Peo v. Sanchez

19CA0713 Peo v Sanchez 01-27-2022 COLORADO COURT OF APPEALS Court of Appeals No. 19CA0713 El Paso County District Court No. 18CR1885 Honorable Robert L. Lowrey, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Jacob Sanchez, Defendant-Appellant. JUDGMENT AND SENTENCE AFFIRMED Division VI Opinion by JUDGE FREYRE Navarro and Harris, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 27, 2022 Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant 1 ¶ 1 Defendant, Jacob Sanchez, appeal s his convictions of intimidating a witness or victim an d conspiracy to commit the same. He also appeals his sentenc e. We affirm. I. Background ¶ 2 The victim and his wife were sleepi ng in their bedroom when they awoke to find Sanchez standi ng at the foot of their bed. As his wife left the room, the victim not iced that Sanchez had a knife or boxcutter. He asked if Sanchez w as okay, but Sanchez did not respond. Sanchez became more a nd more agitated as the victim continued to talk to him. The victim’s wife asked Sanchez to leave, but he refused. The victim then t old Sanchez that he and his wife needed to leave to pick up his kids and they walked out the front door. Sanchez followed them out of their trailer and, once outside, he threatened to “snitch” on the vic tim and to kill him. Sanchez spit in the victim’s face and said, “l et’s do this.” The victim declin ed and walked across the street to h is father’s trailer, and his father called 911. Police arrested Sanch ez and the State charged him with burglary. ¶ 3 Sanchez’s girlfriend, Casey Coope r, visited him several times at the jail. These visitations were a udio recorded. During the first 2 visit, Cooper told Sanchez that she had messaged the victim’s wife and told her not go to court becau se “Hector said that he saw you and that you told him to go tell them that.” Cooper then offered to go to the victim’s house with her c ousin “to tell him what the f uck is up? Like, why are you saying that crazy shit? Stop, you need to f ix it or else.” Sanchez responded, “He better fuckin’ fix it man, ‘cause that shit ain’t right.” ¶ 4 A few days later, Cooper told Sanc hez that she was going to get the victim’s address and sen d it to his sister so she could help him out “however she can.” Coope r also said that “someone needs to talk to [the victim] and tell him how it’s going down,” and Sanchez responded, “Exactly.” San chez asked Cooper to tell “Oso” that if he wanted to help Sanchez, he should talk to the victim and ask him, “why he fuckin’ lying on me like this.” He further directed Cooper to contact the victim throug h Facebook and “put him on blast.” ¶ 5 At the next visit, Cooper told San chez that she “hit [the victim] up and threatened him” and that she told the victim that she would go over to his house and “start fuck in’ shit up.” She also told Sanchez that his brothers wanted t he victim’s address because they 3 wanted to “handle that” (retrieve S anchez’s belongings from the victim’s trailer). Sanchez told C ooper that “[the victim] needs to tell the fuckin’ truth and not press ch arges. Tell [the victim] he better not press charges on me because I didn’t do nothing.” Sanchez continued to direct Cooper to cont act the victim and tell him to dro p the charges throughout the visit an d Cooper responded, “I got you.” ¶ 6 During the final visit, Sanchez told Cooper to tell her sister to “go over there to [the victim’s] an d tell [the victim] to drop the charges today, I’ll get out today.” Cooper responded that the vict im had blocked her on social media an d that they had to go over to t he victim’s house to contact him. Aga in, Sanchez told Cooper to tell the victim, “I didn’t do nothing. R ight now as we speak, I have no hard feelings, right? And if you d rop the charges today, I’ll get o ut today with no hard feelings.” ¶ 7 In addition to visiting Sanchez at the jail, Cooper contacted the victim on Facebook and “explain[ed] w hy [he] should have never called the cops.” She also sent hi m threatening messages. ¶ 8 Additionally, the victim received daily threats at his home. People drove or walked by his traile r, yelled at him, and said the threats were for Sanchez. The victi m recognized some of these 4 people as Sanchez’s fellow gang me mbers. More than once, unknown people fired guns at the victim’s trailer, and bullets passed through the doors and window s. One night, the victim heard banging on the side of his t railer and discovered a knife lodged in the side of the trailer. On another occasion, the vict im came home to find three people b reaking into his trailer and taking his property on behalf of Sanchez. ¶ 9 The victim reported these incident s to law enforcement and Cooper was arrested and charged with witness intimidation. The threats and harassment ceased af ter Cooper and Sanchez were both in custody. II. Sufficiency ¶ 10 Sanchez first contends that there was insufficient evidence to support his intimidation of a wit ness or victim charge because he did not issue any threats or commit any prohibited acts, due to his incarceration. He also asserts that insufficient evidence showed that he intended or agreed to com mit witness intimidation to support his conspiracy conviction. We disagree. 