23CA0801 Peo v Casados 08-21-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0801 Jefferson County District Court No. 21CR2375 Honorable Diego G. Hunt, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jesse Casados,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FOX Harris and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced August 21, 2025
Philip J. Weiser, Attorney General, Jenna Baker, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jesse Casados, appeals his convictions for first
degree aggravated motor vehicle theft, reckless driving, and careless
driving resulting in injury. He contends that the trial court
erroneously admitted his statements to police and that the
prosecution engaged in misconduct. We affirm his convictions.
I. Background
¶2 In September 2020, police were dispatched to a multi-car
accident in Jefferson County. Officer Shaun Granmoe, who arrived
at the scene around 10:30 or 10:45 a.m., saw Casados being
removed from the driver’s seat of one of the cars. Casados was the
only person injured. Granmoe described Casados’s injuries as
“pretty significant,” including a “broken or shattered femur, . . . a
broken or shattered wrist,” and a potential brain bleed. He noted
that Casados was clearly “in a lot of pain” and was screaming at the
scene.
¶3 Casados was taken to the hospital, and Granmoe followed to
get his statement. Before speaking to Casados, Granmoe learned
he may have used drugs that day, and he was driving a stolen car.
Granmoe spoke to Casados in his hospital room. Casados was
laying in a hospital bed and being treated by medical staff, who
1 were “going in and out” of the room. Granmoe sat on the right side
of Casados’s bed; medical equipment and nurses starting
intravenous lines (IVs) were to his left.
¶4 Granmoe, who was armed and uniformed, identified himself as
a police officer and asked Casados basic questions to gauge his
alertness. Granmoe testified that Casados was awake, appeared
lucid, knew he was involved in a crash, and knew he was at a
hospital (but may not have known which hospital). Granmoe next
asked Casados how the crash happened. Casados explained “that
he was up north in Denver, didn’t know exactly where,” but when
he left the residence, a male named Lil Nut or Lil Nutty confronted
him, entered the car, held him at gunpoint, and told him to drive.
Casados said this person exited the car about thirty minutes before
the crash.
¶5 Granmoe then read Casados his Miranda1 rights and asked if
he understood them and wished to continue speaking. Casados
said he understood his rights. Granmoe described Casados as “very
open to speaking” but noted that his statements were at times
1 Miranda v. Arizona, 384 U.S. 436, 444-45, 478-78 (1966).
2 unclear or confusing as to the timeline, when and where the alleged
male entered the car, why that male exited the car, and whether law
enforcement was pursuing the car before the crash.2
¶6 When asked about the car, Casados said he believed it was
likely stolen because “it was associated with Lil Nutty.” He did not
explain the basis for this belief or his relationship with Lil Nutty.
As for the suspected drug use, fire department officials told
Granmoe that Casados “admitted to taking fentanyl” before the
crash. But Casados told Granmoe he “uses Percocet and had used
Percocet the day prior” but did not take drugs or medication before
the crash and was not otherwise intoxicated. However, Granmoe
testified that hospital staff “most likely” gave Casados “medications
to help with his pain.”
¶7 Because Casados needed further treatment, Granmoe ended
the interview. He described the tone of the conversation and
Casados’s mood as conversational and friendly. Granmoe made no
2 Fire department officials told Granmoe that Casados believed law
enforcement was pursuing him in the car. Granmoe’s investigation revealed no evidence of any such pursuit. When asked about this, Casados first said he was being pursued as far as he knew and then said, “as far as I know, I don’t know,” which confused Granmoe.
3 threats or promises, nor did he put his hand on or remove his
weapon. He also did not touch or physically restrain Casados, but
he agreed that Casados was unable to leave due to his injuries.
Casados did not ask Granmoe to leave or say that he did not wish
to speak with Granmoe.
¶8 Casados was charged with first degree aggravated motor
vehicle theft, reckless driving, and careless driving resulting in
injury. Before trial he moved to suppress his statements to
Granmoe, which the trial court denied after a hearing. The court
found that Casados was not in custody when Granmoe initially
spoke to him, he validly waived his Miranda rights, and his
statements were voluntary. Casados was convicted as charged.
