Peo v. Johnson

19CA0768 Peo v Johnson 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0768
Arapahoe County District Court No. 18CR1540
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Raeaje Resshaud Johnson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE FREYRE
Lipinsky and Berger*, JJ., concur

Prior Opinion Announced October 13, 2022, Reversed in 22SC852

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

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, 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 This case returns to us on remand from the supreme court in

People v. Johnson, 2024 CO 35, and following a remand to the

district court for step-three findings under Batson v. Kentucky, 476

U.S. 79 (1986).

¶2 Defendant, Raeaje Resshaud Johnson, appeals numerous

convictions stemming from a domestic violence incident. He

challenges his convictions on four grounds and alleges that the trial

court erroneously (1) denied his Batson challenge; (2) failed to

instruct the jury on self-defense; and (3) permitted the prosecutor to

engage in misconduct.1 Because none of Johnson’s arguments

warrant reversal, we affirm.

I. Background

¶3 Johnson and the victim were in a romantic relationship,

despite an April 2018 protection order that precluded him from

contacting her. On May 19, 2018, the two made dinner plans for

nine p.m. at the victim’s apartment. Johnson arrived late and

intoxicated at one a.m.

1 Johnson also challenged the admissibility of the generalized

expert’s testimony, and his challenge was rejected in People v.
Johnson, 2022 COA 118, rev’d on other grounds, 2024 CO 35.
1
¶4 The victim let Johnson inside and angrily accused him of

cheating on her. The argument became physical when the victim

scratched and punched Johnson, and Johnson took her to the

ground. The victim eventually pushed Johnson out of the

apartment and closed and locked the door. They continued yelling

through the door, while Johnson pounded on it. Ultimately,

Johnson kicked the door open. He grabbed the victim, threw her to

the floor, grabbed her by her hair, and threw her onto a couch. He

then slapped her with an open hand. The victim scratched and bit

Johnson to get away, fled the apartment, and called 911. She

watched Johnson throw some of her personal property from her

apartment’s third floor balcony to the parking lot. Fearing Johnson

would come to the parking lot, the victim drove Johnson’s car from

the parking lot and met the police at a nearby intersection.

¶5 The victim told the police about the altercation, but Johnson

was gone by the time the officers reached the apartment. An officer

encountered Johnson while en route to another call and arrested

him. Johnson had the victim’s keys at the time of arrest.

2
¶6 The People charged Johnson with first degree burglary, third

degree assault, four counts of violation of a probation order, two

counts of violation of bond conditions, witness tampering, and

attempting to influence a public servant. A jury acquitted him of

attempting to influence a public servant but convicted him of the

remaining charges. The trial court sentenced him to three years in

the custody of the Department of Corrections, followed by a

four-year sentence to probation.2

II. Batson Challenge

¶7 Johnson first contends that the trial court erroneously denied

his Batson challenge to Juror M, the only Black juror on the panel.

He argues that the court erred at several points in Batson’s

three-step inquiry for evaluating claims of racial discrimination in

jury selection. During the remand hearing, the trial court reviewed

the record and issued a thorough written order containing step-

2 Johnson also alleged that his sentence to probation following the

completion of his Department of Corrections sentence was illegal.
But this court granted his request for a limited remand, and the
trial court corrected his sentence, so that issue is now moot.
3
three Batson findings. Johnson contends that order insufficiently

supports the court’s ruling. We are not persuaded.

A. Additional Facts

¶8 Before jury selection, all potential jurors completed a written

questionnaire. As relevant here, question number eight asked,

“Have you, a member of your family, or a close friend had a

particularly good or bad experience with a police officer? If yes,

describe.” Juror M responded, “Yes. Many cases where cops are

disrespectful due to certain racial identities.” Additionally, question

number ten asked, “Do you believe there is any reason why you

cannot be a fair and impartial juror?” Juror M responded, “No. I

would be great.”

¶9 During voir dire, the prosecutor asked the jurors about alcohol

use and its role in domestic violence. One juror explained his belief

that alcohol causes an intoxicated person to act like a different

person than their sober self. The prosecutor followed up by asking,

“So, do you think that if you heard evidence that someone had

assaulted another person, and that they were drunk when they did

4
it, . . . in your mind would that person be less responsible than if

they were sober?” The juror responded no.

¶ 10 The prosecutor then asked Juror M the same question, and

the following colloquy occurred:

JUROR M: Just kind of what he said, as well
because, you know, if domestic violence is still
happening sober, and it just worsens when
there is alcohol involved, they are both still
responsible. Like, if it doesn’t happen, and
then there is alcohol involved now, that
might — I don’t know — trigger the domestic
violence or whatever.

PROSECUTOR: Okay. What if you were told
that you were not going to know about
anything in the past, and you had to look at
what happened right here? Would that be
difficult for you?

JUROR M: Yeah, definitely.

PROSECUTOR: Okay. So understanding we
all want to know everything about the whole
context, but . . . when it’s a criminal trial, you
get to hear about what happened on this day.
Would you be able to look at something in
isolation and not wonder or speculate about
things that happened before if you were given
the law that told you that you had to do it?

