22CA1203 Peo v Demiter 12-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1203 Routt County District Court No. 21CR28 Honorable Michael A. O’Hara III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sean Michael Demiter,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE WELLING Kuhn and Schutz, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 31, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Sean Michael Demiter, appeals his judgment of
conviction and sentence for unlawful sexual contact, second degree
tampering, theft, unauthorized use of a financial transaction device,
and identity theft. We affirm the judgment but reverse the sentence
in part and remand the case with directions to correct the mittimus.
I. Background
¶2 J.S. met Demiter when she rented a room in his apartment in
Steamboat Springs. According to J.S., the two became “intimate”
but were never a couple. Eventually, J.S. informed Demiter that
she was moving out of the apartment. J.S. testified that Demiter
saw her packing and became angry. According to J.S., Demiter
appeared to calm down at points but then would become angry
again. J.S. testified that Demiter calmed down and told her she
could stay and pack her things, but the next morning, things
escalated.
¶3 While J.S. was half asleep, Demiter asked her if he could
borrow her debit card to buy a soda. J.S. agreed. Demiter then
showed J.S. a video and pictures of him masturbating above her
head and told her he would take the video to her place of work so
that her colleagues “could know what a whore [she] was.” J.S.
1 testified that she didn’t know Demiter had masturbated over her
head and wouldn’t have known if he hadn’t showed her the video or
pictures. According to J.S., she drank the night before until she
passed out, and Demiter told her that he took the video and photos
while she was passed out. Evidence presented at trial established
that Demiter sent J.S.’s then ex-boyfriend a photo of a penis on
J.S.’s face.
¶4 After showing J.S. the video and photographs, he offered to
help her pack and began grabbing her things. According to J.S.,
Demiter threw her things in her van and piled them outside her
door. Demiter then started screaming at her. He threw her potted
plants in her suitcase, threw her skis onto the sidewalk, and threw
a heap of clothes on top of the broken pots. J.S. also testified that
while she was trying to walk away from Demiter, he grabbed her
necklace multiple times and pulled to “yank [her] back.” J.S.
decided to leave the remainder of her things and go to a hotel for
the night.
¶5 J.S. called Demiter the next day to pick her up so she could
get the rest of her things. J.S. testified that Demiter again began
throwing her things outside and into the van and that Demiter spat
2 on her van. After getting the remainder of her things, J.S. left. J.S.
testified that Demiter “smashed” her potted plants, got soil inside
her car, and, at some point, wrote “whore” on each page of her day
planner. She also testified that her backpack was covered in liquid
soap.
¶6 J.S. testified that after the incident, she noticed that her bank
account was “almost completely empty.” According to J.S., she
didn’t recognize two withdrawals from an ATM, one for $102.95 and
one for $103.00. J.S. confirmed that Demiter had taken her debit
card and returned it to her but that she didn’t authorize him, or
anyone else, to make either withdrawal. The prosecution
introduced surveillance footage from one of the ATM locations at
trial, and Officer Thomas Barnett of the Steamboat Springs Police
Department testified that it showed a man, believed to be Demiter,
making a transaction at the ATM.
¶7 Demiter was arrested and charged with two counts of unlawful
sexual contact, one count of assault in the third degree, one count
of menacing, one count of false imprisonment, one count of
harassment, one count of criminal mischief, one count of second
degree criminal tampering, one count of theft, one count of
3 unauthorized use of a financial transaction device, one count of
criminal possession of a financial device, one count of identity theft,
and six counts of a violation of bail bond conditions. The District
Attorney dismissed all counts related to menacing, harassment,
criminal mischief, criminal possession of a financial device, and a
violation of bail bond conditions. The jury found Demiter guilty of
one count of unlawful sexual contact, second degree tampering,
theft, unauthorized use of a financial transaction device, and
identity theft. The jury acquitted Demiter of the remaining charges.
¶8 The court sentenced Demiter to a controlling twelve-month jail
sentence for the unlawful sexual contact, tampering, theft, and
unauthorized use of a financial transaction device convictions,
followed by a consecutive sentence of five years in the custody of
the Department of Corrections for the identity theft conviction.
II. Analysis
¶9 Demiter raises six arguments on appeal. He contends that
(1) the trial court erred by denying his motion to suppress
statements he made during his arrest; (2) the trial court
erroneously admitted a screenshot of J.S.’s bank account without
proper authentication and in violation of the rule against hearsay;
4 (3) the prosecutor engaged in multiple instances of prosecutorial
misconduct; (4) the jury instructions constructively amended the
sexual contact charge; (5) the trial court erred by not giving a
modified unanimity instruction on the tampering charge; and
(6) the trial court erroneously applied Demiter’s presentence
confinement credit (PSCC) to only his sentence for the misdemeanor
convictions, not the felony conviction. We consider each contention
below.
A. The Denial of Motion to Suppress Demiter’s Statements
¶ 10 Demiter first contends that the trial court erred by denying his
motion to suppress statements he made during his arrest. We
disagree.
1. Additional Facts
¶ 11 Before trial, Demiter filed a motion to suppress statements he
made incident to his arrest. The court held a hearing on the
motion, and the following facts were established at the hearing.
¶ 12 The Steamboat Springs Police Department obtained a warrant
to arrest Demiter and went to his home to try and contact him.
Initially, officers were unable to reach Demiter, but Demiter called
the police, and Sergeant Richard Brown was eventually able to
5 reach Demiter by phone. Sergeant Brown told Demiter that there
were warrants out for his arrest and encouraged Demiter to turn
himself in. But, according to Sergeant Brown, Demiter was “upset
about the warrants,” leading him to believe it was unlikely Demiter
would turn himself in. After speaking with Demiter’s sister and
J.S., Sergeant Brown became increasingly worried about Demiter’s
mental health. Demiter didn’t turn himself in, and five officers in
total, including Sergeant Brown, went to Demiter’s home to attempt
to arrest him.
