COLORADO COURT OF APPEALS 2017COA106
Court of Appeals No. 15CA0470
Adams County District Court No. 14CR1022
Honorable Thomas R. Ensor, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Samuel David Carian,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART
AND VACATED IN PART
Division I
Opinion by JUDGE TAUBMAN
Román and Lichtenstein, JJ., concur
Announced August 10, 2017
Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Rachel K. Mercer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Samuel David Carian, appeals his judgment of
conviction entered on a jury verdict finding him guilty of one count
of forgery and one count of attempting to influence a public servant.
We affirm in part and vacate in part.
I. Background
¶2 Carian was on probation for possession of a controlled
substance, a misdemeanor. He met his probation officer, Tuesday
Black, in September 2013. Black informed Carian that he had to
complete regular urine drug tests. Black gave him a list of
approved facilities. Carian completed some tests, but missed others
and also returned tests with positive results.
¶3 In November 2013, Carian told Black that he wanted to do his
urinalysis at a facility called Wiz Quiz. Black told him that it was
not an approved facility. Carian met Black in November and
December 2013, and he told her he was submitting samples at Wiz
Quiz. Black tried to get the test results from Wiz Quiz but was
unable to confirm that Carian was a customer there.
¶4 In December 2013, Black drafted a revocation complaint for
Carian’s various probation violations. It did not discuss Wiz Quiz or
Black’s inability to verify Carian’s urinalysis test results. When
1
Black served Carian with this complaint, he gave her four
documents that he said were copies of his urinalysis results from
Wiz Quiz. The documents said that he had had his urine tested at
the Wiz Quiz location in Lakewood, Colorado, in November 2013
and that the results were negative for illegal drugs.
¶5 Black tried to contact Wiz Quiz to verify Carian’s urinalysis
test results but could not reach anyone at the website or the phone
number listed on the documents he submitted to her. Eventually,
she found the contact information for Julie Calvert, the manager of
the Wiz Quiz in Lakewood. Calvert said Carian’s documents did not
match her company’s forms. She also said the contact information
was incorrect and she had no record of Carian being a Wiz Quiz
customer.
¶6 Carian was then charged with forgery under section 18-5-
102(1)(d), C.R.S. 2016, and attempting to influence a public servant
under section 18-8-306, C.R.S. 2016, because he allegedly gave
Black fraudulent test results.
II. Sufficiency of the Evidence
¶7 Carian contends that the evidence was insufficient to convict
him of forgery under section 18-5-102(1)(d) because the urinalysis
2
test results at issue that he handed to his probation officer were not
a “public record” or “an instrument filed or required by law to be
filed or legally fileable in or with a public office or public servant.”
While we conclude that the urinalysis test results from Wiz Quiz
were “instrument[s]” within the reach of the statute, we also
conclude that they were not filed, required by law to be filed, or
legally fileable as provided in section 18-5-102(1)(d), and therefore
the evidence does not support his forgery conviction.
A. Standard of Review
¶8 We review the record de novo to determine whether the
evidence was sufficient to support a conviction. People v. Roggow,
2013 CO 70, ¶ 13, 318 P.3d 446, 450. To the extent that the
resolution of this issue requires interpretation of the forgery statute,
we conduct that review de novo. Chavez v. People, 2015 CO 62,
¶ 7, 359 P.3d 1040, 1042.
¶9 When a defendant challenges the sufficiency of the evidence,
we must determine “whether any rational trier of fact might accept
the evidence, taken as a whole and in the light most favorable to the
prosecution, as sufficient to support a finding of the accused’s guilt
3
beyond a reasonable doubt.” People v. Sprouse, 983 P.2d 771, 777
(Colo. 1999).
B. Applicable Law
¶ 10 “The Due Process Clauses of the Colorado and United States
Constitutions require the prosecution to prove the existence of every
element of a charged offense beyond a reasonable doubt.” People v.
Espinoza, 195 P.3d 1122, 1127-28 (Colo. App. 2008); see U.S.
