22CA1680 Peo v Burkard 02-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1680 Larimer County District Court No. 20CR1939 Honorable C. Michelle Brinegar, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert Joshua Burkard,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Robert Joshua Burkard, appeals the judgment of
conviction entered on jury verdicts finding him guilty of one count
each of impersonating a peace officer and false reporting to
authorities. We affirm.
I. Background
¶2 In September 2020, police officers were dispatched to
investigate the victim’s report that her boyfriend, Burkard, had
sexually assaulted her. A few days later, Burkard contacted the
victim from an unknown phone number to inquire whether she had
been in contact with law enforcement regarding the incident. He
began their text message exchange by falsely claiming that he was
contacting the victim from his parole officer’s phone. After the
victim asked Burkard why he was using the parole officer’s phone,
he responded, “Going back to mine.”
¶3 But shortly thereafter, Burkard sent the victim additional
messages from the same number, pretending that they were
communications from his parole officer, Lucas Singleton, and
ostensibly trying to get the victim to file a statement with the police
department regarding the incident. Among other messages,
Burkard wrote:
1 • “Well I [am] taking [Burkard] to th[e] station w[i]ll you come
and file a statement”;
• “You[’]r[e] going to have to by the end of the day”;
• “This is [O]fficer [L]ucas I need you to answer your phone”;
and
• “We are going to need a[n] explanation.”
¶4 During this text exchange with the unknown number, the
victim responded that she had already made her statement to the
police. She also directed Burkard, in the guise of “Officer Lucas,” to
contact “[her] detective” and provided him with contact information
for Investigator Ryan Adams. Undeterred, Burkard then called
Investigator Adams and again misrepresented himself as Parole
Officer Singleton (whom he identified as “Officer Lucas”):
[INVESTIGATOR ADAMS:] Investigations division, this is Ryan.
[BURKARD:] Yeah, this is Officer Lucas, and we will just need [the victim] to come on down to the station. . . . Tell [the victim] she needs to come to the station Loveland Police Department.
¶5 The prosecution charged Burkard with impersonating a peace
officer under section 18-8-112, C.R.S. 2024, which states that a
2 person commits the offense by “falsely pretend[ing] to be a peace
officer and perform[ing] an act in that pretended capacity.”1 After
the close of evidence, the trial court granted a defense motion to
add false reporting to authorities as a lesser nonincluded offense.2
The jury found Burkard guilty of both crimes. The trial court then
sentenced him to 2 years in prison for impersonating a peace officer
and 180 days of jail time for false reporting to authorities, to be
served concurrently in the custody of the Department of
Corrections.
II. Analysis
¶6 On appeal, Burkard contends that his conviction for
impersonating a peace officer can’t stand because (1) section
18-8-112 is unconstitutionally overbroad and vague; (2) the trial
1 Impersonating a peace officer was a class 6 felony when Burkard
committed these acts. See § 18-8-112(2), C.R.S. 2020. It’s a class 5 felony under the current version of the statute. § 18-8-112(2), C.R.S. 2024.
2 Specifically, the added count was for false reporting of identifying
information to law enforcement authorities. See § 18-8-111(1)(c), C.R.S. 2020. Subsection (1)(c) has since been repealed and relocated to section 18-8-111.5, C.R.S. 2024. See Ch. 462, sec. 277, § 18-8-111, 2021 Colo. Sess. Laws 3195.
3 court reversibly erred by admitting certain testimony from the
victim; and (3) the court reversibly erred by allowing the
prosecutors to engage in misconduct during closing and rebuttal
closing arguments. We address each of these contentions in turn.
A. The Constitutionality of Section 18-8-112
¶7 Burkard first contends that Colorado’s impersonating a peace
officer statute is unconstitutionally overbroad and vague, both
facially and as applied to his conduct.
1. Applicable Law and Standard of Review
¶8 A statute is overbroad if its scope is so comprehensive that it
restricts or has a chilling effect on speech protected by the First
Amendment. See People v. Graves, 2016 CO 15, ¶ 12. A defendant
can bring a facial overbreadth challenge to a statute that impacts a
constitutionally protected activity, even when his own activity is not
protected. People v. Hickman, 988 P.2d 628, 635-36 (Colo. 1999).
But to prevail on such a challenge, the defendant “must show that
the overbreadth of the statute is both real and substantial, judged
in relation to the statute’s plainly legitimate sweep.” Graves, ¶ 14.