5 A. Standard of Review and Applica ble Law ¶ 11 We review sufficiency of the evidence de novo. McCoy v. People , 2019 CO 44, ¶ 27 . In asse ssing the sufficiency of the evidence to support a conviction, w e employ the substantial evidence test to determine whether the evidence, viewed as a whole, and in the light most favorable to t he prosecution, is sufficient to support a conclusion by a reasona ble person that the defendant is guilty of the crimes charged beyon d a reasonable doubt. Clark v. People , 232 P.3d 1287, 1291 (Colo. 2010). We must give the prosecution the benefit of every rea sonable inference that may be fairly drawn from the evidence. Pe ople v. Duran , 272 P.3d 1084, 1090 (Colo. App. 2011). ¶ 12 “The pertinent question is whethe r, after viewing the evidence in the light most favorable to the p rosecution, a rational trier of fact could have found the essential ele ments of the crime beyond a reasonable doubt.” Clark , 232 P. 3d at 1291 . The jurors are entrusted with resolving the weigh t and credibility of the evidence. People v. McGlotten , 166 P.3d 182, 188 (Colo. App. 2007). And we do not sit as the thirteenth juror to reassess credibility or to reweigh the evidence presented to the ju ry. Clark , 232 P.3d at 1293 . 6 ¶ 13 As relevant here, a person commit s the crime of intimidating a witness or victim if, by use of a threat, act of harassme nt as defined in section 18-9-111, [C.R.S . 2021,] or act of harm or injury to any pers on or property directed to or committed upon a wit ness in any criminal or civil proceeding; a victi m of any crime . . . he or she intentionally attempts to or does: (a) Influence the witness or victim to testify falsely or unlawfully withhold any testimony; or (b) Induce the witness or victim to avoid legal process summoning him to testif y; or (c) Induce the witness or victim to absent himself or herself from an official proceeding; or (d) Inflict such harm or injury prior to such testimony or expected testimony. § 18-8-704(1), C.R.S. 2021. As rel evant here, a person commits harassment if, with the intent t o harass, annoy, or alarm another person, he or she: (e) [d]irectly or indirectly initiates communication with a person or di rects language toward another person, anonymously or otherwise, by telephone, telepho ne network, data network, text message, instan t message, computer, computer network, com puter system, or other interactive electron ic medium 7 in a manner intended to harass or threaten bodily injury or property damage . . .; or . . . (g) [m]akes repeated communicatio ns at inconvenient hours that invade t he privacy of another and interfere in the use an d enjoyment of another’s home or pri vate residence or other private property . . . . § 18-9-111(1). ¶ 14 A person commits conspiracy to co mmit a crime if, with the intent to promote or facili tate its commission, he agrees with anot her person or persons that they, or one or more o f them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in t he planning or commission of a crim e or of an attempt to commit such crime. § 18-2-201(1), C.R.S. 2021. B. Analysis ¶ 15 Sanchez concedes that a defendant may be convicted of intimidating a witness or victim wh ere the defendant directs another person to issue a threat t o a witness or victim. See People v. Rester , 36 P.3d 98, 99 (Colo. Ap p. 2001) (affirming the intimidation of a victim conviction s “related to an incident in which [the defendant] called his wife’s daugh ter and indicated that he 8 would take it as a ‘personal threat’ if his wife were to return from California to testify against him”). He argues, however, that there was no evidence that he committe d a prohibited act or that he directed Cooper or any other perso n to threaten and harass the victim or to damage the victim’s p roperty. ¶ 16 Contrary to his contention, we con clude that the prosecution presented sufficient evidence that Sanchez indirectly harassed the victim and that he directed Cooper to threaten and harass the victim on his behalf, based on the following evidence:  Sanchez repeatedly told Cooper t o tell the victim to tell the truth or to drop the charges. And he told Cooper to tell other people to do the same.  When Cooper told Sanchez “someo ne needs to talk to [the victim] and tell him how it’s going down,” Sanchez responded, “Exactly.”  Sanchez told Cooper to contact th e victim on Facebook and put him “on blast.” Cooper then sent the victim threatening messages on Facebook and the victim eventually blocked her. 9  Cooper told Sanchez that his siblings wanted the victim’s address to “help” Sanchez get his t hings. The victim then found three people breaking into his trailer and taking his property on Sanchez’s behalf.  After Cooper told Sanchez that t he victim had blocked her, Sanchez instructed Cooper t o go the victim’s trailer with her sister that day and tell t he victim to “drop the charges today, I’ll get out today wit h no hard feelings.”  The harassment and threats sto pped when both Sanchez and Cooper were incarcerated. See id. ¶ 17 We similarly conclude that sufficie nt evidence supports Sanchez’s conspiracy conviction. Indeed, the record reveals that Sanchez did more than simply list en to Cooper’s descriptions of threatening the victim. He told C ooper to use Facebook to contact the victim, he told her what to say , he told her to go to the victim’s trailer, and he told her to tell othe r people to contact the victim. ¶ 18 Viewing this evidence in the light most favorable to the prosecution, we conclude that the jury could reasonably determine beyond a reasonable doubt that Sanchez intimidated the victim by 10 the use of threats and acts of ha rassment, and that he conspired t o commit intimidation of a witness o r victim. III. Evidence of Underlying Burgl ary Case ¶ 19 Sanchez next contends that the trial court erred by admitting testimony about the underlying bu rglary case involving the victim. Specifically, he argues that the f acts of the underlying burglary case were irrelevant and unfairly preju dicial under CRE 403. He does not otherwise challenge admissibili ty under the remaining factors set forth in Spoto v. People , 795 P. 2d 1314 (Colo. 1990). We perceive no error. A. Additional Facts ¶ 20 The prosecution filed a pretrial noti ce of its intent to introduce evidence of two underlying burglar y cases — 18CR963 (involving the named victim here) and 18CR 973 (involving a different victim). 