People v. Koper

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 20, 2018

2018COA137

No. 15CA1912, People v. Koper — Criminal Law — Jury
Instructions — Defense of Person; Affirmative Defenses — Self-
Defense; Prosecutorial Misconduct

A division of the court of appeals considers whether the trial

court erred in rejecting defense-tendered jury instructions on the

affirmative defense of self-defense. The defendant asserted that he

drew his weapon to defend himself against an ongoing assault by a

third party. The People charged defendant with two counts of

felony menacing, naming as victims bystanders against whom

defendant admitted he did not act in self-defense. The division

concludes that defendant was entitled to a self-defense instruction

because his intent to defend himself against the third party could

be transferred to the named victims. Because the erroneous denial
of the transferred intent self-defense instructions was not harmless,

the division reverses the felony menacing convictions.

The division further concludes that prosecutorial misconduct

requires reversal of defendant’s prohibited possession of a weapon

conviction.

The division also addresses, to the extent the issues are likely

to arise on remand, the defendant’s claims that the trial court erred

in rejecting a jury instruction on the presumption and inferences a

jury can draw based on blood alcohol content testing and in

precluding an expert witness from giving testimony concerning the

same.

Accordingly, the division reverses the judgment of conviction

and remands for a new trial.
COLORADO COURT OF APPEALS 2018COA137

Court of Appeals No. 15CA1912
City and County of Denver District Court No. 14CR6405
Honorable Kenneth M. Laff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Michael Koper,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE CASEBOLT*
Bernard and Welling, JJ., concur

Announced September 20, 2018

Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Defendant, Brian Michael Koper, appeals the judgment of

conviction entered on jury verdicts finding him guilty of two counts

of felony menacing and one count of prohibited possession of a

firearm while under the influence of intoxicating liquor. He

contends that the trial court failed to give a self-defense instruction,

to which he was entitled, on the felony menacing counts and plainly

erred in allowing the prosecutor to pose at least forty-four improper

“were they lying” type questions during cross-examination. He also

contends that the court erred in rejecting his tendered instruction

concerning the presumption and inferences that arise when a

person’s blood alcohol level is less than .05 and in precluding his

expert witness from giving testimony concerning the same. In an

issue of first impression, we conclude that defendant was entitled to

a self-defense instruction concerning the menacing charges based

on the legal doctrine of transferred intent, and we further conclude

that prosecutorial misconduct requires reversal of the prohibited

possession of a firearm conviction. We therefore reverse and

remand for a new trial on all counts.

1
 I. Background

¶2 While at a bar one evening, defendant saw an acquaintance he

knew only as “Abraham” or “Abram” along with several members of

his family. Defendant said something to Abram’s sister that

offended Abram. Trying to make amends, defendant approached

Abram on the bar’s patio to offer him a beer. Abram responded by

punching defendant twice in the face. Defendant then drew his

firearm, for which he had a concealed carry permit, and aimed it at

Abram. After a short standoff, defendant handed the gun to his

fiancee and the two left the bar.

¶3 The People charged defendant with two counts of felony

menacing under section 18-3-206(1)(a), C.R.S. 2017 (proscribing

the knowing placement of or attempt to place another person in fear

of imminent serious bodily injury by employing any threat or

physical action by the use of a deadly weapon). The first count

named the alleged victim as M.B., a security guard at the bar who

had stepped between defendant and Abram after defendant drew

his weapon. The second count named the alleged victim as B.B.,

another bar patron who had been sitting on the patio at a picnic

table behind Abram. The People also charged defendant with

2
 prohibited possession of a firearm under section 18-12-106(1)(d),

C.R.S. 2017 (prohibiting “possession [of] a firearm while [a] person

is under the influence of intoxicating liquor”). The jury found

defendant guilty as charged.

II. Self-Defense Instructions

¶4 Defendant contends that the trial court erred in rejecting his

jury instructions on the affirmative defense of self-defense. We

agree.

A. Additional Facts

¶5 During trial, the defense tendered jury instructions defining

the elements of “defense of person,” explaining “apparent necessity,”

and raising the affirmative defense of self-defense as to the

menacing charges. The People objected to the instructions, arguing

that defendant had not acted in self-defense as to the named

victims but rather in response to Abram’s actions, and no offense

concerning Abram had been charged. In response, the defense

argued that, though defendant “certainly . . . wasn’t defending

himself against [M.B.] or [B.B.] . . . he pulled the weapon in defense

of an assault that had actually occurred, and in his opinion, was

ongoing. The jury needs to know in some way, shape, or fashion, in

3
 these instructions, that he is entitled to defend himself against an

assault.”