JUROR M: I mean, I will definitely wonder, but
I’ll try to think of the present.

5
¶ 11 Neither the prosecutor nor defense counsel questioned Juror

M about her responses to questions eight and ten on the

questionnaire.

¶ 12 Later, the prosecutor used a peremptory strike to excuse Juror

M, and defense counsel raised a Batson challenge:

DEFENSE COUNSEL: Judge, I’m raising
Batson as to [Juror M] . . . . [S]he is the only
juror that was in the presumptive panel that
looked to be of African-American in nature and
ethnically speaking.

Additionally, . . . I guess that I am alleging a
case of racial prejudice and racial bias.

PROSECTUOR: I guess as a threshold question
this is tantamount to an accusation of picking
jurors based on race.

I think it is clear based on her questionnaire
alone — [Juror M] talked about how law
enforcement was disrespectful. She talked
about how people of different races were
treated differently in her experience with law
enforcement. She also talked a lot about how
she would want to know about the past, and
it’s a matter of wondering, and how the past is
relevant in terms of talking about domestic
violence. I think because of her answers in her
questionnaire, there is more than enough
reason for the People to have dismissed her.

DEFENSE COUNSEL: I have [Juror M’s]
questionnaire in front of me. She says that
she is a member of the Black Students
6
Alliance. She says that in her answer to
question eight that there are many cases
where police officers are disrespectful to
certain people due to their racial identities.

It’s clear, based on her questionnaire, that
she’s experienced racism in the past. I believe
she’s experiencing racism as a juror by taking
her off this panel for Mr. Johnson, who is an
African-American male.

I saw nothing she said to the [prosecutor] or to
me during our jury selection that would
indicate that she would not be fair to the
Prosecution. It’s quite the opposite. She
actually mentioned things that would perhaps
be prejudicial to Mr. Johnson, and that she
understood why people would make things up
in a domestic violence case.

She was agreeing with the woman who was
sitting next to her, saying the same things, and
that person just happens to not be
African-American, so I am alleging a case of
purposeful discrimination.

THE COURT: You said that she said the same
things as a juror sitting right next to her?

I assume you are referring to Juror No. 5, and
I don’t recall at all, in terms of [Juror M’s]
comments about wanting to know what
happened in the past.

So are there different statements that you are
saying they had similar remarks regarding?

DEFENSE COUNSEL: Yes. So she was
essentially saying that she was agreeing with
7
the juror next to her that . . . domestic violence
cases are complicated, and that she would
perhaps want to hear a broader picture of
what happened.

And then instead of questioning her further
and perhaps trying to establish a challenge for
cause or something like that, [the prosecutor]
actually said — but you know, you are okay
with not knowing those things, and the juror,
essentially agreed with her.

Based on what everybody else said, I don’t
think that there is — this juror stands out or
she was saying anything negatively about [the
prosecution’s] case.

THE COURT: Follow-up from the People.

PROSECUTOR: Your honor, if the Court
remembers at that point we were talking about
when I made a caveat and explained the
charges in this case — the evidence you are
going to hear based only on the charges in this
case, and you don’t get to hear about what
happened; and that’s because it’s about the
charges here today, that was in response to
[Juror M’s] statement, and I asked her if that
was going to be a problem for her, and she
said that I would want to know about the past,
and it’s a matter of wondering, and that was in
the context of wanting to know about how to
assess credibility.

This is a domestic violence situation and
whether or not the victim would be telling the
truth in the context of two stories, one on the
scene and one later, there was — the

8
motivation — the decision to dismiss this juror
has nothing to do with race.

¶ 13 The trial court confirmed that Juror M was the only person

among the first twenty-five jurors who appeared to be Black but

then found, based on “the totality of the facts presented,” that

Johnson had not established a prima facie case of discrimination at

step one. Nevertheless, the court said that, even if a prima facie

case had been established, the prosecutor satisfied her burden at

step two by offering a race-neutral justification for the strike:

THE COURT: My point is the People’s offered
explanation is race neutral, and that is that
[Juror M] has experience with — in her
perception, that law enforcement has,
themselves, discriminated against people,
based on their racial or ethnic identity, and
this case clearly involves Mr. Johnson, an
African-American man and law enforcement,
and the fact that credibility of witness is
always an issue, and you have law
enforcement dealing with African-American
citizens, raises the question for the
Prosecution of whether she can be fair.

Admittedly, her statement on the jury
questionnaire later says she can be fair, but
the People have offered an adequate race
neutral reason for exercising that peremptory
challenge.

In that case, then, the third step the Court
must go to is decide whether the opponent of
9
the strike has proved purposeful racial
discrimination, and in that case, I cannot find
that the Defense has met that burden.

So the Court will deny the challenge under
Batson as to the peremptory challenge of
[Juror M].

And then, with that, we will bring our jury
back in.

PROSECUTOR: And, Your Honor, may I just
briefly supplement the record?

THE COURT: Yes.

I’m sorry you mentioned, and I considered this
in my decision, her answer regarding your
questions that related to domestic violence,
and she volunteered she would want to know
about things that happened before.

I note that she ultimately said she would be
able to follow the instruction that she might
not know; that she would wonder, but she
couldn’t consider it.