1 The prosecutor argued that the evidence was relevant to Sanchez’s motive to intimidate the victim, his state of mind, and his intent; and that the evidence was admissi ble as res gestae. Defense counsel objected and argued that t he evidence was inadmissible 1 Sanchez does not challenge the admissibility of the evidence in 18CR973 so we do not address it . 11 character evidence and that the da nger of unfair prejudice outweighed its probative value. ¶ 21 The trial court ruled that it would a llow “evidence of the [18CR]963 and [18CR]973 cases t o the extent that they [were] necessary to prove a basis for [San chez’s] actions in the newly charged case.” It reasoned that the information from the [18CR]9 63 and [18CR]973 are necessarily presente d in some fashion to provide a basis for even charging the [present] case. It shows a motive, it shows an intent, a state of mind, it shows the absence of any simpl[e] accident or mistake. So, for all those reasons it’s certainly relevan t information. They’re relevant to a material fact; that is, his state of mind, reason for doing w hat he is alleged to have done. It’s completely independent of any inference that he’s simply acting under bad character. I cannot find that the probative value is outweighed by the danger of unfair prejudice becaus e it’s essentially the essential bits of info rmation must be provided to even prove the [present] case. . . . It would also come in under res ges tae because, again, these elements wo uld have to be proven to provide a basis for the underlying current charge in the [present] cas e. Otherwise, that would make no sen se to the 12 jury. So to the extent it would prov ide benefit to the jury by way of information, that the charge would make no sense witho ut this added information, the Court finds that it is logically related and should be pre sented. ¶ 22 Before trial, the court ruled that Sanchez’s convictions in the burglary cases were inadmissible. But it reiterated that there needed to be “some mention of t he prior bad acts . . . because otherwise there’s no predicate for t he intimidation charge.” ¶ 23 During the victim’s direct examinat ion, the prosecution elicited the facts described above that res ulted in Sanchez’s burglary charge. The victim did not testif y about the burglary trial or Sanchez’s burglary conviction. ¶ 24 At the close of evidence, the trial court instructed the jury: “You have heard testimony that t he defendant was charged with t wo prior burglaries. You can conside r that evidence only as it relates to absence of mistake, modus ope randi, motive[,] and intent. You must not consider it for any othe r purpose.” B. Standard of Review and Applica ble Law ¶ 25 We review the trial court’s evidenti ary rulings for an abuse of discretion. People v. Miranda , 2014 COA 102 , ¶ 46. The trial court abuses its discretion when its evid entiary ruling is manifestly 13 arbitrary, unreasonable, or unfai r, or based on a misunderstanding or misapplication of the law. I d . In assessing the admissibility of relevant evidence, the evidence sho uld be given its maximum probative value and minimum prej udicial effect. People v. Quintana , 882 P.2d 1366, 1375 (C olo. 1994). ¶ 26 Although the parties agree this iss ue was unpreserved, we nevertheless conclude that defense counsel preserved this issue by objecting to the prosecution’s pret rial notice and by arguing against the admission of the evidence at t he hearing. See People v. Zubiat e , 2013 COA 69 , ¶ 22 (“We are not b ound by the parties’ concessions and may rely on our own legal int erpretations . . . .”). Thus, we review this issue for harmless error . People v. Yachik , 2020 COA 100, ¶ 38. An error is harmless wh en it does not affect the substantial rights of the parties. I d. ¶ 27 Only relevant evidence is admissib le. CRE 402. Relevant evidence means evidence that tend s “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” CRE 401. “Other act” evidence is relevant when it is admitted for the purpose of proving “motive, o pportunity, intent, preparation, 14 plan, knowledge, identity, absence of mistake, or lack of accident.” CRE 404(b)(2); see People v. Rat h , 44 P.3d 1033 , 1038 (Colo. 2002). ¶ 28 Even if relevant, evidence may be i nadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or mislead ing the jury.” CRE 403. “Evidence is unfairly prejudicial w here it introduces into the t rial considerations extraneous to the merits, such as bias, sympathy, anger, or shock.” People v. Greenle e , 200 P.3d 363,367 (Colo. 2009). C. Analysis ¶ 29 Sanchez concedes that some evidence of the burglary charge was relevant to whether the victim was a witness or victim withi n the meaning of the intimidation sta tute, including (1) the date of t he alleged burglary; (2) the charges ag ainst Sanchez; and (3) the victim’s role as an anticipated wit ness and named victim in the case. See § 18-8-704(1). He conte nds, however, that the facts of the burglary charge were irrelevant and unfairly prejudicial. We disagree and conclude, consistent with the trial court, that the fact s of the underlying