In evaluating an overbreadth challenge, the court must decide
whether there is a substantial encroachment to any constitutionally
4 protected speech. See Hickman, 988 P.2d at 636. Unless the
statute reaches a substantial amount of constitutionally protected
speech, an overbreadth challenge fails. Graves, ¶ 15.
¶9 If a statute reaches protected speech but is not substantially
overbroad, a defendant must show that the statute is
unconstitutional as applied to his conduct. See People v. Campbell,
174 P.3d 860, 866 (Colo. App. 2007). “[A]n as-applied challenge
alleges that the statute is unconstitutional as to the specific
circumstances under which a defendant acted.” People v. Ford, 232
P.3d 260, 263 (Colo. App. 2009).
¶ 10 While the overbreadth doctrine derives from the First
Amendment, People v. Moreno, 2022 CO 15, ¶ 13, the vagueness
doctrine is rooted in due process principles that a statute must
(1) “give fair warning of prohibited conduct so that individuals may
conform their actions accordingly” and (2) “establish standards that
are sufficiently precise to avoid arbitrary and discriminatory
enforcement,” Graves, ¶ 17. Consequently, “a conviction fails to
comport with due process where it is obtained under a statute that
is so vague that it ‘fails to provide a person of ordinary intelligence
fair notice of what is prohibited, or is so standardless that it
5 authorizes or encourages seriously discriminatory enforcement.’”
Id. (quoting United States v. Williams, 553 U.S. 285, 304 (2008)).
¶ 11 We review the constitutionality of a statute de novo. Id. at ¶ 9.
2. The Parties’ Arguments
¶ 12 In support of his overbreadth challenge, Burkard argues that
the statute sweeps in a substantial amount of constitutionally
protected speech because while it proscribes “an act” in the
pretended capacity, the statute doesn’t define that term or include
any other language that would limit the statute’s reach to the acts
within its legitimate sweep. Under these circumstances, he asserts,
“the impersonating a peace officer statute reaches far beyond its
legitimate aims and constitutional legislative goals” of ensuring
“public safety and protecting the reputation of law enforcement.”
Likewise, Burkard contends that the statute is “unconstitutionally
vague because the undefined term ‘act’ fails to provide fair warning
of prohibited conduct and authorizes arbitrary and discriminatory
enforcement.”
¶ 13 The People argue that Burkard’s overbreadth and vagueness
challenges aren’t properly before us because he didn’t raise them in
the trial court. Burkard concedes that he didn’t preserve those
6 challenges in the trial court but asserts that we should nonetheless
review his claims because doing so would best serve the goals of
efficiency and judicial economy. See Hinojos-Mendoza v. People,
169 P.3d 662, 667-68 (Colo. 2007), abrogated on other grounds as
recognized by Phillips v. People, 2019 CO 72, ¶¶ 32-33.
3. Whether to Address the Merits of Burkard’s Unpreserved Constitutional Challenges
¶ 14 Constitutional arguments generally must be explicitly raised in
the trial court to alert the court to the challenger’s contentions and
allow it to develop a factual record on the issue. People v. Allman,
2012 COA 212, ¶ 13. That is particularly true when a party, such
as Burkard here, asserts that a statute is unconstitutional as
applied to his conduct. People v. Veren, 140 P.3d 131, 140 (Colo.
App. 2005). If a party fails to challenge the constitutionality of a
statute in the trial court, then the court doesn’t make sufficient
factual findings regarding that claim for our review. Thus, for an
appellate court to entertain an unpreserved as-applied
constitutional challenge, “it is imperative that the trial court make
some factual record that indicates what causes the statute to be
unconstitutional as applied.” Id.; see also People v. Patrick, 772
7 P.2d 98, 100 (Colo. 1989) (“We again stress that we cannot
determine the as-applied constitutionality of a statute based upon
an incomplete record of the facts.”); People v. Mountjoy, 2016 COA
86, ¶ 38 (declining to review a defendant’s as-applied challenge
when the defendant didn’t raise the issue in the trial court and the
court made no factual findings to be reviewed), aff’d on other
grounds, 2018 CO 92M; People in Interest of L.C., 2017 COA 82,
¶ 17 (“Appellate courts generally decline to address unpreserved
as-applied challenges to the constitutionality of a statute because of
the lack of a developed record.”).
