (explaining that preservation only affects the
“standard[] to determine whether an error in criminal proceedings
necessitates reversal of the judgment of conviction”).

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characteristics and to the physical, emotional, or social impact of a

crime on its victim and the victim’s family.” Martinez, ¶ 29 (citation

omitted). Such evidence is generally inadmissible at trial because

“the effect of a crime on a victim or the victim’s family often has no

tendency to prove whether a particular defendant committed a

particular criminal act against a particular victim.” Id. at ¶ 33

(citation omitted). The admissibility of such evidence “turns on

whether the evidence is relevant to determining whether the

defendant committed the crime for which he or she is charged.” Id.

¶ 32 The message in question said that B.M. “cut a lot more [the

night of the charged assault] because it was so confusing.” If the

statement had been made by B.M., it might be victim impact

evidence. See id. at ¶ 39 (noting that testimony was victim impact

evidence because it described the physical and emotional toll that

the alleged sexual assault took on the victim). But the evidence at

trial was unequivocal that it was not. Before the messages were

admitted, the detective explained that she was the one

communicating with Montoya, that B.M. was not involved, and that

B.M. was not privy to what was said. B.M. similarly testified that

she had never accessed the account or seen any of the messages.

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¶ 33 Nor did the evidence otherwise suggest that B.M. had in fact

cut herself the night of the assault. Although the detective testified

that she drew certain details for the conversation from B.M.’s

forensic interview — including that someone “saw all [her] cuts from

school” before the assault — she never suggested that this

statement had come from B.M. Indeed, while the statement was

included in the admitted exhibit, neither the detective nor the

prosecution ever mentioned it at all. Thus, the statement cannot

fairly be construed as describing the actual effect on the victim.

¶ 34 Instead, the statement was relevant to provide context for

Montoya’s denial — and eventual admission — of the charged

offense. Although Montoya focuses on appeal on the second part of

the statement — “I cut a lot more that night” — the primary focus

in the district court was on the first part — “[a]fter you touched my

boob.” The district court properly exercised its discretion in

concluding that this statement as a whole, together with Montoya’s

response, was relevant as direct evidence of the charged offense.

¶ 35 The district court also did not abuse its discretion by

concluding that the probative value of the statement was not

substantially outweighed by the danger of unfair prejudice. See

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Gibbens, 905 P.2d at 607. Without some factual basis for the

statement — either that B.M. had made the statement or that she

had in fact engaged in cutting after the assault — we see no reason

why it would have provoked outrage against Montoya or elicited

sympathy for B.M. See Martinez, ¶ 37. The potential prejudice

would come from the fact that B.M. had cut herself, not that a

detective told Montoya she had. And even if the statement could

somehow be construed to suggest that B.M. had engaged in self-

harm after the assault, there was other evidence — elicited by

defense counsel — that she had been doing so before the assault,

thus “blunt[ing] the prejudicial force” of the evidence. Id. at ¶ 44.

¶ 36 Finally, even if we were to conclude that the challenged

portion of the statement should have been excised, any error would

be harmless (and to the extent unpreserved, not substantial). See

Snelling, ¶¶ 32-33. The statement was one part of one message in a

sixty-six-page exhibit consisting of hundreds of messages. It was

never mentioned at trial — not in the testimony itself and not in

opening or closing. And there was no other evidence that B.M.

engaged in self-harm after the assault. See Martinez, ¶¶ 43-44

(holding that erroneous admission of victim impact evidence was

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harmless where it “constituted, at most, a few minutes of [the]

three-day trial,” “the prosecutor did not unduly highlight the victim

impact evidence,” and the victim’s history of depression and alcohol

use indicated that her “close suicidal scare” could have been caused

by factors other than the alleged sexual assault). We also “assume

the jury heeded the court’s instruction not to be influenced by

sympathy, bias, or prejudice in reaching its decision.” Id. at ¶ 44.

¶ 37 Thus, we conclude that the district court did not abuse its

discretion by admitting the challenged statement as part of the

Instagram conversation between the detective and Montoya. And in

any event, the purported error would not be a basis for reversal.

IV. Jury Instruction

¶ 38 Montoya also argues that the district court’s reasonable doubt

and elemental instructions impermissibly lowered the prosecution’s

burden of proof by telling the jury that if the prosecution failed to

prove the elements of the offense, the jury should — rather than

must — find the defendant not guilty. We are not persuaded.

A. Additional Background

¶ 39 Before trial, the prosecution submitted a proposed jury

instruction on the burden of proof that was consistent with

17
Colorado’s model jury instructions. It provided, in relevant part: “If

you find from the evidence that the prosecution has failed to prove

any one or more elements of a crime beyond a reasonable doubt,

you should find the defendant not guilty of that crime.”

¶ 40 Defense counsel objected to the instruction on the ground that

it misstated the law by suggesting that “it’s up to [the jury] if [the

People] haven’t proved the case, that they may or may not choose to

find him not guilty.” She requested that the word “should” be

changed to “must” to clarify that “[i]f the jury finds the elements

have not been proven beyond a reasonable doubt, they must return

a verdict of not guilty.” Defense counsel made the same objection to

the elemental instruction, which contained similar language.