¶6 The trial court rejected the affirmative defense instructions.

However, it allowed the defense to incorporate a self-defense

argument in a theory of the case instruction that read, in relevant

part, that defendant “drew his firearm and used it solely for the

purposes of preventing further assault [by Abram] and holding his

assailant at bay.” In permitting that instruction, the trial court

stated, “[T]here was an element of self-defense in the case; it was

not as to the people who were allegedly menaced.”

¶7 During closing argument, the prosecutor argued that “nowhere

in the jury instructions does the word or concept ‘self-defense’ show

up.” He also stated that when a person points a gun at another,

whether it is in self-defense is “immaterial” because the action

inevitably scares the person at whom the gun is pointed.

B. Standard of Review

¶8 If there is some credible evidence presented that a defendant

has acted in self-defense, “the prosecution bears the burden of

proving beyond a reasonable doubt that the defendant did not act

in self-defense, and the trial court must instruct the jury

4
 accordingly.” People v. Pickering, 276 P.3d 553, 556 (Colo. 2011).

“The question of whether the defendant has presented ‘some

credible evidence’ to support each element of an affirmative defense

is a question of law,” and we therefore review the issue de novo.

People v. Oslund, 2012 COA 62, ¶ 16.

¶9 We review preserved instructional errors for nonconstitutional

harmless error. See Castillo v. People, 2018 CO 62, ¶¶ 55-61

(reviewing erroneous initial aggressor instruction for harmless

error); People v. Garcia, 28 P.3d 340, 344 (Colo. 2001). Under that

standard, we reverse only if the error “substantially influenced the

verdict or affected the fairness of the trial proceedings.” Hagos v.

People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,

342 (Colo. 1986)).

C. Applicable Law

1. Self-Defense

¶ 10 Colorado recognizes a limited statutory right to use physical

force in self-defense. See generally § 18-1-704, C.R.S. 2017. In

particular, a person may use physical force on another person to

defend himself from what “he reasonably believes to be the use or

imminent use of unlawful physical force by that other person.”

5
 § 18-1-704(1). Additionally, a person acting in self-defense may

employ “a degree of force which he reasonably believes to be

necessary” to defend himself. Id.

2. Transferred Intent

¶ 11 The doctrine of transferred intent “is a legal fiction that is used

to hold a defendant criminally liable to the full extent of his or her

criminal culpability.” People v. Hunt, 2016 COA 93, ¶ 24 (quoting

State v. Fekete, 901 P.2d 708, 714 (N.M. 1995)). The doctrine is

typically invoked when an actor intends to commit a criminal act,

but “the actual result differs from the result designed or

contemplated only in that a different person or property was injured

or affected.” Id. (quoting Fekete, 901 P.2d at 714). By way of

example, if A intends to shoot B, but misses and instead shoots and

kills unintended victim C, A can be held criminally liable for C’s

murder even though A did not intend to harm C. In that scenario,

A’s criminal intent to harm B “transfers” to C. See People v.

Jackson, 2018 COA 79, ¶ 89 (discussing transferred intent in the

context of determining whether attempted murder after deliberation

of one person is a lesser included offense of the murder after

deliberation of another person).

6
¶ 12 Thus, the doctrine of transferred intent is most frequently

used as a “sword” by the prosecution to hold a defendant criminally

liable. Nevertheless, the doctrine can also limit a defendant’s

liability:

There are, of course, some situations where,
though A intentionally kills or injures B, A is
not guilty of murder or battery. Though he
kills B, . . . he may be guilty of no crime at all
(e.g., when he is privileged to kill or injure B in
self-defense, or to prevent B’s commission of a
felony). Now suppose A shoots at B under
these circumstances but, missing B, hits and
kills or injures C, an innocent bystander. If A
aims at his attacker B in proper self-defense,
but hits C instead, he is not generally guilty of
murder or battery of C. Once again, he is only
as guilty as to C as he would have been had
his aim been accurate enough to have hit B.

1 Wayne R. LaFave, Substantive Criminal Law § 6.4(d) (3d ed. 2017)

(footnote omitted).