¶ 13 While determining how to approach Demiter’s unit, officers on
one side of the building noticed that Demiter had written, “I kill
cops,” on the sliding glass door. Sergeant Brown testified that he
heard a lot of banging coming from Demiter’s apartment and then
Demiter exited his apartment. Sergeant Brown yelled at Demiter to
come out, but Demiter ran back inside. Sergeant Brown followed
Demiter inside the unit and testified that while inside, he saw
Demiter holding two large knives and yelling, “F you,” at him.
Sergeant Brown stated that Demiter was “holding the knives in a
very aggressive way, and was very threatening with them.”
Eventually, Demiter barricaded himself in a bedroom. According to
6 Sergeant Brown, the efforts to convince Demiter to exit the bedroom
went on for approximately four hours. Sergeant Brown’s body
camera footage recorded the full encounter.
¶ 14 During the suppression hearing, the prosecutor introduced a
portion of the body camera footage. The video depicts police
arriving at Demiter’s home and Demiter exiting and then retreating
into his home. While he is locked in the bedroom, Demiter begins
yelling at the officers, and Sergeant Brown responds and attempts
to “deescalate the situation.”
¶ 15 As relevant here, during this interaction, Demiter stated the
following:
• “All I did was take pictures having sex.”
• “I’m not going to jail for fucking having my cock in her
mouth that she was fucking willing to take pictures of.”
• “I’m not going to jail for loving a woman.”
• “I sent her ex a dick pic.”
• “It was all consensual. There’s no video. There was
never five dudes. It was always just me and her.”
• “I took a picture. Sorry. She said it was okay.”
• “I loved her.”
7 • “I paid for her flight to go fuck some dude. Yes, I was
angry. Yes, I tossed all her shit outside.”
¶ 16 Sergeant Brown testified that he didn’t advise Demiter of his
Miranda rights before or during this interaction and acknowledged
Demiter wasn’t free to leave the apartment.
¶ 17 After watching the video, the trial court found that while
Demiter was “effectively under arrest” without a Miranda
advisement, there wasn’t a “custodial interrogation by law
enforcement designed to elicit an incriminating response.”
¶ 18 The body camera footage wasn’t introduced at trial, but at
trial, Sergeant Brown testified in detail about the statements
Demiter made during the encounter.
2. Legal Principles and Standard of Review
¶ 19 Pursuant to the Fifth Amendment of the United States
Constitution, “No person . . . shall be compelled in any criminal
case to be a witness against himself.” Because of this privilege, a
suspect must be advised of his rights under the Fifth Amendment
before being subjected to a custodial interrogation. People v.
Sampson, 2017 CO 100, ¶ 17 (citing Miranda v. Arizona, 384 U.S.
436, 478-79 (1966)). The prosecution can’t introduce in its case-in-
8 chief any statements “procured by custodial interrogation” that
weren’t preceded by certain warnings. Effland v. People, 240 P.3d
868, 873 (Colo. 2010) (citing Miranda, 384 U.S. at 444).
¶ 20 Miranda safeguards are necessary “whenever a person in
custody is subjected to either express questioning or its functional
equivalent.” People v. Wood, 135 P.3d 744, 749-50 (Colo. 2006)
(quoting Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980)).
“Interrogation includes ‘any words or actions on the part of the
police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an
incriminating response from the suspect.’” Id. at 750 (quoting
Innis, 446 U.S. at 301). When assessing whether an officer should
have known their words or actions “were reasonably likely to elicit
an incriminating response, ‘we consider the totality of the
circumstances surrounding the making of the statement.’” Id.
(quoting People v. Gonzales, 987 P.2d 239, 241 (Colo. 1999)). The
focus of our inquiry is on “whether the officer reasonably should
have known that his words or actions would cause the suspect to
perceive that he was being interrogated.” Id. (citation omitted).
9 ¶ 21 When reviewing a trial court’s suppression order, we defer to
the trial court’s findings of fact if competent evidence in the record
supports them, but we review legal conclusions de novo. Compos v.
People, 2021 CO 19, ¶ 16.
3. Application
¶ 22 Because Demiter wasn’t subjected to an interrogation when he
made the statements, the trial court didn’t err by denying his
motion to suppress.
¶ 23 Demiter argues that an interrogation occurred because
Sergeant Brown engaged in relationship building with Demiter by
discussing case information and asking Demiter to talk to him.
Combined with his “extremely vulnerable emotional state,” Demiter
argues this case is like Wood, in which our supreme court found
that the functional equivalent of an interrogation occurred. See
Wood, 135 P.3d at 751. In Wood, the defendant wasn’t informed of
the nature of the charges against him but was placed under arrest
and in a holding cell. Id. at 746, 751. The detective told the
defendant that the purpose of the interview was “to get both sides”
and asked the defendant “to tell his side of the story.” Id. at 750-
51. In determining that the functional equivalent of an
10 interrogation had occurred, the court also considered the
defendant’s “harried emotional state” and the trial court’s finding
that the detective engaged in relationship building with the
defendant. Id. at 751.
¶ 24 But the circumstances of this case are wholly distinguishable
from those in Wood. First, Demiter wasn’t placed in a holding cell;
rather, when officers entered Demiter’s apartment, they found him
holding knives in an offensive posture, and then Demiter barricaded
himself in a room. Second, Demiter knew of the allegations against
him before the standoff and knew that the purpose of the officers’
visit was to arrest him, not just to hear his side of the story, as the
officers told the defendant in Wood. See id. at 746. Indeed,
Sergeant Brown had discussed the arrest warrant with Demiter
earlier that day. And most importantly, the officers didn’t initiate
discussions about the case with Demiter. Rather, Seargent Brown
initially told Demiter to “put the knife down” and to “come on out,”
but Demiter quickly began discussing the allegations by yelling out
that “he didn’t hurt her.” Sergeant Brown responded, “[W]e didn’t
say you did.” While Demiter contends that this was “relationship
building” akin to an interrogation, the tense situation warrants a
11 different conclusion. At that point, both J.S. and Demiter’s sister
had discussed their concern for his well-being, Demiter had been
seen wielding two knives, and Demiter had barricaded himself
inside a room. Under these circumstances, it isn’t probable that
Sergeant Brown would believe his response would elicit an
incriminating statement from Demiter or that Demiter would believe
he was being interrogated. Rather, as Sergeant Brown testified, it
was a response meant to deescalate the situation. See id. at 751
(an officer’s intent is relevant to an interrogation inquiry but isn’t
the “primary focus”).