burglary charge a re relevant to the elements of t he crime and to Sanchez’s intent, mot ive, and state of mind. 15 ¶ 30 The victim’s description of the burg lary demonstrated the gravity of the underlying offense an d provided a motive for Sanchez’s desire to persuade the vi ctim not to cooperate in its prosecution. It also showed Sanch ez’s knowledge of the victim’s involvement in the criminal procee dings and in particular, the importance of the victim’s testim ony in identifying him as the perpetrator. Finally, it informed the jury of Sanchez’s state of mind when discussing the burglary case with Cooper. Accordingly, the evidence was relevant to prove San chez’s state of mind, his motive to commit witness intimidation, an d his motive to direct Cooper to threaten and harass the victim. See People v. Cousins , 181 P.3d 365, 372 (Colo. App. 2007) (finding that evidence of the defendant’s prior actions established the “defe ndant’s animus toward women a s a motive for his attack on the victi m”). ¶ 31 As well, the facts of the burglary ca se were relevant to prove that Sanchez attempted to influenc e the victim to testify falsely. See § 18-8-704(1)(a); see also Peo ple v. Thomeczek , 284 P.3d 110, 114 (Colo. App. 2011) (finding that evidence of a prior incident and the parties’ actions thereafter was probative of the defendant’s intent). At trial, Sanchez challeng ed the credibility of the victim’s 16 account of the burglary, arguing that he only wanted the victim to tell the truth. Evidence about the underlying burglary case rebutted this defense theory by sh owing that Sanchez intended to influence the victim’s testimony. ¶ 32 Furthermore, we agree with the trial court that the probative value of the evidence was not sub stantially outweighed by the danger of unfair prejudice. See CRE 403. In any event, the potential for unfair prejudice was diminished by the limiting instruction which precluded the ju ry’s use of the burglary facts for any purpose other than absence of mistake, modus operandi, motive, and intent. And we presume the jury understood and followed this limiting instruction. See People v. Garcia , 2012 COA 79, ¶ 20. ¶ 33 Accordingly, the trial court did not abuse its discretion by admitting testimony about the fact s of the underlying burglary case. IV. Prosecutorial Misconduct ¶ 34 Sanchez next contends the prosec utor engaged in four instances of misconduct: (1) misst ating the law in rebuttal closing argument by arguing that Sanche z was guilty because he directe d Cooper to commit a crime and by s uggesting he should have told 17 Cooper not to commit a crime; (2) t elling the jury he was convicted of the underlying burglary in reb uttal closing argument; (3) appealing to the jury’s sympathy; and (4) arguing the irrelevant facts of the underlying burglary cas e. He further contends that the misconduct requires reversal ind ependently and cumulatively. We disagree. A. Standard of Review and Applica ble Law ¶ 35 We review claims of prosecutorial misconduct using a two-step analysis. Wend v. People , 235 P.3d 1089, 1096 (Colo. 2010). First, we determine whether the prosecu tor’s conduct was improper base d on the totality of the circumstances . Id. If so, we determine whether such conduct warrants r eversal under the proper standa rd of review. Id. ¶ 36 We evaluate claims of improper ar gument in the context of the argument as a whole and in light of the evidence before the jury. People v. Samson , 2012 COA 167, ¶ 30 . “In doing so, we recognize that prosecutors have wide latitud e in the language and style they choose to employ, as well as in re plying to an argument by opposing counsel.” Id. 18 ¶ 37 Where a defendant does not object to the prosecutor’s statements, we review only for plain error. Hagos v. People , 2012 CO 63, ¶ 14. Prosecutorial miscon duct constitutes plain error only when it was obvious and “seriously affected the fairness or integrity of the trial.” Domingo-Gomez v. Peo ple , 125 P.3d 1043, 1053 (Colo. 2005). “Only prosecutorial miscon duct which is ‘flagrantly, glaringly, or tremendously imprope r’ warrants reversal.’” Id. (citation omitted). ¶ 38 Because the right to a fair trial in cludes the right to an impartial jury, prosecutorial misc onduct that misleads a jury may warrant reversal. Harris v. P eople , 888 P.2d 259, 264 (Colo. 19 95). But a prosecutor’s use of rhetoric al devices to argue record eviden ce or to respond to the defense’s arg uments is not misconduct. Samson , ¶ 31 (prosecutors may “empl oy rhetorical devices and engage in oratorical embellishment ”). And prosecutorial misconduct in closing argument ra rely constitutes plain error. People v. Weinreich , 98 P.3d 920 , 9 24 (Colo. App. 2004), aff’d , 119 P.3d 1073 (Colo. 2005). 19 B. Misstatement of the Law ¶ 39 Sanchez first contends that the prosecutor misstated the law when he told the jury it could find h im guilty for directing Cooper to commit a crime. ¶ 40 During closing argument, defense counsel argued that the prosecution did not meet its bur den of proving the element “by use of a threat, an act of harassment, o r by committing an act of harm or injury upon any person or pro perty.” She asserted that Sanchez did not “direct anyone to harass, didn’t direct anyone to do any of these things to [the victim], to [t he victim’s] home.” Sanchez only wanted the victim to tell the t ruth and Cooper went “rogue.” ¶ 41 In rebuttal, the prosecutor argued, Defense counsel says I can’t prove this charge. Intimidating a witness or a victim, l ook at [instruction number four]. Directe d to or committed upon a