Peo v. Woodruff

22CA1728 Peo v Woodruff 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1728
Douglas County District Court No. 20CR422
Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jennifer Lea Woodruff,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division V
Opinion by JUDGE FREYRE
Grove and Lum, JJ., concur

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

Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General
Fellow, Denver, Colorado, for Plaintiff-Appellee.

Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant.
¶1 Defendant, Jennifer Lea Woodruff, appeals her judgment of

conviction following jury verdicts finding her guilty of reckless

vehicular homicide, third-degree assault, reckless endangerment,

and reckless driving. We reverse and remand for a new trial.

I. Background

¶2 According to the trial evidence, on February 19, 2020,

Woodruff drove herself and the deceased, coworker Christopher

Roberts, from Colorado Springs to Westminster for a work

conference. Both were teachers at Zebulon Pike Youth Services

Center and were required to attend the conference the next day.

The two were co-teachers, and Roberts had just returned to work

that day from an emergency gallbladder surgery and asked

Woodruff for a ride to the conference.

¶3 Woodruff drove a white Jeep north on I-25 and recalled drizzle

changing to snow as she approached Monument Hill. Her last

memory was of slowing down due to the weather, and her next

memory was awakening in a hospital.

¶4 Several witnesses reported seeing a white Jeep approaching

from behind them at a high rate of speed. This area of the highway

was under construction and reduced to two lanes of traffic.

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Witnesses described the Jeep weaving between cars and nearly

striking them, while others moved to avoid being hit. The Jeep

maintained a constant speed of approximately 100 miles per hour

and sometimes straddled the center line between the two lanes.

¶5 The Jeep eventually struck the right rear corner of Joseph

Medina’s truck, causing the truck to spin out and pinball between

the barriers on either side of the highway. Medina heard tires

screeching and saw the Jeep approaching quickly from behind

before hitting him. He suffered minor injuries from the accident.

The Jeep hit a crash cushion, flipped, and flew over several cars. It

hit the guardrail, which ripped off the roof, and landed upside down

on the road.

¶6 After the crash, witnesses cut Roberts’s seatbelt and removed

him from the Jeep. Paramedics declared him dead at the scene.

Woodruff was transported to the hospital where she was treated for

a severe head injury. Trooper Botts interviewed Woodruff at the

hospital, but she had no memory of the crash. Blood test results

confirmed there were no drugs or alcohol in Woodruff’s system. She

suffered serious injuries, including a traumatic brain injury. She

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remained in the hospital for six days and then was transferred to a

rehabilitation facility for five days.

¶7 The prosecution charged Woodruff on April 22, 2020, and she

was released on bond the next day. Two months later, Woodruff

sought an explanation for her driving behavior and amnesia of the

accident. Her sister Cindy1, a registered nurse, referred her to a

vascular neurologist, Dr. Mihaela Alexander. Dr. Alexander

obtained a medical history from Woodruff and Cindy and conducted

preliminary tests to rule out epilepsy and any cardiac condition.

Woodruff’s medical history revealed that she had experienced

syncope (fainting) events throughout her life. These events were

triggered by medical procedures and gore. But rather than going

limp when she lost consciousness, Woodruff’s body stiffened and

convulsed, a condition called vascular vagal convulsive syncope.

The body movements caused by convulsive syncope are often

mistaken for a seizure.

1 We refer to Cindy using her first name because she shares the

same last name as Woodruff, and we mean no disrespect in doing
so.

3
¶8 Woodruff said Roberts spoke of his gallbladder surgery before

the accident. Based on the negative test results, the absence of

medications in Woodruff’s system and Woodruff’s complete amnesia

of the crash, Dr. Alexander opined that Woodruff likely experienced

a vasovagal syncope event triggered by Roberts’s mention of his

gallbladder surgery. Dr. Alexander recommended further epilepsy

testing and referred Woodruff to a neurologist with an epilepsy

specialty, Dr. Rick Clemmons.