¶ 13 Accordingly, several jurisdictions have embraced the concept

of “transferred intent self-defense.” Under that concept, “the

doctrine of self-defense is available to insulate one from criminal

responsibility where his act, justifiably in self-defense, inadvertently

results in the injury of an innocent bystander.” People v. Mathews,

154 Cal. Rptr. 628, 631-32 (Cal. Ct. App. 1979); see State v. Clifton,

7
 290 N.E.2d 921, 923 (Ohio Ct. App. 1972); Holloman v. State, 51

P.3d 214, 221-22 (Wyo. 2002) (collecting cases); see also State v.

Bellinger, 278 P.3d 975, 989-91 (Kan. Ct. App. 2012) (Atcheson, J.,

dissenting). Colorado’s appellate courts have not addressed this

precise issue. But see Henwood v. People, 54 Colo. 188, 194, 129 P.

1010, 1013 (1913) (approving in dicta self-defense instruction when

defendant unintentionally shot and killed a bystander while acting

to defend himself from a third person).

D. Analysis

¶ 14 It is essentially undisputed that defendant raised some

credible evidence that he acted in self-defense against Abram.

Defendant testified that after Abram punched him twice in rapid

succession, he stumbled backward and took a knee before drawing

his weapon. Abram was pacing back and forth in front of him and

threatening to continue the fight. Defendant testified that he

believed Abram “was going to beat [him] to a bloody pulp” if he did

not use the firearm to keep Abram at bay. In our view, that

evidence would have been sufficient to raise an affirmative defense

of self-defense if Abram had been named as a victim. See People v.

Speer, 255 P.3d 1115, 1119 (Colo. 2011) (“It is too well settled to

8
 merit further discussion that a trial court is obliged to instruct the

jury on a requested affirmative defense if there is any credible

evidence, including even highly improbable testimony of the

defendant himself, supporting it.”).

¶ 15 The crux of the issue here, however, is whether defendant was

entitled to raise self-defense as an affirmative defense as to M.B.

and B.B. As the Mathews court reasoned:

[T]he common law theory of “transferred
intent” . . . , in its principal application,
establishes that one’s criminal intent follows
the corresponding criminal act to its
unintended consequences. As the noted cases
have held, the reasoning applies equally to
carry the [l]ack of criminal intent to the
unintended consequences and thus preclude
criminal responsibility.

154 Cal. Rptr. at 631. We find that reasoning persuasive and

therefore elect to follow the jurisdictions that have adopted and

applied the concept of “transferred intent self-defense.”

¶ 16 Under the facts of the present case, we conclude that

defendant was entitled to raise the affirmative defense as to both

victims.

¶ 17 On the menacing charge alleging B.B. as the victim, B.B.

testified that she heard glass break, turned, and saw defendant

9
 with “a bunch of guys around him, and they were all kind of

fighting.” When asked if the gun was ever pointed at her, she

responded that “[i]t was pointed in [her] direction.” During cross-

examination, B.B. testified that Abram was between her and

defendant during the period when defendant’s gun was drawn.

¶ 18 Thus, to the extent that defendant “knowingly place[d] or

attempt[ed] to place [B.B.] in fear of imminent serious bodily injury”

as is required by the statute defining felony menacing, § 18-3-

206(1), his actions may have been justified self-defense. The

evidence adduced at trial indicated that B.B. was a bystander

incidentally affected by defendant’s asserted attempt to defend

himself against what he perceived as a threat posed by Abram.

Thus, defendant was entitled to assert that his intent to defend

himself against Abram transferred to B.B.

¶ 19 Concerning M.B., that victim testified, “[Defendant] had the

gun pointed at the patron [Abram], at the other guy. As I went to

approach him, he went from pointing the pistol at him to pointing it

at me.” M.B. stated that he approached defendant from the front at

“a 45-degree-ish angle” from the right, and that defendant pointed

the gun in his face.

10
¶ 20 M.B.’s testimony by itself would not allow defendant’s conduct

as to him to be justified by self-defense. According to this

testimony, defendant pulled his weapon away from the initial

aggressor — Abram — and trained it on M.B., even pointing it at his

face. And no evidence adduced at trial indicated that defendant

believed M.B. may have been a confederate of Abram’s such that

defendant believed M.B. presented a threat.

