Peo v. Foster

• Court: Colorado Court of Appeals
• Decided: August 22, 2024
• Docket: 21CA1498
• Status: Unknown

Opinion

21CA1498 Peo v Foster 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1498

Mesa County District Court No. 20CR477

Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Mark Anthony Foster,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE LIPINSKY

Freyre and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 22, 2024

Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1 Mark Anthony Foster appeals his judgment of conviction

entered on a jury verdict finding him guilty of first degree murder

(after deliberation) and two counts of attempt to influence a public

servant. We affirm.

I. Background

¶ 2 A jury could have reasonably found the following facts.

¶ 3 Foster and his wife, Roxine Foster, were married for thirty-

nine years. (We refer to Roxine by her first name to differentiate her

from Foster. In so doing, we mean no disrespect).

¶ 4 On October 23, 2019, the Fosters were working at the ranch

they leased in Grand Junction. Roxine was operating a tractor near

Foster, whose SUV was approximately ten to twenty yards behind

the tractor. While Roxine was seated on the tractor, a bullet struck

and killed her.

¶ 5 Foster later told officers that he heard a gunshot and saw

Roxine slump forward and fall off the tractor. He said she was

bleeding from her mouth and not breathing when he reached her.

Roxine was pronounced dead shortly after the officers arrived. The

county coroner later concluded that she died from the gunshot.

The coroner recovered a .22 caliber bullet from Roxine’s body.

2

¶ 6 While speaking with the investigating officers, including Lissah

Norcross, Taylor Conrad, and Brandon Worley, Foster mentioned

various individuals who he said had grudges against him and

suggested that one of them may have shot Roxine. (The verdict

form for the attempt to influence a public servant charges named

Norcross, Conrad, and Worley as the public servants whom Foster

attempted to influence.) Foster also told the officers that a stray

bullet may have struck Roxine.

¶ 7 Foster named, among other possible suspects, brothers Brad

and Leland “John” Smith, who were the Fosters’ former neighbors

in Wyoming. Foster said he had been a witness against the Smiths

in a federal investigation regarding illegal dumping on Bureau of

Land Management (BLM) land, and that he and Roxine moved to

Wellington because they feared “retribution.”

¶ 8 Foster also said that, during the federal investigation, someone

entered the Fosters’ property in Wellington and Foster “exchanged

gunfire with that guy.” According to Foster, no one was injured in

the incident and the individual “got away.” Foster said that,

although officers investigated the incident, the individual was never

found. When one of the officers investigating Roxine’s death asked

3

Foster whether anyone was ever prosecuted in connection with the

Wellington incident, Foster responded that he was not aware of all

the details regarding the federal investigation into the Smiths, but

that “they were given probation.”

¶ 9 Officers recovered a .22 caliber Colt M4 rifle from Foster’s

SUV. They also seized from the property various types of

ammunition, including Remington Yellowjacket .22 caliber bullets.

¶ 10 In addition, an officer interviewed Norma Evans, Roxine’s

mother, who lived in a trailer on the ranch. The officer concluded

that Evans had not witnessed the shooting. Officers also

investigated the leads they obtained from Foster but determined

that the suspects Foster suggested were not responsible for

Roxine’s death.

¶ 11 Foster was charged with one count of first degree murder

(after deliberation) and two counts of attempt to influence a public

servant.

¶ 12 At trial, the prosecution’s theory was that Foster murdered

Roxine because he had reached a breaking point in his marriage,

and that he made false statements about Roxine’s death to the

officers to deflect blame from himself. The defense’s theory was

4

that Roxine was killed by a stray or ricocheted bullet that an

unknown person fired from a distance, and that Foster never

attempted to influence the investigation of Roxine’s death by

deceiving the officers.

¶ 13 The jury found Foster guilty as charged.

II. Analysis

¶ 14 Foster presents four arguments on appeal. He contends that

(1) the trial court abused its discretion by denying his

motion to depose Evans (the deposition motion), his

motion to admit Evans’s video recorded statements into

evidence under CRE 807 (the Rule 807 motion), and his

request to admit the statements under the “opening the

door” doctrine;

(2) the trial court abused its discretion by allowing the

prosecutor to introduce evidence of the Fosters’ financial

and marital troubles, Foster’s character for dishonesty,

and photographs of Foster posing with firearms;

(3) the trial court plainly erred by allowing the prosecutor to

engage in misconduct; and

5

(4) the cumulative effect of the alleged errors violated

Foster’s right to a fair trial.

We disagree with Foster’s first and fourth arguments and agree, in

part, with his second and third arguments. However, because we

determine that the errors were harmless, whether considered

individually or cumulatively, we affirm the judgment of conviction.