¶9 Dr. Clemmons ordered a 48-hour epilepsy test that was also

negative. Like Dr. Alexander, he opined, based on her medical and

family history (Woodruff’s father suffered from severe vasovagal

syncope), as well as the test results, that Woodruff experienced a

convulsive syncope event. As a precautionary measure, he

prescribed a low dose of an anti-seizure medication and advised

her, according to the standard protocol, not to drive for three

months.

¶ 10 At trial, the prosecution introduced the testimony of witnesses

who described the highway and weather conditions, the excessive

speed at which the Jeep was travelling, and its weaving around cars

up to the crash. One witness described Woodruff sitting upright

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with her hands at ten and two and the passenger with his back

turned as if he was arguing with the driver.

¶ 11 Trooper Trent Waters testified as an expert in crash

investigation and reconstruction. After ruling out any mechanical

defects with the Jeep, he analyzed data from the Jeep’s “black box”,

which contained speed, steering movements, and braking data for

the five seconds before the crash. He then fed the information into

a software program that produced an animation of the crash. The

data revealed steering wheel movement consistent with weaving, a

depressed accelerator, no application of the brakes, and a speed of

over one hundred miles per hour at the time of the crash. He

opined that the crash was caused by Woodruff “intentionally driving

her vehicle in excess of the posted speed limit of 45, traveling at

103-106 miles per hour, while steering, to avoid traffic and

maneuver in and out of traffic.”

¶ 12 The prosecution charged Woodruff with reckless vehicular

homicide, third degree assault, reckless endangerment, and

reckless driving. The prosecutors argued that Woodruff enjoyed

driving fast, weaved in and out of cars while speeding, and

recklessly sped through a construction zone and caused the

5
accident. They questioned her amnesia of the event and argued

that she saw the neurologists and created the vasovagal syncope

defense only after she had been charged with the crimes. Woodruff

argued that a convulsive syncope event caused her to lose

consciousness, explained why the brakes were never applied, and

explained why she had no memory of the crash. The jury convicted

her as charged.

¶ 13 The trial court found extraordinary mitigating circumstances

and sentenced Woodruff to one year in the custody of the

Department of Corrections for reckless vehicular homicide, and to a

concurrent one year in jail for third degree assault. The court

merged the remaining counts into the vehicular homicide

conviction.

¶ 14 Woodruff challenges her convictions on four grounds,

asserting the trial court erroneously: (1) precluded the admission of

a prior inconsistent statement; (2) permitted repeated prosecutorial

misconduct; (3) permitted Trooper Waters to opine on her intent at

the time of the crash thereby usurping the jury’s role; and (4)

instructed the jury using a civil jury instruction taken from 1970s

civil cases. She also asserts cumulative error.

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¶ 15 Because we agree that the court erred in refusing to admit

Woodruff’s prior inconsistent statement, a key component of her

defense, we reverse her convictions and remand for a new trial.

Additionally, we address those portions of her prosecutorial

misconduct argument directly related to that statement that

contributed to the error’s reversal. Finally, because they are

unlikely to arise in the same context on remand, we do not address

her expert and instructional allegations.

II. Prior Statement

¶ 16 Woodruff contends that the trial court erroneously precluded

(as self-serving hearsay) the admission of her statement to her

sisters, shortly after the accident, that Roberts had mentioned his

gallbladder surgery before the crash. She argues that this

evidentiary error, when combined with pervasive prosecutorial

misconduct that denigrated the defense and asserted that it was

largely a fabrication, denied her a constitutionally fair trial. We

agree.

A. Additional Facts

¶ 17 While Woodruff was still hospitalized, Cindy pushed her to

recall what had caused the crash. While Woodruff could not

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remember the crash itself, she told Cindy and Lisa Tsiao (another

sister) that Roberts had said something about his gallbladder

surgery before the crash.