¶ 25 As the standoff continued, Sergeant Brown made more
comments in an effort to deescalate the situation, such as, “I told
you I’d listen to you,” “[C]ome out and talk to me,” and “I told you
that I’d would work with you.” These comments were made in
response to Demiter’s statements that he had “armor piercing”
bullets or “9 mm cop killers”; that “somebody’s leaving in a body
bag”; that he was “ready to die”; and that “[he] wanted to die
yesterday.” Under these escalated and potentially dangerous
circumstances, the statements similarly don’t indicate that
Sargeant Brown reasonably should have known his words would
12 cause Demiter to perceive he was being interrogated. Indeed,
Sergeant Brown’s repeated statements, “I don’t want to hurt you
and you don’t want to hurt anybody,” “I don’t want to kill you,” “I
don’t want anyone to die,” “[I]t doesn’t have to end this way,” and
“[N]o one’s gonna leave in a body bag,” should have indicated to
Demiter that he wasn’t being interrogated.
¶ 26 Accordingly, we conclude that Demiter’s statements weren’t
the product of an interrogation. And because a Miranda
advisement isn’t necessary in the absence of an interrogation, we
need not address the People’s alternative contention that Demiter
wasn’t in custody.
B. The Admission of the Screenshot of J.S.’s Bank Account
¶ 27 Demiter next contends that the trial court erred by admitting a
screenshot of J.S.’s bank account at trial. According to Demiter,
the account wasn’t properly authenticated and constituted
inadmissible hearsay. We aren’t persuaded.
¶ 28 At trial, J.S. testified that, after leaving Steamboat Springs,
she noticed her bank account was “almost completely empty.”
According to J.S., she noticed the reduced funds while checking her
13 account through “online banking.” The prosecutor presented a
screenshot of J.S.’s bank account to her and asked her to
authenticate it. J.S. confirmed that it was a “screenshot from [her]
phone of [her] online banking.” The prosecutor then asked J.S.
whether she recognized two ATM transactions on the screenshot,
and J.S. stated that she didn’t.
¶ 29 The prosecutor moved for admission of the screenshot, and
defense counsel requested a bench conference. During the bench
conference, defense counsel objected to “[J.S.] identifying or
authenticating” the screenshot. Defense counsel expressed that
J.S. wasn’t the custodian of the record and that J.S. wasn’t the
proper witness to introduce the record through. The trial court
overruled the objection stating, “[S]he’s authenticating a photograph
known as a screenshot of what’s on her — cell phone screen. She’s
testified to that already. That’s the authentication. Now what it
means, I suppose, is subject to examination.” The trial court then
admitted the screenshot.
2. Standard of Review and Preservation
¶ 30 “We review a trial court’s evidentiary ruling for an abuse of
discretion.” Gonzales v. People, 2020 CO 71, ¶ 25. “A trial court
14 abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or if it misapplies the law.” People v.
Abdulla, 2020 COA 109M, ¶ 61. When an issue is preserved, we
apply the nonconstitutional harmless error standard to a trial
court’s evidentiary rulings. People v. Martinez, 2020 COA 141, ¶ 27;
see Hagos v. People, 2012 CO 63, ¶ 12. Under this standard,
“reversal is warranted if the error affects the substantial rights of
the parties, meaning ‘the error substantially influenced the verdict
or affected the fairness of the trial proceedings.’” Martinez, ¶ 28
(quoting Zapata v. People, 2018 CO 82, ¶ 61).
¶ 31 Both parties agree that Demiter preserved his authentication
objection. But Demiter and the People dispute whether Demiter
preserved his hearsay contention.
¶ 32 To preserve an objection to evidence admitted at trial, a party
must make a “timely and specific objection.” People v. Coughlin,
304 P.3d 575, 581-82 (Colo. App. 2011) (quoting Am. Fam. Mut. Ins.
Co. v. DeWitt, 218 P.3d 318, 325 (Colo. 2009)). An objection allows
the trial court to “focus on the issue and hopefully avoid the error.”
Id. at 582. But “[e]ven if an objection to evidence does not
specifically identify the rule underlying the objection, it is
15 nonetheless sufficient to preserve an issue for appeal if the
objecting attorney presents arguments or utilizes language that
alerts the trial court to the impending error.” Id.
¶ 33 Although authentication and hearsay are two separate
evidentiary bars, both bars may be cleared by an affidavit or
testimony of a custodian in certain circumstances. CRE 902(11);
CRE 803(6). When objecting, defense counsel expressed that J.S.
wasn’t the proper custodian because this was a bank record.
Because of the language used, the trial court should have been
alerted that its admission might implicate issues with both
authentication and hearsay. Moreover, in ruling on the
authentication objection, the court acknowledged that the content
of the document might present separate hearsay issues. Thus, we
conclude that Demiter’s hearsay contention was properly preserved.
¶ 34 Authenticity and hearsay are two separate hurdles to
admissibility that are governed by the Colorado Rules of Evidence.
See CRE 901(a); CRE 802. Because Demiter challenges the
admission of the bank records on both authenticity and hearsay
grounds, we address each in turn.