¶9 On appeal, Casados argues that his statements should have
been suppressed because (1) he was subject to custodial
interrogation in the hospital, and Granmoe did not give him a
Miranda warning at the start of the interrogation; (2) he did not
validly waive his Miranda rights; and (3) his statements to Granmoe
were involuntary. He also contends that the prosecutor made
several improper statements during closing argument. Finally, he
contends that cumulative error warrants reversal.
4 II. Casados’s Statements to Police
A. Standard of Review
¶ 10 When reviewing a suppression ruling, we only consider
evidence presented at the suppression hearing. Moody v. People,
159 P.3d 611, 614 (Colo. 2007). When reviewing a trial court’s
determinations as to whether a defendant was in custody, validly
waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966),
and made voluntary statements to law enforcement, we defer to the
court’s factual and credibility findings that enjoy record support.
People v. Davis, 2019 CO 84, ¶ 18 (custody); People v. Thames,
2015 CO 18, ¶ 13 (waiver); Effland v. People, 240 P.3d 868, 878
(Colo. 2010) (voluntariness). We review de novo the court’s ultimate
determinations of whether a defendant was in custody, a waiver
was valid, and a statement was voluntary. Davis, ¶ 18; Thames,
¶ 13; Effland, 240 P.3d at 878. The prosecution must prove the
validity of a Miranda waiver and the voluntariness of a defendant’s
statements by a preponderance of the evidence. Thames, ¶ 13;
Effland, 240 P.3d at 878.
5 B. Custody
¶ 11 Casados first argues that the trial court erroneously concluded
that he was not initially in custody when Granmoe questioned him,
so Miranda did not apply.3 We conclude that the court did not err.
¶ 12 Under the Fifth Amendment to the United States Constitution,
a “criminal defendant may [not] be compelled to testify against
himself.” People v. Padilla, 2021 CO 18, ¶ 15. To protect this right,
police must give Miranda warnings before engaging in custodial
interrogation. Id. (citing Miranda, 384 U.S. at 444-45, 478-79). If
police do not give Miranda warnings during a custodial
interrogation, a defendant’s statements made during the
interrogation are inadmissible. Id.
¶ 13 However, “Miranda warnings are required only when a person
is both in custody and subject to police interrogation.” Id. “A
person is in custody . . . if [he] has been formally arrested or if,
under the totality of the circumstances, a reasonable person in the
suspect’s position would have felt that [his] freedom of action had
3 The prosecution did not present evidence or argument about
whether the conversation was an interrogation, and the trial court made no findings on this issue. Because we conclude that Casados was not in custody, we need not reach the interrogation question.
6 been curtailed to a degree associated with formal arrest.” Id. at
¶ 16 (alterations in original) (citation omitted). To determine
whether an individual was in custody, we consider “the objective
circumstances of the interrogation, not . . . the subjective views . . .
[of] the interrogating officer[] or the person being questioned.” Id.
(citation omitted). We consider several factors, but “[n]o single
factor is determinative”:
(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer’s tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer’s response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant’s verbal or nonverbal response to such directions.
Id. (citation omitted).
¶ 14 Generally, courts “have held that in-hospital questioning does
not amount to custodial interrogation.” People v. Milhollin, 751 P.2d
43, 52 (Colo. 1988) (citation omitted); see, e.g., People v. Theander,
2013 CO 15, ¶¶ 25-37; People v. DeBoer, 829 P.2d 447, 449 (Colo.
7 App. 1991) (hospitalized defendant was not in custody because she
“was alert and attentive,” cooperated with police, and — although
confined to a hospital bed — was not otherwise physically
restrained); People v. Miller, 829 P.2d 443, 445 (Colo. App. 1991).
¶ 15 In People v. Sampson, 2017 CO 100, ¶¶ 24-31, our supreme
court held that a hospitalized defendant was not in custody for
Miranda purposes. It found the following factors weighed in favor of
concluding Sampson was in custody: “(1) the conversation occurred
in a small room; (2) [the officer] was situated between Sampson and
the door; (3) Sampson was connected to medical equipment during
the conversation;” (4) the officer suggested that he did not believe
Sampson’s version of events; (5) the officer was “in uniform and
carrying a weapon; and (6) [the officer] didn’t tell Sampson he was
not in custody.” Id. at ¶ 25.