¶ 18 During direct examination, defense counsel asked Tsiao

whether she had any conversations with Woodruff about what

happened. As Tsiao responded, the prosecutor objected as

self-serving hearsay. The court allowed the question and Tsiao

said, “[s]he said that she didn’t remember the actual accident. I

asked her – tried to draw out from her what was going on, and she

said that they were talking about Chris’s gallbladder surgery, I

guess; that he had a drain.”

¶ 19 The prosecutor again objected as self-serving hearsay, and the

court sustained the objection.

¶ 20 Counsel next attempted to elicit the statement from Cindy in

the following colloquy:

DEFENSE COUNSEL: What was the next
question you asked her?

CINDY: I asked her – it’s what she said. She
continued on with that. And I said, “Do you
remember anything else?” And she answered.
I don’t know if I can say what she said.

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DEFENSE COUNSEL: Did she tell anything
about a conversation she had with Mr.
Roberts?

¶ 21 The prosecutor objected and argued that Cindy’s answer called

for hearsay. The court sustained the objection and instructed

Cindy that she could answer the question without revealing the

conversation. Cindy answered, “Yes, she did.” Counsel asked the

court if he could elicit the statement. At a bench conference,

counsel argued that the prosecution had asked another witness,

Trooper Botts, whether Woodruff had volunteered information about

the crash. He wanted to establish that Woodruff would have

responded with this information. The prosecution objected as

self-serving hearsay, and the court sustained the objection.

¶ 22 Woodruff testified that she remembered nothing about the

accident. On cross-examination by the prosecutor, she said she did

not remember what Roberts said before the accident. Following the

doctors’ testimony, defense counsel asked to recall Cindy to elicit

the statement as a prior inconsistent statement, and the court

refused the request.

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B. Standard of Review and Applicable Law

¶ 23 We review a trial court’s evidentiary rulings for an abuse of

discretion. Russell v. People, 2017 CO 3, ¶ 5. A trial court abuses

its discretion when it misapplies the law or when its ruling is

manifestly arbitrary, unreasonable, or unfair. People v. Baker, 2021

CO 29, ¶ 29. A trial court’s exclusion of a witness’s prior

inconsistent statement is reviewed for nonconstitutional harmless

error. People v. Salas, 2017 COA 63, ¶ 32. An error of

nonconstitutional dimension is prejudicial when there is a

reasonable probability that it contributed to a defendant’s

conviction by substantially influencing the verdict or impairing the

fairness of the trial. People v. Casias, 2012 COA 117, ¶61.

¶ 24 Hearsay is “a statement other than the one made by the

declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted.” CRE 801(c). Hearsay

evidence is inadmissible unless it fits one of the exceptions

identified in the Colorado Rules of Evidence. See CRE 803, 804. A

statement is not hearsay if the declarant testifies at the trial and is

subject to cross-examination concerning the statement and the

statement is inconsistent with their testimony. CRE 801(d)(1)(A). If

10
a witness does not remember a prior statement, the statement is

admissible as a prior inconsistent statement. People v. Thomas,

2014 COA 64, ¶ 20; People v. Baca, 633 P.2d 528, 529 (Colo. App.

1981).

¶ 25 Section 16-10-201(1), C.R.S. 2024 permits the use of a prior

inconsistent statement to prove the truth of the matter asserted so

long as the statutory foundational requirements for substantive

admissibility have been satisfied. Montoya v. People, 740 P.2d 992,

998 (Colo. 1987). A prior inconsistent statement is admissible to

impeach a witness’s testimony and to establish a fact if the witness

(1) was given an opportunity, when testifying, to explain or deny the

statement; or (2) is still available to give further testimony in the

trial. § 16-10-201(1)(a); see also Thomas, ¶ 20 (if a witness does not

remember a prior statement, the statement is admissible as a prior

inconsistent statement).

¶ 26 Colorado law contains no categorical bar to the admission of a

defendant’s self-serving hearsay statements. See People v.

Vanderpauye, 2023 CO 42, ¶ 4. Accordingly, if the proffered

statement meets an exception to the hearsay rule, it may be

admitted, subject to CRE 403. See id. at ¶ 28.

