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
February 3, 2022
2022COA14
No. 17CA1079, People v. Buckner — Constitutional Law —
Fourth Amendment — Searches and Seizures — Warrantless
Search; Crimes — Unlawful Sexual Behavior — Victim’s and
Witness’s Prior History
A division of the court of appeals considers whether the
district court plainly erred by allowing the prosecution to, first,
comment regarding the defendant’s exercise of his Fourth
Amendment right to refuse to consent to a warrantless search and,
second, ask the jury to render a guilty verdict to do justice for the
victim. A majority of the division concludes that the comments
were obviously improper, cumulatively undermined the
fundamental fairness of the trial, and cast doubt on the reliability of
the jury’s verdict. Although the partial dissent disagrees that the
prosecutor’s comments warrant reversal, the division reverses the
defendant’s convictions and remands for a new trial.
Because the issue is likely to arise on remand, the division
also concludes that the district court erred by denying the
defendant an evidentiary hearing on his motion to admit evidence
that the victim had a history of false reporting of sexual assaults.
The division concludes that the defendant’s offer of proof was
sufficient to warrant a hearing. In so doing, the division concludes,
as a matter of first impression, that the plain statutory language
“history of false reporting of sexual assaults” in Colorado’s rape
shield statute, section 18-3-407(2), C.R.S. 2021, does not require
that the allegedly false report be made to law enforcement.
COLORADO COURT OF APPEALS 2022COA14
Court of Appeals No. 17CA1079
City and County of Denver District Court No. 15CR5224
Honorable Martin F. Egelhoff, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Larry D. Buckner,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE BROWN
Lipinsky, J., concurs
Furman, J., concurs in part and dissents in part
Announced February 3, 2022
Philip J. Weiser, Attorney General, Ellen Michaels, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Larry D. Buckner, appeals his judgment of
conviction and sentence for kidnapping and sexual assault. He
contends that the district court (1) plainly erred by allowing the
prosecution to engage in reversible misconduct and (2) erred by
failing to hold an evidentiary rape shield hearing. We agree with
both contentions.1
¶2 First, we conclude that the district court plainly erred by
allowing prosecutors to improperly comment on Buckner’s exercise
of his Fourth Amendment right to refuse to consent to a warrantless
search and to improperly pressure the jury to render a guilty verdict
to do justice for the victim. Considered cumulatively, these errors
require us to reverse his convictions and remand for a new trial.
¶3 Because the issue is likely to arise on remand, we also
conclude that the district court erred by denying Buckner an
evidentiary hearing on his motion to admit evidence that the victim
had a history of false reporting of sexual assaults. In so doing, and
as a matter of first impression, we reject the People’s argument that
1On appeal, Buckner also contends that the Sex Offender Lifetime
Supervision Act of 1998 is unconstitutional. Because we reverse
his convictions as set forth below, we need not address the
constitutionality of his sentence.
1
section 18-3-407(2), C.R.S. 2021, requires that the allegedly false
reports contemplated by the statute be made to law enforcement.
I. Background
¶4 On September 18, 2015, J.D. told police that she had been
physically assaulted the previous night by an unknown assailant in
an alley several blocks from her apartment. That same day, a
sexual assault nurse examiner (SANE) evaluated J.D. and
documented bodily and genital trauma.
¶5 Four days later, J.D. had a follow-up interview with police
about the September 17 attack. This time she told police that one
of her neighbors “pulled [her] into his apartment, threw [her] on the
couch,” and proceeded to beat and sexually assault her in his
apartment for approximately eight hours starting late on the night
of September 17 and into the early morning of September 18. She
admitted that she fabricated the alley attack story but said she did
so because she was scared. From a photo array, J.D. identified
Buckner, one of her neighbors, as the perpetrator.
¶6 Police arrested Buckner and the People charged him with one
count of second degree kidnapping, two counts of sexual assault,
2
one count of first degree assault, and one count of second degree
assault.
¶7 Buckner went to trial on the charges in October 2016. His
theory of the case was that J.D.’s physical injuries were caused by
her girlfriend during a domestic dispute and that he and J.D. had a
consensual encounter. The jury acquitted Buckner of the assault
charges but hung on the kidnapping and sexual assault charges, so
the court declared a mistrial.
¶8 Buckner was retried on the kidnapping and sexual assault
charges in February 2017. The prosecution and defense theories
remained the same.
¶9 On cross-examination, J.D. admitted that, after she put her
daughter to bed on the night of September 17, she was “kind of
drunk” and had a “loud” fight with her then-underage girlfriend
(now wife) that lasted forty minutes, during which she “ripped a
couple papers off the wall” and “stomped on the ground.” She
denied the fight was physical. The fight ended when J.D.’s
girlfriend called her mother to pick her up. According to J.D., while
she was escorting her girlfriend downstairs, Buckner came to his
doorway and spoke to the couple. J.D.’s girlfriend asked Buckner
3
not to call the police to report the fight; Buckner agreed so long as
J.D.’s girlfriend left.
¶ 10 After her girlfriend left, J.D. said she was trying to go back to
her apartment when Buckner grabbed her, pulled her inside his
apartment, and threw her to the couch. J.D. testified to the various
sexual acts Buckner forced on her, including forcing her to perform
oral sex on him and forcing her to engage in vaginal and anal
intercourse. She said that Buckner’s penis was erect when he was
raping her and that he ejaculated multiple times.
¶ 11 The prosecution presented the testimony of a DNA analyst,
who was able to verify that Buckner’s DNA was found on J.D.’s
vagina, labia, and neck. The DNA analyst did not detect
spermatozoa in the samples and was thus unable to verify that
Buckner had ejaculated on or in J.D.
¶ 12 At trial, Buckner called two witnesses. Buckner’s ex-girlfriend
testified that, in September 2015, he used a catheter every four
days and was unable to “obtain an erection.” She further testified
that Buckner had been unable to have an erection since he had
surgery in 2010.
4
¶ 13 One of Buckner’s friends testified that he was with Buckner
for part of the evening on September 17. He said that Buckner was
concerned about medication he had taken, was nauseated, and
threw up a couple of times. He testified that, while he was in
Buckner’s apartment, he heard fighting in the apartment upstairs
— including “[t]humping, falling, running.” He said that two women
knocked on Buckner’s door and asked him not to call the police.
Buckner’s friend also testified that he left while Buckner was still
standing in his doorway speaking to the women. As he passed the
women on his way out, he observed “scars or bruising” and
scratches on J.D.
¶ 14 In closing argument, Buckner’s attorney argued that J.D. “got
into a physical altercation in the upstairs apartment with [her
girlfriend] on the evening in question, September 17, 2015.” He
argued that J.D. sustained “significant visible injuries” during the
fight. Afterward, J.D. and Buckner had “some kind of consensual
encounter” during which his DNA was transferred to her, but they
did not have sexual intercourse because Buckner could not have an
erection. Defense counsel argued that J.D. was motivated to lie
about what took place that night because she “got beaten brutally
5
by her girlfriend” and “couldn’t tell the truth” because her girlfriend
was underage. J.D. feared her girlfriend “was very likely going to be
arrested” for what happened that night.