Const. amends. V, VI, XIV; Colo. Const. art. II, §§ 16, 23, 25; In re
Winship, 397 U.S. 358, 363-64 (1970). “[A] modicum of relevant
evidence will not rationally support a conviction beyond a
reasonable doubt,” and a verdict cannot be based on “guessing,
speculation, or conjecture.” Sprouse, 983 P.2d at 778. If
reasonable jurors must necessarily have a reasonable doubt about
a defendant’s guilt, the trial court must direct an acquittal. People
v. Bennett, 183 Colo. 125, 132-33, 515 P.2d 466, 470 (1973).
¶ 11 A person commits forgery if
with intent to defraud, such person falsely
makes, completes, alters or utters a written
instrument which is or purports to be, or
which is calculated to become or to represent if
completed:
...
4
[a] public record or an instrument filed or
required by law to be filed or legally fileable in
or with a public office or public servant.
§ 18-5-102(1)(d). “As a matter of law, the crime of forgery is
complete when the act and guilty knowledge coincide with the
intent to defraud.” People v. Cunefare, 102 P.3d 302, 307 n.4 (Colo.
2004). The intent to defraud may be inferred “where the defendant
passed an instrument he knows to be false.” Id. As relevant here, a
“[w]ritten instrument” is defined as “any paper, document, or other
instrument containing written or printed matter or the equivalent
thereof, used for purposes of reciting, embodying, conveying, or
recording information[.]” § 18-5-101(9), C.R.S. 2016.1 “Utter”
means “to transfer, pass, or deliver, or attempt or cause to be
transferred, passed, or delivered, to another person any
instrument.” § 18-5-101(8).
C. Analysis
¶ 12 The elements of the crime of forgery under section 18-5-
102(1)(d) are: (1) that a person; (2) with intent to defraud; (3) falsely
1 We note that while section 18-5-102(1)(d), C.R.S. 2016, refers only
to an “instrument,” section 18-5-102(1) refers to “a written
instrument” and section 18-5-101(9), C.R.S. 2016, defines only a
“[w]ritten instrument.”
5
made, completed, or uttered a written instrument; (4) which was, or
which purported to be, or which was calculated to become, or to
represent if completed; (5) a public record or an instrument filed, or
required by law to be filed, or legally fileable in or with a public
office or public servant. In this appeal, we must first consider
whether the urinalysis reports Carian gave to Black are
“instrument[s],” or “public record[s]” within the ambit of section 18-
5-102(1)(d) and, if so, whether they were “calculated to become or to
represent if completed . . . [a] public record or an instrument filed
or required by law to be filed or legally fileable in or with a public
office or public servant.” § 18-5-102(1)(d).
¶ 13 When we interpret a statute, our primary goal is to ascertain
and give effect to the intent of the General Assembly. Dubois v.
People, 211 P.3d 41, 43 (Colo. 2009). The statute must be read as a
whole, giving words and phrases their plain and ordinary meanings,
and the statute must be interpreted to give consistent, harmonious,
and sensible effect to all of its parts. People v. Summers, 208 P.3d
251, 254 (Colo. 2009).
¶ 14 If the plain language of the statute is clear and unambiguous,
we apply the statute as written, unless it leads to an absurd result.
6
Kauntz v. HCA-Healthone, LLC, 174 P.3d 813, 816 (Colo. App.
2007); see also People v. Kovacs, 2012 COA 111, ¶ 11, 284 P.3d
186, 188. Additionally, no interpretation should render any part of
the statute superfluous. See Kisselman v. Am. Family Mut. Ins. Co.,
292 P.3d 964, 969 (Colo. App. 2011). “A strained or forced
construction of a statutory term is to be avoided, and we must look
to the context of a statutory term.” Fogg v. Macaluso, 892 P.2d 271,
274 (Colo. 1995) (citation omitted).
¶ 15 We presume that the General Assembly intends a just and
reasonable result when it enacts a statute, and a statutory
construction that defeats the legislative intent will not be followed.
Kauntz, 174 P.3d at 816. If, however, the statutory language lends
itself to alternative constructions and its intended scope is unclear,
a court may apply other rules of statutory construction to
determine which alternative construction is in accordance with the
objective sought to be achieved by the legislation. Id.