A. Foster’s Motions Regarding Evans

1. Additional Facts

¶ 15 Defense counsel video-recorded an interview with Evans.

During the interview, Evans stated that she was “right there” at the

time of the shooting, the shot “came from far off,” and Foster had

not killed Roxine.

¶ 16 About ten months after Roxine’s death, defense counsel filed

the deposition motion without a supporting affidavit. Defense

counsel asserted, “It is believed that [Evans] is in possession of

observations and memories that are material and relevant” to the

shooting and “are equally relevant to rebut any inference the

Government seeks to make concerning a negative relationship”

between Foster and Roxine.

6

¶ 17 The deposition motion did not disclose the specific facts about

which Evans was allegedly prepared to testify. Rather, defense

counsel focused on Evans’s age — eighty-nine years old — and “frail

health,” arguing “it is unknown if an appearance at trial would be

appropriate for [Evans] or if such an appearance in light of [her]

various medical conditions and age would be contraindicated”

because those medical conditions “further placed her in an at-risk

population during the [COVID-19] pandemic.”

¶ 18 Following a hearing, the court denied the deposition motion

because it lacked a supporting affidavit, as Crim. P. 15(a) requires.

The court said that, without an affidavit, it was “unable to make a

finding as to whether the deposition [was] necessary to protect the

health of the witness.” The court did not make findings as to

whether Evans may be unable to attend the trial or whether her

deposition was necessary to prevent injustice.

¶ 19 Defense counsel filed the Rule 807 motion six months after the

court denied the deposition motion, following Evans’s death. The

motion revealed the existence and substance of Evans’s recorded

statement, in which she claimed to have witnessed Roxine’s

shooting. Defense counsel did not contest that Evans’s statements

7

on the video recording were hearsay but argued they were

nonetheless admissible under CRE 807 — the residual hearsay

exception.

¶ 20 In the Rule 807 motion, defense counsel asserted that Evans

was “the only witness in the vicinity of the shooting” and that she

had “provided evidence that the defense cannot reasonably be

expected to procure elsewhere.” Defense counsel argued that Evans

had “no motive to be untruthful with regards to the death of her

daughter. Therefore, her statements bear particularized guarantees

of trustworthiness.”

¶ 21 The court denied the Rule 807 motion because, although

certain portions of Evans’s statements on the video recording

concerned material facts, they were not “supported by

circumstantial guarantees of trustworthiness,” as CRE 807

requires.

¶ 22 The court found that Evans appeared confused on the video

recording, she “had a hard time hearing the questions” asked, and

Amy Marrs, the Fosters’ daughter, prompted her when she was

nonresponsive. Further, the court said that, “while a few of the

statements contained in [the] interview are more probative than any

8

other evidence which could be reasonably procured, much of the

interview is not probative, with large and repeated statements of

speculation,” and that “the general purposes of the rules of evidence

and interests of justice would not be served by admission of the

interview.”

¶ 23 At trial, defense counsel presented an alternative argument for

admission of the video recording into evidence: it was also

admissible under the “opening the door” doctrine. The prosecutors

“opened the door” to admission of the recording, according to

defense counsel, by offering the officer’s testimony that, after

interviewing Evans, he did not believe she possessed information

regarding the shooting. The court disagreed and concluded that the

video recording was inadmissible.

¶ 24 On appeal, Foster contends that the court erred by denying

the deposition motion, the Rule 807 motion, and the defense’s

subsequent request to admit Evans’s video recorded statements

under the “opening the door” doctrine.

2. Standards of Review

¶ 25 “We review a trial court’s evidentiary rulings for an abuse of

discretion.” People v. Owens, 2024 CO 10, ¶ 105, 544 P.3d 1202,

9

1226. “[A] trial court abuses its discretion when its ruling is

manifestly arbitrary, unreasonable, unfair, or based on an incorrect

understanding of the law.” Id. Questions regarding the

interpretation of the Rules of Criminal Procedure or the Rules of

Evidence are questions of law subject to de novo review. See People

v. Dye, 2024 CO 2, ¶ 34, 541 P.3d 1167, 1175; Gonzales v. People,

2020 CO 71, ¶ 26, 471 P.3d 1059, 1063.

3. The Deposition Motion

¶ 26 Crim. P. 15(a) states that “[t]he prosecutor or the defendant

may file a motion supported by an affidavit any time after [an

information or complaint] . . . is filed requesting that the deposition

of a prospective witness be taken before the court.” The rule

provides that “[t]he court may order that a deposition be taken

before the court if a prospective witness may be unable to attend a

trial or hearing and it is necessary to take that person’s deposition

to prevent injustice.” Crim. P. 15(a).