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C. Analysis

1. The Error

¶ 27 To begin, no one disputes that Woodruff’s statement to her

sisters was an out-of-court statement offered for its truth.

Nonetheless, we conclude that the trial court abused its discretion

by excluding Woodruff’s statement as self-serving hearsay and that

it should have been admitted as a prior inconsistent statement.

The record shows that Woodruff recalled no details of the crash or

the specifics of her conversation with Roberts immediately before

the crash. While counsel initially sought the statement’s admission

to show what she would have told Trooper Bott if asked, following

Woodruff’s inability to recall making the statement, he then sought

to admit it as a prior inconsistent statement by recalling Cindy to

testify. Therefore, we reject the People’s argument that Woodruff’s

purpose in admitting the statement was “not for impeachment.”

¶ 28 Woodruff’s testimony that she could not recall her prior

statements amounted to a denial that she made them and thus,

constituted an inconsistent statement. Thomas, ¶ 20. Therefore,

the trial court erred when it precluded counsel from admitting the

12
statements through Cindy, who was available to give further

testimony. § 16-10-201(1)(a).

2. The Remedy

¶ 29 Having concluded an error occurred, we must determine

whether it requires reversal. The People assert the error was

harmless and argue that the prosecution presented overwhelming

proof of Woodruff’s guilt through the accident reconstruction

expert’s testimony about the black box data, which showed

accelerator pressure from full throttle to 66% throttle and steering

variations from two degrees left to thirty-five degrees right, thereby

proving the driver was in control of the Jeep. They further argue

that this data was consistent with the witnesses who observed

Woodruff’s driving and with the expert’s opinion that Woodruff’s

driving was intentional.

¶ 30 Woodruff contends the statement, and particularly its timing,

was crucial to her defense and that the court’s error deprived her of

a full and fair defense. We need not decide whether the statement

alone requires reversal because even assuming the error was

harmless, we conclude, consistent with Woodruff’s final argument,

that the cumulative error in precluding this statement and the

13
numerous unpreserved instances of prosecutorial misconduct

specifically related to it substantially influenced the verdict and

affected the outcome of the trial. Hagos v. People, 2012 CO 63,

¶ 12.

¶ 31 Cumulative error is a question of law that we review de novo.

Howard-Walker v. People, 2019 CO 69, ¶ 22. “We will reverse for

cumulative error where, although numerous individual allegations

of error may be deemed harmless and not require reversal, in the

aggregate those errors show prejudice to the defendant’s

substantial rights and, thus, the absence of a fair trial.” People v.

Gallegos, 260 P.3d 15, 28-29 (Colo. App. 2010); Howard-Walker, ¶

23.

¶ 32 Cumulative error occurs when “there is a ‘unique symmetry’ of

otherwise harmless errors, such that they amplify each other in

relation to a key contested issue in the case.” Ybarra v. McDaniel,

656 F.3d 984, 1001 (9th Cir. 2011); see also Parle v. Runnels, 505

F.3d 922, 930 (9th Cir. 2007) (reversing for cumulative error and

finding “[a] unique and critical thread runs through the trial errors

in this case: all of the improperly excluded evidence . . . supported

[the defendant’s] [state of mind] defense . . . at the same time, all of

14
the erroneously admitted evidence . . . undermined [his] defense

and credibility and bolstered the State’s case”).

¶ 33 We begin with Woodruff’s defense. She never disputed the

black box data and instead, argued that the acceleration and

steering fluctuations were equally consistent with her having

experienced a convulsive vasovagal syncope event and with Roberts

grabbing the steering wheel when she lost consciousness. She also

argued that the data showing the brakes were never applied

supported a syncope event. She argued there was no reason for her

to have driven recklessly given the weather conditions, and that the

only reasonable explanation for her driving behavior and inability to

remember what happened was the convulsive vasovagal syncope

event.

¶ 34 We find reversible error for two reasons.