¶ 16 A word may be defined by an accompanying word and,
ordinarily, the coupling of words denotes an intention that they
should be understood in the same general sense. See 2A Norman
Singer & Shambie Singer, Sutherland Statutory Construction
7
§ 47:16, Westlaw (7th ed. database updated Nov. 2016). However,
the use of the disjunctive “or,” according to the supreme court, can
also connote alternate ways of committing the same crime. See
People v. Barry, 2015 COA 4, ¶ 96, 349 P.3d 1139, 1157 (“[W]hen
the legislature joins a number of acts disjunctively in a single
provision of the criminal code, courts have found that ‘the
legislature intended to describe alternate ways of committing a
single crime rather than to create separate offenses.’” (quoting
People v. Abiodun, 111 P.3d 462, 465 (Colo. 2005))).
1. “Instrument”
¶ 17 Under the plain language of the statute, a person commits
forgery if, with the intent to defraud, he or she makes, completes, or
utters “a written instrument which is or purports to be, or which is
calculated to become or to represent if completed . . . [a] public
record or an instrument filed or required by law to be filed or legally
fileable in or with a public office or public servant.” § 18-5-102(1)(d)
(emphasis added). “[W]hen the word ‘or’ is used in a statute, it is
presumed to be used in the disjunctive sense, unless legislative
intent is clearly to the contrary.” Armintrout v. People, 864 P.2d
576, 581 (Colo. 1993). Thus, while Carian argues that the evidence
8
is insufficient to charge him with first degree forgery because his
urinalysis reports were not “public record[s],” the statute states that
such documents can also be “instrument[s].”
¶ 18 As defined in the statute, a “[w]ritten instrument” means “any
paper, document, or other instrument containing written or printed
matter or the equivalent thereof, used for purposes of reciting,
employing, conveying, or recording information.” § 18-5-101(9).
Accordingly, we conclude that Carian’s urinalysis reports qualify as
“instrument[s],” since those documents recorded and conveyed
information to his probation officer regarding the apparent results
of his mandatory drug tests required as a condition of his
probation.
2. “Filed or [R]equired by [L]aw to be [F]iled or [L]egally [F]ileable”
a. Interpretation
¶ 19 While defendants have been charged under the former
iterations of subsection (1)(d), see People v. Vesely, 41 Colo. App.
325, 587 P.2d 802 (1978), no Colorado appellate case has
interpreted the meaning of the phrase “filed or required by law to be
9
filed or legally fileable in or with a public office or public servant.”2
§ 18-5-102(1)(d); see Cunefare, 102 P.3d 302.
¶ 20 Black’s Law Dictionary defines “to file” in the context of legal
proceedings. “To file” means “[t]o deliver a legal document to the
court clerk or record custodian for placement into the official record
. . .; [t]o commence a lawsuit.” Black’s Law Dictionary 745 (10th
ed. 2014). The term can also mean “[t]o record or deposit
something in an organized retention system or container for
preservation and future reference.” Id.
¶ 21 The General Assembly enacted section 18-5-102 in 1993 as
part of House Bill 93-1302, which repealed and re-enacted a large
section of the criminal code. See Hearings on H.B. 93-1302 before
the H. Judiciary Comm., 59th Gen. Assemb., 1st Sess. (Feb. 16,
1993). While the legislative hearings noted that the new forgery
statute combined first and second degree forgery into one broad
2 We note that another division of this court relied on the dictionary
to interpret “file” in another statute to mean “to deliver (as a legal
paper or instrument) after complying with any condition precedent
(as the payment of a fee) to the proper officer for keeping on file
among the records of his office.” Colo. Div. of Ins. v. Auto-Owner’s
Ins. Co., 219 P.3d 371, 378 (Colo. App. 2009) (quoting Webster’s
Third New International Dictionary 849 (2002)) (interpreting section
10-3-109, C.R.S. 2016).
10
statute, they did not explain why the specific statutory language
was used. See id.
¶ 22 Since the enactment of section 18-5-102, however, appellate
courts have interpreted subsection (1)(c). See Cunefare, 102 P.3d
302; People v. Taylor, 159 P.3d 730, 734 (Colo. App. 2006).
¶ 23 Cunefare and Taylor were decided long after section 18-5-102
was enacted. Their holdings remain valid, and their analyses —
and the earlier analysis of subsection (1)(d) in Vesely, 41 Colo. App.