¶ 15 After the second trial, the jury convicted Buckner of
kidnapping and sexual assault.
II. Analysis
A. Prosecutorial Misconduct
¶ 16 Buckner contends that the district court plainly erred by
allowing prosecutors to improperly (1) comment on his refusal to
consent to a DNA test as evidence of his guilt and (2) pressure the
jury to do justice for the victim. We conclude that both comments
were obviously improper and that together they cast doubt on the
reliability of the conviction, requiring reversal.
1. Standard of Review and Generally Applicable Law
¶ 17 We engage in a two-step analysis when reviewing a claim of
prosecutorial misconduct. 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.
6
¶ 18 Closing argument may properly include the facts in evidence
and the reasonable inferences drawn from those facts, as well as
the law on which the jury has been instructed. Domingo-Gomez v.
People, 125 P.3d 1043, 1048 (Colo. 2005). A prosecutor must not
“intentionally misstate the evidence or mislead the jury as to the
inferences it may draw” from that evidence. Id. at 1049 (quoting
ABA Standards for Crim. Just., Prosecution Function & Def.
Function § 3-5.8 (3d ed. 1993) (hereinafter, ABA Standards)).
¶ 19 We acknowledge that a prosecutor must have “wide latitude in
the language and presentation style used to obtain justice.” Id. at
1048. But while a prosecutor is “free to strike hard blows,” she “is
not at liberty to strike foul ones.” Id. (quoting Wilson v. People, 743
P.2d 415, 418 (Colo. 1987)). Indeed, “[w]hile a prosecutor can use
every legitimate means to bring about a just conviction, she has a
duty to avoid using improper methods designed to obtain an unjust
result.” Id. “Overzealous advocacy that undermines the quest for
impartial justice by defying ethical standards cannot be permitted.”
Id.
¶ 20 Defense counsel did not object to the statements Buckner
contends constitute prosecutorial misconduct. We review alleged
7
prosecutorial misconduct to which no contemporaneous objection
was made for plain error. Id. at 1053. Plain error occurs only when
an error is obvious and so undermines the fundamental fairness of
the trial itself as to cast serious doubt on the reliability of the jury’s
verdict. Id. “Only prosecutorial misconduct which is ‘flagrantly,
glaringly, or tremendously improper’ warrants reversal.” Id.
(quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). If we
find multiple instances of prosecutorial misconduct, we “must
carefully review whether the cumulative effect of the prosecutor’s
statements so prejudiced the jury’s verdict as to affect the
fundamental fairness” of the trial. Id.
2. Refusal to Consent to a DNA Test
¶ 21 Buckner contends that the prosecutor improperly commented
on his “refusal” to consent to a DNA test. We agree.
a. Additional Background
¶ 22 After his arrest, Buckner voluntarily spoke with Detective
Mary McIver for about thirty minutes in the jail. During the
recorded conversation, the detective asked Buckner about
consenting to a DNA test. Buckner was equivocal — he neither
consented to nor refused a DNA test. Instead, he pondered aloud
8
how his DNA could be found on J.D. and, if it was found there, “is it
[his] fault?” By the end of the conversation, the detective told
Buckner that she would get a court order for the DNA test.
¶ 23 Ultimately, the prosecution secured a court order for a buccal
swab from Buckner. As noted, Buckner’s DNA was detected on
swabs from J.D.’s vagina, labia, and neck.
¶ 24 In opening statement, the prosecutor focused on the
importance of the DNA evidence, telling the jury, “We got his
DNA . . . his DNA is inside her vagina, DNA on the outside of her
vagina, DNA is on her anus.”
¶ 25 During trial, without objection from defense counsel, the
prosecutor elicited testimony that, pursuant to a court order for a
buccal swab, an investigator with the District Attorney’s Office had
taken a saliva sample from Buckner in an interview room at the
courthouse. The prosecutor also admitted the recorded
conversation between Buckner and the detective into evidence for
9
the jury’s consideration, again without a contemporaneous
objection from Buckner.2
¶ 26 In closing argument, when arguing to the jury about why it
should discount “Mr. Buckner’s side” of the story, the prosecutor
told the jury, “[Buckner] refuses to give his DNA sample to Detective
McIver. In fact, he gets visibly nervous, starts stuttering on the
interview when she’s asking about the DNA.” Defense counsel did
not object.
b. Right to Refuse to Consent to a Warrantless Search
¶ 27 By prohibiting unreasonable searches and seizures, the
Fourth Amendment to the United States Constitution “necessarily
grants to individuals the right to refuse warrantless entries and
searches.” People v. Pollard, 2013 COA 31M, ¶ 26. A cheek swab or
saliva sample to obtain DNA is a search subject to Fourth
Amendment protections. See People v. Lancaster, 2015 COA 93, ¶
14.
2 Before trial, Buckner moved to suppress his statements and all
evidence gathered as a result of such statements as involuntarily
given and a violation of Miranda v. Arizona, 384 U.S. 436 (1966).
The court denied the motion.
10
¶ 28 It is well settled that a person should not be penalized for
exercising a constitutional privilege. Pollard, ¶ 25 (collecting cases).
Thus, “a person’s refusal to consent to a search may not be used by
the prosecution — either through the introduction of evidence or by
explicit comment — to imply the person’s guilt of a crime.” Id. at
¶ 32. “[T]he prosecution impermissibly ‘uses’ a person’s refusal to
consent to a search when it introduces evidence of the refusal,
without having a proper purpose for admission of the evidence, or
when it argues to the jury that such evidence is probative of guilt.”
Id. at ¶ 30. The prosecution may properly use evidence of a
person’s refusal to consent to a warrantless search for purposes
other than to support an inference of guilt. Id. at ¶ 29.
c. Analysis
¶ 29 Buckner contends that it was improper for the prosecutor to
“emphasize Buckner’s guilt and/or consciousness of guilt based on
his refusal to consent to a warrantless body search.” We agree.
¶ 30 The People acknowledge that it would be improper for the
prosecution to introduce evidence of, or urge an inference of guilt
based on, a defendant’s refusal to consent to a cheek swab. See
Pollard, ¶ 28; Lancaster, ¶ 14. They argue, however, that
11
introduction of the challenged evidence and the prosecutor’s
comments about it could not have impermissibly penalized Buckner
for exercising his constitutional right to refuse to consent to the
cheek swab because Buckner never actually refused to consent.
¶ 31 True, during his conversation with the detective, Buckner
neither agreed nor refused to submit to a DNA test. He asked
questions. He appeared confused. He was equivocal.3 At trial,
however, the prosecutor unequivocally characterized Buckner’s
statements to the detective as a refusal to consent to the search.