16 a. Authentication
¶ 35 Authentication is “a condition precedent to admissibility” and
“is satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” CRE 901(a). The
proponent bears the burden of authenticating evidence by “a prima
facie showing.” People v. N.T.B., 2019 COA 150, ¶ 16 (quoting
People v. Glover, 2015 COA 16, ¶ 13). But the quantity or nature of
proof required for authentication isn’t definitively established in
CRE 901. N.T.B., ¶ 17. And the trial court must determine
“whether the proponent has offered a satisfactory foundation from
which the jury could reasonably find that the evidence is
authentic.” Gonzales, ¶ 27 (citation omitted). If the burden of
authentication is met, then the actual authenticity of the evidence
or any defects in the authenticity of the evidence “go to the weight
of evidence and not its admissibility.” N.T.B., ¶ 16. Under
CRE 901(b)(1), one method of authentication is by testimony of a
witness with knowledge “that a matter is what it is claimed to be.”
¶ 36 In this case, the screenshot was admitted after J.S. testified
that she took the screenshot and that it was a picture of her online
17 banking account. Under CRE 901(b)(1), this is enough for proper
authentication.
¶ 37 Demiter cites N.T.B., ¶¶ 20, 33, to support his contention that
because the screenshot was of an electronic record without an
acknowledgement of authorship, it couldn’t properly be
authenticated through J.S. We acknowledge that the screenshot
admitted through J.S. doesn’t contain significant identifying
information. But even without more identifying information, the
trial court could properly find that J.S. authenticated the
screenshot because she testified that it was her bank account, that
she took the screenshot, and that she wasn’t concerned about
another charge (from City Market) shown on the screenshot. See id.
at ¶ 33 (“CRE 901 is a flexible standard. The type and quantity of
evidence necessary to authenticate a particular piece of evidence
will always depend on context.”); cf. Glover, ¶ 26 (“To establish that
a printout contains content from Facebook or another social
networking website, courts have relied on testimony regarding how
the records were obtained, the substance of the records themselves,
and affidavits or testimony from employees of the social networking
site.”).
18 b. Hearsay
¶ 38 Authenticity, however, “does not guarantee admissibility,” and
authentic evidence may be inadmissible on hearsay grounds.
N.T.B., ¶¶ 21-22. Hearsay is an out-of-court statement “offered in
evidence to prove the truth of the matter asserted.” CRE 801(c).
Unless it’s permitted by the rules of evidence, a statute, or a
procedural rule, hearsay is inadmissible. CRE 802. Unlike
authentication, when “a court allows the jury to weigh questionably
authentic evidence, a hearsay objection presents a binary choice —
courts must exclude hearsay unless its proponent satisfies an
exception.” N.T.B., ¶ 23.
¶ 39 Assuming without deciding that none of the hearsay
exceptions apply, we conclude that any error in admitting the
screenshot was harmless.
¶ 40 At trial, Demiter admitted making two withdrawals for
approximately $100 each using J.S.’s card. But Demiter stated that
he withdrew the money at J.S.’s request and gave her the money.
Because Demiter admitted to withdrawing approximately $200 from
J.S.’s account on the dates in question, the screenshot was
cumulative of Demiter’s testimony.
19 ¶ 41 Demiter contends that the admission of the screenshot wasn’t
harmless because the court would have had to grant his motion for
judgment of acquittal on the “financial counts at the close of the
State’s case” in the absence of the screenshot. We aren’t
persuaded. Even without the screenshot and the ATM surveillance
footage admitted after tracking one of the ATM withdrawals, the
People still introduced enough evidence during its case-in-chief to
survive a motion for a judgment of acquittal. That evidence
included J.S.’s testimony that Demiter withdrew money from her
account without her consent, that approximately $200 was missing
from her account in transactions she hadn’t authorized, and that
Demiter had been in possession of her debit card and PIN. Thus,
the asserted hearsay error doesn’t require reversal.
C. Prosecutorial Misconduct
¶ 42 Demiter next contends that his judgment of conviction should
be reversed because there was prosecutorial misconduct
throughout the trial. We aren’t persuaded.
1. Standard of Review
¶ 43 When reviewing claims of prosecutorial misconduct, we engage
in a two-step analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo.
20 2010). First, we “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. Because these steps are
“analytically independent of the other,” we could conclude that the
prosecutor’s conduct was improper but decline to reverse the
judgment because the error was harmless. Id.
¶ 44 The standard of review we apply after determining
prosecutorial impropriety “varies depending on the circumstances.”
Id. at 1097. If an error “specifically and directly offend[s] a
defendant’s constitutional rights” and the defendant
contemporaneously objected at trial, then the error is subject to
constitutional harmless error review. Id.; People v. Licona-Ortega,
2022 COA 27, ¶ 86. Constitutional harmless errors require reversal
unless the error “was harmless beyond a reasonable doubt.”
Hagos, ¶ 11 (quoting Chapman v. California, 386 U.S. 18, 24
(1967)). If the error isn’t of constitutional magnitude and the
defendant contemporaneously objected at trial, we subject the
prosecutor’s misconduct to “general harmless error review.” Wend,
21 235 P.3d at 1097. Under this type of review, we reverse only “if the
error affects the substantial rights of the parties.” Hagos, ¶ 12.
¶ 45 But if the defendant fails to contemporaneously object to the
prosecutor’s misconduct — whether the misconduct implicates a
constitutional right or not — then we review for plain error. Wend,
235 P.3d at 1097; see Hagos, ¶ 14. Prosecutorial misconduct
constitutes plain error if it’s “‘flagrant or glaringly or tremendously
improper’ and so undermine[s] the fundamental fairness of the trial
as to cast serious doubt on the reliability of the judgment of
conviction.” People v. Carian, 2017 COA 106, ¶ 52 (quoting People
v. Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App. 2005)).