¶ 35 First, the prosecution relied heavily on the timing of

Woodruff’s claim that she suffered a medical event as evidence of

her guilt in closing argument. In the first closing, the prosecutor

argued that Woodruff had no memory of the gallbladder story at the

hospital, and that “[t]hen, with Dr. Clemmons, we get the

gallbladder story that she didn’t tell the other doctor, Dr.

15
Alexander.” He then said, “[I]n front of you, [] she had no memory

of ever, ever hearing a gallbladder story. Now that is some

select[ive] memory. That certainly conforms to the doctor’s report

but allows her not to comment on it here. And she went to these

doctors to create a defense. She testified for you to bolster that

defense.”

¶ 36 Later, the same prosecutor conceded that Dr. Clemmons said

it was likely Woodruff experienced a syncope event, and then

argued, “But what did he base that on? The gallbladder story, the

description of the gallbladder. He said that was key to his

diagnosis, that trying to remember was key, that gallbladder story

that she did not remember after the crash, that she remembered only

conveniently after making appointments with doctors, after being

charged in this case, that she conveniently did not remember in her

testimony ever saying during the trial.”

¶ 37 During rebuttal closing, a different prosecutor urged the jury

to remember what it heard from witnesses versus the lawyers. He

then said, “And, boy, is that true in this case, ladies and gentlemen

because you have heard the references to gallbladder surgery and

vasovagal syncope a lot in the last four days. Because defense

16
counsel says it often enough, all of a sudden it becomes true. And

that’s just not supported by the evidence.” He followed by saying,

“. . . things that counsel asserts that simply aren’t supported by the

evidence; that Chris was talking about his gallbladder surgery at the

time of the crash. Did a single witness, including the defendant, say

that’s what happened? No. You swore to base a decision on the

evidence. There’s none. The defendant fainted. There’s actually no

evidence that happened here.”

¶ 38 The prosecutor then argued, “. . . the defendant has a

previously undiagnosed medical condition. Still not sure whether

it’s really a fainting disorder or seizure disorder or something else,

so we’ll call it a fraser.” He later argued, “A fraser disorder, for

which there is no objective medical evidence, all of her testimony is

gone. All of it. That she’s never sought treatment for or been

diagnosed with it before, before she was charged with this crime,

never, until coincidentally, about two months after she is charged

with vehicular homicide, she goes to a doctor, frankly.” He then

argued, “Because one option you have is that is not a thing; that

she doesn’t have a tendency to have seizures, this is fabricated by

the defense, or by the defense witnesses.”

17
¶ 39 Second, numerous instances of unpreserved prosecutorial

misconduct during opening statements and closing arguments

specifically related to the medical evidence and the defense’s theory

contributed to the prejudice, including:

• The prosecutor’s assertion that the sisters’ testimony was very

consistent and described Woodruff’s syncope as her going

“limp” when the record shows that both sisters described

Woodruff’s syncope events as convulsive and with her body

stiffening. See People v. Fierro, 651 P.2d 416, 417-18 (Colo.

App. 1982) (a prosecutor may not misrepresent the facts to the

jury).

• The prosecutor’s characterization of convulsive vasovagal

syncope as a “fraser” when the unrefuted medical testimony

ruled out a seizure disorder and established vasovagal syncope

as Woodruff’s medical diagnosis. Id.

• The prosecutor’s argument that Dr. Clemmons was the only

witness to whom Woodruff mentioned Roberts’s gallbladder

statement when the record shows that Dr. Alexander knew of

and considered this fact and when the prosecutor knew she

had said the same to her sisters at the hospital. Id. (improper

18
to misstate facts and for a prosecutor to make arguments in

closing he knows is refuted by evidence he sought to exclude).

• The prosecutor’s description of Dr. Alexander’s testing and

concluding, “That doesn’t make me feel good in the medical

diagnosis.” See People v. Walters, 148 P.3d 331, 334 (Colo.

App. 2006) (misconduct for a prosecutor to refer to facts not in

evidence or make statements reflecting his personal opinion or

personal knowledge).