¶ 15 As to the unpreserved facial challenges to the statute, Burkard
and the People argue divergent case law. The People urge us to
follow cases stating that constitutional challenges should not be
raised for the first time on appeal, while Burkard argues that doing
so here would be an appropriate exercise of our discretion,
particularly because the review would “clearly further judicial
economy.” See People v. Houser, 2013 COA 11, ¶¶ 29-35
(describing the different approaches to unpreserved constitutional
challenges).
8 ¶ 16 In this case, however, we conclude that we need not choose
one of these paths because any error here would not have been
plain in any case.3
4. Any Error Here Wasn’t Plain
¶ 17 Burkard and the People also disagree on whether plain error
applies to his claim. Burkard argues that plain error doesn’t apply
when a statute is unconstitutional. We disagree. Unpreserved
3 We disagree with Burkard’s argument that we “should exercise
[our] discretion to review [his] constitutional claims because a miscarriage of justice would result if his conviction stands under a plainly unconstitutional statute.” While we may take up unpreserved issues in civil cases to prevent a miscarriage of justice, that standard doesn’t apply in criminal cases. See JW Constr. Co. v. Elliott, 253 P.3d 1265, 1271 (Colo. App. 2011) (collecting cases); see also People in Interest of M.B., 2020 COA 13, ¶ 21 (recognizing the miscarriage of justice exception for review of unpreserved errors in dependency and neglect cases). Rather, we generally review unpreserved issues in criminal cases for plain error. See Hagos v. People, 2012 CO 63, ¶ 14. And unlike its federal counterpart, the miscarriage of justice component is not part of Colorado’s plain error framework. See People v. Greer, 262 P.3d 920, 932-33 (Colo. App. 2011) (J. Jones, J., specially concurring); see also People v. Crabtree, 2024 COA 40M, ¶¶ 68-71 (declining to adopt the federal plain error analytical framework).
9 constitutional errors that are not structural are reviewed for plain
error. See Hagos v. People, 2012 CO 63, ¶ 14.4
¶ 18 To qualify as plain error, an error must be obvious and
substantial. Id. We reverse only when the error so undermined the
fundamental fairness of the trial that it casts serious doubt on the
reliability of the judgment of conviction. Id. An error is obvious
only if, at the time of trial, the action challenged on appeal
contravened a clear statutory command, a well-settled legal
principle, or Colorado case law. See People v. Crabtree, 2024 CO
40M, ¶¶ 42, 53.
¶ 19 Burkard argues that the error here was obvious in part
because the Colorado Supreme Court had observed in Bolles v.
People, 541 P.2d 80, 82 (Colo. 1975), that “a statute is facially
overbroad if it sweeps so comprehensively as to substantially
include within its proscriptions constitutionally protected speech.”
4 To the extent Burkard posits that structural error applies in this
case, we also disagree. See Johnson v. People, 2023 CO 7, ¶ 28 (reviewing for plain error the defendant’s unpreserved vagueness challenge); People v. Helms, 2016 COA 90, ¶¶ 13-14 (reviewing unpreserved facial challenges to the constitutionality of a statute for plain error).
10 But he doesn’t explain — and we don’t see — why this general
statement from Bolles should have alerted the trial court that
section 18-8-112 may be unconstitutional. After all, Bolles
addressed the constitutionality of a different law, concluding that
portions of Colorado’s harassment statute were facially overbroad.
Id. at 81, 84. And Burkard directs us to no Colorado appellate
opinion that has addressed whether the impersonating a peace
officer statute is constitutional, let alone suggested that the statute
is constitutionally infirm in ways he contends it is.
¶ 20 When Colorado statutory law or case law would not have
alerted the trial judge to an unobjected-to error, the error can’t be
deemed obvious. Crabtree, ¶ 42; see also People v. Taylor, 2021
COA 133, ¶ 15 (“Statutes are entitled to a presumption of
constitutionality, rooted in the doctrine of separation of powers,
through which ‘the judiciary respects the roles of the legislature and
the executive in the enactment of laws.’” (quoting Rocky Mountain
Gun Owners v. Polis, 2020 CO 66, ¶ 30)). And because any
constitutional error wasn’t obvious at the time of Burkard’s trial,
the error wasn’t plain. See Crabtree, ¶¶ 41-43 (noting that an error
is plain only if it’s both obvious and substantial).