¶ 16 Conversely, the court determined the following factors weighed
against concluding that Sampson was in custody: (1) the officer
“asked open-ended questions in a conversational tone and Sampson
provided narrative responses; (2) Sampson was not visibly upset
. . .; (3) [the officer] presented few details of what may have
occurred,” and his questions were not “merely targeted at eliciting
8 Sampson’s agreement; (4) [the officer] did not handcuff or physically
restrain Sampson;” (5) the officer said Sampson would not be
arrested until he was released from the hospital; and (6) medical
staff were present during the conversation. Id. at ¶ 26. While the
factors were equally split, the court determined that “the overall
atmosphere was non-coercive” and reversed the trial court’s order
suppressing Sampson’s statements. Id. at ¶¶ 27, 32.
¶ 17 In Effland, our supreme court reached the opposite
conclusion, holding that a hospitalized defendant was in custody
but describing the case as a “close one.” 240 P.3d at 875-76. As
relevant here, the factors weighing in favor of a custody finding
included that (1) Effland repeatedly said he wanted an attorney and
did not want to talk, but the officers ignored his requests; (2) a
uniformed officer was stationed outside the door; (3) Effland “was
emotionally distraught and was crying”; (4) there were two officers,
who had excluded Effland’s daughter from the room; (5) the officers’
purpose was to elicit information about Effland’s role in a homicide;
(6) the interrogation was not narrative and consisted of questioning
and short answers; and (7) Effland could not “leave the premises
and was connected to an [IV].” Id.
9 ¶ 18 Here, the factors that favor a custody finding include
(1) Casados was connected to medical equipment and unable to
leave, (2) Granmoe was uniformed and carrying his weapon, and
(3) Granmoe never told Casados he was not in custody. See
Sampson, ¶ 25. It is unclear whether the conversation occurred in
a small room, see id., but Granmoe’s testimony suggested that the
hospital room was larger than others. It is also unclear if Granmoe
sat between Casados and the door. See id.
¶ 19 As to the factors weighing against custody, (1) Granmoe asked
open-ended questions, and Casados provided narrative responses;
(2) the conversation’s mood and tone were friendly and
conversational; (3) Casados was not visibly upset; (4) Granmoe
“presented few details of what may have occurred and did not ask
questions merely targeted at eliciting [Casados’s] agreement;”
(5) Granmoe did not touch, handcuff, or restrain Casados; and
(6) medical staff were present. Id. at ¶ 26. Finally, nothing
indicates that Granmoe challenged Casados’s narrative. See id. at ¶
25. We do not consider the length of the conversation because the
record only reflects that Granmoe arrived at the scene around 10:30
10 or 10:45 a.m., and he Mirandized Casados at 12:01 p.m., but it is
unclear when the conversation started or ended. See Padilla, ¶ 16.
¶ 20 Unlike Effland, there was only one officer, no officers sat
outside the door, Casados did not ask for an attorney or say he
wanted to stop talking, he was not visibly upset or crying, and no
one was excluded from the room. See 240 P.3d at 875; see also
Theander, ¶¶ 36-37 (finding a hospitalized defendant not in custody
and emphasizing that police stopped questioning her after she
asked for an attorney). Moreover, Granmoe’s initial purpose was to
gain a general sense of the accident, not necessarily to elicit
information about Casados’s role in the car’s theft. See Effland,
240 P.3d at 875.
¶ 21 Casados argues that Granmoe was not investigating the
general circumstances of the crash because he was investigating a
possible DUI, knew the car was stolen, knew Casados caused the
crash, and no one else was injured. See id. But see Theander, ¶¶ 6,
37 (Theander was not in custody even though officers knew she
“could be a suspect or witness in [a] homicide investigation” before
questioning her). Even if Granmoe’s purpose weighs in favor of
finding Casados was in custody, it does not tip the scales overall.
11 ¶ 22 Casados also argues that the trial court did not consider the
totality of the circumstances when it determined that he was not in
custody. The court’s custody finding was based on its conclusion
that, while Casados’s injuries prevented him from leaving, “he was
not restrained in any way, and . . . Granmoe was investigating the
circumstances surrounding the offense . . ., so he was under no
obligation to advise [Casados] initially.” Although the court did not
consider every factor, we conclude that its custody finding was
correct under the totality of the circumstances. See Padilla, ¶ 16.
And we may affirm on any basis supported by the record. People v.