• The prosecutor’s description of the people he encounters in his

work saying, “I want to give you another saying, and I can’t

actually figure out who this is ascribed to, but it’s [not]

important. ‘Don’t expect a rational reason for an irrational

act.’ You know, unfortunately, the business that I am in as a

prosecutor deals with a lot of people who do a lot of terrible

things. And a lot of times they regret it afterward. And they

almost never have a good reason to do it. People do stupid

things. People do stupid things they regret later. People do

stupid things they don’t remember later – I’ve got a few

younger people here on the jury – but that doesn’t mean that

at the time they’re doing it they didn’t know they were doing

19
it.” See id. (personal opinions improper); Domingo-Gomez v.

People, 125 P.3d 1043, 1049 (Colo. 2005) (noting that

improper assertions of personal knowledge carry much weight

against an accused when they should carry none).

• The prosecutors’ characterization of the defense theory as an

“attempt[] to dodge responsibility for his death,” and “an insult

to [Roberts]”; as “requiring incredible mental gymnastics”; as

“a story only told by defense counsel”; as a “façade”; as

requiring “flights of fancy to buy”; as “baffling”; as “ridiculous”;

the prosecutor’s description of her condition as a “special kind

of unconsciousness”; his description of defense counsel’s

demonstration of what could have occurred during the

syncope event as “distracting performance art”; and the

prosecutor’s argument that to acquit Woodruff, the jury had to

“believe her story,” followed by a series of events comprising

that story, and concluding with, “And ladies and gentlemen, if

you believe that, I’ve got some ocean front property in Arizona

to sell you. That’s silly.” See People v. Denhartog, 2019 COA

23, ¶ 52 (misconduct for prosecutor to make remarks

denigrating the defense); People v. Trujillo, 2018 COA 12, ¶ 44

20
(misconduct to call defense arguments “completely ridiculous”

and “preposterous”); People v. Coria, 937 P.2d 386, 388, 391

(Colo. 1997) (prosecutor’s references to “Theatrics 101,”

“smoke and mirrors,” and “diversionary tactics” are

misconduct when used to attack or mock defense counsel);

People v. Jones, 832 P.2d 1036, 1038 (Colo. App. 1991)

(misconduct to call defense theory “insulting”); United States v.

Reed, 724 F.2d 677, 681 (8th Cir. 1984) (misconduct for

prosecutor to argue that to acquit the defendant the jury had

to find the defendant was telling the truth and all the

government witnesses were lying because it was a distortion of

the government’s burden of proof); People v. Scheidt, 526 P.2d

300, 302 (Colo. 1974) (misconduct to argue that mental

condition defense was a “miscarriage of justice”).

¶ 40 We conclude that the cumulative effect of the court’s

evidentiary error and the numerous instances of prosecutorial

misconduct related to it and to Woodruff’s theory of defense

substantially influenced the verdict and affected the outcome of the

trial. Accordingly, we reverse Woodruff’s convictions and remand

the case for a new trial.

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¶ 41 While we need not address the remaining allegations of

prosecutorial misconduct, we caution counsel against using

analogies in arguing the evidence as they may alter or lower the

burden of proof. People v. Cuellar, 2023 COA 20, ¶ 68. Similarly,

we caution the court against using jury instructions crafted from

case law. See People v. Espinosa, 2020 COA 63, ¶ 15, n.1 (“[W]e

agree with Espinosa that crafting jury instruction language by

quoting from case law is ‘generally an unwise practice,’” and“is

particularly risky when the language from which the jury

instruction is crafted does not come from a case involving a jury

instruction issue.”) (citing Evans v. People, 706 P.2d 795, 800 (Colo.

1985)); People v. Chirico, 2012 COA 16, ¶¶ 10-15 (finding error in

instructing jury using a presumption instruction from a defense of

property case in a self-defense case).

III. Disposition

¶ 42 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE GROVE and JUDGE LUM concur.

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