But go ahead with your record.

PROSECUTOR: Thank you.

I have a couple of additional things. First, I
want to note and importantly in this case, as
this is a domestic violence case, and the
named victim in this case in African-American.
I think that is incredibly important.

The second thing I want to note, . . . [w]hen
looking at my notes and making a decision, I
am looking at the notes taken by my
10
co-counsel. It was absolutely not readily
apparent that [Juror M] was African-American,
and I just want that to be supplemented on the
record, because on appeal these types of
observations are not necessarily apparent.

THE COURT: Thank you.

DEFENSE COUNSEL: And Judge, I’m sorry, I
need to supplement that.

[Juror M] says that she is a member of the
Black Students Alliance. She identifies as
black, obviously. She looks black to me. I
spoke with my co-counsel, and he agreed with
me.

For all intents and purposes, she appears to be
African-American, and she also identifies that
way, and so I object to any characterization
that she is not — she could be of mixed race,
and that is fair, but she clearly identifies as
black.

Secondly, it is not a race neutral reason to cite
racial discrimination and the fact that she has
experienced it in the past as a reason to
remove her from this panel.

¶ 14 On direct appeal, this division concluded that the prosecutor

had offered both a race-neutral and race-based reason for the

strike. People v. Johnson, 2022 COA 118, ¶ 6 (Johnson I), rev’d,

2024 CO 35 (Johnson II). To resolve whether the strike

demonstrated purposeful discrimination, the division adopted a

11
“per se” approach. Id. at ¶ 7. Under this approach, “a racially

discriminatory peremptory challenge in violation of Batson cannot

be saved because the proponent of the strike puts forth a

non-discriminatory reason.” People v. Ojeda, 2019 COA 137M, ¶ 18

(quoting State v. Shuler, 545 S.E.2d 805, 811 (S.C. Ct. App. 2001)),

aff’d on other grounds, 2022 CO 7. Using this approach, the

division concluded that the trial court erred by denying Johnson’s

Batson challenge to the prosecutor’s strike on Juror M, reversed his

convictions, and remanded for a new trial. Johnson I, ¶ 1.

¶ 15 The supreme court granted the People’s petition for certiorari

and reversed the judgment, holding that, under step two of Batson,

the prosecution’s strike was race-neutral. Johnson II, ¶ 1. The

supreme court determined that Juror M’s description of past

experiences with law enforcement was not an expression of a

general distrust in law enforcement. Id. at ¶ 38. Moreover, however

prevalent the distrust of law enforcement might be in some

communities, the court concluded that such distrust is not an

inherent characteristic of any race. Id. at ¶ 39. The supreme court

also rejected the per se approach and held that the

12
substantial-motivating factor approach should be used in resolving

the question of purposeful discrimination at step three. Id. at ¶ 57.

Under the substantial-motivating factor approach a court will

sustain a Batson challenge where the striking party was “motivated

in substantial part by discriminatory intent.” Flowers v.

Mississippi, 588 U.S. 284, 303 (2019) (quoting Foster v. Chatman,

578 U.S. 488, 513 (2016)).

¶ 16 The supreme court remanded the case to this court to

determine whether the domestic-violence explanation or the

bias-against-law-enforcement explanation was the prosecutor’s

substantial motivating factor for striking Juror M and whether a

remand to the trial court for further step-three findings was

necessary. Johnson II, ¶ 63.

¶ 17 In conducting the step-three review on remand, the trial court

first considered the prosecutor’s demeanor. While the trial court

noted the trial had occurred six years before and its recollection

was incomplete, the court found that it was familiar with the lead

prosecutor, having had numerous hearings and multiple trials with

her. After reviewing the transcripts, the trial court found that the

13
prosecutor did not make any false statements, rely on inaccurate

recollections, or make any unprofessional arguments. The court

found that nothing about the prosecutor’s demeanor supported a

finding that the peremptory strike of Juror M was made with

discriminatory intent.

¶ 18 Next, the trial court considered the reasonableness of the

proffered race-neutral explanations. The court summarized the two

reasons the prosecutor proffered: (1) Juror M’s statement on her

questionnaire regarding prior negative experiences with law

enforcement and (2) her comments during voir dire expressing

concern with her ability to assess the evidence without knowing

about past events. The trial court found it was reasonable for the

prosecution to draw the inference that Juror M’s response on her

questionnaire indicated that she would have a bias against law

enforcement. And it found that a juror’s acknowledgment that she

would have difficulty in relying only on the evidence presented,

without an explanation of prior events, provided a reasonable basis

for the exercise of a peremptory strike.

14
¶ 19 The trial court then found that both proffered reasons were

based on accepted trial strategy.

¶ 20 Next, the trial court considered similarly situated jurors. It

found that, at the time of peremptory challenges, only two

prospective jurors had indicated that they had a good or bad

experience with law enforcement: Juror M and Juror 46. Juror 46

wrote, “[M]y brother who was intoxicated was thrown to the ground

and broke knee cap.” The defense struck Juror 46 after the

prosecution accepted the panel with one strike remaining.