witness. There’ s only one of those ors. Mr. Sanchez directed thi s to happen. He thinks because he’s in jail and we know where he was that he has t he perfect alibi, hands are clean. He knows he’s got Cooper in his pocket. We all know she would do anything for him because she sa ys that to him, no matter what it is . . . . He knows that. He’s a smart guy. He has the cont rol. He directed her to do this. 20 ¶ 42 For the reasons set forth in Part II, we conclude that the prosecutor did not misstate the law when he argued that Sanchez could be guilty of committing in timidation of a witness or victim by directing Cooper to threaten and ha rass the victim. In addition, the prosecutor’s comments were a fair response to defense counsel’s argument that Sanchez did not di rect Cooper or anyone else to threaten or harass the victim or ca use damage to the victim’s property. See People v. Vialpa ndo , 804 P.2d 219, 225 (Colo. App. 1990) (“A prosecutor is afforded c onsiderable latitude in the right to reply to an argument by opposing c ounsel.”). ¶ 43 Sanchez also contends that the prosecutor misstated the law when he suggested that Sanchez was guilty because he failed to tell Cooper not to hurt the victim. ¶ 44 In rebuttal, the prosecutor argued, Tell [the victim] to drop the charge s. Defense counsel hit the nail right on the head . . . . Let’s talk about what the defendant doesn’t say in those video visitations. Cooper s ays I don’t know what else to do beside hurt these people. Nothing. No, no, stop, don’t, I d on’t want any part of this. Casey, you’re crazy. None of that. ¶ 45 We acknowledge that Sanchez di d not have a duty to dissuade Cooper from committing witness intimidation. See § 18-1-501(7), 21 C.R.S. 2021 (defining “omission” a s “a failure to perform an act as to which a duty of performance is i mposed by law”); see also People v. Madison , 176 P.3d 793, 802 (Col o. App. 2007) (assuming that the prosecution must prove the existen ce of a duty imposed by law t hat a defendant breached in order to p rove criminal liability for an omission). But we must evaluate the prosecutor’s remarks in the context of the entire argument and the evidence presented. Doing so, we conclude that the prosecuto r legitimately commented on the recorded conversations between S anchez and Cooper and made reasonable inferences about Sanch ez’s intent by not dissuading Cooper from hurting the victim. See Domingo-Gomez , 125 P.3d at 1048 (final arguments may properl y refer to the facts in evidence and any reasonable inferences dra wn therefrom). C. Facts Not in Evidence ¶ 46 Sanchez also contends the prosec utor violated the trial court’s order when she informed the jury that he was convicted in the underlying burglary case, contrary to the court’s order. See People v. Denhartog , 2019 COA 23, ¶ 58 (“ [A] prosecutor may not refer to facts not in evidence, which, we assum e, would include facts 22 excluded from evidence.”) (citation omitted). We discern no violation. ¶ 47 In rebuttal, the prosecutor argued, The defendant thinks because he was in jail he cannot be held responsible for thi s, but he made a mistake because of motive. You want to know why we talked about those other burglaries? Because Mr. Sanchez has the motive to keep [the victim] from tes tifying. He has all the motive in the world. Th ere were no other criminal actions where [the victim] was the victim in that you heard. Just this one. And it stopped at least for the time when both the defendant and co-conspirator w ere in jail. That’s not a coincidence. There’s only one person on this planet with that type of motive, and that is Mr. Sanchez. Look at [the victim’s] motive. May be it’s revenge. Did that look like someb ody that was after revenge? That was a broken man. He’s here because the most sacred place to him had been violated time and time again, and he wanted it to stop. That’s why he’s here, not because he’s out to get Mr. Sa nchez. He got that on the burglary case. What would be the point? [The victim] admitted to yo u that he was in fear of his life. Think about how hard that would be to admit in front of the person who is intending to inflict that fear upon you. Think how hard it would be to tell that person face to face you won, you intimi dated me, I was afraid for my life. Was he scared up here? Absolutely. That’s human. That’s real. That’s how you know whether or not he’s telling the truth. 23 (Emphasis added.) ¶ 48 We do not view the italicized langu age above as telling the jury that Sanchez was convicted in t he burglary case. Instead, we conclude that the prosecutor pro perly argued that the burglary facts established Sanchez’s motive to intimidate the victim. Id. at ¶ 59 (finding that the prosecutor’s c omment argued that the facts in evidence established the defendan t’s intent). The prosecutor did not tell the jury that Sanchez was convicted in the underlying burglary case, nor did she imply t hat he was convicted. Instead, the prosecutor contrasted Sanchez ’s motive to intimidate the victim with the victim’s motive, arguing t hat the victim did not have an ulterior motive in testifying about the intimidation because any motive for revenge was “got . . . on the burglary case.” And the jury heard testimony about the underl ying burglary case. Thus, we discern no misconduct. D. Sympathy ¶ 49 Sanchez next contends the prosec utor improperly appealed to the jury’s sympathies by describin g the victim as a broken man an d by explaining why the victim had difficulty testifying. We disagree and conclude the prosecutor’s com ment was a reasonable inference 24 from the