¶ 46 If we conclude that a prosecutor’s statements were improper,
we must then determine whether “they affected the fundamental
fairness of the trial” by “examin[ing] a variety of factors under the
totality of the circumstances.” Id. at ¶ 55. The factors we examine
include
‘the exact language used, the nature of the misconduct, the degree of prejudice associated with the misconduct, the surrounding context, . . . the strength of the other evidence of guilt,’ . . . ‘the severity and frequency of the misconduct[,] . . . and the likelihood that the
22 misconduct constituted a material factor leading to the defendant’s conviction.’
Id. (alteration in original) (quoting People v. Cordova, 293 P.3d 114,
122 (Colo. App. 2011)).
2. Application
¶ 47 In his opening brief, Demiter appears to contend that the
prosecutor engaged in misconduct on five occasions over the course
of the trial. We address each instance of alleged misconduct in the
order it occurred during trial.
a. Opening Statements
¶ 48 Two of the alleged instances of prosecutorial misconduct
occurred during the prosecution’s opening statement. “A
prosecutor’s opening statement is limited to the evidence that will
be adduced at trial.” People v. Melanson, 937 P.2d 826, 836 (Colo.
App. 1996). Unproved remarks “ordinarily constitute reversible
error if there has been an affirmative showing of bad faith and
manifest prejudice.” Id. Moreover, a prosecutor may not “induce
the jury to determine guilt on the basis of passion or prejudice” or
“appeal to the jurors for sympathy for the victim.” People v. Fortson,
2018 COA 46M, ¶ 50 (citation omitted).
23 i. Comments on J.S.’s Background
¶ 49 During opening statements, the prosecutor began explaining
how J.S. arrived in Steamboat Springs and met Demiter.
She’ll tell you she had had some pretty rough times in her life previously. She had gotten divorced, she’d had deaths in the family, she was going through rough times, and she really wasn’t looking for a relationship at that point. But one thing led to another, her and Mr. Demiter spent more and more time together. They became involved.
¶ 50 Demiter didn’t object to this statement. During trial, the
jurors didn’t hear evidence of deaths in J.S.’s family.
¶ 51 Demiter contends that the prosecutor improperly appealed to
the jurors’ sympathies by telling them J.S. had experienced deaths
in the family and gone through a divorce. But these statements
were brief, and therefore, even if they improperly evoked the jury’s
sympathy, they weren’t so flagrant or glaringly improper so as to
constitute reversible error. Further, while J.S.’s marital status
could evoke juror sympathy, it was a relevant fact introduced at
trial and, therefore, was appropriate background information for the
prosecutor to include in opening statement.
24 ¶ 52 Demiter also argues that the prosecutor committed
misconduct by describing evidence that wasn’t ultimately admitted
at trial. We agree with Demiter that evidence wasn’t presented to
support the statement that J.S. had experienced deaths in the
family. But there isn’t a showing of bad faith or prejudice to
Demiter. Thus, reversal isn’t required. See Melanson, 937 P.2d at
836.
ii. Comments About J.S.’s Debit Card
¶ 53 During opening statement, the prosecutor began telling the
jury about the transactions on J.S.’s debit card and stated that
“[J.S.] never saw her debit card again.” Demiter didn’t object to this
statement. During the trial, however, J.S. testified that her debit
card was returned to her.
¶ 54 That the prosecutor incorrectly stated that J.S. didn’t see her
debit card again was improper (assuming that the prosecutor knew
or had reason to know that the evidence at trial would show
otherwise). But similar to the prosecutor’s statements about J.S.’s
background, this fleeting statement didn’t prejudice Demiter, nor
was there any indication of bad faith on the part of the prosecutor.
Therefore, even if the incorrect statement constituted misconduct, it
25 doesn’t warrant reversal. See id. Moreover, any misleading
impression left by the prosecutor’s statement was cleared up by
J.S.’s testimony.
b. Demiter’s Cross-Examination
¶ 55 The prosecutor cross-examined Demiter about the photos he
sent to J.S.’s ex-boyfriend that showed J.S. with a penis on her
face. Demiter denied that it was his penis in the photos. Demiter
also testified that he sent the photos to J.S.’s ex-boyfriend to ask
him if it was his penis and that J.S.’s ex-boyfriend responded by
sending Demiter a picture of his penis. While continuing to ask
Demiter about his decision to send the pictures to J.S.’s ex-
boyfriend, the prosecutor asked Demiter, “[A]re you of heterosexual
orientation?” The prosecutor then asked, “And to the best of your
knowledge, [J.S.’s ex-boyfriend] is —” At that point, defense
counsel objected but the court overruled it. Demiter then stated,
“I — no idea.” And when the prosecutor repeated, “No idea?”
Demiter stated, “And if [J.S.’s ex-boyfriend] is a heterosexual or a
homosexual? No ma’am. I have no clue.”
¶ 56 A “prosecutor[] may not resort to ‘inflammatory comments’
that serve no purpose but ‘inflam[ing] the passions of the jury.’”
26 People v. McBride, 228 P.3d 216, 222 (Colo. App. 2009) (quoting
Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005)). And
here, given the context, we can’t conclude that the purpose of the
prosecutor’s questioning was to inflame the passions of the jury.
Rather, it appears that the prosecutor was attempting to discern
why Demiter sent a picture of a penis (that he alleged wasn’t his) to
J.S.’s ex-boyfriend and why J.S.’s ex-boyfriend responded with a
picture of his own penis. Whether this was a proper purpose for the
question is a close call. Cf. People v. Samson, 2012 COA 167, ¶ 30
(“[B]ecause arguments delivered in the heat of trial are not always
perfectly scripted, reviewing courts accord prosecutors the benefit of
the doubt when their remarks are ambiguous or simply inartful.”).
But at no point in his briefing does Demiter explain how the
prosecutor’s questions, even if improper, were inflammatory or
undermined the fairness of trial. And we don’t discern that it did.