She said, “He refuses to give his DNA sample to Detective McIver.”
¶ 32 During closing argument, a prosecutor may “point to different
pieces of evidence and explain their significance within the case.”
Domingo-Gomez, 125 P.3d at 1048. Although arguments of counsel
are not evidence, People v. Rodriguez, 914 P.2d 230, 278 (Colo.
1996), a prosecutor should not intentionally misstate the evidence
3On appeal, Buckner also contends that the district court plainly
erred by admitting evidence that he did not voluntarily consent to
have his DNA sample taken. Because Buckner did not clearly
consent to or refuse the search, however, we doubt admission of the
evidence constituted plain error. But we need not decide this
question because we reverse based on how the prosecution
mischaracterized and misused the evidence.
12
or mislead the jury as to the inferences it may draw from that
evidence, Domingo-Gomez, 125 P.3d at 1049. Indeed, “[p]rosecutors
have a higher ethical responsibility than other lawyers because of
their dual role as both the sovereign’s representative in the
courtroom and as advocates for justice.” Id. Because prosecutors
represent the State and the People of Colorado, “their ‘argument is
likely to have significant persuasive force with the jury.’” Id.
(quoting ABA Standards § 3-5.8 cmt.).
¶ 33 Under these circumstances, given the prosecutor’s
characterization of Buckner’s conduct, it would have been
reasonable for a juror to reach the suggested conclusion — that
Buckner refused to consent to a DNA test — from the admitted
evidence. We are not persuaded by the People’s argument that
Buckner’s Fourth Amendment rights were not implicated because
he “neither agreed to nor refused a DNA test.”
¶ 34 The People next contend that the prosecution did not
introduce or use evidence of Buckner’s refusal to consent to the
DNA test for an improper purpose. See Pollard, ¶ 29 (collecting
cases where evidence of a refusal to consent to search was admitted
for a proper purpose, including to impeach a defendant’s assertion
13
that he did not live at a particular place, to rebut a claim of
cooperation or self-defense, or to establish dominion or control over
premises). They argue that Buckner’s “sudden nervousness when
asked about DNA testing indicated that his prior story was not
truthful.” We are not persuaded.
¶ 35 We acknowledge that the prosecutor did not expressly state
that the jury should consider Buckner’s refusal to consent to a DNA
test as evidence of his guilt, but the prosecutor’s use of refusal
evidence may be improper even in the absence of such an overt
statement. See id. at ¶ 31 (“The introduction of this type of
evidence is erroneous, even if it is not accompanied by, or followed
with, an explicit reference or comment relating it to the defendant’s
consciousness of guilt . . . .”). As the Ninth Circuit has explained,
the prosecution’s use of evidence that a defendant refused a search
“can have but one objective to induce the jury to infer guilt.” United
States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978). The
prosecutor can argue that, “if the defendant were not trying to hide
something,” they would have consented to the search. Id.
“[W]hether the argument is made or not, the desired inference may
14
be well drawn by the jury.” Id. This is why “the evidence is
inadmissible in the case of refusal to let the officer search.” Id.
¶ 36 Moreover, although prosecutors are generally permitted to
comment on the demeanor of an individual during an interview, see
People v. Thames, 2019 COA 124, ¶ 32, the prosecutor here did not
simply argue to the jury that Buckner’s “nervousness” meant his
story was not credible; she specifically referenced his refusal to
consent to give a DNA sample. Cf. United States v. Clariot, 655 F.3d
550, 555-56 (6th Cir. 2011) (“The exercise of a constitutional right,
whether to refuse to consent to a search, to refuse to waive Miranda
rights or to decline to testify at trial, is not evidence of guilt. And
evidence of nervousness in the context of being asked to waive some
of these rights is a weak, if indeed even legitimate, indicator of
criminal behavior.” (citing, among other cases, Wainwright v.
Greenfield, 474 U.S. 284, 295 (1986), and Florida v. Royer, 460 U.S.
491, 507 (1983))).
¶ 37 The prosecutor did not reference Buckner’s refusal to impeach
or rebut a specific claim he made (e.g., that he cooperated with the
investigation). The People contend that the refusal evidence
suggested that Buckner was dishonest during his interview and
15
that the prosecutor properly argued the evidence that way. But,
considering the facts of this case, the only “dishonesty” in
Buckner’s interview that could be impeached by his refusal to
consent to a DNA test was his claim that he did not do what J.D.
alleged. In other words, the only claim the refusal evidence
impeached or rebutted was Buckner’s claim that he was not guilty.
¶ 38 Considered in context, the prosecutor used Buckner’s refusal
to voluntarily provide a DNA sample to infer his guilty knowledge or
consciousness of guilt, a prohibited purpose. Pollard, ¶ 28.
Therefore we conclude that the prosecutor’s statement was
improper.
3. Justice for the Victim
¶ 39 Buckner contends that the prosecutor improperly asked the
jury to do justice for the victim. We agree.
¶ 40 A prosecutor may not “pressure jurors by suggesting that
guilty verdicts are necessary to do justice for a sympathetic victim.”
People v. Marko, 2015 COA 139, ¶ 221 (quoting People v. McBride,
228 P.3d 216, 223 (Colo. App. 2009)), aff’d on other grounds, 2018
CO 97; see also United States v. Young, 470 U.S. 1, 18 (1985) (“The
prosecutor was also in error to try to exhort the jury to ‘do its job’;
16
that kind of pressure, whether by the prosecutor or defense
counsel, has no place in the administration of criminal justice.”); cf.
Domingo-Gomez, 125 P.3d at 1049 (“The prosecutor should not
make arguments calculated to appeal to the prejudices of the jury”
and “should refrain from argument which would divert the jury
from its duty to decide the case on the evidence.” (quoting ABA
Standards § 3-5.8)).
¶ 41 During rebuttal closing argument, referencing J.D., a different
prosecutor argued, “Her day of justice is a long time coming. That’s
today. Hold him accountable for what he did to that girl that
night.” Defense counsel did not object. The prosecutor’s plea for
justice for J.D. was the last thing the jury heard before being
instructed regarding the verdict forms and taken back to the jury
room to begin deliberations.
¶ 42 A prosecutor may not pressure jurors to “do justice” for a
victim. The prosecutor’s final statement to the jury in rebuttal
closing argument did just that. It was improper.
4. The Improper Comments Require Reversal
¶ 43 Because Buckner’s counsel did not object at trial, reversal is
not warranted in the absence of plain error. Pollard, ¶ 22. Plain
17
error is both obvious and substantial. Id. at ¶ 24. Plain error is
error that is “so clear-cut, so obvious, that a trial judge should be
able to avoid it without benefit of objection.” Id. at ¶ 39. For an
error to be this obvious, it must contravene a clear statutory
command, a well-settled legal principle, or Colorado case law. Id. at
¶ 40; People v. Ujaama, 2012 COA 36, ¶ 42. To be substantial, an
error must so undermine the fundamental fairness of the trial itself
as to cast serious doubt on the reliability of the judgment of
conviction. Pollard, ¶ 43.