evidence of the victim’s cr edibility. See People v. Wilson , 2014 COA 114, ¶ 52 (“A prosecut or may, however, draw reasonable inferences from the evidence as to t he credibility of witnesses.”). ¶ 50 During his testimony, the victim had a hard time keeping track of timelines and could not recall the dates of specific events. He testified that “he was going thr ough a lot” when he was being threatened and harassed, and that he had been “under a lot of stress.” The prosecutor drew reas onable inferences from this testimony by arguing that the vict im was afraid during the intimidation and during his testim ony and to rebut the defense argument that the victim was not credible. Thus, we discern no error. E. Underlying Burglary Case ¶ 51 Sanchez last contends that the pro secutor improperly argued the facts of the underlying burglar y case in violation of the trial court’s pretrial ruling. However, the court only excluded evidence of Sanchez’s conviction, not the f acts of the underlying burglary ca se. For the reasons stated in Part III, we conclude the prosecutor properly argued admissible evidenc e. 25 F. Cumulative Error ¶ 52 Because we have concluded that no prosecutorial misconduct occurred, we necessarily reject Sa nchez’s contention that cumulative prosecutorial miscond uct requires reversal. Howa rd- Walker v. People , 2019 CO 69, ¶ 24 . V. Trial Court’s Illustration of Reason able Doubt ¶ 53 Sanchez next contends that the trial court’s illustration of reasonable doubt during voir dire i mpermissibly lowered the prosecutor’s burden of proof and r equires reversal. While we do n ot condone such illustrations, we con clude that the illustration here was so unclear that reversal is not required. A. Additional Facts ¶ 54 Before voir dire, the trial court in structed the jury that the prosecution had to prove each elem ent of the crimes charged beyond a reasonable doubt. The c ourt then instructed the jury on the meaning of reasonable doubt b y reading the model jury instruction. ¶ 55 The court then described the prose cution’s burden with an illustration: 26 THE COURT: It will be up to you as a juror to determine what that is to you base d upon that definition. One thing reasonable d oubt is not, though, is beyond all doubt. It is not beyond a shadow of a doubt or any doubt. Because almost nothing can be proven to t hat level. But it does need to be beyond a rea sonable doubt. Let me give a simple example that I occasionally use. How many peopl e in this room think that I’m a district judg e? Anyone? We have a couple. Everyone prett y much thinks I’m a district judge. Why do you think that? PROSPECTIVE JUROR: It says so right there. THE COURT: My name is on the f ront of this. That’s sort of a giveaway, isn’t it? I’m wearing this nice attire that the State has given me to wear. Not everybody wears a robe like this. That’s another hint. I have thi nning white hair. That’s also probably another clue that I’ve been around for a while. So ev erybody thinks that I’m a district judge. Do you think that beyond a reasonable doubt? Do you have any doubt? You might have some doubt. How many of you have heard on televisi on stories over the years on Dateline and thi ngs like that about people impersonating people in other vocations or professions. Some of t hem do it for almost a lifetime. They hold them selves out as doctors or medical professionals or insurance agents or attorneys o r judges or whatever, and they pull it off for y ears and years and years and nothing ever q uestions it. That could be me. You probably t hink that’s not true. You probably think I re ally am a 27 judge, at least the State of Colorad o thinks that. But is that proof beyond all doubt? There’s always that lingering doubt . Maybe this guy is one of those imposters that’s pulled it off for [twenty] or [thirty] years. So that’s what I mean. You can’t prove anything just sitting here beyond al l doubt, but it must be beyond a reasonable doubt. Not a vague, speculative, or imagin ary doubt, but such a doubt as would cause reasonable people to hesitate to act in matt ers of importance to themselves. That’s what the trial is all about. We’ll have [thirtee n] of you sit and listen to this evidence, an d [twelve] of you will then go back and determin e whether or not the People have met that pa rticular burden. B. Standard of Review and Applica ble Law ¶ 56 We review de novo whether jury in structions as a whole accurately informed the jury of t he law. Johnson v. People , 2019 CO 17, ¶ 8. A court’s decision to p rovide a particular instruction is reviewed for an abuse of discretion . People v. Sandoval , 2018 COA 156, ¶ 11. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, unfair, or contrary to law. I d. at ¶ 26. ¶ 57 The prosecution bears the burden t o prove every element of the crime charged beyond a reas onable doubt. Johnson , ¶ 10. Any 28 instruction or illustration on reaso nable doubt that lowers this burden of proof violates a defendan t’s constitutional right to due process. People v. Garcia , 113 P.3 d 775, 784 (Colo. 2005). And, “[a]n instruction that lowers the prosecution’s burden of proof below reasonable doubt constitutes struc tural error and requires automatic reversal.” Johnson , ¶ 8 . ¶ 58 To determine whether a trial court’ s illustration of beyond a reasonable doubt lowered the pr osecution’s burden of proof, we apply a functional test. Tibb els v. People , 2022 CO 1, ¶ 2 . We “must ask whether there is a reas onable likelihood that the jury understood the court’s statements , in the context of the instructions as a whole and the t rial record, to allow a conviction based on a standard lower than be yond a reasonable doubt.” Id. “In this way, even statements ma de to the venire during voir dire can, in context, have the effect of instructing the jury on the law t o be applied, and the reviewing cou rt must determine whether such statements operated to reduce the prosecution’s burden of proof.” Pettigrew v. People , 2022 CO 2, ¶ 36 . 