¶ 21 However, defendant testified that M.B. approached him from

the “back of [his] right hand,” put two hands on defendant’s two-

handed grip of his pistol, and squeezed defendant’s hands together.

M.B. then stepped forward and “came into [defendant’s] chest.”

Defendant testified he perceived that there were a number of people

around him who were trying to disarm him, including M.B., but he

was trying not to be disarmed because he was “getting [his] butt

kicked by Abram.” Then, according to defendant, he was able to

avoid being disarmed by pointing the gun upward and saying, “[B]e

careful, man, this thing is loaded,” whereupon the crowd backed

away from him. Defendant testified that he did not point the gun at

M.B., and he denied waving the gun around at other patrons on the

patio.

11
¶ 22 This testimony presents a contrary version of the events

surrounding M.B.’s interaction with defendant. If believed by the

jury, defendant’s testimony constitutes sufficient evidence to justify

a self-defense instruction as to victim M.B. Defendant’s intent to

defend himself against Abram would, if the jury believed this

testimony, allow the intent as to Abram to transfer to the encounter

with M.B.

¶ 23 Thus, we conclude the trial court erred in rejecting defendant’s

jury instructions on self-defense as an affirmative defense to the

menacing charges. We further conclude that the error was not

harmless because while the defense’s theory of the case instruction

referred generally to self-defense, the instruction did not require the

prosecution to disprove self-defense beyond a reasonable doubt.

See Pickering, 276 P.3d at 556. The instructions on the menacing

charges provided no means by which the jury could acquit

defendant if it found that, though he committed felony menacing,

he was justified in acting to defend himself. Because we conclude

that the erroneous denial of the self-defense instructions

“substantially influenced the verdict,” Hagos, ¶ 12, we reverse the

convictions for felony menacing.

12
¶ 24 We emphasize that we express no opinion as to whether

defendant used reasonable physical force or whether his conduct as

to either victim was in fact justified. Our conclusion merely leaves

it to the jury to decide whether defendant’s actions were justified

under appropriate jury instructions. See § 18-1-704(1) (a person

must reasonably fear the use or imminent use of unlawful physical

force by another person and use reasonable force in response); cf.

Holloman, 51 P.3d at 222 (“Under these alleged facts, we

nevertheless believe that [defendant’s] testimony required that the

jury be instructed on the law of self-defense. The jury’s role is to

determine whether [his] intentional acts were self-defense . . . .”).

¶ 25 The People do not directly address defendant’s transferred

intent argument. Instead, they assert in their brief that (1)

defendant was not entitled to any affirmative defense because he

did not admit that he committed the charged acts and (2) there was

no credible evidence that either alleged victim used unlawful force

against defendant.

¶ 26 As to the first contention, we disagree that defendant is barred

from raising any affirmative defense as to either menacing victim.

Although he did not concede guilt, he admitted that he committed

13
 the acts that gave rise to those charges. See People v. Whatley, 10

P.3d 668, 670 (Colo. App. 2000) (“An affirmative defense is a

defense that admits conduct leading to the act charged but seeks to

justify, excuse, or mitigate that conduct.”) (emphasis added). As to

the second argument, we disagree for the reasons expressed in our

analysis above.

¶ 27 The People asserted during oral argument that transferred

intent self-defense is only available under a first degree murder

after deliberation or assault charge, given the statutes’ allowance of

a charge even when the intended victim is not harmed, but a third

person’s death or assault is caused by the actor. See, e.g., § 18-3-

102(1)(a), C.R.S. 2017; § 18-3-202(1)(a)-(c), C.R.S. 2017. Because

this contention was raised for the first time at oral argument, we

decline to address it here. See People v. Becker, 2014 COA 36, ¶ 23

(court will not address an argument first raised by the People

during oral argument).

¶ 28 Thus, we conclude that on remand defendant is entitled to

raise the affirmative defense of self-defense as to the menacing

charges, if the evidence at trial on remand is presented in a similar

14
 posture as that presented on this appeal, and the trial court must

give appropriate instructions concerning it.

III. Prosecutorial Misconduct

¶ 29 Defendant contends that prosecutorial misconduct requires

reversal of his conviction for possession of a firearm while

intoxicated. Reviewing under a plain error standard because

defendant did not object to the questions, we agree.

A. Standard of Review

¶ 30 We engage in a two-step analysis in reviewing claims of

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

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

was improper based on the totality of the circumstances. Id.