Lopez, 2024 COA 26, ¶ 11 (cert. granted Dec. 23, 2024).
¶ 23 Finally, Casados suggests that the timing of the Miranda
warnings — only after he had made incriminating statements —
supports custody. We are not persuaded. See Sampson, ¶¶ 5-7 (a
victim said Sampson attacked her, officers questioned Sampson at
the hospital, and they Mirandized him after he admitted he had
lied). Under the totality of the circumstances, we conclude that the
trial court properly found Casados was not in custody when
Granmoe initially questioned him. See Padilla, ¶ 16.
12 C. The Miranda Waiver
¶ 24 Casados next argues that the trial court erroneously found
that he validly waived his Miranda rights such that his post-
warning statements were admissible. Because we determine that
Casados was not in custody, we do not reach this issue. See id. at
¶ 15 (custody is required for Miranda to apply).
¶ 25 In Sampson, ¶¶ 5-8, as discussed, the officer Mirandized
Sampson after he admitted to lying. Sampson then waived his
rights, and the officer told Sampson he would be arrested once
discharged from the hospital. Id. at ¶ 8. The trial court held that
Sampson did not validly waive his Miranda rights and suppressed
his post-warning statements. Id. at ¶ 1. In an interlocutory appeal,
the State challenged the suppression order, and our supreme court
reversed. “Assuming without deciding that giving Miranda warnings
can be considered in determining whether a suspect is in custody,”
the court held “that Sampson was not in custody during any part of
[the] conversation.” Id. at ¶ 32. Because Miranda did not apply,
the court did not consider the validity of his waiver. Id. at ¶¶ 2, 32.
¶ 26 We reach the same conclusion. Even fewer factors weigh in
favor of finding custody here than in Sampson. And unlike
13 Sampson, Granmoe never told Casados he would be arrested upon
discharge; he said an officer or detective would reach out for “any
other follow up.” That Granmoe read Casados his Miranda rights
and determined Casados was no longer free to leave is also not
dispositive. See People v. Minjarez, 81 P.3d 348, 353-54 (Colo.
2003) (an “undisclosed plan to take a suspect into custody” does
not, alone, “establish . . . custody for Miranda purposes”). Because
Casados “was not in custody during any part of [the] conversation,”
Miranda did not apply, and we need not consider whether he validly
waived his rights.4 Sampson, ¶ 32.
D. Voluntariness
¶ 27 Next, Casados contends that his statements to Granmoe were
involuntary. We disagree.
¶ 28 The United States Constitution “prevents admission of
involuntary statements into evidence, regardless of the defendant’s
4 Neither party argued this to the trial court or on appeal, but we
may affirm “on any ground supported by the record,” even those the trial court “did not articulate or consider.” People v. Lopez, 2024 COA 26, ¶ 11 (cert. granted Dec. 23, 2024); Jordan v. U.S. Dep’t of Just., 668 F.3d 1188, 1200 (10th Cir. 2011) (“[W]e may affirm on any basis supported by the record, [including] . . . arguments not reached by the district court or even presented to us on appeal.”) (citation omitted).
14 custodial situation.” People v. Coke, 2020 CO 28, ¶ 17. Voluntary
statements are “the product of an essentially free an unconstrained
choice,” while statements are involuntary when “made after an
‘individual’s will has been overborne.’” People v. Cerda, 2024 CO
49, ¶ 37 (citations omitted). “[A] statement is involuntary if (1) the
government’s conduct was coercive and (2) that coercion ‘played a
significant role in inducing’ a confession or an inculpatory
statement.” Id. (citation omitted). To assess whether a defendant’s
statements were voluntary, we consider the totality of the
circumstances, including a non-exhaustive list of several factors:
(1) whether the defendant was in custody;
(2) whether the defendant was free to leave;
(3) whether the defendant was aware of the situation;
(4) whether the police read Miranda rights to the defendant;
(5) whether the defendant understood and waived Miranda rights;
(6) whether the defendant had an opportunity to confer with counsel or anyone else prior to or during the interrogation;
(7) whether the statement was made during the interrogation or volunteered later;
15 (8) whether the police threatened [the] defendant or promised anything directly or impliedly;
(9) the method or style of the interrogation;
(10) the defendant’s mental and physical condition just prior to the interrogation;
(11) the length of the interrogation;
(12) the location of the interrogation; and
(13) the physical conditions of the location where the interrogation occurred.