29 C. Analysis ¶ 59 The United States Supreme Court a nd our supreme court have both cautioned trial courts and attorn eys against further defining the standard for reasonable doubt. See, e.g. , Holland v. United States , 348 U.S 121, 139-40 (195 4); Tibbels , ¶ 25; Johnson , ¶ 13. While we also discourage the use o f illustrations to further explain the reasonable doubt standard, we discern no reversible error here for two reasons. ¶ 60 First, in the context of the instructi ons as a whole, the trial court properly instructed the jury o n reasonable doubt in accordance with the model jury ins tructions before providing the illustration. And unlike the court i n Tibbels , the court here never criticized or undermined the model instruction. See Tibbels , ¶ 50 (finding the court’s crack-in-the-f oundation example significant because the court gave the example immediately after undermining the model instruction on reasona ble doubt). As well, the court repeated the model “hesitate to act ” language immediately following the illustration. See Pettigrew , ¶ 42; Johnson , ¶ 16; see also COLJI - Crim. E:03 (2020). The court then repeated the model reasonable doubt instructions at the close of e vidence. See Pettigrew , ¶ 42. 30 Because the jury never indicated conf usion about the reasonable doubt instruction, we presume that the jury understood and followed the court’s instructions. Leonardo v. People , 728 P.2d 1252, 1255 (Colo. 1986). ¶ 61 Second, like the court’s “hesitate t o act” instruction in Johnson , ¶ 15, the trial court’s illu stration here was “too nonsensical” for the jury to under stand. The judge rhetorically asked the jury whether it thought he was a district court judge beyond a reasonable doubt witho ut providing concrete examples o r answers. Did they have “any doub t” based on the surrounding circumstances (i.e., the judge’s na me plate, his black robe, and his “thinning white hair”) that he was a district court judge? In an attempt to explain the difference b etween beyond a reasonable doubt and beyond all doubt, he t hen told the jury that it may have some doubt that he is a judge be cause there had been stories on Dateline and other media sources o f people impersonating professionals for years. And even if the jury probably thought he was a district court judge, it may have a “lingering doubt” that he was an imposter. In our view, the court’s series of rhetorical questions and references to impost ers in other professions left t he 31 jury with no concrete example that it might have used in assessing the prosecution’s burden of proof. Compare Tibbels , ¶ 55 (“[T]he [court’s] crack-in-the-foundation ex ample was a clear, real-world scenario that we believe the jurors would readily have understood and relied on . . . .”), with Pett igrew , ¶¶ 42, 45 (the trial court’s confusing birth certificate example, read in context, did not warrant reversal). ¶ 62 Accordingly, we conclude that t he court’s confusing illustration did not impermissibly lower the prosecution’s burden of proof, did not prejudice Sanchez, and thus, does not require reversal. Pettigrew , ¶ 46. But agai n, we discourage the use of examples and illustrations to defin e “reasonable doubt” because “[t]hese efforts, at best, provide n o additional clarity and, at worst, create needless litigation that jeop ardizes otherwise valid convictions.” Id. at ¶ 47. VI. Jury Nullification ¶ 63 Sanchez next contends the trial c ourt denied his right to a jury trial by instructing the jury that it must follow the law as the court instructed. We disagree and disce rn no error in the court’s instruction. 32 A. Additional Facts ¶ 64 Before voir dire, the trial court in structed the jury on its duty to follow the law provided by the c ourt: You must follow the instructions of law if you are on this jury. You don’t get to d ecide what the law might be, what you wish it could be, but you must follow the law as I i nstruct it to you. Does anybody have any tro uble with that basic concept in our law? Let me give you a simple example I use from time to time. Suppose you’re up t he street on Bijou or Kiowa where the municip al court sits up there. Let’s suppose you were on a small jury and you were tasked with dec iding whether someone was speeding on I-25 or not. Let us suppose the evidence in that case showed that someone was doing 1 00 miles per hour on I-25 through Colorado Sp rings. Let us suppose the judge told you that if you find they were doing more than [sixty-f ive] miles per hour you would find them guilty of that charge. If you didn’t find that pro of, you would find them not guilty. But let us suppose the evidence showed they were, in f act, doing 100 miles per hour. Let us also suppos e you drive a Porsche or Corvette and you thi nk it’s just fine to drive 100 miles per hour on I-25 through Colorado Springs. It’s ea sy for you, it’s easy for your car, it handles w ell, so you think that’s just fine. But do you understand you cannot substitute your judgme nt for what would be the appropriate law? Yo u can’t make it up and say because I can do tha t, I think it’s okay, so I’m not going to find the p erson guilty in that case for doing 100 miles pe