¶ 21 In finding that the prosecution’s failure to strike Juror 46 did

not lead to a conclusion of purposeful discrimination concerning

Juror M, the trial court stated several possible inferences. The

court reasoned that the prosecution might not have dismissed

Juror 46 because Juror 46 described a single incident involving her

brother and did not indicate a general distrust of or bias against

law enforcement. It also reasoned that the prosecution might not

have dismissed Juror 46 because “she was not a person of color

and thus, her experience with law enforcement was not a factor for

the prosecution.”

15
¶ 22 Finally, the court considered disparate impact. It

acknowledged that Juror M was the only African American on the

panel and that the prosecution struck her. Nevertheless, it found

that there was no evidence suggesting that the prosecutor was

either overtly or covertly hostile to, or biased against, African

Americans or other persons of color. Additionally, it noted that

three jurors with “traditionally Hispanic names” remained on the

jury and that, because the victim was African American, the

prosecutor had no reason to remove all African Americans from the

jury. Therefore, it found that the disparate impact did not evince

purposeful discrimination by the prosecutor.

B. Standard of Review and Applicable Law

¶ 23 The Equal Protection Clause of the Fourteenth Amendment

precludes a juror challenge based on race. Batson, 476 U.S. at 89.

“Purposeful racial discrimination in selection of the venire violates a

defendant’s right to equal protection because it denies him the

protection that a trial by jury is intended to secure.” Id. at 86.

¶ 24 Batson provides a three-step process for evaluating claims of

racial discrimination in jury selection. Johnson II, ¶ 17; People v.

16
Austin, 2024 CO 36, ¶ 7. First, the opponent of a peremptory strike

must make a prima facie showing that the proponent used the

strike against a potential juror because of race. Johnson II, ¶ 18.

As long as the totality of the relevant circumstances raises an

inference of racial motivation, the objecting party has satisfied his

or her step-one burden. Batson, 476 U.S. at 96; accord Valdez v.

People, 966 P.2d 587, 589 (Colo. 1998). At step two, the proponent

of the strike must offer a race-neutral explanation for the strike —

an explanation based on something other than the race of the juror.

Johnson II, ¶ 19. The striking party may “provide any race-neutral

justification for the strike, regardless of implausibility or

persuasiveness.” Ojeda, ¶ 24.

¶ 25 The trial court’s task at step three of a Batson analysis is to

determine whether the objecting party proved that the striking party

exercised peremptory challenges with discriminatory animus.

People v. Rodriguez, 2015 CO 55, ¶ 12. The decisive question at

step three is whether counsel’s race-neutral explanation should be

believed. People v. Collins, 187 P.3d 1178, 1182 (Colo. App. 2008).

“In assessing the credibility of the proponent of the strike, the court

17
may consider a number of factors, including the proponent’s

demeanor, how reasonable or improbable the proponent’s

explanations are, and whether the proffered rationale has some

basis in accepted trial strategy.” Id. The ultimate burden of

persuasion rests with the opponent of the strike, Purkett v. Elem,

514 U.S. 765, 767 (1995), and, for a Batson challenge to succeed,

the court must “find by a preponderance of the evidence that one or

more potential jurors were excluded because of race,” Valdez, 966

P.2d at 590.

¶ 26 Different steps of the Batson analysis are subject to separate

standards of review. Ojeda, ¶ 30. We review steps one and two de

novo. Id. At step three, the trial court’s final determination as to

the existence of racial discrimination is an issue of fact that we

review for clear error. Id.; see also Snyder v. Louisiana, 552 U.S.

472, 477 (2008) (“On appeal, a trial court’s ruling on the issue of

discriminatory intent must be sustained unless it is clearly

erroneous.”); Batson, 476 U.S. at 98 n.21 (“Since the trial judge’s

findings in the context under consideration [at step three] largely

will turn on evaluation of credibility, a reviewing court ordinarily

18
should give those findings great deference.”). We defer to the trial

court’s three-step ruling “so long as the record reflects that the trial

court weighed all of the pertinent circumstances and supports the

court’s conclusion” regarding purposeful discrimination. Ojeda,

¶ 42 (quoting People v. Beauvais, 2017 CO 34, ¶ 32).

C. Analysis

¶ 27 We first conclude that any decision that was made at step one

is moot because the trial court proceeded to steps two and three.

See People v. Gabler, 958 P.2d 505, 508 (Colo. App. 1997).

¶ 28 Next, we conclude, consistent with the supreme court’s

decision, that the prosecution offered race-neutral reasons for the

strike at step two. See Johnson II, ¶ 1.

¶ 29 Regarding step three, we discern no clear error and conclude

that the record supports the trial court’s findings. The court

considered the prosecutor’s demeanor, the reasonableness of the

proffered race-neutral explanations, whether the proffered rationale

was based in trial strategy, similarly situated jurors, and the

disparate impact of the strike. The court made thorough findings,

and those findings are supported by the record.

19
¶ 30 We reject Johnson’s assertion that the prosecutor’s

defensiveness regarding the Batson challenge suggests that the

prosecutor’s peremptory strike of Juror M was motivated by

discriminatory intent. The trial court determined that nothing

about the prosecutor’s demeanor showed the peremptory strike was

made with discriminatory intent. We give great deference to the

trial court’s credibility findings. Batson, 476 U.S. at 98 n.21.