11 ¶ 21 Under these circumstances, then, we conclude there was no
plain error in the trial court not sua sponte declaring the statute
unconstitutionally overbroad and vague.
B. Admissibility of Evidence
¶ 22 Burkard next contends that the trial court reversibly erred by
failing to sua sponte exclude certain portions of the victim’s
testimony. We disagree.
¶ 23 “The Colorado Rules of Evidence favor the admissibility of
relevant evidence unless otherwise prohibited by constitution,
statute, or rule.” People v. Hood, 2024 COA 27, ¶ 19; see also CRE
402. Evidence is relevant if it has any tendency to make the
existence of a fact of consequence more or less probable. CRE 401.
But relevant evidence may nonetheless be excluded if its probative
value is substantially outweighed by, among other things, the
danger of unfair prejudice or misleading the jury. CRE 403.
¶ 24 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Owens, 2024 CO 10, ¶ 105. “[A] trial court
abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, unfair, or based on an incorrect understanding of the
12 law.” Id. However, because Burkard didn’t object to the challenged
testimony at trial, we will reverse only if we conclude that the trial
court’s decision to admit the testimony was plainly erroneous. See
People v. Martinez, 2020 COA 141, ¶ 62.
2. The Trial Court Didn’t Reversibly Err by Admitting the Challenged Portions of the Victim’s Testimony
¶ 25 Burkard contends that the trial court reversibly erred by
admitting the victim’s testimony that she had “known [Burkard]
through this court process”; that their relationship was “bad” when
she received the relevant texts from him, as “[i]t was right after [she]
had contacted [the] police”; and that during the text message
exchange, she was staying “at a hotel that the Victims’ Advocacy
had helped set up for the evening.” Burkard argues that these
statements constituted “inflammatory, irrelevant, and prejudicial
evidence suggesting that [he] had victimized [the victim]” in a
manner unrelated to the charges in this case. In other words,
Burkard asserts that the statements were inadmissible because
they were not relevant to the elements of his impersonating a peace
officer charge and they improperly referred to the original sexual
assault allegations. We discern no reversible error.
13 ¶ 26 For starters, contrary to Burkard’s argument, we don’t view
the victim’s testimony about how she had known him through the
court process and the quality of their relationship as irrelevant
evidence that was only related to the underlying sex assault
investigation. While these statements perhaps didn’t pertain
directly to an element of his impersonation charge, they served as
background information about the facts under which the charged
crime occurred. See People v. Dunlap, 124 P.3d 780, 806 (Colo.
App. 2004) (noting that evidence that doesn’t relate to any
proposition that must be proved may nonetheless be admissible as
background information).5 For example, just before the victim
testified that she had known Burkard “through this court process,”
she recounted how they “met a couple years ago through Facebook”
and “had hung out a couple times since then.” Similarly, she
testified about the general quality of her relationship with Burkard
5 On appeal, Burkard argues only that this evidence was irrelevant
and unfairly prejudicial. To the extent he also implies that this evidence was improper character evidence, we conclude that the statements were not obviously extrinsic and therefore didn’t clearly fall within CRE 404(b). See Rojas v. People, 2022 CO 8, ¶ 44 (recognizing an intrinsic-extrinsic distinction with extrinsic acts falling under CRE 404(b) and intrinsic acts falling outside the rule).
14 because the prosecutor had asked her to share that information “for
the context of those messages.”
¶ 27 Moreover, the victim’s statements hardly revealed more than
what was already obvious. Indeed, Burkard stipulated to the fact
that the alleged charged conduct occurred after Investigator Adams
had already been assigned to investigate a “disagreement” between
Burkard and the victim. The trial court had read that stipulation to
the jury by the time of the victim’s testimony. Given the testimony
and evidence provided to the jury, the victim’s statement that their
relationship was “bad” at the time of the texts wasn’t new
information. Consequently, we can’t say on this record that the
trial court abused its discretion by failing to sua sponte exclude the
victim’s statement generally describing the current state of her
relationship with Burkard. See Owens, ¶ 105.
¶ 28 As for the victim’s testimony about where she was when she
received Burkard’s texts, the victim didn’t specify why the Victims’
Advocacy had arranged for her to stay at a hotel, much less suggest
that its involvement was related to the undisclosed sexual assault
allegations. But even if we were to assume that this statement
improperly suggested that Burkard had victimized her in some
15 unknown way, any error in admitting that statement wasn’t plain
because it wasn’t substantial. See Martinez, ¶ 62.