325, 587 P.2d 802 — have not prompted the legislature to alter or
clarify the language of the statute. As a result, we conclude that
their interpretations reflect the intent of the General Assembly when
it enacted the current forgery statute. See Bd. of Cty. Comm’rs v.
Colo. Pub. Utils. Comm’n, 157 P.3d 1083, 1089 (Colo. 2007)
(“[L]egislative inaction to change this court’s interpretation of a
statute is presumed to be ratification of that interpretation.”).
¶ 24 We must avoid rendering any part of the statute superfluous.
See Kisselman, 292 P.3d at 969. The statute defines “to utter” as
“to transfer, pass, or deliver” an instrument to another person.
§ 18-5-101(8). Therefore, while the verb often includes the action of
delivery, in the context of subsection (1)(d), “to file” an instrument
11
must mean more than simply delivering it to a public office or a
public servant; otherwise, the General Assembly would not have
separately defined “to utter” as the act of passing or delivery
independent of “to file.” To include two definitions of transfer,
passing or delivery, in the statute would be redundant.
i. Subsection (1)(d)
¶ 25 Further, to avoid rendering any part of the forgery statute
superfluous, the conduct prohibited in subsection (1)(d) must differ
from that identified in subsection (1)(c) of the statute, which
prohibits forgery of an instrument that may “otherwise affect a legal
right, interest, obligation, or status.” § 18-5-102(1)(c).
¶ 26 We conclude that under subsection (1)(d), “filed or required by
law to be filed or legally fileable in or with a public office or public
servant” refers to those instruments actually delivered to a public
office or public servant pursuant to a legal mandate, such as
documents that have a specific legal requirement of delivery to a
public officer or with a public office for a specific purpose, like
income taxes or license applications. See, e.g., People v. Eckley,
775 P.2d 566, 568 (Colo. 1989) (defendant submitted fraudulent
license applications for recording with state and local liquor
12
licensing authorities); Vesely, 41 Colo. App. 325, 330, 587 P.2d
802, 805 (defendant filed tax returns in other people’s names so he
could receive additional tax refunds). “Legally fileable” documents
may also include real property conveyancing documents and other
documents relating to interests in real property which may be
“legally fileable” even though they are not filed “pursuant to a legal
mandate.” This interpretation gives effect to subsection (1)(d)
without rendering the broad language of subsection (1)(c)
superfluous. See Kisselman, 292 P.3d at 969. Our interpretation
of subsections (1)(c) and (d) gives effect to each subsection of the
statute.
ii. Subsection (1)(c)
¶ 27 Our conclusion is fortified by appellate decisions interpreting
subsection (1)(c). In Cunefare, the supreme court noted that the
General Assembly did not define the language in subsection (1)(c)
but concluded that it “arguably intended to allow more flexibility in
applying the statute to forgery crimes.” 102 P.3d at 308. In
addition, “[b]ecause the reach of the statute is broad and includes
instruments that affect or may affect a legal right, interest,
obligation, or status, we construe the statute broadly.” Id. at 309.
13
“The language of the statute does not apply only to instruments
affecting financial, property, or legal matters but rather applies to
any legal right, interest, obligation or status.” Id. at 309-10. The
Cunefare court concluded that the defendant’s forged letter to the
prosecutor fell under subsection (1)(c). The letter had a legal effect
because it was “clearly an effort to influence the prosecutor and
thereby impact or affect the pending case.” Id. at 310.
¶ 28 Similarly, in Taylor, 159 P.3d at 734, a division of this court
concluded that subsection (1)(c) was broad enough to include a
defendant’s forged forms given to her probation officer that
purported to show her completion of required community service.
The division concluded that such forms could impact the
defendant’s liberty interest, “a legal right which clearly was subject
to termination if she failed to perform the . . . public service that
[was] documented in the forms submitted to the agency.” Id. at
734.
¶ 29 In contrast, in Vesely, the defendant was charged with forgery
under what is now subsection (1)(d) for filing forged income tax
returns. A division of this court found that the evidence was
sufficient to support the defendant’s forgery conviction because
14
income tax returns are “‘instruments filed or required by law to be
filed . . . with a public office,’ as required by . . . [the] statute.”