¶ 31 We also reject Johnson’s assertion that the prosecutor’s failure

to question Juror M about question number eight of the

questionnaire suggests pretext and purposeful discrimination. The

trial court found the bias inference reasonable and noted that

neither attorney questioned Juror M concerning her response, nor

did they question Juror 46, who was also excused from the panel.

Because the record supports the court’s analysis, we must affirm it.

¶ 32 Finally, we are not convinced that the trial court’s comparative

juror analysis was improper because the two jurors the court

compared were not similarly situated. The court acknowledged the

lack of similarity and found that the inferences it could draw from

such a comparison were too speculative to consider and not

20
supported by the record. In the end, the court found that the

defense had not met its burden of showing that the prosecution’s

failure to strike Juror 46 was pretextual.

¶ 33 Accordingly, we discern no clear error in the court’s step-three

analysis and affirm its decision denying Johnson’s Batson

challenge.

III. Jury Instruction

¶ 34 Johnson next contends the trial court erroneously denied his

self-defense instruction because the record contains a scintilla of

evidence to support it. We disagree.

A. Additional Facts

¶ 35 During the jury instruction conference, Johnson argued that

the altercation between him and the victim was a continuous

physical altercation in which the victim was the initial aggressor

and, thus, that he was entitled to a self-defense instruction on the

burglary charges. The trial court disagreed and found that

self-defense did not apply to the burglary charges. The court

stated:

I find that self-defense does not apply to
second degree — or first degree burglary under
these facts. I think I could conceive of a set of
21
facts where it does. But here, really the
uncontroverted evidence is that after what is
an arguably lawful entry, Mr. Johnson is then
forced out of the home, and he kicks the door
in, re-enters, and at that point, commits either
first or second-degree burglary, based on the
evidence.

And in that case, or rather under those facts, I
just don’t see even a scintilla of evidence of
self-defense to first-degree burglary. I think it
is — it is arguable if the first-degree burglary
or second-degree burglary was a result of the
initial contact where [the victim] says she was
an aggressor. But those aren’t the facts here.

So I think frankly, if the — well hold on for a
moment. I’ll give an instruction on
self-defense as it relates to third-degree
assault, but not as to first and second-degree
burglary based on the facts that we have here.

¶ 36 Subsequently, the following colloquy occurred:

THE COURT: The only way to do this — and I
think I’ve said this a number of times — is to
accept the Defense theory that it’s one
continuous episode. And I — I don’t think
that — that that is the case here, because
there is a — there’s a demarcation of the
incident that occurs before Mr. Johnson is
forced out of the residence and the door is
closed. And I don’t think there’s any argument
that the door wasn’t closed because he kicked
in the door, damaging the door and the — the
locks that we saw in the photographs.

And so at that point — which goes back to
there’s no self-defense to first degree or second
22
degree burglary, the third degree assault
occurs after the unlawful entry, and there’s no
evidence of self-defense at that point. There’s
no evidence of unlawful physical force used by
[the victim].

DEFENSE COUNSEL: And [the victim] did say
that she was going crazy and that she was
slapping him with her open hand — no,
actually I think she said she punched him.

THE COURT: Okay.

DEFENSE COUNSEL: — after that entry,
during — an — during this physical altercation
that lasted — or started before the incident at
the door.

THE COURT: So after he kicked the door in,
evidence that he had to restrain her based on
her actions?

DEFENSE COUNSEL: Based on what she was
saying — based on her actions. Right.

¶ 37 The jury found Johnson guilty of first degree burglary and that

Johnson committed first degree burglary with the intent to commit

violation of a protection order.

B. Standard of Review and Applicable Law

¶ 38 A trial court has a duty to correctly instruct the jury on the

applicable law. Castillo v. People, 2018 CO 62, ¶ 34. We review a

trial court’s decision whether to give or reject a jury instruction for

23
an abuse of discretion. Kinney v. People, 187 P.3d 548, 558 (Colo.

2008). A court abuses its discretion when its decision is manifestly

arbitrary, unreasonable, or unfair or is based on an erroneous

understanding or application of the law. People v. Esparza-Treto,

282 P.3d 471, 480 (Colo. App. 2011).

¶ 39 An affirmative defense seeks to “justify, excuse, or mitigate the

commission of the act.” People v. Wakefield, 2018 COA 37, ¶ 9. If

there is some evidence to support the argument that the defendant

acted in self-defense, the court must give a self-defense instruction.

Id. at ¶ 20. The “some credible evidence” standard — sometimes

referred to as the “some evidence,” “any credible [even if highly

improbable] evidence,” “a scintilla of evidence,” “a small quantum of

evidence,” and “any evidence standard,” Galvan v. People, 2020 CO

82, ¶ 24 (citations omitted) — is “‘exceedingly low’ making [the]

preclusion of an affirmative defense appropriate only when there is

‘simply no evidence . . . in th[e] record’” to support it, People v.

Jacobson, 2017 COA 92, ¶ 15 (quoting People v. Platt, 170 P.3d 802,

806 (Colo. App. 2007)).