¶ 44 We first conclude that allowing the prosecutors’ statements
was obvious error. The first prosecutor’s use of evidence that
Buckner refused to consent to a DNA test was obviously improper
because (1) a DNA test is a search, Lancaster, ¶ 14; (2) a person has
the constitutional right to refuse to consent to a warrantless search,
Pollard, ¶ 26; (3) it is “well settled” that a person cannot be
penalized for exercising a constitutional privilege, id. at ¶ 25; and
(4) the prosecution may not use evidence of a person’s refusal to
consent to a search to infer guilt, id. at ¶¶ 28, 30. The second
prosecutor’s statements to the jury saying that the victim’s “day of
justice” is “today” and imploring the jury to hold Buckner
18
accountable for “what he did to that girl that night” were obviously
improper because a prosecutor may not “pressure jurors by
suggesting that guilty verdicts are necessary to do justice for a
sympathetic victim.” Marko, ¶ 221 (quoting McBride, 228 P.3d at
223).
¶ 45 Having determined that allowing the prosecutors’ statements
was obvious error, we must next determine whether reversal is
warranted. Wend, 235 P.3d at 1096.
¶ 46 We “review the combined prejudicial impact of the prosecutor’s
improper statements” to determine whether their cumulative effect
“so prejudiced the jury’s verdict as to affect the fundamental
fairness” of Buckner’s trial. Domingo-Gomez, 125 P.3d at 1053.
“Factors to consider include the language used, the context in
which the statements were made, and the strength of the evidence
supporting the conviction.” Id.; see also Wend, 235 P.3d at 1098
(“We focus on the cumulative effect of the prosecutor’s statements
using factors including the exact language used, the nature of the
misconduct, the degree of prejudice associated with the
misconduct, the surrounding context, and the strength of the other
evidence of guilt.”); People v. Nardine, 2016 COA 85, ¶ 65 (same).
19
And although “‘[t]he lack of an objection may demonstrate defense
counsel’s belief that the live argument, despite its appearance in a
cold record, was not overly damaging,’ such deference must be
tempered to allow an appellate court to correct particularly
egregious errors.” Nardine, ¶ 64 (quoting People v. Rodriguez, 794
P.2d 965, 972 (Colo. 1990)). “Ensuring fundamental fairness in
trial is the beacon of plain error review.” Id.
¶ 47 In Pollard, ¶¶ 18-47, a division of this court considered
whether it was plain error to allow the prosecution to introduce
evidence that the defendant did not allow police to search his car
and then argue to the jury that it should infer guilt from that
evidence. In closing argument, the prosecutor in that case argued
to the jury, “And when you consider [the defendant telling police not
to look in his car] your reason and common sense tells you what
does he have to hide? Why not let him go in?” Id. at ¶ 21. Because
the evidence against the defendant was “far from overwhelming”
and because the prosecutor’s improper comment on the defendant’s
refusal to consent to the search went directly to his theory of
defense — that he did not knowingly possess the drugs in question
— the division concluded that “the recurring references to
20
defendant’s refusal to consent to the search, and the prosecution’s
explicit use of that evidence to imply guilty knowledge on his part,
cast serious doubt on the reliability of his conviction, necessitating
reversal for a retrial.” Id. at ¶¶ 44, 47.
¶ 48 Similarly here, the evidence against Buckner was not
overwhelming. J.D. claimed that Buckner subjected her to hours of
physical and sexual abuse, during which he held or repeatedly
obtained an erection sufficient to engage in oral sex, vaginal
intercourse, and anal intercourse, and ejaculated multiple times.
Buckner’s theory of the case was that J.D. had been physically
assaulted by her girlfriend and that he and J.D. had some kind of
consensual encounter thereafter that did not include intercourse.
The indisputable physical evidence — the fact that Buckner’s DNA
was found on J.D. — was consistent with both stories. Thus, the
case hinged on credibility; to convict Buckner, the jury had to
believe J.D.
¶ 49 The prosecutor’s use of Buckner’s refusal to consent to provide
a DNA sample went directly to whether the encounter was
consensual. Buckner admitted he and J.D. had contact. So, if the
contact was consensual, why would Buckner not give up his DNA?
21
Why did the prosecution have to get a court order to collect it?
What was he trying to hide? The prosecutor’s comments on
Buckner’s refusal had but one objective: to induce the jury to infer
guilt. See Prescott, 581 F.2d at 1352.
¶ 50 Aside from a consciousness of guilt improperly inferred from
Buckner’s refusal, the other affirmative evidence supporting only
J.D.’s account was her physical injuries. The prosecution in the
second trial relied on the fact that J.D. had been beaten to support
its theory that what happened between J.D. and Buckner was a
violent sexual assault rather than a consensual encounter. But
J.D. admitted that she got into a fight with her girlfriend on the
evening in question, although she denied it was a physical fight.
And the first jury acquitted Buckner of the assault charges,
suggesting it did not believe J.D. when she said Buckner was the
one who beat her up, and hung on the sexual assault and
kidnapping charges, suggesting the evidence on those counts was
not overwhelming. The prosecution and defense proceeded on the
same theories in the second trial.
¶ 51 J.D. also had credibility issues. She admittedly fabricated a
detailed account of being abducted and assaulted in an alley and
22
told police and medical professionals that her physical injuries were
caused by that attack. She was also impeached several times
during her testimony at trial for giving details about the assault
that were different from those to which she had previously testified
under oath.
¶ 52 For his part, and although the jury was free to reject it,
Buckner offered evidence corroborative of his defense, including
testimony from his ex-girlfriend that he was incapable of getting or
maintaining an erection and testimony from a friend who observed
physical injuries on J.D. before she claimed Buckner assaulted her.
¶ 53 In sum, the evidence was not overwhelming.4 And in such a
case, the prosecutor’s argument assumes greater significance and
4 We are not persuaded by the People’s argument that any error
could not have been prejudicial because Buckner relied on the
portion of his interview with the detective that he now argues was
inadmissible. Cf. People v. Pollard, 2013 COA 31M, ¶¶ 34-38
(concluding that the defendant did not invite error by referencing
and relying on improperly admitted evidence of his refusal to
consent to a search). We have not (and need not have) determined
whether admitting the evidence was erroneous; we have concluded
that the prosecutor engaged in improper conduct by using the fact
that Buckner did not voluntarily provide the detective with a DNA
sample to infer consciousness of guilt. But even if the interview
was admissible, and even if Buckner relied on the interview during
trial, the prosecutor was obliged not to use the evidence to penalize
23
weighs more heavily on the jury’s decision than it might otherwise.
See Domingo-Gomez, 125 P.3d at 1055 (Bender, J., dissenting).