Vesely, 41 Colo. App. at 330, 587 P.2d at 805 (citation omitted).
b. Application to Carian’s Forged Urinalysis Reports
¶ 30 The People argue that we should affirm Carian’s conviction of
felony forgery because the act of giving his urinalysis results to his
probation officer was sufficient evidence that he “filed” the
instruments as required under subsection (1)(d) or, alternatively,
that the urinalysis results were “legally fileable.” We disagree and
conclude that the evidence was insufficient to support Carian’s
conviction under section 18-5-102(1)(d) because it does not show
that Carian engaged in any conduct proscribed by subsection (1)(d).
¶ 31 Looking at the evidence in the light most favorable to the
prosecution, we conclude that the evidence is insufficient to
demonstrate that the urinalysis reports were “required by law to be
filed or legally fileable in or with a public office or public servant,”
because “filing” a urinalysis report is not a legally mandated
procedure of delivery to include in a probationer’s record. In other
words, evidence does not show that Carian either “filed” the
15
urinalysis reports or that the urinalysis reports were “legally
fileable.”
¶ 32 Carian’s act of handing the urinalysis reports to Black does
not mean that he “filed” an instrument as contemplated by
subsection (1)(d). Black, while a public servant, was not mandated
to receive and maintain urinalysis reports as required by subsection
(1)(d). She is required by law to keep records of her work with
Carian concerning the terms of his probation, see § 16-11-209,
C.R.S. 2016 (duties of a probation officer), but her duties do not
include maintenance of formal drug urinalysis reports.
¶ 33 In fact, Black told Carian that she could not accept his Wiz
Quiz results directly from him because “there could be tampering
with the results.” Thus, giving the urinalysis reports to Black was
not even an accepted procedure of keeping records in the probation
department. Moreover, the evidence does not demonstrate that
Carian handed his test results to the probation officer for the
purpose of incorporation into a formal or public record.
¶ 34 Similarly, the urinalysis reports were not “legally fileable”
under subsection (1)(d). None of the actions described above lend
the urinalysis reports the status of “legally fileable” under the
16
statute because, again, there is no legally mandated requirement of
filing any such reports for a specific purpose.
¶ 35 Rather, Carian’s conduct was more akin to that prohibited
under section 18-5-102(1)(c), passing of a forged instrument “which
does or may evidence, create, transfer, terminate, or otherwise
affect a legal right, interest, obligation, or status.” See Cunefare,
102 P.3d 302; Taylor, 159 P.3d 730. However, Carian was not
charged under subsection (1)(c).
¶ 36 Consequently, we conclude that the evidence presented at trial
was insufficient to support Carian’s conviction of forgery under
section 18-5-102(1)(d). We therefore vacate Carian’s conviction of
felony forgery. See People v. Miralda, 981 P.2d 676, 680 (Colo. App.
1999).
III. Lesser Nonincluded Offense Instruction
¶ 37 Carian contends that the trial court erred when it denied his
request for an instruction on the lesser nonincluded offense of
second degree forgery. Because we have vacated Carian’s forgery
conviction based on insufficient evidence, we need not address this
issue.
IV. Res Gestae Evidence
17
¶ 38 Carian contends that the trial court erred when it admitted
evidence under the doctrine of res gestae showing that he had been
previously convicted of a drug offense. We conclude that regardless
of whether the admission of such evidence was error, it did not
substantially influence the verdict or affect the fairness of the
proceedings regarding his conviction for attempting to influence a
public servant, and thus any error in its admission was harmless.
¶ 39 In a pretrial hearing, the People notified the court it intended
to introduce testimony showing Carian was on probation for
possession of a controlled substance when he committed the
offenses in this case. Defense counsel did not object to evidence
showing Carian was on probation for a misdemeanor, but objected
to evidence showing that his prior offense was possession of a
controlled substance. The trial court admitted this evidence as res
gestae because without it the jurors would be left to “guess” the
identity of his prior offense. The court also stated that it was “just a
matter of being truthful to the jury.”
¶ 40 At trial, Black testified that Carian was on probation for
possession of a controlled substance. She explained that one of the
conditions of his probation was submitting urine tests to ensure he
18
was not using illegal drugs. Before Black testified, the trial court
instructed the jury as follows:
Ladies and gentlemen of the jury, certain
evidence is about to be admitted for a
particular purpose only and for no other.