Second, we decide whether, under the proper standard of review,

any misconduct warrants reversal. Id. We review conduct to which

a defendant did not object for plain error. Id. at 1097.

B. Applicable Law

¶ 31 “[A]sking a witness to opine on the veracity of another witness

is prejudicial, argumentative, and ultimately invades the province of

the fact-finder.” Liggett v. People, 135 P.3d 725, 732 (Colo. 2006).

Thus, “were they lying” type questions are “categorically improper.”

15
 Id. at 733; see also People v. Wittrein, 221 P.3d 1076, 1081 (Colo.

2009) (“In Colorado, neither lay nor expert witnesses may give

opinion testimony that another witness was telling the truth on a

specific occasion.” (citing CRE 608(a))).

¶ 32 Improper “were they lying” type questions include asking a

testifying defendant whether another witness was “mistaken,” State

v. Flanagan, 801 P.2d 675, 679 (N.M. Ct. App. 1990) (noted as

support for a finding of error in Liggett), as well as questions asking

a defendant to explain the testimony of an adverse witness, Burgess

v. State, 495 S.E.2d 445, 447 (S.C. 1998) (also noted as support in

Liggett).

C. Application

¶ 33 We have little difficulty in concluding that the prosecutor’s

questions here were improper “were they lying” questions.

¶ 34 Defendant testified in his own defense. As noted earlier,

during direct examination, defense counsel summarized M.B.’s

testimony that defendant had aimed his weapon directly at M.B.

and asked defendant, “Is that what happened?” Defendant

responded, “No.” Later, defense counsel also asked whether

defendant believed he had been “substantially incapable of

16
 exercising sufficient physical control” when he drew his weapon, to

which defendant responded, “Absolutely not, and I think the

testimony of everybody proves that.”

¶ 35 During cross-examination, the prosecutor repeatedly asked

defendant to opine on testimony given by prosecution witnesses.

The prosecutor asked defendant about inconsistencies between his

testimony and that of the People’s witnesses, asking whether the

People’s witnesses were “wrong,” “right or wrong,” “completely

incorrect,” and “completely wrong,” and also asking at various

points whether testimony from the People’s witnesses had been “no

good” and “true or untrue.”

¶ 36 In particular, the prosecutor asked defendant whether other

witnesses incorrectly testified that he had “waved” the gun around

and that he had been drunk. He also asked whether defendant

believed the People’s witnesses were wrong about various details,

including what time he had arrived at the bar, how he had reacted

to Abram’s punches, and whether he had had his jacket over his

arm when he approached Abram.

¶ 37 The People assert that the prosecutor’s questions were proper

under Liggett because they were merely designed to highlight

17
 conflicting evidence and “did not call for defendant to opine as to

whether the witnesses were lying.” The record belies this argument.

The prosecutor asked defendant point blank whether the People’s

witnesses were lying, incorrect, and wrong. Cf. Liggett, 135 P.3d at

735 (considering questions about whether witness was “mistaken”

to fall within prohibited category).

¶ 38 The People acknowledge on appeal that

[t]here are other ways to emphasize conflicts in
the evidence and raise questions as to a
witness’s credibility that do not involve asking
“were they lying” types of questions. For
example, a cross-examiner may ask non-
prejudicial questions that highlight the
discrepancies and later emphasize any
conflicting accounts by juxtaposing them in
closing argument.

Id. at 732. But contrary to the People’s further argument, the

prosecutor here went beyond asking non-prejudicial questions

designed to highlight discrepancies in the evidence. Instead, by our

count, the prosecutor asked defendant some forty-four times

whether another witness’s testimony was incorrect, wrong, or

untrue, or whether the witness had lied. These questions fell

squarely within the category of prohibited “were they lying”

questions.

18
¶ 39 The People also contend that the defense opened the door to

any impermissible questions. At the outset, it is not clear that the

“opening the door” concept applies in this context. In Liggett, a

division of the court of appeals concluded that “were they lying”

questions were generally disallowed, “except when the only possible

explanation for the inconsistent testimony is deceit or lying or when

the defendant has opened the door by testifying about the veracity

of other witnesses on direct examination.” People v. Liggett, 114

P.3d 85, 88 (Colo. App. 2005), aff’d, 135 P.3d 725. While the

supreme court affirmed the division’s outcome, it disagreed with the

division’s holding that there were exceptions to the categorical

prohibition on “were they lying” questions, stating: “[W]e decline to

adopt the rule articulated by the court of appeals. Instead, we

adopt the approach followed in a majority of jurisdictions that

broadly prohibits asking a witness to comment on the veracity of

another witness.” 135 P.3d at 727. But see People v. Kessler, 2018

COA 60, ¶¶ 43-44 (appearing to apply the opening the door

exception generally but finding it inappropriate under the facts).

