Full Opinion

24CA1143 Peo v Miller 10-22-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA1143 Boulder County District Court No. 22CR221 Honorable Elizabeth Brodsky, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Deon Miller, Defendant-Appellant. JUDGMENT AFFIRMED Division V Opinion by JUDGE FREYRE Grove and Lum, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 22, 2026 Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Christopher Collins, Alternate Defense Counsel, Greeley, Colorado, for Defendant-Appellant ¶1 Defendant, Deon Miller, appeals his conviction for violation of a protection order. We affirm. I. Background ¶2 Miller and S.H met and developed a relationship while Miller was homeless. During that time, Miller sometimes stayed at S.H.’s home. A few years later, a mandatory protection order entered that prevented Miller from contacting S.H.1 Shortly after the order entered, Miller called S.H. and asked to retrieve his personal property. S.H. agreed and met Miller in Boulder to give him his property. Thereafter, S.H. agreed to drive Miller, who often requires a wheelchair, to a homeless shelter in Denver. The pair realized, upon arriving at the shelter, that they had forgotten the wheelchair. They drove back to Boulder, whereupon S.H. decided she was done driving because she “had enough that day.” ¶3 S.H. did not want to leave Miller on the street, so she took him to a motel. Miller waited in the car while S.H. paid for Miller’s room. When she returned to help move Miller’s belongings into the __________________________________________________________________ 1 The parties stipulated at trial that Miller signed the protection order. 1 room, the two began verbally fighting in the parking lot. When a motel employee heard the fight and came to see what was going on, S.H. got in her car and left. Miller got more agitated and threatened the motel employee, who promptly called the police. ¶4 The State charged Miller with felony menacing, violation of a protection order, and violation of bail bond conditions. It later dismissed the menacing and bail bond charges and proceeded to trial on the protection order violation. ¶5 During closing arguments, defense counsel argued that the prosecution failed to prove beyond a reasonable doubt that Miller actually knew that a protection order existed. Counsel also argued that the prosecution failed to produce any video footage from the motel to show what transpired in the parking lot and pointed out that the prosecution failed to present testimony from “Austin,” a man who had allegedly witnessed the interaction between Miller and the motel clerk. During rebuttal closing, the prosecutor responded as follows: And [defense counsel] talked about bringing [a witness], why we didn’t call [that witness] to the stand to corroborate, why we didn’t get a recording or a transcript. And it is the People’s burden to prove each and every element 2 beyond a reasonable doubt, but [Miller] has the same subpoena power for witnesses . . . . ¶6 Defense counsel objected, stating the following: You have to identify that alibi, those alibis and alibi witnesses, so that the prosecution can then investigate and talk to them. But then you have to — of course, you would have to affirmatively — well, you don’t have to affirmatively prove that at trial, but if you didn’t, then it would make sense that the prosecution could then rebut that affirmative offense, just like a self-defense, a defense, or any other defense. But this is a very different situation. This is not an affirmative requirement. This is just regular evidence, witnesses that could have come in to testify, other documents. And no defendant is ever, under any obligation, to call witnesses or to provide documentary evidence. That always falls on the prosecution. And so it does not matter that it was prefaced with, it’s [defense counsel’s] burden, because you can say it’s our burden and still shift it the next second. And again, I want some more time, but this is a bell that can’t be unrung, and so I’ll [supplement] my record after I [do] some more research. ¶7 After hearing from both parties outside the presence of the jury and reviewing the record, the trial court overruled the objection. 3 ¶8 The jury found Miller guilty. On appeal, Miller contends that the prosecutor’s argument improperly shifted the burden of proof. We disagree for the reasons outlined below. II. Closing Argument ¶9 Miller contends that the trial court reversibly erred by overruling defense counsel’s objection to the prosecution’s closing argument, which counsel argued shifted the burden of proof to Miller. In the alternative, Miller contends the court erred by failing to remind the jury of the proper burden of proof. We are not persuaded. A. Standard of Review and Applicable Law ¶ 10 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). “As to preserved issues, the trial court’s rulings on prosecutorial misconduct ‘will not be disturbed by an appellate court in the absence of a gross abuse of discretion resulting in prejudice and a denial of justice.’” People v. Rhea, 2014 COA 60, ¶ 42 (citation omitted). 4 ¶ 11 We review claims of prosecutorial misconduct in two steps. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we “must determine whether the prosecutor’s questionable conduct was improper based on the totality of the circumstances and, second, whether such actions warrant reversal according to the proper standard of review.” Id. ¶ 12 When reviewing allegedly improper comments during closing arguments, we must consider the comments in the context of the prosecutor’s closing argument as a whole and in light of all the evidence. People v. Serpa, 992 P.2d 682, 685 (Colo. App. 1999). Prosecutors have wide latitude during closing arguments and “may comment on the evidence admitted at trial, the reasonable inferences that can be drawn from the evidence, and the instructions given to the jury.” People v. Welsh, 176 P.3d 781, 788 (Colo. App. 2007); see People v. DeHerrera, 697 P.2d 734, 743 (Colo. 1985) (closing argument may properly include facts in evidence and any reasonable inferences drawn therefrom). ¶ 13 A criminal defendant has a constitutional right to be presumed innocent “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 5 charged.” People v. Santana, 255 P.3d 1126, 1130 (Colo. 2011). Because the burden of proof never shifts, “the prosecution cannot place upon a criminal defendant the burden of proving innocence through the testing of evidence.” Id. (quoting People v. Clark, 214 P.3d 531, 540 (Colo. App. 2009)) (“[A] prosecutor may not comment on a defendant’s failure to call witnesses or to contradict testimony because such comments might lead the jury to believe that the defendant has a duty to call witnesses or bears some burden of proof.” (quoting State v. Roman Nose, 667 N.W.2d 386, 399 (Minn. 2003))). ¶ 14 Even though a prosecutor’s comments may imply a defendant bears some burden, such comments do not necessarily shift the burden of proof. Id. “Instead, courts must evaluate the strength of the prosecution’s burden-shifting evidence or comment in light of the entire record to assess whether the burden was actually shifted.” Id. at 1131. In assessing whether the prosecution’s actions have shifted the burden of proof, we consider the degree to which (1) the prosecutor specifically argued or intended to establish that the defendant carried the burden of proof; (2) the prosecutor’s actions constituted a fair response to the questioning and 6 comments of defense counsel; and (3) the jury was informed by counsel and the court about the defendant’s presumption of innocence and the prosecution’s burden of proof. Id. at 1131-32 (adopting these factors “as a non-exhaustive guide”). “Additionally, by considering the strength of the burden-shifting actions in light of the whole record, we protect a prosecutor’s ability to ‘comment on the lack of evidence confirming [the] defendant’s theory of the case.’” Id. at 1132 (citation omitted). B. Analysis ¶ 15 We discern no error in the prosecutor’s argument for two reasons. First, it was a direct response to defense counsel’s argument that the prosecution had failed to produce videos and witness testimony concerning what transpired in the motel parking lot. And when defense counsel argues that the prosecution failed to call witnesses to develop a certain theory, the prosecutor may properly respond that the defense could have also produced such evidence. People v. Marioneaux, 618 P.2d 678, 683 (Colo. App. 1980); see also People v. Willis, 708 P.2d 125, 126 (Colo. App. 1985) (finding nothing objectionable in the prosecution’s argument that the defense had the same subpoena power that it had); cf. People v. 7 Conyac, 2014 COA 8M, ¶¶ 137-139 (the prosecutor’s comment that the victim must be “a fantastic liar” wasn’t misconduct because the comment was a response to the defense’s closing argument). ¶ 16 Second, beyond this one comment, Miller does not point us to anything in the record to show that the prosecutor had a specific intent to shift the burden of proof. To the contrary, the record shows that the prosecutor prefaced the argument with a reminder that it carried the burden to prove all of the elements of the charge beyond a reasonable doubt. Moreover, as in Santana, “the prosecutor never explicitly argued that [Miller] ha[d] the burden of proof.” 255 P.3d at 1133. ¶ 17 Finally, even if an error had occurred, we conclude it was harmless because the evidence of Miller’s guilt was overwhelming. See People v. Summitt, 132 P.3d 320, 327 (Colo. 2006) (“If properly admitted evidence overwhelmingly shows guilt, the error is harmless.”). The only contested issue concerned the sufficiency of the evidence of what occurred in the parking lot, under the reasonable doubt standard. No one contested the fact that Miller contacted S.H., and the parties stipulated that Miller signed the protection order. Indeed, the charges that were relevant to the 8 circumstances in the parking lot were dismissed before trial. Therefore, subpoenaing additional witnesses to relate what happened in the parking lot would not have affected the outcome of the protection order conviction. For these reasons, we reject Miller’s alternate argument that an additional jury instruction on the burden of proof was required. III. Disposition ¶ 18 The judgment is affirmed. JUDGE GROVE and JUDGE LUM concur. 9