Thus, based on the record, we can’t conclude that the prosecutor’s
questions warrant reversal.
c. Closing Argument
¶ 57 Two of the alleged instances of prosecutorial misconduct
occurred during the prosecutor’s closing argument. Closing
27 argument “may properly include the facts in evidence and any
reasonable inferences drawn therefrom.” Domingo-Gomez, 125 P.3d
at 1048. During closing argument, parties may “point to different
pieces of evidence and explain their significance within the case.”
Id. And while a prosecutor can’t use closing argument to “mislead
or unduly influence the jury,” the prosecutor “has wide latitude in
the language and presentation style used to obtain justice.” Id. at
1048-49.
i. Statements About Loving a Woman
¶ 58 During opening statement, the prosecutor stated, “At one
point, . . . Demiter characterize[d] these events as just loving a
woman.” Then in closing argument, the prosecutor repeatedly
stated, “These acts are not love as Mr. Demiter characterized
them . . . . These are acts of violence. These are acts of coercion.
These are acts of control, punishment, intimidation, and revenge.”
Demiter didn’t object to these statements.
¶ 59 Again, Demiter states that the comments were inflammatory
but doesn’t explain why. And we can’t discern how they were
inflammatory. In any event, Demiter doesn’t explain why this
argument isn’t a fair comment on the evidence presented at trial.
28 ii. Statements About Body Modification
¶ 60 During closing argument, defense counsel argued that it
wasn’t Demiter’s penis in the picture over J.S. because “he had his
penis pierced and he wore a . . . penis ring, and that this was done
years before this incident.” In rebuttal argument, the prosecutor
addressed this argument by referring to admitted photos of
Demiter’s penis taken after his arrest.
I would argue [the photos taken after Demiter’s arrest] don’t show anything that I would dignify by calling a piercing, they show a pen superficially stuck through skin. A bizarre position at a bizarre angle that looks red, it looks angry, it looks inflamed. I would argue this is prisoner body modification and knowledge of guilt. Not a piercing.
¶ 61 Demiter objected to this statement, but the court overruled the
objection and reminded the jury that they were “the sole people to
determine what the evidence indicated.”
¶ 62 Demiter contends that the prosecutor’s reference to “prisoner
body modification” was improper because it “evokes images of
tattooed prison gangs.” We agree that the statement was improper,
but given its brevity and context, we conclude that the misconduct
was harmless.
29 ¶ 63 The prosecutor made the statement in response to defense
counsel’s argument that the picture didn’t show Demiter’s penis
because his was pierced years before. And any risk of prejudice
was reduced because the jury had already heard that Demiter was
incarcerated when he testified, during direct examination, that the
defense exhibit photos of his penis showing a “piercing” were taken
at the “Routt County Jail.” Further, the prosecutor made the
specific statement “prisoner body modification” only once during
argument. Accordingly, we conclude that this statement, albeit
improper, didn’t affect Demiter’s substantial rights or undermine
the fairness of trial.
d. Cumulative Prosecutorial Misconduct
¶ 64 Demiter contends that, even if each individual instance of
purported misconduct doesn’t warrant reversal, the cumulative
prejudice of each instance of misconduct does. We disagree.
¶ 65 Although errors may be harmless or not affect the defendant’s
substantial rights in isolation, “reversal will nevertheless be
required when ‘the cumulative effect of [multiple] errors and defects
substantially affected the fairness of the trial proceedings and the
integrity of the fact-finding process.’” Howard-Walker v. People,
30 2019 CO 69, ¶ 24 (alteration in original) (quoting People v. Lucero,
615 P.2d 660, 666 (Colo. 1980)). For reversal based on cumulative
error, there must be “cumulative prejudice.” Id. at ¶ 25.
¶ 66 As analyzed above, we concluded that the prosecutor
committed limited misconduct. Although the noted statements
were improper, or arguably improper, even viewing them
collectively, reversal isn’t warranted. We reach this conclusion for
largely the same reasons that we declined to reverse based on any
individual instance of misconduct. Each instance was brief and
isolated, not the focus of counsel’s argument for conviction, and not
particularly inflammatory even when considered in combination.
Moreover, the trial court instructed the jury that they “must not be
influenced by sympathy, bias or prejudice in reaching [their]
decision.” See People v. Vialpando, 2022 CO 28, ¶ 41 (“[W]e
presume that the jury followed the court’s instructions.”).
Accordingly, we aren’t persuaded reversal is warranted.
31 D. Whether the Jury Instructions Constructively Amended the Sexual Contact Charge
¶ 67 Next, Demiter contends that trial court’s instructions to the
jury on the unlawful sexual contact charge constructively amended
the charge. We agree but conclude that the error wasn’t plain.
¶ 68 There are six ways in which a defendant can commit class 1
misdemeanor unlawful sexual contact. See § 18-3-404(1)(a)-(g),
C.R.S. 2025. Two of those — subsections (1)(a) and (c) — are
relevant to Demiter’s constructive amendment challenge. These
subsections provide:
(1) Any actor who knowingly subjects a victim to any sexual contact commits unlawful sexual contact if:
(a) The actor knows that the victim does not consent; or
....
(c) The victim is physically helpless and the actor knows that the victim is physically helpless and the victim has not consented . . . .
§ 18-3-404(1)(a), (c).
¶ 69 In the complaint and information, the People charged Demiter
with two counts of unlawful sexual contact, each alleging that he
32 “unlawfully and knowingly subjected J.S. to sexual contact, while
the victim was physically helpless and the defendant knew that the
victim was physically helpless and the victim had not consented; in
violation of section 18-3-404(1)(c).” (Emphasis added.)
¶ 70 At trial, however, the court gave the jury two instructions on
unlawful sexual contact, both framing the offense as a violation of
section 18-3-404(1)(a). Instruction No.11 stated:
The elements of Unlawful Sexual Contact (Physical Contact) are:
1. That Sean Demiter,
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. subjected a person to any sexual contact,
5. knowing that the person did not consent.