¶ 29 First, the victim’s reference to the Victims’ Advocacy’s
involvement was very brief and bare bones. It was limited to a
single sentence in the roughly 250-page transcript from the 2-day
trial, the prosecutor didn’t ask any follow-up questions, and we see
no indication that the prosecutor referred to this statement during
closing argument or at any other point during the trial. See People
v. Arzabala, 2012 COA 99, ¶ 80 (concluding that the trial court
didn’t plainly err by admitting certain testimony in part because the
testimony was brief and the prosecutor didn’t specifically refer to it
in closing argument).
¶ 30 Second, overwhelming evidence supported Burkard’s
conviction for impersonating a peace officer as it was undisputed
that he had falsely identified himself as a parole officer in the
communications with the victim and Investigator Adams. True,
Burkard argued that he hadn’t committed an act in the false
capacity of a parole officer. But as his counsel put it in closing
argument, “the facts are pretty straightforward” and many “of them
ha[d] been stipulated to.” See People v. Munoz-Diaz, 2023 COA 105,
16 ¶ 29 (concluding that any evidentiary error wasn’t plain because
there was overwhelming independent evidence of the defendant’s
guilt).
¶ 31 For these reasons, we conclude that the trial court didn’t
reversibly err by admitting portions of the victim’s testimony that
Burkard challenges on appeal.
C. Prosecutorial Misconduct
¶ 32 Finally, Burkard contends that the trial court reversibly erred
by allowing the prosecutors to engage in misconduct during closing
and rebuttal closing arguments. We again disagree.
¶ 33 We use a two-step analysis to review prosecutorial misconduct
claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First,
we evaluate whether the prosecutor’s conduct was improper under
the totality of the circumstances, considering factors such as the
language used, the context in which the statements were made, and
the strength of the evidence supporting the conviction. People v.
Vialpando, 2022 CO 28, ¶ 21. Second, if the conduct was improper,
we determine whether reversal is required under the applicable
standard of review. Wend, 235 P.3d at 1096. Each of these steps is
17 analytically independent of the other, so a prosecutorial misconduct
claim fails unless both steps are satisfied. Id.
¶ 34 Because Burkard didn’t object to the asserted misconduct at
trial, we review his claims for plain error. Vialpando, ¶ 20.
Prosecutorial misconduct constitutes plain error only if it is
flagrantly, glaringly, or tremendously improper. Domingo-Gomez v.
People, 125 P.3d 1043, 1053 (Colo. 2005). And prosecutorial
misconduct in closing argument rarely constitutes plain error.
People v. Burdette, 2024 COA 38, ¶ 61.
2. The Prosecutors Didn’t Commit Misconduct During Closing and Rebuttal Closing Arguments
¶ 35 Burkard contends that one of the prosecutors engaged in
misconduct during closing argument by (1) repeatedly referring to
the text messages he had sent to the victim as “threats” and
(2) stating that the victim had already been in contact with the
police when she received his texts. He also asserts that during
rebuttal closing, a different prosecutor (3) improperly argued that
Burkard’s texts were intended “to intimidate” the victim; and
(4) drew the jury’s attention to a “high-profile” case that a
prospective juror mentioned during voir dire, “in which a woman
18 named Lacy Miller was murdered after being pulled over by a
person impersonating a police officer.” Although Burkard didn’t
object to any of these statements during trial, on appeal he posits
that “[t]hese comments cumulatively served to improperly suggest
that [he] had victimized [the victim] and that the jury should base
its decision on this inference of other nefarious conduct.” We’re not
persuaded.
¶ 36 To begin, we don’t agree with Burkard that it was misconduct
to characterize his texts to the victim as “threats.” While not all of
his messages can be construed as threats, the record shows that
the prosecutor used that characterization only when discussing two
messages in particular. Specifically, the prosecutor stated that
Burkard “tried a threat” when he told the victim that she would
need to file a police statement by the end of the day. And the
prosecutor used the term “threat” to describe the message in which
Burkard said, “We are going to need a[n] explanation.” Considering
that Burkard was writing to the victim pretending to be a parole
officer, those two messages could be perceived as “threats” that if
the victim didn’t do what he was asking her to do, the person
19 communicating with her could exercise his purported authority as a
parole officer.