Id. at ¶ 38 (alteration in original) (citation omitted).
¶ 29 On appeal, Casados primarily focuses on the tenth factor, his
mental and physical condition. Before addressing this, we consider
the other factors and conclude that the following factors weigh in
favor of involuntariness: (1) Casados could not leave because of his
physical condition, (2) the record suggests that he did not have an
opportunity to speak to an attorney or anyone else before speaking
with Granmoe, and (3) his statements were made during the
conversation, not volunteered later. See id. We do not consider
waiver because we did not reach that issue, nor do we consider the
length of the encounter, which the record is unclear about.
16 ¶ 30 Conversely, the following factors weigh against
involuntariness: (1) Casados was not in custody; (2) the trial court
found he “was aware of his circumstances and his predicament,” as
evidenced by his response to questions about drug use and his
“explanations for the circumstances of the crash”; (3) Granmoe
Mirandized Casados; (4) Granmoe made no threats or promises;
(5) the conversation was friendly and non-confrontational; and
(6) the conversation occurred in a hospital room with medical
personnel intermittently present. Id.; cf. People v. Nkongolo, 2025
CO 20, ¶ 24 (describing the coercive nature of “police-dominated
atmosphere[s]” (quoting Illinois v. Perkins, 496 U.S. 292, 296
(1990))).
¶ 31 With these factors in mind, we turn to Casados’s argument
that his potential drug use and physical condition rendered his
statements involuntary. We first consider his alleged intoxication,
noting that intoxication does not, alone, make a statement
involuntary. People v. Bryant, 2018 COA 53, ¶ 23 (citation omitted).
“Rather, coercive government conduct is the ‘necessary predicate to
the finding that a confession is not ‘‘voluntary.”’” Id. (quoting
Colorado v. Connelly, 479 U.S. 157, 167 (1986)).
17 ¶ 32 In Cerda, ¶ 40, the defendant was slurring and mumbling,
“ingested an opiate seven to eight hours before the interrogation[,]
and said he was intoxicated and couldn’t remember what had
happened the day before; . . . was on antipsychotic medication that
affected his cognitive abilities; [and] had been awake for
approximately sixteen hours when the interrogation began.” Police
also continued to question Cerda after he invoked his Miranda
rights, which the court described as coercive. Id. at ¶¶ 42, 44. Yet
the court held that Cerda’s statements were not involuntary
because “he demonstrated an awareness of his situation and the
consequences of speaking,” and the coercive tactics did not
overbear his will. Id. at ¶¶ 45, 47.
¶ 33 However, our supreme court held that a defendant’s
statements were involuntary when she had received morphine in
the hospital even though she “understood and followed directions,
. . . appeared to understand [the officer’s] questions[,] and her
responses were appropriate.” People v. Fordyce, 612 P.2d 1131,
1132-33, 1134 (Colo. 1980). Expert testimony established the
effects of morphine, including the likelihood that Fordyce would
have had difficulty realizing she was speaking to police and
18 “perceiving the important effect of information given to the police.”
Id. at 1133; cf. People v. DeBaca, 736 P.2d 25, 28 (Colo. 1987)
(distinguishing Fordyce because there was no evidence of
medication being administered or the medication’s possible effects).
¶ 34 Here, the record shows that, regardless of potential drug use,
Casados was alert, coherent, aware of his circumstances,
conscious, and appropriately responding to questions. See Cerda,
¶¶ 42-47; cf. People v. May, 859 P.2d 879, 883 (Colo. 1993) (finding
a Miranda waiver invalid when the defendant was intermittently
conscious, did not know the date or that he was in the hospital, and
could not remember critical details of the accident). That Casados
made some confusing statements and did not remember some
details about the timeline or where he was before the accident is not
dispositive — particularly where there was no evidence that he
unsuccessfully invoked his Miranda rights. See Cerda, ¶¶ 45-47.
¶ 35 Finally, despite some evidence that Casados took fentanyl, he
told Granmoe he had not used drugs and was not intoxicated. And
while Granmoe believed Casados may have received pain
medication, there was no testimony about the effects or onset of
fentanyl or pain medication. Compare Fordyce, 612 P.2d at 1133,
19 with DeBaca, 736 P.2d at 28. And the prosecution was not, as
Casados suggests, required to present such evidence. See DeBaca,
736 P.2d at 27-28 (holding that the trial court erred by finding that
the State did not establish voluntariness even though it offered no
evidence about purported medication or its effects). We therefore
conclude that Casados’s possible intoxication does not weigh in
favor of finding his statements involuntary.