24
¶ 40 “[A] person is justified in using physical force upon another

person in order to defend himself or a third person from what he

reasonably believes to be the use or imminent use of unlawful

physical force by that other person, and he may use a degree of

force which he reasonably believes to be necessary for that

purpose.” § 18-1-704(1), C.R.S. 2024.

A person commits first degree burglary if the
person knowingly enters unlawfully, or
remains unlawfully after a lawful or unlawful
entry, in a building or occupied structure with
intent to commit therein a crime . . . against
another person or property, and if in effecting
entry or while in the building or occupied
structure or in immediate flight therefrom, the
person or another participant in the crime
assaults or menaces any person . . . .

§ 18-4-202(1), C.R.S. 2024.

C. Analysis

¶ 41 Johnson reasons that he was entitled to a self-defense

instruction because the victim testified that, once Johnson

re-entered the apartment, she scratched, punched, and bit him.

The victim testified that Johnson was reacting to her physical

contact. We discern no abuse of discretion in the court’s decision

to reject a self-defense instruction.

25
¶ 42 On the night of the incident, the victim told police that

Johnson kicked in the door to her apartment, came in, assaulted

her, and took some keys from her purse. She stated that, when

Johnson entered the apartment, he grabbed her by the hair, called

her a derogatory name, and threw her on the ground. Then he

picked her up and threw her on the couch.

¶ 43 At trial, the victim testified that, after a physical altercation in

her apartment, she was able to shove Johnson out of the door. She

said she yelled at him through the door, they argued through the

door, and then he kicked the door down. When he re-entered the

apartment, he brought her back down to the floor while she

scratched and bit him and eventually got away.

¶ 44 We conclude that, under both descriptions, there is

insufficient evidence to support a self-defense instruction for the

burglary charges. While the victim testified that she and Johnson

were in a physical altercation before she was able to shove him out

of the apartment, once outside the apartment, Johnson was no

longer vulnerable to the victim’s attack and thus, could not

reasonably believe he faced a risk of imminent use of unlawful

26
physical force by her. Johnson does not identify, nor do we see in

the record, any evidence to show that Johnson re-entered the

apartment to defend himself. Moreover, Johnson’s re-entry

constitutes evidence that he was the initial aggressor in the second

altercation and that the victim’s actions of biting and scratching

were reactions to his unlawful entry. See § 18-1-704(3)(b); see

People v. Zukowski, 260 P.3d 339, 247 (Colo. App. 2010) (a person’s

right to self-defense is abridged when he is the initial aggressor).

¶ 45 Accordingly, because no credible evidence supported a

self-defense instruction, the court did not err by refusing to give

one.

IV. Prosecutorial Misconduct

¶ 46 Johnson contends that the prosecutor engaged in misconduct

in both closing and rebuttal closing argument. We disagree.

A. Additional Facts

¶ 47 The complaint alleged that Johnson committed burglary “with

the intent to commit therein the crime of Assault in the Third

Degree or Violation of a Criminal Protection Order.” The burglary

verdict form required the jurors to indicate whether the burglary

was committed “with the intent to commit” a violation of a
27
protection order, third degree assault, or both. Jury Instruction

No. 12 defined “with intent” by noting that “a person acts with

intent when his conscious objective is to cause the specific result

proscribed by the statute defining the offense. It is immaterial to

the issue of specific intent whether or not the result actually

occurred.”

¶ 48 Jury Instruction No. 14 provided the elements of first degree

burglary:

1. That Mr. Johnson,

2. in the state of Colorado, at or about the date
and place charged,

3. knowingly,

4. entered unlawfully, or remined unlawfully
after a lawful entry,

5. in a building or occupied structure,

6. with intent,

7. to commit therein the crimes of Violation of
a Protection Order or Assault in the Third
Degree, against another person or property,
and

8. in effecting entry or while in the building or
occupied structure or in immediate flight from
the building or occupied structure,

28
9. The defendant committed the crime of
Assault in the Third Degree against another
person.

¶ 49 During closing argument, the prosecutor repeatedly argued

that the burglary counts required proof that Johnson knowingly

entered unlawfully into a building or occupied structure with the

intent to commit a particular crime.

¶ 50 Specifically, the prosecutor argued:

[L]et’s look at element four enter unlawfully.
What does enter unlawfully mean? It means
when someone goes to someone’s house
without the privilege to do so when there is a
law, when there is a protection order that says
you can’t go there, you don’t have the privilege
to do so.

DEFENSE COUNSEL: I object, Your Honor.
[The prosecutor is] presenting two different
rules. There is no rule saying that.

THE COURT: Overruled.

....

PROSECUTOR: Now, there is an instruction
that you’re going to read. It’s [a] unanimity
instruction. Leave it to lawyers to make it
complicated; right? What that means, if you
can — as you can recall, in first and second
degree burglary, there are elements that have
to be met with intent to commit a crime of
either the violation of protection order or
assault; right? But you all have to agree on
29
whether it’s a violation of protection order,
assault, or both.

