Background
While Montgomery, his fiancée, and a friend were hauling wood, nearby children were playing a “cop game” with a toy gun. When one child pointed the toy gun at Montgomery, a dispute arose about what happened next. The prosecution alleged Montgomery produced his fiancée’s nine-millimeter handgun, pointed it at the children, and said “I got a real strap.” Montgomery’s defense was that children found his fiancée’s BB gun in the truck, and he merely showed one child how to hold it safely without aiming it at anyone.
Montgomery had a prior felony conviction that made him ineligible to possess firearms under Colorado law. He was charged with possession of a weapon by a previous offender (POWPO), two counts of felony menacing, and three counts of misdemeanor child abuse. Approximately one week after the incident, the father of two boys confronted Montgomery online; Montgomery responded that he had a gun but denied pointing it at anyone and claimed he was teaching proper gun handling. A jury acquitted Montgomery of the menacing and child abuse counts but convicted him of POWPO. He received one year of community corrections.
On appeal, Montgomery raised three challenges: (1) the trial court improperly instructed the jury on reasonable doubt using the 2022 model instruction; (2) the court failed to clarify to the jury whether a BB gun qualifies as a firearm; and (3) a 13-year-old witness was improperly allowed to testify that the gun looked like a real SIG pistol chambered in 9mm or .45 ACP.
The Court’s Holding
The court affirmed the conviction. Addressing the reasonable doubt instruction, the majority held that the 2022 model instruction—which defines reasonable doubt as proof that “leaves you firmly convinced” and instructs acquittal if there is “a real possibility that the defendant is not guilty”—correctly states the prosecution’s burden. The “real possibility” language explains the evidentiary threshold without shifting the burden to the defendant, and nothing suggests the defendant must be the source of that doubt. While acknowledging that including “lack of evidence” language might have been preferable, the court found omission of such language was not error because the concept of reasonable doubt inherently invites juries to consider missing evidence.
On the BB gun instruction, the court found Montgomery waived the argument. Although he raised it as plain error, his defense counsel was specifically present when the court proposed declining to give additional instructions and expressly stated she did not object. Unlike situations where counsel merely accepts a set of instructions without addressing the specific issue, Montgomery’s counsel here rejected an opportunity to request the instruction he now demands on appeal.
Regarding the child’s testimony, the court held that even if the 13-year-old’s specific identification of the gun as a SIG or particular caliber constituted expert testimony offered without proper foundation, any error was harmless. The relevant question was whether Montgomery possessed a firearm at all, not its specific type. Substantial other evidence—including Montgomery’s own statement that he held a nine-millimeter, his comment about having “a real gun,” and his acknowledgment of possession in the online confrontation—established he had an actual firearm rather than a BB gun. Lay witnesses with recreational firearms experience may identify firearm types based on appearance without specialized training.
Key Takeaways
- Colorado’s 2022 model jury instruction on reasonable doubt does not lower the prosecution’s burden and correctly defines the “real possibility” standard for acquittal.
- Defendants must timely object to jury instruction language or risk waiving appellate challenges; express failure to object when given the opportunity constitutes waiver, even for fundamental rights.
- Lay witnesses with recreational firearm familiarity may testify that a firearm is real and identify its type based on observation, without requiring expert qualification.
- Error in admitting testimony about a firearm’s specific type is harmless when overwhelming evidence establishes the defendant possessed a firearm generally.
Why It Matters
This decision resolves uncertainty about Colorado’s updated jury instructions on reasonable doubt. Montgomery and other recent appellate decisions have repeatedly challenged the 2022 model instruction’s “real possibility” language, but three divisions of the Colorado Court of Appeals have now upheld it. However, Judge Berger’s dissent—expressing continued concern about the instruction and adopting the position she stated in People v. Berumen—signals that this issue is headed to the Colorado Supreme Court. Indeed, the opinion notes that the supreme court has granted certiorari in Teran-Sanchez v. People to address whether similar jury instruction language violates due process and trial fairness.
For defense practitioners, the decision underscores the critical importance of contemporaneous objections to jury instructions. Montgomery had a clear opportunity to object when the jury asked whether a BB gun is a firearm, but his counsel’s silence resulted in complete waiver—not mere forfeiture—of the issue on appeal. The decision also clarifies that expert qualification rules apply differently to firearm identification than to technical forensic analysis: a teenager’s statement that a gun “looked real” requires no specialized knowledge, but opining about specific ballistic properties based on barrel size crosses into expert territory.