Evidence of the fact that the defendant was on
probation for a misdemeanor conviction is
such evidence. It is only being offered to
provide context to the current charges and not
as proof of any of the elements of the crimes
charged. The defendant is to be tried for the
crimes charged in this case and no other.
The court also gave a written instruction to the jury that “[t]he court
admitted certain evidence for a limited purpose. You are again
instructed that you cannot consider that evidence except for the
limited purpose I told you when it was admitted.”
A. Standard of Review
¶ 41 While Carian contends that we must review this issue under a
constitutional harmless error standard, the People assert that this
claim is subject only to nonconstitutional harmless error review.
We agree with the People that evidentiary rulings are subject to the
nonconstitutional harmless error standard. Wend v. People, 235
P.3d 1089, 1097 (Colo. 2010); see also People v. Cordova, 293 P.3d
114, 118 (Colo. App. 2011) (rejecting defendant’s attempt to frame
19
an evidentiary issue as one of constitutional magnitude). An error
is harmless if it does not substantially influence the verdict or affect
the fairness of the proceedings. People v. Munsey, 232 P.3d 113,
123 (Colo. App. 2009).
B. Applicable Law
¶ 42 Res gestae is evidence of a “matter incidental to the main fact
and explanatory of it, including acts and words which are so closely
connected therewith as to constitute a part of the transaction, and
without knowledge of which the main fact might not be properly
understood.” People v. Rollins, 892 P.2d 866, 872-73 (Colo. 1995)
(quoting Woertman v. People, 804 P.2d 188, 190 n.3 (Colo. 1991)).
To be admissible, res gestae evidence must be relevant under CRE
401 and its probative value cannot be substantially outweighed by
the danger of unfair prejudice under CRE 403. See id. at 873.
C. Analysis
¶ 43 We conclude that regardless of whether evidence of Carian’s
predicate drug offense was res gestae, its introduction did not
substantially influence the verdict or affect the fairness of the
proceedings.
20
¶ 44 First, the evidence of Carian’s prior drug offense that led to his
probation was not unduly prejudicial. The nature of Carian’s
offenses at issue already informed the jury that Carian had issues
related to drugs. In addition to charging Carian with the
submission of a fraudulent drug test to his probation officer, the
People properly introduced evidence without objection by Carian
that he had failed some drug tests in the course of his probation.
Hearing that Carian’s predicate offense related to drugs likely had
minimal impact on the jury. See People v. Thorpe, 641 P.2d 935,
943 (Colo. 1982) (The evidence was not “so shocking that [its]
probative value was outweighed by the likelihood that [it] would
inflame the passions of the jury or cause them ‘to abandon their
mental processes and give expression to their emotions.’”) (citation
omitted).
¶ 45 More importantly, the court instructed the jury before it heard
the evidence of his previous drug-related offense that such evidence
was admissible for only a limited purpose, which was “to provide
context to the current charges and not as proof of any of the
elements of the crimes charged.” Without contrary evidence, “we
presume that a jury follows a trial court’s instructions.” Qwest
21
Servs. Corp. v. Blood, 252 P.3d 1071, 1088 (Colo. 2011), as modified
on denial of reh’g (June 20, 2011). As a result, we conclude that
the court’s instruction mitigated any potential prejudice that may
have flowed from the admission of the challenged evidence.
¶ 46 Accordingly, we conclude that any error in the admission of
Carian’s drug offense was harmless.
V. Prosecutorial Misconduct
¶ 47 Carian contends that the prosecutor committed misconduct by
asking the jury to hold him accountable for wasting public
resources and “squandering” the opportunity to rehabilitate himself
on probation during both his opening statement and his rebuttal
closing. Carian objected only to the statements the prosecutor
made in his rebuttal closing arguments. While we conclude that
the prosecutor’s statements were improper, we further conclude
that the admission of such statements does not warrant reversal
under either plain or harmless error review.
¶ 48 During voir dire, the prosecutor discussed the purposes of
probation. He told the jury one purpose is punishment, but
another is rehabilitation and treatment of problems like alcohol
addiction. In his opening statement, the prosecutor told the jurors
22
Carian was on probation and that “[t]he evidence is going to show
you that [Carian] squandered his opportunity on probation, and not
only that, wasted valuable resources that the probation department
had because they had to investigate this. At the end of this case,
I’m going to ask you to hold him accountable for his actions.”