¶ 40 In any event, we do not agree that the defense opened the door

to the barrage of “were they lying” questions the prosecutor

19
 employed here. Although defendant testified that he did not agree

with M.B.’s version of events and that he believed other witnesses’

testimony supported his assertion that he had not been under the

influence, he did not directly comment on the truth or veracity of

any witness who had given testimony during direct examination.

¶ 41 Thus, we conclude that the prosecutor’s “were they lying”

questions were improper.

D. Plain Error Review

¶ 42 We turn to whether the prosecutor’s misconduct requires

reversal under the plain error standard. We conclude that it does.

¶ 43 An error is plain only if it is “obvious and substantial.” Hagos,

¶ 14. For an error to be obvious, it must ordinarily “contravene (1)

a clear statutory command; (2) a well-settled legal principle; or (3)

Colorado case law.” Scott v. People, 2017 CO 16, ¶ 16 (quoting

People v. Pollard, 2013 COA 31M, ¶ 40). Put another way, an error

is obvious if it is so clear-cut that a trial court should be able to

avoid it without the benefit of objection. People v. Ujaama, 2012

COA 36, ¶ 42. An error is substantial if it “undermined the

fundamental fairness of the trial itself so as to cast serious doubt

20
 on the reliability of the judgment of conviction.” Hagos, ¶ 14

(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

¶ 44 Here, we conclude that the error was obvious because it

violated controlling Colorado case law — namely, the Colorado

Supreme Court’s holding in Liggett. See also Kessler, ¶ 46

(describing rule “that witnesses should not be asked to comment on

the veracity of other witnesses” as a “well-settled legal principle”).

The rule set forth in Liggett is categorical and, in our view, one a

trial court should apply even absent an objection, at least in

circumstances, such as those here, where the prosecutor repeatedly

and pervasively poses improper questions. Indeed, the trial court in

this case acknowledged the impropriety of asking defendant

whether other witnesses had lied. After redirect examination, a

juror submitted a question for defendant asking in part, “Are you

saying that all the witnesses who said you were drunk and waving a

gun were lying?” The trial court sustained the defense’s speculation

objection, stating, “It’s also not appropriate for one witness to

comment upon the credibility of others.”

¶ 45 The error was substantial. Almost the entirety of the

prosecutor’s cross-examination of defendant consisted of

21
 impermissible questions. The People contend that defendant’s

testimony on cross-examination bolstered his version of events, and

thus the error was not prejudicial. However, that argument gives

short shrift to the untenable position defendant was in during the

cross-examination: asking the defendant to opine on the veracity of

the People’s witnesses places him “in a no-win situation. If the

defendant says the other witness is lying, then the defendant is put

in the position of calling someone a liar . . . . If the defendant says

a contradictory witness is not lying, then a fair inference is that the

defendant is lying.” Liggett, 135 P.3d at 732 (quoting State v.

Graves, 668 N.W.2d 860, 872 (Iowa 2003)); see also id. at 733

(noting that the defendant’s responses “d[id] not excuse the

impropriety of the questioning”).

¶ 46 The questions here were not limited to a particular or

peripheral issue. Instead, the prosecutor asked defendant to opine

on nearly every witness’s testimony about every contested issue in

the case. Cf. id. at 735 (noting that questions about whether

witness was “mistaken” were not plainly erroneous where “the

subject matter of the questions was largely peripheral to issues

before the court” and the trial court did not refer to remarks in its

22
 findings). Most significantly, the improper questions concerned

both defendant’s level of intoxication and whether he had “waved”

the gun or had kept it trained on Abram. These issues were central

to the prosecution’s case on the possession of a firearm charge.

¶ 47 Furthermore, the proffered jury question that the trial court

declined to ask concerning the contrast between defendant’s

testimony and that of the prosecution’s witnesses shows that at

least one member of the jury readily connected the prosecutor’s

questioning on cross-examination to a potential assertion that

either defendant or the prosecution witnesses were “lying.”