¶ 36 Similarly, we conclude that any pain resulting from Casados’s
injuries did not render his statements involuntary. The United
States Supreme Court held that a defendant’s confession was
involuntary when “[h]e had been seriously wounded just a few
hours earlier, . . . complained . . . that the pain in his leg was
‘unbearable,’ . . . was evidently confused and unable to think
clearly,” and unsuccessfully asked the officers to stop questioning
him without an attorney. Mincey v. Arizona, 437 U.S. 385, 398-99,
401 (1978) (finding his statements “the result of virtually
continuous questioning of a seriously and painfully wounded man
on the edge of consciousness”).
¶ 37 Effland employed similar reasoning, noting that officers
continued questioning Effland despite his “weakened physical and
20 mental state” and attempts to invoke his rights. 240 P.3d at 878.
By contrast, nothing suggests that Casados’s pain was so
significant that he could not think clearly or was barely conscious
(even if some of his statements were inconsistent or confusing).
Importantly, unlike Effland and Mincey, Granmoe did not exploit
Casados’s weakened condition by continuing to question him after
he invoked his rights. See Theander, ¶ 45 (Even if there is
psychological coercion, it must “play[] a ‘significant role’ in inducing
the statements in order to exclude them.”) (citation omitted).
¶ 38 While it may have been more prudent for Granmoe to wait to
question Casados until he was no longer in pain and receiving
medical treatment, we conclude that — under the totality of the
circumstances — the trial court did not err by finding Casados’s
statements to Granmoe voluntary. See Cerda, ¶ 38.
III. The Prosecutor’s Statements
¶ 39 Finally, Casados argues that several of the prosecutor’s
statements in closing arguments constituted misconduct that
warrants reversal. While the statements were improper, the court’s
error in allowing them is not reversible.
21 A. Additional Facts
¶ 40 At trial, Granmoe testified about his conversation with
Casados. He first said Casados “stated that since [the car] was
associated with Little Nut or Little Nutty, he believed it to be stolen.”
On cross-examination, the defense asked if Casados said the car
was “most likely stolen.” Granmoe said, “Yes.” Finally, on redirect,
the prosecutor asked if Casados said “he believed the car was
stolen, or it was most likely stolen.” Granmoe said, “[B]ecause [it]
was associated with Little [Nutty], it was believed to be stolen.”
¶ 41 In closing arguments, the prosecutor said, “This isn’t a
mystery, folks. [Casados] confessed. Said, ‘Yeah, I knew the car
was stolen.’” Defense counsel objected to facts not in evidence, the
trial court overruled the objection, and the prosecutor continued,
“And because he confessed, . . . there is no mystery here.” Next, the
prosecutor said there was direct evidence of Casados’s guilt: “You
heard the officer who . . . asked [Casados] . . ., ‘[D]id you know it
was stolen? And [Casados’s] response, ‘Well it must have been
because Little Nut was associated with it.’ Now that was a
ridiculous story. . . . But at the very end he states, ‘Yeah, I knew it
was stolen.’” The court overruled the defense’s objection to facts
22 not in evidence. Finally, in rebuttal, the prosecutor said, “He runs
a red. Gets in the horrible accident. Breaks his leg. And says,
‘Yeah, I believed it was stolen.’ You know what’s another word for
‘believe,’ is ‘know.’” Defense counsel did not object.
B. The Prosecutor’s Conduct Was Improper
¶ 42 To determine whether a prosecutor engaged in misconduct, we
conduct a two-step inquiry. “First, we determine whether the
prosecutor’s conduct was improper based on the totality of the
circumstances.” People v. Licona-Ortega, 2022 COA 27, ¶ 85 (citing
Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). We then
“decide whether the misconduct warrants reversal under the
applicable standard.” Id. “Prosecutors may comment on the
evidence admitted at trial and the reasonable inferences that can be
drawn from it.” People v. Sparks, 2018 COA 1, ¶ 21. But
prosecutors may not misstate the evidence, “[n]or may they refer to
facts not in evidence.” Id. Similarly, prosecutors “may not misstate
or misinterpret the law.” People v. McMinn, 2013 COA 94, ¶ 62.