Defense counsel did not object to this statement.
¶ 49 In his rebuttal closing, the prosecutor reminded the jury that
the court had given Carian an opportunity to rehabilitate himself on
probation and again suggested he had wasted public resources
because he refused to take advantage of this opportunity.
Specifically, he argued that this case “matters because probation
has different purposes. Remember when we talked about that in
jury selection? It’s not just for punishment. It’s for people who are
trying to get treatment, trying to get help, trying to get — use
resources that probation can provide in order — so that they can
make better decisions in their lives.” Defense counsel objected to
this statement as an improper argument, and the court
admonished the prosecutor, saying, “Stay away from talking about
sanctions.” The prosecutor then told the jury, “Probation does not
need to be spending their time investigating stuff like this.” Defense
23
counsel objected again, and the court again told the prosecutor to
“stay away from the issue of sanctions.”
A. Standard of Review
¶ 50 Absent a constitutional violation, we review the trial court’s
ruling on prosecutorial misconduct for an abuse of discretion.
People v. Welsh, 176 P.3d 781, 788 (Colo. App. 2007). However, if
the defendant’s contention of misconduct is not preserved by a
contemporaneous objection, we review a prosecutor’s comments for
plain error. Wilson v. People, 743 P.2d 415, 419 (Colo. 1987).
¶ 51 Because Carian did not object to the prosecutor’s allegedly
improper statements in his initial opening statement, we review the
prosecutor’s statements during opening statement for plain error.
¶ 52 To constitute plain error, any prosecutorial misconduct must
be “flagrant or glaringly or tremendously improper” and so
undermine the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction. People v.
Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App. 2005) (citation
omitted) (finding no plain error in the prosecution’s improper
definition of reasonable doubt during voir dire and closing
arguments where jury instructions correctly defined the concept).
24
Prosecutorial misconduct is rarely, if ever, so egregious as to
warrant reversal. People v. Wallace, 97 P.3d 262, 269 (Colo. App.
2004).
¶ 53 During rebuttal closing, Carian objected to both of the
prosecutor’s allegedly improper statements. As a result, we review
the trial court’s ruling on such statements for an abuse of
discretion. Welsh, 176 P.3d at 788. “In determining whether a trial
court abused its discretion in denying a motion for a new trial on
prosecutorial misconduct grounds, appellate courts are mindful
that ‘the trial court is best positioned to evaluate whether any
statements made by counsel affected the jury’s verdict.’” People v.
Rhea, 2014 COA 60, ¶ 66, 349 P.3d 280, 295 (quoting
Domingo-Gomez v. People, 125 P.3d 1043, 1049–50 (Colo. 2005)).
B. Applicable Law
¶ 54 When evaluating a claim of prosecutorial misconduct, we
engage in a two-step analysis. Domingo-Gomez, 125 P.3d at 1048-
49. First, we determine whether the prosecutor’s conduct was
improper based on the totality of circumstances. Id. We then
determine whether the statements warrant reversal under the
proper standard of review. Id. “Each step is analytically
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independent, so that even if an appellate court finds a prosecutor’s
statement was improper, it may uphold the judgment if the errors
are harmless.” Cordova, 293 P.3d at 121.
¶ 55 Further, if a prosecutor’s statements are improper, a reviewing
court must determine whether they affected the fundamental
fairness of the trial. Id. at 122. The reviewing court examines a
variety of factors under the totality of the circumstances. Id.; see
also Wend, 235 P.3d at 1097. “These factors include ‘the exact
language used, the nature of the misconduct, the degree of
prejudice associated with the misconduct, the surrounding context,
. . . the strength of the other evidence of guilt,’ . . . ‘the severity and
frequency of the misconduct[,] . . . and the likelihood that the
misconduct constituted a material factor leading to the defendant’s
conviction.’” Cordova, 293 P.3d at 122 (citations omitted).