¶ 27 We affirm the court’s denial of the deposition motion because

defense counsel failed to establish that taking Evans’s deposition

was necessary to prevent injustice. See Moody v. People, 159 P.3d

611, 615 (Colo. 2007) (“[A]ppellate courts have the discretion to

10

affirm decisions . . . on any basis for which there is a record

sufficient to permit conclusions of law, even though they may be on

grounds other than those relied upon by the trial court.”).

¶ 28 Defense counsel vaguely said in the deposition motion, “It is

believed that [Evans] is in possession of observations and memories

that are material and relevant” to the shooting. But defense

counsel did not reveal what those “observations and memories”

were or explain why they were “material and relevant.” Moreover, in

the deposition motion, defense counsel did not contest the veracity

of the officer’s testimony that, after interviewing Evans, he believed

she was not aware that a shooting had occurred.

¶ 29 Defense counsel’s argument at the hearing on the deposition

motion did not shed light on why preservation of Evans’s testimony

was necessary to prevent injustice. When the court asked defense

counsel whether Evans “witness[ed] something,” defense counsel

responded, “She has stated to officers that she didn’t, we have

reason to believe that she may have more to testify to [than] . . .

what she told the officers.” Defense counsel, however, did not

disclose what Evans would say during a deposition and did not

assert that Evans would dispute the officer’s testimony that she

11

lacked information regarding the shooting. Thus, the deposition

motion and defense counsel’s statements at the hearing on the

motion fell far short of showing that Evans’s testimony was

necessary to prevent injustice.

¶ 30 Foster cites People v. Hernandez, 899 P.2d 297, 300 (Colo.

App. 1995), to address the court’s conclusion that the deposition

motion failed for lack of a supporting affidavit. In that case, the

division held that the trial court did not abuse its discretion by

waiving the affidavit requirement in Crim. P. 15(a) because the

party seeking to take the deposition had “thoroughly informed [the

court] of the facts and circumstances supporting the request to take

the deposition” and the opposing party did not dispute those

assertions. Id. Thus, Hernandez stands for the proposition that a

court, in its discretion, may grant a Crim. P. 15(a) motion without

an affidavit if the missing affidavit would be superfluous. See id.

¶ 31 In Hernandez, both the prosecutor and the witness’s counsel

filed Crim. P. 15(a) motions. See id. at 298-99. Those motions,

coupled with the prosecutor’s argument at the hearing on the

motions, provided the court with detailed information

demonstrating that the witness was also a suspect for the murder

12

of which Hernandez was accused, had recently been released from

custody, was facing imminent deportation from the United States,

and was being held at the El Paso County jail solely to secure his

testimony. The court noted that the prosecutor’s submission of a

supporting affidavit containing the same information would

therefore be unnecessary. See id. at 298-300.

¶ 32 Hernandez does not support reversal of the court’s denial of

the deposition motion. To the contrary, the level of detail that the

prosecutor and counsel for the witness provided to the court in

Hernandez only underscores the inadequacy of the information

contained in the deposition motion. Because defense counsel

conceded that Evans told officers she did not “witness anything”

and failed to elaborate what more she might testify to, he did not

demonstrate that Evans’s deposition was necessary to prevent

injustice. Accordingly, the court did not abuse its discretion by

determining that the deposition motion was insufficient without a

supporting affidavit.

¶ 33 For these reasons, we affirm the court’s denial of the

deposition motion.

13

4. The Rule 807 Motion

¶ 34 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). It is inadmissible

unless an exception to the rule applies. CRE 802. One such

exception allows the admission of hearsay so long as the statement

is backed by “circumstantial guarantees of trustworthiness”

equivalent to the more specific hearsay exceptions in other rules of

evidence. CRE 807.

¶ 35 When determining the trustworthiness of a statement, “courts

should examine the nature and character of the statement, the

relationship of the parties, the probable motivation of the declarant

in making the statement, and the circumstances under which the

statement was made.” People v. Draper, 2021 COA 120, ¶ 82, 501

P.3d 262, 279 (quoting People v. Jensen, 55 P.3d 135, 139 (Colo.

App. 2001)), overruled on other grounds by Garcia v. People, 2023

CO 30, 531 P.3d 1031.

¶ 36 We affirm the court’s denial of the Rule 807 motion because

defense counsel failed to establish that Evans’s recorded

14

statements, which are undisputedly hearsay, were supported by

“circumstantial guarantees of trustworthiness.” CRE 807.