¶ 43 Casados argues that the prosecutor misstated the evidence
and argued facts not in evidence by characterizing his statements
as a confession and stating that he told Granmoe he knew the car
23 was stolen. He also asserts that the prosecutor misstated the law
by equating belief with knowledge.
¶ 44 As detailed above, Granmoe never testified that Casados said
he knew the car was stolen; he testified that Casados said he
believed the car was stolen. Thus, the prosecutor both misstated
the evidence (by misrepresenting Granmoe’s testimony) and argued
facts not in evidence (by replacing the word believe with the word
know). See Sparks, ¶ 21. Similarly, equating belief with knowledge
misstated the law. See § 18-1-501(6), C.R.S. 2024 (defining the
mental state, “knowingly,” in the criminal context); see also
Leonardo v. People, 728 P.2d 1252, 1256 (Colo. 1986) (“[K]nowledge
is an assurance of a fact or proposition founded on perception by
the senses, or intuition, while belief is an assurance based on
evidence, and from other persons. ‘Knowing’ literally imports a
state of mind close to absolute certainty; ‘believing’ requires
something less.”) (citation omitted).
¶ 45 The prosecutor’s statement that Casados confessed also
misstated the evidence. Granmoe did not say Casados confessed to
stealing the car or to knowing it was stolen. See Bruner v. People,
156 P.2d 111, 117 (Colo. 1945), abrogated by, Deeds v. People, 747
24 P.2d 1266 (Colo. 1987) (“A confession is an acknowledgment in
express words . . . of the truth of the guilty fact charged or of some
essential part of it.”) (citation omitted); Black’s Law Dictionary 374
(12th ed. 2024) (defining “confession” as an “oral or written
acknowledgement of guilt, often including details about the crime”).
¶ 46 Therefore, we conclude that the prosecutor’s statements were
improper. See Licona-Ortega, ¶ 85. However, as discussed below,
we conclude that the misconduct does not warrant reversal because
the evidence overwhelmingly supported Casados’s convictions.
C. The Prosecutor’s Misconduct Does Not Require Reversal
¶ 47 We review unpreserved claims of prosecutorial misconduct for
plain error. Id. at ¶ 88. “To constitute plain error, any
prosecutorial misconduct must be obvious and ‘must be flagrant or
glaring or tremendously improper, and it must so undermine the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction.’” Id. (citation omitted).
“Prosecutorial misconduct in closing argument rarely constitutes
plain error.” People v. Smalley, 2015 COA 140, ¶ 37. If a preserved
claim of prosecutorial misconduct “‘specifically and directly
offend[s]’ a constitutional right,” we review for constitutional
25 harmless error. Licona-Ortega, ¶ 86 (alteration in original) (quoting
Wend, 235 P.3d at 1097). We review preserved prosecutorial
misconduct claims that do not “specifically and directly offend a
[defendant’s] constitutional right[s]” for harmless error. Id. at ¶ 87.
¶ 48 We first conclude that the court did not plainly err by allowing
the prosecutor to equate belief with knowledge. See id. at ¶ 88.
While the error may have been obvious, it did not “so undermine
the fundamental fairness of the trial as to cast serious doubt on the
reliability of” Casados’s conviction. Id. (citation omitted).
¶ 49 For first degree aggravated motor vehicle theft, the prosecution
had to prove Casados “knowingly obtain[ed] or exercise[d] control
over the motor vehicle of another without authorization.” § 18-4-
409(2), C.R.S. 2020.5 “Knowingly” applies both to exercising control
over the vehicle and to an “awareness of lack of authority.” People
v. Stellabotte, 2016 COA 106, ¶ 20, aff’d, 2018 CO 66. The
evidence established that Casados was driving a stolen car, he
believed the car was likely stolen, he believed police were pursuing
5 The current first degree motor vehicle theft statute differs from the
2020 version, see section 18-4-409(2), C.R.S. 2024, so we cite the 2020 statute, which applied at the time of the offense.