¶ 56 A prosecutor must confine the closing argument to the
evidence admitted at trial and any reasonable inferences that may
be drawn from that evidence. Domingo-Gomez, 125 P.3d at 1048-
49. He or she cannot use the closing argument to mislead the jury
and must refrain from making arguments “which would divert the
jury from its duty to decide the case on the evidence.” Id. at 1049
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(citation omitted). The same restrictions apply to a prosecutor’s
opening statement because the rules governing opening statements
are more restrictive than those applying to closing arguments. See
People v. Hernandez, 829 P.2d 394, 396 (Colo. App. 1991).
C. Analysis
1. Opening Statement
¶ 57 The prosecutor’s comment on Carian’s squandering of
resources was unrelated to the charges against Carian because, as
Carian argues, it diverted the jury’s attention from the charges of
forgery and attempting to influence a public servant, especially
since the prosecutor asked the jury to hold him accountable for
squandering resources. Further, the comments were a
misstatement. As Carian’s probation officer, Black, testified, her
role was to “supervise the client[,] . . . order the client to do urine
tests, attend classes, attend probation appointments, [and] monitor
their compliance through the courts.” Contrary to the prosecutor’s
assertions, one duty of the probation department is to investigate
clients’ alleged noncompliance with the terms of their probation,
including, as charged here, any alleged instances of deception. As a
result, the prosecutor’s comments had the potential to mislead the
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jury from its duty to decide the charges against Carian based on the
evidence before it. See Domingo-Gomez, 125 P.3d 1048-49; see also
Hernandez, 829 P.2d at 396.
¶ 58 However, even though allowing these remarks was error, it
was not plain. First, the prosecutor’s comments about
“squandering his opportunity” and “wasting resources” were not
flagrantly or glaringly improper, since they did not accuse Carian of
committing any additional crime. See Cevallos-Acosta, 140 P.3d at
122. The comments were also fleeting relative to the argument as a
whole and in light of all the evidence the jury heard after opening
statements. See People v. McMinn, 2013 COA 94, ¶ 60, ___ P.3d
___, ___.
¶ 59 Finally, the jury was expressly instructed that “[a]n opening
statement is not evidence. Its purpose is to give you a framework to
help you understand the evidence as it is presented.” Nothing in
the record suggests that the jury did not follow the court’s
instructions. See People v. McKeel, 246 P.3d 638, 641 (Colo. 2010)
(juries are presumed to follow the instructions they receive from
trial courts).
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¶ 60 Accordingly, we conclude that the prosecutor’s comments
during opening statement did not constitute plain error.
2. Rebuttal Closing Argument
¶ 61 We next conclude that it was also improper for the prosecutor
to say that the probation department “does not need to be spending
their time investigating stuff like this.” As stated above, the
prosecutor’s comments on the purpose of probation and Carian’s
wasting of public resources were misstatements, since it is the duty
of the probation department to monitor clients and ensure their
compliance with the terms of their probation.
¶ 62 However, unlike during opening statement, Carian objected to
these statements. As a result, Carian’s contention of misconduct
during closing argument is preserved, and we review the court’s
admission for harmless error. See Welsh, 176 P.3d at 788.
¶ 63 Despite Carian’s arguments to the contrary, we conclude that
the court effectively sustained his objection when it admonished the
prosecutor by saying, “Stay away from talking about sanctions.”
Even though the court did not use the word “sustained,” it twice
told the prosecutor to “stay away” from the line of argument that he
was pursuing. The prosecutor in turn ended his argument after the
29
court’s second admonition. Thus, in context, we interpret the
words “stay away” as effectively sustaining Carian’s objection. See,
e.g., Peavy v. State, 766 So. 2d 1120, 1125 (Fla. Dist. Ct. App.
2000) (finding that the district court’s response to defense counsel’s
objection “caution[ing] [the prosecution] not to do that” was “the
equivalent of sustaining the objection”).
¶ 64 The trial court’s admonition was sufficient to cure any
potential prejudice to Carian. Accordingly, we discern no error and
conclude that reversal of his conviction of attempt to influence a
public servant is not warranted. People v. Rojas, 181 P.3d 1216,
1224 (Colo. App. 2008); People v. Suazo, 87 P.3d 124, 128 (Colo.
App. 2003).
VI. Conclusion
¶ 65 The judgment on Carian’s forgery conviction is vacated, and
the judgment on his attempt to influence a public servant
conviction is affirmed.
JUDGE ROMÁN and JUDGE LICHTENSTEIN concur.
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