¶ 37 The record supports the court’s stated concerns regarding “the

circumstances under which the statement was made.” Draper,

¶ 82, 501 P.3d at 279 (quoting Jensen, 55 P.3d at 139). First, the

court observed that Evans did not make the statements under oath

and the prosecutor had no opportunity to question her about them.

Second, as noted above, the court found that Evans appeared

confused on the recording. At one point, Evans seemed to be

unaware of the reason for the interview. When defense counsel

stated, “We are here today to talk about . . . the current charges

against [Foster],” Evans responded, “What are the charges against

him?” Further, when asked if a police officer spoke to her that day,

Evans responded, “No, I don’t think so.” This statement directly

contradicted the officer’s testimony that he spent “around five

hours, on and off” with Evans on the day of the shooting. Defense

counsel likewise never contested that the officer had interviewed

Evans. Evans’s poor recall of events on the day of the shooting

supports the court’s doubts regarding the trustworthiness of

Evans’s recorded statements.

15

¶ 38 More significantly, as the court noted, the video recording

captured Marrs, from off camera, prompting Evans when she was

nonresponsive to defense counsel’s questions. When defense

counsel asked Evans where she was at the time of the shooting,

Marrs said, “You came out of the house,” after which Evans

parroted, “I came out of the house.” When asked if Evans

witnessed Roxine’s death, Evans responded, “I don’t remember.”

Marrs then interjected, “We just talked about this a little bit ago

Grandma.”

¶ 39 The video recording shows Evans repeating identical phrases,

suggesting that she may have been coached. For example, Evans

said, “I was there” and “the shot came from far off,” using nearly

identical words, more than four times. As the court correctly found,

Marrs’s prompting and Evans’s recitation of rote phrases

demonstrates that Evans’s statements “are not supported by

circumstantial guarantees of trustworthiness.” Accordingly, we

need not reach Foster’s arguments regarding the other

requirements of CRE 807.

¶ 40 Therefore, we hold that the court did not abuse its discretion

by denying the Rule 807 motion.

16

5. The “Opening the Door” Doctrine

¶ 41 The “opening the door” doctrine “represents an effort by courts

to prevent one party in a criminal trial from gaining and

maintaining an unfair advantage by the selective presentation of

facts that, without being elaborated or placed in context, create an

incorrect or misleading impression.” Golob v. People, 180 P.3d

1006, 1012 (Colo. 2008). “When a party opens the door to

otherwise inadmissible evidence, his opponent may then inquire

into the previously barred matter.” Id.

¶ 42 However, the concept of “opening the door” does not grant a

party “unbridled license to introduce otherwise inadmissible

evidence into the trial.” People v. Cohen, 2019 COA 38, ¶ 23, 440

P.3d 1256, 1263 (quoting United States v. Martinez, 988 F.2d 685,

702 (7th Cir. 1993)). The doctrine does not allow the admission of

rebuttal evidence that “does not directly contradict the evidence

previously received” or “goes beyond the necessity of removing

prejudice in the interest of fairness.” Id. (quoting Martinez, 988

F.2d at 702). In short, the doctrine “can be used only to prevent

prejudice; it can’t be used as an excuse to inject prejudice into the

case.” Id. at ¶ 23, 440 P.3d at 1262-63.

17

¶ 43 Foster argues that the court should have admitted the video

recording into evidence to rebut the officer’s testimony that Evans

was not a witness to the shooting and was unaware of how Roxine

died.

¶ 44 But the officer never testified regarding any controverted

substantive statements that Evans made to him or to defense

counsel — only that he believed Evans possessed no knowledge of

the shooting in the hours following Roxine’s death and that his

interview with her did not lead to any other avenues of

investigation. Because the officer’s testimony was limited to how

his interview with Evans influenced his investigation, and the

parties do not contend that the officer became aware of Evans’s

recorded statements, the video recording would not have directly

contradicted the officer’s testimony.

¶ 45 Relatedly, Foster does not establish that the admission of the

video recording was necessary to “remov[e] prejudice in the interest

of fairness.” Id. at ¶ 23, 440 P.3d at 1263 (quoting Martinez, 988

F.2d at 702). There was nothing prejudicial in the officer’s

assertion that he concluded Evans did not possess any information

relevant to the investigation — particularly if he was not aware of

18

Evans’s subsequent statements to defense counsel. In contrast,

allowing the jury to hear Evans’s hearsay would have injected

otherwise inadmissible evidence and prejudice into the case, if only

because, as noted in Part II.A.4 above, her statements lacked

“circumstantial guarantees of trustworthiness.” CRE 807.