¶ 54 Although, for these reasons, we could conclude that the
prosecutor’s improper use of Buckner’s refusal to consent to
provide a DNA sample, by itself, warrants reversal under the plain
error standard, we do not view such improper comments in
isolation. See id. at 1054 (majority opinion) (requiring review of the
cumulative effect of the prosecutor’s improper statements). Recall
that the last thing a prosecutor asked the jury to do before it began
deliberating was to give the victim justice. The prejudice resulting
from this statement likely was exacerbated by its timing. “Rebuttal
closing is the last thing a juror hears from counsel before
deliberating, and it is therefore foremost in their thoughts.” Id. at
1052.
¶ 55 Because the outcome of the case depended on the jury’s
decision regarding whose story to believe, one prosecutor’s misuse
of Buckner’s refusal to consent to a DNA test to infer his guilt
combined with another prosecutor’s plea to the jury to do justice for
Buckner for exercising a constitutionally protected right. Id. at
¶ 25.
24
the victim undermined the fundamental fairness of Buckner’s trial
and cast doubt on the reliability of the jury’s verdict. Accordingly,
we reverse his convictions for kidnapping and sexual assault and
remand the case for retrial.
B. Rape Shield Hearing
¶ 56 Buckner contends that the district court erred by denying his
renewed motion for a rape shield hearing in advance of his second
trial. We agree and address this contention as it is likely to arise on
remand. See People v. Stewart, 2017 COA 99, ¶ 64 (J. Jones, J.,
concurring in part and dissenting in part) (“[O]ur common practice
is to address contentions that pertain to issues likely to arise on
remand. . . . [T]he interest in judicial efficiency demands that we do
so.”).
1. Standard of Review and Applicable Law
¶ 57 The purpose of Colorado’s rape shield statute is to protect
sexual assault victims from humiliating public fishing expeditions
into their past sexual conduct. People v. Cook, 2014 COA 33, ¶ 36.
To that end, the statute creates a presumption that evidence of an
alleged victim’s prior or subsequent sexual conduct is irrelevant to
the criminal trial. § 18-3-407(1); see People v. Weiss, 133 P.3d
25
1180, 1185 (Colo. 2006). There are, however, several exceptions to
this general rule. See Weiss, 133 P.3d at 1185-86.
¶ 58 As relevant here, the rape shield statute allows a defendant to
offer “evidence that the victim . . . has a history of false reporting of
sexual assaults” if the procedure outlined in the statute is followed.
§ 18-3-407(2); Lancaster, ¶ 36. Under this procedure, the moving
party is required to file a written motion setting forth “an offer of
proof of the relevancy and materiality” of the evidence. § 18-3-
407(2)(a). The motion must be accompanied by an affidavit stating
the offer of proof. § 18-3-407(2)(b).
¶ 59 An offer of proof typically states (1) what the anticipated
testimony of the witness would be if the witness were permitted to
testify; (2) the purpose and relevance of the testimony sought to be
introduced; and (3) all the facts necessary to establish the
testimony’s admissibility. Weiss, 133 P.3d at 1186-87. It is a
“preview of the evidence a party is prepared to introduce at an
evidentiary hearing” and “consists of allegations that the party’s
attorney represents would be proven if the court granted the
hearing.” People v. Marx, 2019 COA 138, ¶ 46.
26
¶ 60 If the court finds that the offer of proof is sufficient, it must
notify the other party of this finding. § 18-3-407(2)(c). If the
prosecution stipulates to the facts in the offer of proof, then the
court must rule on the motion based on the offer of proof without
an evidentiary hearing. Id. Otherwise, the court must set the
matter for an in camera hearing before trial. Id. At the conclusion
of the hearing, if the court finds that the evidence proposed to be
offered regarding the sexual conduct of the victim is relevant to a
material issue in the case, it shall order that the evidence may be
introduced and prescribe the nature of the evidence or questions to
be permitted. § 18-3-407(2)(e).
¶ 61 To warrant a hearing, the defendant’s offer of proof must
“articulate facts which, if demonstrated at the evidentiary hearing
by a preponderance of the evidence, would show that the alleged
victim made multiple prior or subsequent reports of sexual assault
that were in fact false.” Weiss, 133 P.3d at 1182. Proof by a
preponderance of the evidence requires that the evidence must
“preponderate over, or outweigh, evidence to the contrary.” Marx,
¶ 49 (quoting City of Littleton v. Indus. Claim Appeals Off., 2016 CO
25, ¶ 38). In the absence of such a showing, the evidence is
27
“irrelevant, immaterial, and inadmissible in the case at trial.”
Weiss, 133 P.3d at 1189.
¶ 62 Although a defendant may offer more evidence at the hearing
than that set forth in the offer of proof, the offer of proof itself must
make the threshold showing. In other words, if the defendant
established only the facts alleged in the offer of proof at the
evidentiary hearing, those facts must be sufficient to establish, by a
preponderance of the evidence, that the alleged victim made
multiple prior or subsequent false reports of sexual assault.
¶ 63 We review a trial court’s determination of the admissibility of
evidence under the rape shield statute for an abuse of discretion,
but we review its interpretation of the rape shield statute de novo.
Id. A court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or is based on an erroneous view
of the law. People v. Osorio-Bahena, 2013 COA 55, ¶ 21.
2. Additional Background
¶ 64 Twenty-one days before his first trial, Buckner filed a motion
requesting an evidentiary hearing to determine the admissibility of
evidence that J.D. had a history of making false allegations of
sexual assault. In the motion, Buckner alleged that J.D. had made
28
“at least two false allegations of sexual assault,” both of which were
against J.B. — the father of J.D.’s daughter (who was born in
2008). The two alleged instances were that (1) J.D. falsely accused
J.B. of sexually assaulting her on the occasion that her child was
conceived, and (2) J.D. falsely accused J.B. of sexually assaulting
her on a later occasion when J.B. visited J.D. at J.D.’s mother’s
house to spend time with their daughter.
¶ 65 The motion was accompanied by an affidavit signed by
Buckner’s attorney. With respect to the first allegedly false report,
the affidavit attested that, among other things, J.D.’s mother had
provided defense counsel with a recording of a telephone
conversation between J.D. and her girlfriend wherein J.D. admitted
that she falsely told several people that her daughter was conceived
as a result of a sexual assault committed by J.B. when, in fact, J.D.
and J.B. were in a relationship at the time and the sexual
encounter was consensual. According to the affidavit, J.D. further
admitted that she had concocted the story to prevent the girlfriend
from being angry with her for being in a prior relationship with a
man.
29
¶ 66 With respect to the second allegedly false report, the affidavit
attested that J.B. had reported to defense counsel that he had
consensual sex with J.D. one night while he was at J.D.’s mother’s
home visiting his daughter and that thereafter, in November 2014,
J.D.’s girlfriend contacted him via Facebook and accused him of
sexual assault. The affidavit relayed J.D.’s mother’s observations
about this incident as well, which corroborated J.B.’s report that
the encounter was consensual.