¶ 48 In sum, we conclude that the error undermines our confidence

in the reliability of the judgment of conviction.

¶ 49 We acknowledge that reversal is warranted under plain error

review only when prosecutorial misconduct is “flagrantly, glaringly,

or tremendously improper.” Domingo-Gomez v. People, 125 P.3d

1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676

(Colo. App. 1997)). In our view, this is the rare case in which the

misconduct rose to that level.

23
¶ 50 Accordingly, we conclude that the prosecutor’s misconduct

requires reversal of defendant’s prohibited possession of a firearm

conviction.

IV. Presumption Instruction and Expert Testimony

¶ 51 Defendant also contends that the trial court erred in (1)

rejecting his proposed jury instruction on the presumption and

inferences a jury can draw based on blood alcohol content (BAC)

and (2) precluding an expert witness from testifying on the same

topic. We briefly address this contention to provide guidance on

remand.

¶ 52 Defendant submitted a jury instruction tracking the

presumption and permissible inferences set out in section 42-4-

1301(6)(a), C.R.S. 2017 — namely, that a BAC of .05 or less entitles

the defendant to a presumption that he or she was not driving

under the influence of alcohol, a BAC above .05 but below .08 gives

rise to a permissible inference that the defendant’s driving was

impaired by the consumption of alcohol, and a BAC above .08 gives

rise to a permissible inference that the defendant was driving under

the influence of alcohol. The tendered instruction stated that the

jury could draw an inference or presumption based on defendant’s

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 BAC as “shown by analysis of the defendant’s blood or breath.”

However, there was no evidence that police officers had tested

defendant’s blood or breath at any time in connection with this

case. Because of the lack of blood or breath analysis, the trial court

rejected the instruction. Instead, it allowed a defense-tendered

instruction defining “under the influence.”

¶ 53 Defendant called a toxicologist as an expert witness. Based on

information provided by the defense detailing the food and drinks

defendant had consumed at the bar, as well as his height and

weight, the expert testified that defendant’s BAC at the time he

drew his weapon was below .05. However, the trial court ruled that

the expert could not tie her conclusion about defendant’s BAC to

the presumption in section 42-4-1301(6)(a). The trial court also

ruled that the expert could not testify on how a BAC of .05 or below

would affect a person’s body and mental functioning because that

information had not been disclosed in the expert’s report. See

Crim. P. 16(II)(b).

¶ 54 First, we conclude that the trial court did not err in rejecting

the defense-tendered instruction on the BAC-related permissible

inferences and presumption. As the trial court reasoned, the

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 presumption and inferences are set forth in the statute prohibiting

driving while impaired and driving under the influence. See

generally § 42-4-1301. The presumption and inferences are not

incorporated in the prohibited possession of a firearm statute;

section 18-12-106(1)(d) does not define “under the influence” at all,

much less in terms related to a person’s BAC.

¶ 55 More significantly, the language of section 42-4-1301(6)

implies that a BAC calculation must be based on analysis of the

defendant’s blood or breath. Such analysis was not done in this

case. For the same reason, we conclude the trial court did not err

in ruling that the defense’s expert witness could not tie her

conclusions about defendant’s BAC to the inferences and

presumption in the driving while impaired and driving under the

influence statute.

¶ 56 To the extent defendant contends the trial court erred in

concluding that the expert could not testify on the physical effects

of a BAC of .05 or lower, because that issue was not addressed in

her report, we decline to address the contention. That issue is

unlikely to arise on remand.

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¶ 57 We take no position on whether the People opened the door to

evidence or an instruction tying defendant’s BAC to section 42-4-

1301(6), by eliciting testimony from police officers that they

considered defendant too intoxicated to drive when he was arrested.

Because it is not clear that the issue will arise on remand, we

decline to address it. See People v. Weinreich, 98 P.3d 920, 924

(Colo. App. 2004) (declining to address evidentiary issue unlikely to

arise “in the same context” on retrial), aff’d, 119 P.3d 1073 (Colo.

2005).

V. Cumulative Error

¶ 58 In light of our determination that defendant’s convictions must

be reversed, we need not address his argument regarding

cumulative error.

VI. Conclusion

¶ 59 The judgment is reversed, and the case is remanded for a new

trial on all charges.

JUDGE BERNARD and JUDGE WELLING concur.

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