¶ 37 Thus, we discern no misconduct in the prosecutor’s use of
that term. Likewise, we don’t discern under these circumstances
any misconduct in the comment during rebuttal closing that
Burkard’s messages were intended “to intimidate [the victim] into
going [to the police station] and talking to the cops.” See People v.
Rodriguez, 2021 COA 38M, ¶ 31 (observing that a prosecutor has
“‘wide latitude in the language and presentation style used’ during
closing argument” and that the prosecutor “may employ rhetorical
devices and engage in oratorical embellishment and metaphorical
nuance”) (citations omitted).
¶ 38 Moreover, we’re not persuaded by Burkard’s argument that
the prosecutor’s comments about how the victim was already in
contact with the police at the time of the text exchange “created an
unfair and prejudicial inference that [he] had done something
criminal or harmful to [the victim].” Those comments accurately
described facts in evidence. As noted above, the victim told
Burkard in the text exchange that she had already filed a police
statement. And her contact with law enforcement was apparent
20 from the parties’ factual stipulation that Investigator Adams was
already investigating the underlying incident when the charged
conduct occurred. See People v. McMinn, 2013 COA 94, ¶ 61
(“Prosecutors may comment on the evidence admitted at trial and
the reasonable inferences that can be drawn therefrom.”).
¶ 39 Finally, Burkard takes issue with the following statements the
prosecutor made in her rebuttal closing:
Now, at the beginning of jury selection, when you were all here, you all talked about why this kind of conduct is criminalized and why it is illegal in our state. You said peace officers should be someone that you can trust, that if you get a call from the likes of Investigator Adams or [Parole] Officer Singleton, that you know that the person you’re talking to on the phone is a cop. You want to have that trust.
You said that peace officers are ones in a position of authority, that you don’t want someone to use that authority when they don’t actually have it. And that’s exactly why you’re here today. You’re here today because someone -- Mr. Burkard -- pretended to be a parole officer and took acts under that guise.
¶ 40 He asserts that these statements drew the jury’s attention to a
case that one prospective juror mentioned during jury selection in
support of her belief that impersonating a peace officer should be a
crime:
21 [JUROR D]: Well, obviously, there’s safety issues if, you know, someone is impersonating it, so I think that’s something that people have to be aware of. I mean, I remember a case in Fort Collins. It was a long time ago, but I think -- Lacy Miller or some -- I can’t remember exactly.
But someone had impersonated a police officer and pulled her over, and I think she was killed. And, you know, it was probably one of the first times I had ever heard of something like that happening, so yeah. I mean, I think it’s crime to impersonate a police officer though.
Burkard contends that “[b]y reminding the jury why impersonating
a peace officer is illegal ‘in our state,’ the prosecutor drew a line of
reference between what happened to Lacy Miller and what
happened between Mr. Burkard and [the victim].”
¶ 41 We disagree with this interpretation of the prosecutor’s
comments. The record shows that during jury selection, the
prosecutor asked multiple prospective jurors to share their
thoughts about whether impersonating a peace officer should be a
crime. While Juror D brought up the Lacy Miller case, the
prosecutor and the other prospective jurors didn’t talk about it
further. Instead, the prosecutor focused on safety concerns
associated with someone assuming the authority of a peace officer
22 and how such impersonation undermines the public’s trust in law
enforcement. During that colloquy, one prospective juror observed
that “police officers are supposed to be the people you can trust.”
¶ 42 The prosecutor’s comments in rebuttal closing emphasized the
concerns that all prospective jurors had identified, with the
prosecutor reminding the jurors how they had discussed that
“peace officers should be someone that you can trust” and “that you
don’t want someone to use [the] authority [of a peace officer] when
they don’t actually have it.” In light of this record, then, we don’t
perceive the prosecutor’s remarks as referring to the Lacy Miller
case in particular, much less as inviting the jury to equate
Burkard’s actions with the actions implicated in that case.
¶ 43 In sum, we conclude that the statements the prosecutors
made during closing and rebuttal closing arguments weren’t
improper, let alone so flagrantly, glaringly, or tremendously
improper as to constitute plain error. See Domingo-Gomez, 125
P.3d at 1053. Thus, Burkard’s prosecutorial misconduct claim
fails.
23 III. Disposition
¶ 44 The judgment is affirmed.
JUDGE WELLING and JUDGE SCHUTZ concur.