(Emphasis added.) Instruction No. 12 repeated the same elements,
the only difference being that Instruction No.12 was titled “The
elements of Unlawful Sexual Contact (Ejaculation).”
¶ 71 Demiter didn’t object to either instruction during the jury
instruction conference. The jury convicted Demiter of unlawful
33 sexual contact (physical contact) (Instruction No. 11) but acquitted
him of unlawful sexual contact (ejaculation) (Instruction No. 12).
¶ 72 A sufficient information will “advise[] the defendant of the
charges he is facing so that he can adequately defend himself and
be protected from further prosecution for the same offense.”
Campbell v. People, 2020 CO 49, ¶ 44 (quoting Cervantes v. People,
715 P.2d 783, 785 (Colo. 1986)). And giving the defendant
sufficient notice of the charges against him “ensure[s] that he is not
taken by surprise by the evidence offered at trial.” Id. (citation
omitted). When a charge within the charging instrument is different
from the charge a defendant is convicted of, there is a variance. Id.
at ¶ 45. In Colorado, there are two types of variances: a simple
variance and a constructive amendment. Id. “A simple variance
‘occurs when the evidence presented at trial proves facts materially
different from those alleged in the charging document.’” Id. (quoting
People v. Smith, 2018 CO 33, ¶ 25). Reversal isn’t typically required
for a simple variance if “the proof upon which the conviction is
based corresponds to an offense that was clearly set out in the
charging instrument.” Id. Conversely, “[a] constructive amendment
34 occurs when a jury instruction ‘changes an essential element of the
charged offense and thereby alters the substance of the charging
instrument.’” Bock v. People, 2024 CO 61, ¶ 14 (quoting People v.
Rediger, 2018 CO 32, ¶ 48).
¶ 73 We review whether a variance occurred de novo. People v.
Deutsch, 2020 COA 114, ¶ 22. In the absence of an objection, we
reverse a simple variance and a constructive amendment only for
plain error. Bock, ¶ 26 (“[C]onstructive amendments are reviewed
for plain, rather than structural, error.”); see also Smith, ¶ 25 (“An
error in jury instructions, such as a simple variance, generally does
not rise to the level of plain error unless a review of the entire
record establishes a reasonable possibility that the improper
instruction contributed to the defendant’s conviction.”). “Plain error
is obvious and substantial,” and we reverse “only if the error ‘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 People v. Miller, 113 P.3d 743, 750 (Colo.
2005)).
35 3. Constructive Amendment
¶ 74 Demiter contends that the jury instruction constructively
amended the sexual contact charge because it didn’t contain an
element that J.S. was physically helpless or that Demiter knew J.S.
was physically helpless. Demiter contends that without these
elements, the instruction deviated from section 18-3-404(1)(c).
¶ 75 Because the jury instruction omitted elements of the charged
offense, we agree that this constituted a constructive amendment
and that the error was obvious. But we conclude the error wasn’t
plain.
¶ 76 This error should have been obvious to the trial court. It was
clear that the charging document stated that Demiter had violated
section 18-3-404(1)(c), which states that the “victim is physically
helpless and the actor knows that the victim is physically helpless
and the victim has not consented.”
¶ 77 Although the error was obvious, the error wasn’t substantial
for three reasons. First, both the charging instrument and the jury
instruction required the prosecution to prove that J.S. didn’t
consent to the unlawful contact. Demiter, therefore, would have
had notice that evidence of consent would be produced at trial. And
36 the prosecutor’s burden of proof didn’t change with respect to this
element. Second, while the jury instruction omitted two elements of
section 18-3-404(1)(c), the prosecution introduced evidence at trial
that J.S. was passed out or unconscious when the unlawful sexual
contact occurred, which supported the charging document. And
third, the discrepancy between the charging document and the jury
instructions wouldn’t have altered Demiter’s defense. Indeed, in
closing argument, Demiter argued to the jury that the prosecutors
failed to meet their burden, that he didn’t commit the crime alleged,
and that the photos didn’t depict Demiter’s penis. And when
discussing whether there was physical contact, defense counsel
tacitly conceded J.S.’s helplessness by stating that “she was passed
out drunk on her own volition.”
¶ 78 Thus, the error wasn’t plain, and reversal isn’t warranted. Cf.
People v. Weinreich, 119 P.3d 1073, 1076 (Colo. 2005) (“A jury
instruction should substantially track the language of the statute
describing the crime; a material deviation from the statute can
result in reversible plain error, depending on the facts of the case.”).
But see Rediger, ¶¶ 51-52 (The constructive amendment was plain
error because defendant wasn’t placed on notice, and “the offense
37 presented to the jury allowed it to convict [the defendant] of a crime
not charged in the information, and one for which the People’s
burden of proof was materially lessened.”).
E. Modified Unanimity Instruction
¶ 79 Demiter next contends that the trial court erred by declining
to give a modified unanimity instruction on the tampering charge.
We aren’t persuaded.
¶ 80 Demiter was charged with one count of second degree criminal
tampering under section 18-4-506, C.R.S. 2025. “[A] person
commits the crime of second degree criminal tampering if he
tampers with property of another with intent to cause injury,
inconvenience, or annoyance to that person or to another.” Id. The
prosecution introduced evidence of several acts purportedly
committed by Demiter that could constitute tampering under this
statute, including that Demiter threw her potted plants, wrote
“whore” in her planner, spat on her van, threw her skis on the
ground, and covered her backpack in liquid soap.