¶ 41 The district court denied the objections, declining to depart

from the language of the model jury instructions. The court

instructed the jury regarding the burden of proof as follows:

If you find from the evidence that each and
every element of a crime has been proven
beyond a reasonable doubt, you should find
the defendant guilty of that crime. If you find
from the evidence that the prosecution has
failed to prove any one or more of the elements
of a crime beyond a reasonable doubt, you
should find the defendant not guilty of that
crime.

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¶ 42 In the elemental instruction, the district court instructed the

jury as follows:

After considering all the evidence, if you decide
the prosecution has proven each of the
elements beyond a reasonable doubt, you
should find the defendant guilty of sexual
assault on a child by one in a position of trust.

After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements beyond a reasonable
doubt, you should find the defendant not
guilty of sexual assault on a child by one in a
position of trust.

B. Applicable Law and Standard of Review

¶ 43 The United States Constitution “protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged.” In

re Winship, 397 U.S. 358, 364 (1970). Thus, the jury must be

instructed that “it may return a guilty verdict only if sufficient proof

has been submitted to satisfy the [beyond a reasonable doubt]

standard.” People v. Munoz, 240 P.3d 311, 316 (Colo. App. 2009).

An instruction that lowers the prosecution’s burden of proof

constitutes structural error. Tibbels v. People, 2022 CO 1, ¶ 22.

19
¶ 44 We review de novo whether the district court correctly

instructed the jury, including whether its instructions lowered the

prosecution’s burden of proof. Id. In conducting this review, “we

ask whether there is a reasonable likelihood that the jury applied

the contested instruction in an unconstitutional manner.” Johnson

v. People, 2019 CO 17, ¶ 14. We do not consider jury instructions

in isolation but in the context of the instructions as a whole. Id.

C. Analysis

¶ 45 A division of this court has previously rejected the argument

Montoya makes in this case. Munoz, 240 P.3d at 317-19. In

Munoz, the defendant argued, as Montoya does here, that the word

“should” in the reasonable doubt and elemental instructions

lowered the prosecution’s burden of proof by leaving a not guilty

verdict to the jury’s discretion. Id. at 317. The division rejected

that argument, concluding that “the common meaning of ‘should’

conveys an obligatory command and not a permissive request and

. . . adequately informed the jury of its obligation to adhere to the

reasonable doubt standard in deciding defendant’s guilt.” Id.

¶ 46 We find Munoz persuasive and see no reason to depart from it.

Montoya argues that Munoz is wrong because (1) its conclusion that

20
the word “should” conveys an obligatory duty was grammatically

incorrect; (2) the out-of-state cases on which it relied were

unpersuasive; and (3) its rationale for distinguishing sentencing

guideline cases construing “should” as permissive was misplaced.

We have considered these arguments but conclude they do not

undermine Munoz’s overarching holding that the word “should” in

this context “properly instructed the jury that it was obligated to

find defendant not guilty if the prosecution failed to prove

defendant’s guilt beyond a reasonable doubt.” Id. at 318.

¶ 47 Montoya also argues that Munoz is distinguishable because

the jury in that case received a separate instruction that it “will find

the defendant not guilty” if the prosecution did not meet its burden

of proof. Id. But that instruction was not essential to the division’s

conclusion; it was simply one additional factor to support that

conclusion. Id.; see also People v. Waller, 2016 COA 115, ¶ 72

(holding that “use of the term ‘should’ . . . is no less obligatory than

the use of the word ‘will’ in the reasonable doubt instruction”). And

another instruction the Munoz division cited as support — that the

jurors “must follow all of the rules” as explained by the court —

was given in this case when the jury was told that its “decision

21
must be made by applying the rules of law that [the court] give[s] it

to the evidence presented at trial.” See Munoz, 240 P.3d at 318.

¶ 48 Moreover, the jury in this case was instructed that “[e]very

person charged with a crime is presumed innocent” and that “this

presumption of innocence remains with the defendant throughout

the trial and should be given effect by you unless, after considering

all of the evidence, you are then convinced that the defendant is

guilty beyond a reasonable doubt.” The necessary corollary of this

instruction is that if the jury was not convinced the defendant was

guilty beyond a reasonable doubt, he would be presumed innocent

and, consequently, must be found not guilty.

¶ 49 Thus, reading the challenged jury instructions in the context

of the instructions as a whole, we conclude that there is no

reasonable likelihood that the jurors “interpreted the word ‘should’

to mean that they could base their decision on their own discretion

or that they were free to find defendant guilty even if the

prosecution did not meet its burden of proof.” Id. at 318-19.

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V. Cumulative Error

¶ 50 Finally, because we have concluded there was no error at trial,

we reject Montoya’s argument that cumulative error deprived him of

a fair trial. See Howard-Walker v. People, 2019 CO 69, ¶ 25.

VI. Disposition

¶ 51 The judgment is affirmed.

JUDGE FOX and JUDGE JOHNSON concur.

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