r hour. 33 Does everyone understand that simple example? You don’t get to substit ute your judgment for the law that you will be instructed by the Court. Does any one have a problem with that concept? B. Standard of Review ¶ 65 The parties agree that this alleg ed error was not preserved, but they dispute the proper standard of reversal if we find an error occurred. Sanchez contends that the court’s instruction denied him his right to a jury trial and co nstitutes structural error. See Sullivan v. Louisiana , 508 U.S. 275, 281 (1993). Specifically, he argues that the trial court’s instruc tion infringed on the jury’s power to acquit and that it abolish ed the jury’s nullification power. The People argue that plain error a pplies. We need not resolve thi s dispute, however, because we dis cern no error. ¶ 66 Whether a trial court’s instruction accurately states the law is a legal question we review de nov o. Johnson , ¶ 8. C. Analysis ¶ 67 Jury nullification is a juror’s “kn owing and deliberate rejection of the evidence or refusal to apply t he law because the result dictated by law is contrary to [each ] juror’s sense of justice, morality, or fairness.” People v. W aller , 2016 COA 115 , ¶ 57 34 (quoting State v. Nicholas , 341 P.3 d 1013, 1015 (Wash. Ct. App. 2014)). Jury nullification occurs in a trial when a jury acquits a defendant even though the memb ers of the jury believe the defendant is guilty. Id. ¶ 68 Although the jury has the inherent power to nullify, this power is in conflict with the jury’s duty t o follow the court’s instructions on the law and apply that law to t he evidence. See Sparf v. Unit ed States , 156 U.S. 51, 74 (1895); Pe ople v. Wilson , 972 P.2d 701, 706 (Colo. App. 1998). A jury is requir ed to follow the law as the court instructs even if it disagrees with t he instruction on the law. Alvarez v. People , 653 P.2d 1127 , 1 131 (Colo. 1982); see also Spa rf , 156 U.S. at 102 (“[I]t is the duty of juries in criminal cases to take the law from the court, and apply t hat law to the facts as they fin d them to be from the evidence.”). B ecause of this conflict, both the federal circuit courts and division s of this court have consistently held that trial courts should not in struct a jury that it may nullify a guilty verdict and that courts sho uld not promote nullification. See Wilson , 972 P.2d at 706 ; Wa ller , ¶ 76; People v. Scott , 2021 COA 7 1, ¶¶ 17, 19-20. 35 ¶ 69 Here, the court’s instructions to the jury that it must follow the law provided by the court is no t only consistent with a jury’s duty to follow the law as instructed , but it is consistent with the model jury instructions. The mode l jury instructions direct the court to provide the following instruct ion at the close of the evidence in every case: “It is my jo b to decide what rules of law apply to the case. . . . [Y]ou must follow the instructions I give you. Even if you disagree with or do not understand the reasons for some of the rules of law, you must follow them.” COLJI-Crim. E:0 1 (2020). And jurors who disregard t he court’s instructions or the evidence violate their sworn oaths to “well and truly try the mat ter before the court, and render a true verdict, according to the evidence and the law.” COLJI-Crim. B:01 (2020). ¶ 70 For these reasons, we conclude tha t the trial court properly instructed the jury on its duty to f ollow the law and that the instruction did not abolish the ju ry’s power to nullify. VII. Sentencing ¶ 71 Sanchez last contends that the tria l court’s sentences were not within the presumptive sentencin g range. Specifically, he argues 36 that there is no evidence in the record of aggravating factors to support the increased sentences. ¶ 72 Whether a sentence is authorized by law is a question that we review de novo. Yeadon v. People , 2020 CO 38, ¶ 6 . ¶ 73 The jury convicted Sanchez of a class 4 and a class 5 felony. The presumptive sentencing range for a class 4 felony is two to six years and the presumptive sentenc ing range for a class 5 felony is one to three years. § 18-1.3-401( 1)(a)(V)(A), C.R.S. 2021. But, t he court is required to sentence a “def endant to a term of at least the minimum in the presumptive rang e but not more than twice the maximum term authorized in the presumptive range for the punishment of a felony” if, “[a]t the time of the commission of the felony, the defendant was charged with or was on bond for a felony in a previous case and the defenda nt was convicted of any felony in the previous case.” § 18-1.3-401(9 )(a). ¶ 74 At the time Sanchez committed in timidation of a witness or victim and conspiracy, he was char ged with multiple felonies in tw o separate cases — 18CR963 and 18CR 973. Before the jury convicted him here, he had been co nvicted of felonies in those cases. Therefore, when the court sentenced him in all cases, the 37 aggravated sentencing range for S anchez’s class 4 felony conviction here was two to twelve years and t he aggravated range for his class five felony conviction was one to six years. The trial court sentenced Sanchez to eight years i mprisonment for the class 4 felony intimidation of witness or vi ctim conviction and to six years imprisonment for the class 5 cons piracy conviction. Because the court was required by statute to in crease the sentencing ranges based on the sentence-enhancing c ircumstance, it did not need to make additional findings to supp ort the sentences. ¶ 75 Accordingly, we discern no error in the court’s sentence. VIII. Conclusion ¶ 76 The judgment and sentence are aff irmed. JUDGE NAVARRO and JUDGE H ARRIS concur.