Let me give you scenarios. For example, let’s
say you are in the deliberation room. All
jurors believe that an assault occurred or that
he went in there to commit an assault. That is
guilty. You don’t even have to assess the
violation of the protection order. Let’s do
another scenario. All jurors believe that a
violation of protection order occurred. That is
guilty.

DEFENSE COUNSEL: I object, Your Honor.
It’s specific intent not whether the assault
actually occurred.

THE COURT: Overruled.

DEFENSE COUNSEL: May we approach?

THE COURT: No.

DEFENSE COUNSEL: It’s just not accurate.

THE COURT: Ladies and gentlemen, you have
the instructions. I read the instructions, and
this is the closing. You may proceed.

PROSECUTOR: If the violation of protection
order elements have been met and you believe
he went in there with the intent to break that
protection order, then that is guilty. That’s
another scenario. If you all agree that both
things happened, that is also guilty.

The only thing we can’t have is a scenario like
this. Let’s say six of you say I think he went in
there to commit an assault or I think he
assaulted her, but I don’t see a protection
30
order; and the other six are saying I don’t
think the assault happened, but I see the
protection order, then it’s not guilty on
burglary. But if all 12 of you agree that the
violation of the protection order happened or
an assault or both, that’s guilty. Hopefully
that makes sense.

We know that first degree burglary occurred,
and if you don’t believe that there was an
assault, at the very least we know a second
degree occurred because he broke in and
violated a protection order.

DEFENSE COUNSEL: I object, Your Honor.
It’s still not the law. It’s specific intent.

THE COURT: Ladies and gentlemen, you follow
the instructions that I gave you that define the
elements of each crime. You may proceed.

¶ 51 During Johnson’s closing, counsel repeatedly accused the

prosecutors of improperly targeting Johnson for prosecution

stating,

Ladies and gentlemen, I want you to think
about the nature of the charges and think
about what’s really happening here. What this
case is, is the People of the State of Colorado
against this man right here, Raeaje Johnson.
And the People, the government is taking this
personally because according to them Mr.
Johnson continues to contact [the victim] with
her consent.

31
¶ 52 Counsel further argued, “They are asking you to make so

many assumptions about this complicated, messy relationship

because they feel like they were personally affected by this case.”

¶ 53 Counsel continued:

And the jail calls bring me back to another
point that I made, and this is part of the
reason why the government is so aggressively
prosecuting Mr. Johnson. Do not talk to the
[prosecutor]. The [prosecutor] is against me.
Only talk to my public defender.

Isn’t the [prosecutor] against him? Hasn’t this
whole trial been about how the [prosecutor]’s
against him? Not only that, but they are trying
to make [the victim] into something she’s not.
They are trying to manipulate what happened
because they are mad at Mr. Johnson because
he keeps violating a protection order,
according to them . . . And the only reason
you heard that was because they have a
personal stake in what’s happening.

¶ 54 The prosecutor responded in rebuttal:

The defense talked a lot about these jail calls
and how we only played certain portions of
them. And, yeah, we have the burden as the
People. But you are going to get an instruction
that even says that [the] redactions were
agreed upon. And you heard that there were
close to a thousand jail calls. These are the
calls where the defendant’s committed a crime.
And simply because he committed a crime and
he is being prosecuted does not mean that
everyone is out to get him. It doesn’t mean
32
that the government’s targeting him. It means
that we have an ethical duty.

DEFENSE COUNSEL: I object, Your Honor, on
commenting on ethical duties.

THE COURT: Overruled.

DEFENSE COUNSEL: I think that’s posturing.

THE COURT: Overruled.

DEFENSE COUNSEL: And —

THE COURT: Overruled. You may proceed.

....

DEFENSE COUNSEL: Judge, I object to [the
prosecutor] saying that she has an ethical
obligation in prosecution of people. It’s
posturing, number one. Number two, it’s
cloaking — it’s the [prosecution] cloaking
themselves in the authority of the state and in
order to essentially make an argument to the
jury that they should be believed more than
someone else. It is objectionable. I think the
Court should have granted my objection
and — I guess — that’s my record. So I feel
that argument violates Mr. Johnson’s right to a
fair trial under the United States and Colorado
Constitution to due process under the
Colorado and United States constitution.

THE COURT: Thank you. My finding regarding
that was that the defense argument that the
People were doing this because they had a
personal stake was objectionable. [The
prosecutor] didn’t object and so I didn’t make
any ruling on it. Once that argument was
33
made particularly more than once as it
happened here, then I found that the
[prosecutor]’s response that they have an
ethical duty to prosecute cases was an
appropriate response.

They did not make comment that they believed
[the victim], that they believed any particular
witness, or that they believed any particular
fact. So I don’t find that there was any —
anything improper in that responsive
argument, and so that’s why I overruled the
defense’s objection

DEFENSE COUNSEL: I understand the Court’s
ruling. It’s just that just because something is
objectionable doesn’t mean that they can do it
in response to one of my arguments.

THE COURT: I disagree. They have the right to
respond to arguments. That is what rebuttal
argument is.

DEFENSE COUNSEL: I am a defense attorney.
I am not a [prosecutor]. I have certain ethical
obligations to defend my client to the full
extent of the law, and that does not open the
door to the [prosecution] cloaking themselves
in authority and asking the jury to believe
them because of that authority and ethical
obligation.