26 him before the crash, and his passenger fled the scene.6 Thus, the
jury could infer that Casados knowingly drove the car without
authorization. See People v. Donald, 2020 CO 24, ¶ 37 (juries may
infer knowledge from circumstantial evidence). The prosecutor’s
misstatement equating belief with knowledge did not undermine the
fairness of Casados’s trial. See Licona-Ortega, ¶ 88. The court also
instructed the jury to only apply its instructions on legal rules, not
the attorneys’ comments on the rules, and the jury instructions
properly defined the mental state, “knowingly.” See People v.
Carter, 2015 COA 24M-2, ¶¶ 59-61 (discerning no plain error in
part because the jury received proper instructions).
¶ 50 Similarly, we conclude that the prosecutor’s statements that
Casados confessed and said he knew the car was stolen were
harmless. Because these statements do not “specifically and
directly offend a constitutional right,” we review for harmless error.
Licona-Ortega, ¶ 87. Under this standard, we reverse if there is “a
reasonable possibility that the error might have contributed to the
6 At trial, a witness testified that, after the crash, he saw a woman
exit Casados’s car, “check on the person in the driver’s seat, and flee the scene.”
27 conviction.” Zoll v. People, 2018 CO 70, ¶ 18 (citation omitted).
Casados argues that the statements were not harmless because
(1) the evidence supporting motor vehicle theft was not
overwhelming; (2) saying that Casados confessed improperly
appealed to the jury’s passion; and (3) the prosecutor repeated the
comments.
¶ 51 First, as to evidence of guilt, Granmoe suggested that the
person who allegedly held Casados at gunpoint entered the car after
Casados. This suggests Casados had control of the stolen car
before the alleged apprehension. And, as discussed above, the car
was stolen, Casados believed it was stolen, he continued to drive it
after “Little Nutty” exited and until the crash, and he believed police
were pursuing him. The woman seen fleeing scene, the items in the
car potentially belonging to a woman,7 the amount of time between
the theft and accident (one month), and the lack of damage to the
steering wheel and ignition also do little to cast doubt on Casados’s
guilt; he drove a stolen car that he believed was stolen, regardless of
who stole it, when it was stolen, or whether it was damaged.
7 At trial, an officer testified that several items, which could have
belonged to a woman, were found in the car.
28 ¶ 52 For similar reasons, the prosecutor’s mischaracterization of
Casados’s statements as a confession did not appeal to the jury’s
passion or prejudice such that there was “a reasonable possibility
that the error might have contributed to the conviction.” Zoll, ¶ 18
(citation omitted). The evidence overwhelmingly supported
Casados’s guilt, and the statement did not encourage the jury to
reach a verdict “on the basis of bias or prejudice” rather than the
evidence. Harris v. People, 888 P.2d 259, 266 (Colo. 1995).
¶ 53 Finally, that the prosecutor repeated the improper statements
orally and through PowerPoint slides does not change our analysis.
Defense counsel told the jury Casados did not confess, reminded
the jury of Granmoe’s testimony, and the prosecution revised its
argument in rebuttal, noting that Casados said he believed the car
was stolen (despite having improperly equated belief with
knowledge). And the court’s improper rejection of defense counsel’s
objections did not, as Casados suggests, increase any prejudicial
effect. The court instructed the jury that it could not draw
conclusions from objections or the court’s rulings. See Carter, ¶ 59
(“[W]e presume that the jury followed [the court’s] instructions.”).
29 ¶ 54 Overall, we conclude that the court’s error in allowing the
prosecutor to misstate evidence and argue facts not in evidence was
harmless because, given the evidence that was properly before the
jury, there is not “a reasonable possibility that the error might have
contributed to the conviction.” Zoll, ¶ 18 (citation omitted).
¶ 55 We also reject Casados’s argument that cumulative error
warrants reversal. See Howard-Walker v. People, 2019 CO 69, ¶ 24
(Cumulative error requires reversal if “multiple errors . . .
collectively prejudice the substantial rights of the defendant, even if
any single error does not.”). The prosecutor’s misstatements were
brief, and the jury heard Granmoe’s repeated testimony — the day
before closing arguments — that Casados said he believed the car
was stolen. There was also significant evidence supporting his
guilt, the jury was instructed to reach a verdict solely based on the
evidence, and it was properly instructed on the law.
IV. Disposition
¶ 56 The judgment of conviction is affirmed.
JUDGE HARRIS and JUDGE SCHUTZ concur.