38 2. Legal Principles and Standard of Review
¶ 81 Criminal defendants are entitled to a unanimous jury verdict
“with respect to the ultimate issue of the defendant’s guilt or
innocence of the crime charged” but “not with respect to alternative
means by which the crime was committed.” People v. Archuleta,
2020 CO 63M, ¶ 20 (quoting People v. Taggart, 621 P.2d 1375, 1387
n.5 (Colo. 1981)). Thus, a jury doesn’t need to “unanimously decide
‘which of several possible sets of underlying brute facts make up a
particular element’ or ‘which of several possible means the
defendant used to commit an element of the crime.’” Id. (quoting
Richardson v. United States, 526 U.S. 813, 817 (1999)). But if
evidence of multiple acts is presented, “any one of which could
constitute the offense charged, and there is a reasonable likelihood
that jurors may disagree on the act the defendant committed,” the
trial court must either provide the jury with a modified unanimity
instruction or require the prosecution to elect which transaction it
is relying on for the conviction. People v. Rivera, 56 P.3d 1155,
1159-60 (Colo. App. 2002); see also Archuleta, ¶¶ 21-22. A
modified unanimity instruction informs jurors that “to convict the
defendant, they ‘must either unanimously agree that the defendant
39 committed the same act or acts or that the defendant committed all
of the acts described by the victim and included within the time
period charged.’” Archuleta, ¶ 22 (quoting Thomas v. People, 803
P.2d 144, 153-54 (Colo. 1990)). If, however, the defendant “is
charged with engaging in a single transaction of criminal conduct”
and the prosecution proceeds on that theory, an election or
modified unanimity instruction isn’t required. Id. at ¶ 23.
¶ 82 We review a court’s failure to give a modified unanimity
instruction de novo. People v. Ryan, 2022 COA 136, ¶ 15. If the
trial court erred by failing to give a modified unanimity instruction
but the defendant also failed to request the instruction, then we
reverse only if the error was plain. See id. at ¶ 16.
3. A Modified Unanimity Instruction Wasn’t Required
¶ 83 We acknowledge that the prosecution presented evidence of
several acts that separately or together could constitute tampering.
But these acts were all part of a single transaction because, while
some of the acts occurred on different days, all the acts alleged
occurred upon, and were incident to, J.S. moving out of Demiter’s
apartment. See, e.g., Melina v. People, 161 P.3d 635, 640 (Colo.
2007) (concluding that conversations with more than one person
40 and spanning several days “may constitute a single transaction of
solicitation”); People v. Hanson, 928 P.2d 776, 779-80 (Colo. App.
1996) (concluding that the prosecutor didn’t have to specify the acts
which formed the basis of the charge because although there were
two separate confrontations, “the confrontations occurred in the
same location and within a few minutes of each other, and arose
out of the same set of circumstances and in conjunction with the
same dispute.”). Because these acts were part of one transaction,
neither an election nor a modified unanimity instruction was
required.
F. The Application of Demiter’s Presentence Confinement Credit
¶ 84 Demiter next contends that the trial court erred by applying
his PSCC only to his misdemeanor convictions. We agree.
¶ 85 The court sentenced Demiter to jail sentences of twelve
months for unlawful sexual contact, six months for tampering, six
months for theft, and six months for unauthorized use of a financial
transaction device (misdemeanor convictions). The court specified
that the sentences for the misdemeanor convictions would run
concurrently with each other. On the identity theft conviction
41 (felony conviction), the court sentenced Demiter to five years in the
Department of Corrections. The court ordered the felony conviction
sentence to be served consecutively. At the time of sentencing,
Demiter was serving sentences for several other cases. The court
specified that the sentences for the misdemeanor convictions would
run concurrently with the sentences he was currently serving.
¶ 86 At sentencing, the court noted that Demiter had 488 days of
PSCC. The court awarded the PSCC for the misdemeanor
convictions because the sentences for those counts “were ordered
concurrent with each other and his current sentences.” But the
court declined to award PSCC to the felony conviction sentence
“because [the count] is ordered consecutive.”
¶ 87 We review de novo whether a trial court properly denied PSCC.
Russell v. People, 2020 CO 37, ¶ 18. Under section 18-1.3-405,
C.R.S. 2025, “[a] person who is confined for an offense prior to the
imposition of sentence for said offense is entitled to credit against
the term of his or her sentence for the entire period of such
confinement.” “[A] defendant is entitled to PSCC for each day
served where there is a substantial nexus between the conduct or
42 charges for which he is confined and the sentence ultimately
imposed.” Russell, ¶ 5. But a defendant isn’t entitled to
“duplicative PSCC.” Id. Typically, “when consecutive sentences are
imposed, crediting the period of presentence confinement against
one of the sentences will assure the defendant full credit against the
total term of imprisonment.” People v. Roy, 252 P.3d 24, 29 (Colo.
App. 2010) (quoting People v. Johnson, 797 P.2d 1296, 1298 (Colo.
1990)).
¶ 88 Because neither party contests whether there was a
substantial nexus between the PSCC and the charges for which
Demiter was sentenced, we don’t address it here. Instead, we only
address whether his sentence was duplicative. In this case,
Demiter was awarded 488 days of PSCC on the sentence for the
misdemeanor convictions. But because the maximum sentence on
those four charges was twelve months and because the
misdemeanor conviction sentences were running concurrently,
Demiter received, at most, 365 days of PSCC rather than the full
488 to which he was entitled. Because the maximum amount of
PSCC that could apply to the sentence for the misdemeanor
convictions was 365 days, the trial court necessarily deprived
43 Demiter of some PSCC to which he was entitled. See Roy, 252 P.3d
at 28 (“Where two or more charges form multiple bases for a
defendant’s presentence confinement, the defendant is entitled to
credit against each sentence imposed on those charges, provided
that the credit would not be duplicative.”); see also Johnson, 797
P.2d at 1299 (trial court must ensure that a defendant receives full
but not duplicative PSCC). Thus, the trial court erred. On remand,
the court should apply any remaining PSCC against the identity
theft sentence.
III. Disposition
¶ 89 The judgment is affirmed, the sentence is reversed in part, and
the case is remanded with instructions for the court to amend the
mittimus as described above.
JUDGE KUHN and JUDGE SCHUTZ concur.