¶ 67 Buckner’s motion acknowledged that section 18-3-407(2)
“generally requires a written motion to be filed at least thirty-five
days prior to trial in order for the [c]ourt to consider admitting
evidence governed by the Rape Shield statute,” but it argued that
good cause existed for the court to accept the untimely motion.
¶ 68 Five days before Buckner’s first trial was scheduled to begin,
the district court held a hearing on Buckner’s untimely rape shield
motion. The court allowed the parties to present argument but did
not allow the parties to present evidence — specifically, the court
invited the parties to address the issues of whether there was good
cause for the late filing and whether Buckner had alleged multiple
allegations of false reporting.
30
¶ 69 Following the hearing, the court concluded that there was not
good cause for the late filing and that the affidavit attached to
Buckner’s motion was insufficient to establish more than one prior
false report. Specifically, the court did not view J.B.’s report that
J.D.’s girlfriend had contacted him via Facebook in 2014 and
accused him of sexual assault as “sufficient to establish a sufficient
offer of proof with respect to any prior false report.” The court cited
Weiss and clarified that a “history” of false reporting required more
than one such false report. The court denied Buckner’s motion
without further hearing and the case proceeded to trial.
¶ 70 Before the second trial, Buckner timely renewed his motion for
a hearing under the rape shield statute and attached a new affidavit
signed by his attorney. With respect to the second allegedly false
report, the second affidavit stated that the circumstances made
clear that J.D. told her girlfriend that J.B. had assaulted her and
that the girlfriend subsequently accused J.B. of sexual assault
through Facebook messages.
¶ 71 The district court summarily denied the motion, stating that
“[t]he motion was filed and denied in advance of the first trial in this
matter. The motion asserts no new grounds that would satisfy the
31
statutory criteria or cause the Court to reconsider its previous
denial of the motion.”
¶ 72 After the second jury convicted Buckner of kidnapping and
sexual assault, Buckner filed a timely motion for a new trial
pursuant to Crim. P. 33 in which he argued that the district court
erred by denying his request for a rape shield hearing. The court
summarily denied the motion for new trial.
3. Analysis
¶ 73 Buckner contends that the district court erred by denying him
an evidentiary hearing on his rape shield motion. Specifically, he
contends that the district court erred by concluding that his motion
and affidavit did not sufficiently allege more than one false report of
sexual assault. We agree.
¶ 74 To resolve this contention, we must first address a novel
question of statutory interpretation. If the defendant follows the
required procedure, the rape shield statute creates an exception to
the general rule that a victim’s sexual conduct is presumptively
irrelevant for “evidence that the victim . . . has a history of false
reporting of sexual assaults.” § 18-3-407(2) (emphasis added).
Because Buckner’s motion did not allege that J.D. falsely reported
32
any prior sexual assault to “police or any other authority that might
result in repercussions for J.B.,” the People contend that Buckner
failed to allege that J.D. falsely “reported” anything. In other words,
the People contend that the allegedly false “report” must be made
“to authorities” for it to qualify as “false reporting” under the rape
shield statute. We disagree.
¶ 75 When interpreting statutes, our primary goal is to ascertain
and give effect to the legislative intent. People v. Sosa, 2019 COA
182, ¶ 12. To do so, we look first at the language of the statute,
giving words and phrases their plain and ordinary meanings if the
language is clear and unambiguous. Id. In applying the plain
meaning of a statute, we must give consistent effect to all its parts
and construe each provision in harmony with the overall statutory
design. Id. at ¶ 13. When a statutory term is undefined, we
construe it in accordance with its ordinary meaning. Id.
¶ 76 Section 18-3-407(2) states simply that “evidence that the
victim . . . has a history of false reporting of sexual assaults” may
be admissible if the defendant satisfies the statutory procedures.
The statute does not mandate that such reports be made to “law
enforcement” or to “the authorities.” It does not specify to whom
33
the allegedly false report must be made. “[W]e respect the
legislature’s choice of language, and we do not add words to or
subtract words from a statute.” People ex rel. Rein v. Meagher, 2020
CO 56, ¶ 22. And we note that, if the General Assembly had
intended that only formal reports to law enforcement agencies be
considered when evaluating whether a victim “has a history of false
reporting” it could have made that intention clear, as it has in other
contexts. See, e.g., § 16-2.7-102(1), C.R.S. 2021 (“Any person . . .
may make a missing person report to a law enforcement agency.”);
§ 18-1-711(1)(a), C.R.S. 2021 (providing immunity to any person
who “reports in good faith an emergency drug or alcohol overdose
event to a law enforcement officer, to the 911 system, or to a
medical provider”); § 18-6.5-108(1)(a), C.R.S. 2021 (requiring a
person who observes the mistreatment of an at-risk elder to “report
such fact to a law enforcement agency”).
¶ 77 The term “reporting” is not defined in the statute. Courts may
refer to dictionary definitions to determine the plain and ordinary
meaning of undefined statutory terms. People v. Serra, 2015 COA
130, ¶ 52. The dictionary defines “report” to include, among other
things, “a written or spoken description of a situation, event, etc.,”
34
“a usually detailed account,” or “an account spread by common
talk.” Merriam-Webster Dictionary, https://perma.cc/8ME4-
D8HQ. This common definition contains no requirement that a
“report” be made to a particular audience or recipient.
¶ 78 In the absence of a clear directive from the General Assembly
that a victim’s “history of false reporting” for purposes of the rape
shield statute be limited to only those false reports made to law
enforcement or other “authorities,” we decline to engraft such a
limitation.
¶ 79 The People appear to concede that, if a victim’s comments
during a “private conversation” can be considered a “report” for
purposes of the rape shield statute, then Buckner’s offer of proof
sufficiently demonstrated one instance of allegedly false reporting
(when J.D.’s daughter was conceived). The affidavit alleged that
J.D.’s mother provided defense counsel with a recording of a
conversation during which J.D. admitted to her girlfriend that “she
had falsely told several people that her daughter . . . was conceived
as a result of a sexual assault committed by [J.B.] when, in reality,
the two were in a relationship and the sexual encounter was
consensual.” We conclude that the facts alleged in the offer of
35
proof, if established at the hearing by a preponderance of the
evidence, would be sufficient to prove this first instance of alleged
false reporting.
¶ 80 But the People argue that the district court correctly
concluded that Buckner failed to sufficiently demonstrate a second
instance of allegedly false reporting (regarding the night at J.D.’s
mother’s house). Specifically, the People argue that Buckner
presented no evidence that J.D. was the person who made the
second allegedly false report and that it was unclear whether J.D.’s
girlfriend’s messages to J.B. referred to the first allegedly false
report or the second allegedly false report. Based on the facts
alleged in the second affidavit, however, we disagree.