THE COURT: I don’t believe that’s what they
did. But in fact what I find is that their
response was exactly to that from the defense,
that the defense cloaked the [prosecutor] in the
authority of the State and then further said
they have a personal stake in this, they are
taking it personally. So whether they objected
34
to it or not does not matter. What matters is
that they made a fair response to an argument
made by the defense. However your record is
made.

B. Standard of Review and Applicable Law

¶ 55 “Whether a prosecutor’s statements constitute misconduct is

generally a matter left to the trial court’s discretion.”

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We

will not disturb the trial court’s rulings regarding such a statement

absent a showing of abuse of discretion. People v. Strock, 252 P.3d

1148, 1152 (Colo. App. 2010). A trial court abuses its discretion

when its decision is manifestly arbitrary, unreasonable, or unfair or

is based on a misunderstanding or misapplication of the law.

People v. Snelling, 2022 COA 116M, ¶ 31.

¶ 56 We conduct a two-step analysis when reviewing claims of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we determine “whether the prosecutor’s

questionable conduct was improper based on the totality of the

circumstances.” Id. In doing so, we consider the context of the

argument as a whole and view it in the light of the evidence before

the jury. People v. Samson, 2012 COA 167, ¶ 30.

35
¶ 57 The prosecution has wide latitude to make arguments based

on facts in evidence and the reasonable inferences that can be

drawn from those facts. Strock, 252 P.3d at 1153. The prosecution

is permitted to use rhetorical devices and engage in oratorical

embellishment. Samson, ¶ 31. Because arguments delivered in the

heat of trial are not always perfectly scripted, we give the

prosecution the benefit of the doubt when their remarks are

ambiguous or simply inartful. Id. at ¶ 30. However, closing

arguments cannot be used to mislead or unduly influence the jury.

Domingo-Gomez, 125 P.3d at 1048-50. To that end, the prosecution

may not intentionally misstate the evidence or law, attempt to

inflame the juror’s passions or prejudices, or offer a personal

opinion as to the defendant’s guilt. Id. at 1049; see also People v.

Maloy, 2020 COA 71, ¶ 61.

¶ 58 Second, if the comments were improper, we determine

“whether such actions warrant reversal according to the proper

standard of review.” Wend, 235 P.3d at 1096.

36
C. Analysis

1. Closing Argument

¶ 59 Johnson contends that the prosecutor misstated the law

concerning the “with intent” requirement. We are not persuaded.

¶ 60 The prosecutor began with a description of unanimity and

properly explained that the jury had to agree on whether there was

an intent to commit violation of a protection order, third degree

assault, or both to find Johnson guilty of first degree burglary. In

doing so, the prosecutor argued, “[T]here are elements that have to

be met with intent to commit a crime of either the violation or

protection order or assault.” The prosecutor then moved on to a

series of scenarios in which the jury could find Johnson guilty or

not guilty. In these scenarios the prosecutor referred to the two

possible offenses without the words “with intent.” While the

prosecutor’s phrasing might have been inartful, we note that

“arguments delivered in the heat of trial are not always perfectly

scripted.” People v. Magana, 2020 COA 148, ¶ 22, aff’d in part and

rev’d in part, 2022 CO 25. Accordingly, we give the prosecution the

“benefit of the doubt when their remarks are ambiguous or simply

inartful.” Id. (quoting People v. McMinn, 2013 COA 94, ¶ 60).
37
¶ 61 However, even if the prosecutor’s statements amounted to

misconduct, any error is harmless. After each objection, the trial

court referred the jury to the instructions, which accurately stated

the law. See id. at ¶ 26 (alleged misstatement of the law, if error,

was harmless where comment was isolated, and jurors were given

instructions that accurately stated the law); Galvan, ¶ 29 (a jury is

presumed to follow a trial court’s instructions).

2. Rebuttal Argument

¶ 62 Johnson contends the prosecutor’s argument that she had an

ethical obligation to bring charges was improper. We disagree.

¶ 63 The prosecutor’s comments were a direct response to

Johnson’s argument that the prosecution was improperly targeting

him and taking the charges “personally.” See People v. Wallace, 97

P.3d 262, 269 (Colo. App. 2004) (“A prosecutor is afforded

considerable latitude in replying to an argument by defense

counsel.”).

¶ 64 Moreover, Johnson’s reliance on Domingo-Gomez is misplaced.

In Domingo-Gomez, the prosecutor referred to a screening process

that Domingo-Gomez’s case went through before trial. 125 P.3d at

38
1052. The supreme court found that this reference to a screening

process was improper because “it both hints that additional

evidence supporting guilt exists and reveals the personal opinion of

the prosecutor.” Id. Here, the prosecutor’s comments did not

allude to any additional evidence, nor did they profess the

prosecutor’s personal opinion. As previously stated, the statement

was merely a response to Johnson’s closing argument. Accordingly,

we discern no prosecutorial misconduct.

V. Disposition

¶ 65 The judgment is affirmed.

JUDGE LIPINSKY and JUDGE BERGER concur.

39