¶ 81 The affidavit alleged that defense counsel had spoken with
J.B., who reported that he had consensual sex with J.D. one night
while he was at J.D.’s mother’s home visiting his daughter. The
affidavit also alleged that J.D.’s mother reported that J.B. had
visited the residence to spend time with his daughter and ended up
spending the night. J.D.’s mother reported observing J.B. and J.D.
“lying in bed together, close together, ‘spooning’ with one another”
and that J.D. “gave no indication anything out of the ordinary had
36
occurred the previous night.” The affidavit alleged that, after the
visit, in November 2014, J.D.’s girlfriend contacted J.B. via
Facebook and accused him of sexual assault. The affidavit also
stated that the circumstances surrounding J.B.’s overnight stay
with J.D. at her mother’s house, followed by J.D.’s girlfriend’s
Facebook accusations, “make clear that [J.D.] told [her girlfriend]
that J.B. had assaulted her, and that [the girlfriend] subsequently
accused J.B. of sexual assault through Facebook messages.”
¶ 82 From this evidence it would be reasonable to infer that
(1) J.D.’s girlfriend’s Facebook accusations referred to the alleged
sexual assault on the night J.B. visited his daughter and stayed
with J.D. (rather than referring to an incident alleged to have
occurred over six years earlier), and (2) J.D. was the person who
told her girlfriend she had been sexually assaulted on that
occasion.
¶ 83 We acknowledge that the evidence described in the affidavit
was circumstantial, rather than direct. See COLJI-Crim. D:01
(2020) (defining circumstantial evidence as indirect evidence “based
on observations of related facts that may lead you to reach a
conclusion about the fact in question”). But in determining the
37
sufficiency of evidence, the law makes no distinction between direct
and circumstantial evidence. People v. Bennett, 183 Colo. 125, 131,
515 P.2d 466, 469 (1973); People v. Medina, 51 P.3d 1006, 1013
(Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d
973 (Colo. 2003).
¶ 84 In addition, that the facts may be disputed or may lead to
other reasonable inferences is of no consequence at this stage. The
rape shield statute makes clear that if the offer of proof is sufficient
and if the prosecution does not stipulate to the facts contained in
the offer of proof, “the court shall set a hearing to be held in camera
prior to trial.” § 18-3-407(2)(c) (emphasis added).
¶ 85 Although it is a close call, we conclude that the facts described
in the affidavit — if proved by a preponderance of the evidence at a
hearing — would be sufficient to establish multiple instances of
false reporting. See Weiss, 133 P.3d at 1184. Thus, we conclude
that the district court erred by denying Buckner a hearing on his
motion.
¶ 86 By so concluding, however, we do not intend to minimize what
must be shown by an offer of proof to justify a hearing. Courts
should remain mindful of the purpose of the rape shield statute to
38
protect victims of sexual assault “from humiliating and public
exposure of intimate details of their lives absent a ‘preliminary
showing that evidence thus elicited will be relevant to some issue in
the pending case.’” Marx, ¶ 41 (quoting People v. McKenna, 196
Colo. 367, 371-72, 585 P.2d 275, 278 (1978)).
III. Conclusion
¶ 87 The judgment of conviction is reversed and the case is
remanded for a new trial. If Buckner renews his motion to admit
evidence that J.D. has a history of false reporting of sexual assaults
based on the same offer of proof, the district court shall conduct an
evidentiary hearing under section 18-3-407(2) to determine whether
such evidence is admissible.
JUDGE LIPINSKY concurs.
JUDGE FURMAN concurs in part and dissents in part.
39
JUDGE FURMAN, concurring in part and dissenting in part.
¶ 88 The majority concludes that the combined prejudice of the
prosecutor (1) stating that Buckner refused to voluntarily provide
DNA and (2) asking for justice for the victim during closing remarks
requires reversal under a plain error standard. I disagree that these
brief statements whether considered individually or cumulatively
“so undermined the fundamental fairness of the trial itself so as to
cast serious doubt on the reliability of the judgment of conviction.”
See Hagos v. People, 2012 CO 63, ¶ 14 (quoting People v. Miller, 113
P.3d 743, 750 (Colo. 2005)). Therefore, I respectfully dissent from
this portion of the majority’s opinion. In all other respects, I
concur.
I. The Evidence at Trial
¶ 89 During an interview, a detective asked Buckner if he would
take a DNA test. She briefly explained how DNA worked and what
it could show in his case. The detective then told Buckner that she
might seek a court order for a DNA test and, before he gave her a
definitive answer as to whether he would submit to testing, she told
him, “[W]e’ll go ahead and do it that way.”
40
II. The Prosecutor’s Closing Argument
¶ 90 During closing argument, the prosecutor made these
comments (among others):
Let’s look at two sides to the story. Let’s look
at the two sides. You heard -- we’ve gone
through [J.D.’s] side. Let’s look at [Buckner’s]
side. He denies any type of sexual contact
whatsoever with [J.D.].
The detective was very clear with him; you’ve
heard and seen that video statement. She was
very clear. Detective: You didn’t have any kind
of sexual intercourse with her? Defendant: I
didn’t do this to this girl. Detective: She’s
saying you’re the person that did this -- did
that; that it was against her will. Defendant:
No. Detective: She’s saying that you raped her
with force while beating her up. Defendant:
See, I didn’t do that. He denies [she] was even
in [his] apartment.
Detective: Did she ever come into your
apartment that night? Defendant: The
apartment is small. Detective: No. I mean,
like, into your apartment, like into your
bedroom at all. Defendant: Come on, Man.
Detective: I’m asking you because this is stuff
she’s telling me. Defendant: No. That’s a lie.
He refuses to give his DNA sample to [the
detective]. In fact, he gets visibly nervous,
starts stuttering on the interview when she’s
asking about the DNA. He didn’t give enough
information to her for her to be able to contact
[J.D.’s friend]. And, in fact, [J.D.’s friend]
never contacted the detective.
41
(Emphasis added.)
III. Defense Counsel’s Closing Argument
¶ 91 During closing argument, defense counsel made these
comments (among others):
Upstairs, in the upstairs apartment directly
above [Buckner] were [J.D.] and [J.D.’s
girlfriend].
They got into a fight. And they got into a fight
that wasn’t simply a verbal argument. It
wasn’t simply a verbal argument where
pictures got pulled off the wall, some
stomping, but a full-on domestic violence
altercation in which [J.D.] got beat up.
[J.D.] and [J.D.’s girlfriend] then came
downstairs. The decision got made between
the two of them -- [J.D.’s girlfriend] was
leaving. They came downstairs. They knocked
on that door; and when Mr. Buckner
answered, they asked Mr. Buckner, Please,
please do not call the police. Don’t call the
police.
And [Buckner] didn’t want to call the police.
He had no interest in involving law
enforcement. He definitely did want [J.D.] to
get out of there. He wanted [J.D.] to leave
because she was beating up her girlfriend, and
there’s an altercation going on upstairs.
So whether he encouraged or not, he stepped
in and [J.D.’s girlfriend] left. Then he and
[J.D.] are alone together. And at some point,
42
she comes back into his apartment, whether
she was in his apartment on that evening or
some other occasion, got the information about
some of the contents of the apartment. We
don’t necessarily know. But she -- they were
hanging out alone together.
She had been drinking, per her own
admission. And at some point, she starts
hugging up on him or some kind of a
consensual encounter in which his DNA gets
on her. That’s what took place. It was short of
any form of sexual intercourse; that we know
that [Buckner] cannot get an erection. And it
certainly wasn’t the violent attack that’s been
described.
Now, when we talk about [Buckner’s] story, I
want to direct your attention to all of the
things, because the district attorney read some
portions of the transcript of [Buckner’s]
videotaped interview with the detective -- . . . ,
who is seated over in the courtroom -- read
some portions of the transcript. What I want
you to do when you go back to deliberate, I
want you to watch that video again. And I
want you to watch a couple of things very
closely.
Remember this is taking place -- this interview
is taking place the following week after this
incident supposedly occurred. And remember
that the interview didn’t happen because [the
detective] came downstairs, came to [Buckner],
said, Hey, I want to speak with you. Will you
please speak with me? The interview
happened because [Buckner] went to her. He
wanted to talk to her because he didn’t know
43
why he was even in there. He didn’t
understand why he was in jail.
IV. Rebuttal Closing Argument
¶ 92 During rebuttal closing argument, the prosecutor made these
comments (among others):
You guys determine what the facts are. We
can stand up here and repeat over and over
the testimony that you’ve already heard, give
you our opinions on what we think the facts
are, but it’s irrelevant. It’s your job to
determine what the facts are.
You’ve heard [J.D.] tell you what happened on
September 17th, and you heard his version of
events. You can believe all of it, you can
believe part of it or you can believe none of it.
Right. That’s what the judge told you in his
instructions. If you believe what [J.D.] told
you, [Buckner] is guilty of kidnapping and he’s
guilty of sexual assault.
They want you to take a good long, hard look
at [Buckner’s] statements. It’s your evidence,
but their argument is that [Buckner] is here
because [J.D.’s girlfriend] assaulted [J.D.].
....
And that proof, ladies and gentlemen, is in the
DNA. The thing about DNA, it doesn’t choose
sides. It doesn’t change its story. It doesn’t
forget details. You don’t have to believe in it
for it to be true.
44
Her day of justice is a long time coming. That’s
today. Hold him accountable for what he did
to that girl that night.
(Emphasis added.)
V. Analysis
¶ 93 Our supreme court in Hagos, ¶ 23, stated that “[p]lain error
review allows the opportunity to reverse convictions in cases
presenting particularly egregious errors, but reversals must be rare
to maintain adequate motivation among trial participants to seek a
fair and accurate trial the first time.” “Because this standard was
formulated to permit an appellate court to correct ‘particularly
egregious errors,’ Wilson v. People, 743 P.2d 415, 420 (Colo. 1987),
the error must impair the reliability of the judgment of conviction to
a greater degree than under harmless error to warrant reversal.”
Hagos, ¶ 14; see id. at ¶ 12 (explaining that reversal is required
under the harmless error standard only if the error “substantially
influenced the verdict or affected the fairness of the trial
proceedings” (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.
1986))). Reversing for prosecutorial misconduct in this case could
blur the distinction between the plain error and harmless error
standards. See id. at ¶¶ 12, 14.
45
¶ 94 I conclude that these brief statements during closing
arguments — (1) regarding Buckner’s refusal to voluntarily provide
DNA and (2) requesting justice for the victim — did not affect the
fundamental fairness of the proceedings to the degree required by
plain error. See id. at ¶ 14; see also People v. Sepeda, 196 Colo. 13,
25, 581 P.2d 723, 732 (1978) (“[W]e have held on numerous
occasions that prosecutorial misconduct in closing arguments
rarely, if ever, is so egregious as to constitute plain error, within the
meaning of Crim. P. 52(b) . . . .”).
A. Refusal to Provide DNA
¶ 95 Any purported refusal by Buckner to give DNA had little value
to a disputed issue at trial. Buckner’s theory of defense was that
the contact was consensual. And the jury heard evidence from the
detective that Buckner appeared to be cooperative with the DNA
testing. Our case, therefore, is unlike People v. Pollard, where the
prosecutor’s improper comment on the defendant’s refusal to
consent to a search went directly to the theory of defense. 2013
COA 31M, ¶ 47.
¶ 96 The prosecutor’s comments were brief. And our supreme
court has held that “[c]omments that were ‘few in number,
46
momentary in length, and were a very small part of a rather prosaic
summation’ do not warrant reversal under the plain error
standard.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.
2005) (quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982)).
¶ 97 And, before closing arguments, the trial court instructed the
jurors that they must “not allow bias” to influence their decision,
and that the burden of proof is on the prosecution to prove “beyond
a reasonable doubt the existence of all the elements necessary to
constitute the crime charged.” See People v. Reed, 2013 COA 113,
¶ 28. I presume the jury understood and followed these
instructions.
B. Justice for the Victim
¶ 98 The very brief reference to justice for the victim was not so
inflammatory or evocative of the jury’s sympathy as to cast serious
doubt on the reliability of the judgment or undermine the
fundamental fairness of the proceedings. See Hagos, ¶ 12.
¶ 99 This was not pervasive misconduct. See People v. Nardine,
2016 COA 85, ¶ 65; see also Wend v. People, 235 P.3d 1089, 1098
(Colo. 2010) (“We focus on the cumulative effect of the prosecutor’s
statements using factors including the exact language used, the
47
nature of the misconduct, the degree of prejudice associated with
the misconduct, the surrounding context, and the strength of the
other evidence of guilt.”).
¶ 100 And the timing of this statement at the very end of rebuttal
argument seems to support the implication that the absence of a
defense objection reflects that the defense counsel did not think
that this statement was overly damaging. See People v. Rodriguez,
794 P.2d 965, 972 (Colo. 1990) (“The lack of an objection may
demonstrate defense counsel’s belief that the live argument, despite
its appearance in a cold record, was not overly damaging.” (quoting
Brooks v. Kemp, 762 F.2d 1383, 1397 n.19 (11th Cir. 1985))).
Buckner had given his closing argument, and the last few
statements of rebuttal are similarly prominent in the mind of the
listening defense counsel as they are in the mind of the jury.
¶ 101 In summary, I don’t think the two brief statements made by
the prosecutor during closing arguments “so undermined the
fundamental fairness of the trial itself so as to cast serious doubt
on the reliability of the judgment of conviction.” Hagos, ¶ 14
(quoting Miller, 113 P.3d at 750). In my view, therefore, this is not
48
the rare case of plain error that our supreme court determined
warrants reversal. See Wend, 235 P.3d at 1098.
49