¶ 46 Accordingly, the court did not abuse its discretion by

concluding that Evans’s recorded statements were inadmissible

under the “opening the door” doctrine. Because the court did not

abuse its discretion by denying the deposition motion, the Rule 807

motion, and the request to admit the video recording under the

“opening the door doctrine,” we reject Foster’s argument that the

court violated his right to a meaningful opportunity to present a

complete defense.

B. Evidentiary Issues

¶ 47 Foster argues that the court erred by allowing the prosecution

to introduce (1) evidence of Foster’s financial troubles; (2) evidence

showing a character for dishonesty; (3) photos depicting him with

firearms and law enforcement paraphernalia; and (4) evidence

regarding the Fosters’ marital strife.

19

1. Law and Standard of Review

¶ 48 The U.S. and Colorado Constitutions guarantee criminal

defendants the right to a fair trial by an impartial jury. U.S. Const.

amends. VI, XIV; Colo. Const. art. II, §§ 16, 23, 25. “A jury that has

been misled by inadmissible evidence . . . cannot be considered

impartial.” Harris v. People, 888 P.2d 259, 264 (Colo. 1995).

¶ 49 “Evidence which is not relevant is not admissible.” CRE 402.

Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.” CRE 401. Although relevant evidence is generally

admissible, it may be inadmissible under other rules of evidence.

See CRE 402.

¶ 50 One such rule is CRE 403, which allows a court to exclude

relevant evidence “if its probative value is substantially outweighed

by the danger of unfair prejudice.” The rule nonetheless strongly

favors the admissibility of relevant evidence. See People v.

Vanderpauye, 2023 CO 42, ¶ 59, 530 P.3d 1214, 1229. “For that

reason, when considering the balancing required by CRE 403, we

give the evidence the maximum probative value attributable to it by

20

a reasonable factfinder and the minimum unfair prejudice that may

be reasonably expected from it.” Id. at ¶ 59, 530 P.3d at 1228–29.

Against this backdrop, “evidence is unfairly prejudicial only if it has

an ‘undue tendency to suggest a decision on an improper basis,

commonly but not necessarily an emotional one, such as sympathy,

hatred, contempt, retribution, or horror.’” People v. Allgier, 2018

COA 122, ¶ 31, 428 P.3d 713, 721 (quoting People v. Dist. Ct., 785

P.2d 141, 147 (Colo. 1990)).

¶ 51 In addition, CRE 404(a) allows courts to exclude relevant

evidence of a person’s character or character trait “for the purpose

of proving that he acted in conformity therewith on a particular

occasion,” absent exceptions not applicable here.

¶ 52 Similarly, CRE 404(b) bars the admission of evidence of “any

other crime, wrong, or act” to prove “a person’s character in order to

show that on a particular occasion the person acted in conformity

with the character.” CRE 404(b)(1). However, other act evidence

“may be admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident.” CRE 404(b)(2). This list is not

exclusive; “courts can admit uncharged misconduct evidence for

21

almost any non-propensity purpose,” subject to the limitations

discussed below. Rojas v. People, 2022 CO 8, ¶ 28, 504 P.3d 296,

305.

¶ 53 For other act evidence to be admissible under CRE 404(b), the

court must find that the evidence satisfies the four-part test set

forth in People v. Spoto: (1) the evidence relates to a material fact;

(2) it is logically relevant; (3) its logical relevance is independent of

an impermissible propensity inference; and (4) its probative value is

not substantially outweighed by the risk of unfair prejudice. 795

P.2d 1314, 1318 (Colo. 1990). This framework is premised upon

the requirements of CRE 401 through 404. See Rojas, ¶ 27, 504

P.3d at 304-05.

¶ 54 “We review a trial court’s evidentiary rulings for an abuse of

discretion,” which occurs when the court “misapplies the law or

when its ruling is manifestly arbitrary, unreasonable, or unfair.”

Vanderpauye, ¶ 23, 530 P.3d at 1221. If an erroneous ruling was

preserved by objection, to avoid reversal, the People must prove that

the error was harmless — that it “did not substantially influence

the verdict or affect the fairness of the trial proceedings.” James v.

People, 2018 CO 72, ¶ 19, 426 P.3d 336, 341.

22

¶ 55 However, we review unpreserved errors for plain error — those

that are obvious and substantial. Hagos v. People, 2012 CO 63,

¶ 14, 288 P.3d 116, 120. An error is obvious if a trial court should

be able to avoid it without benefit of objection because the error

contravenes a clear statutory command, a well-settled legal

principle, or established Colorado case law. People v. Crabtree,

2024 CO 40M, ¶ 42, 550 P.3d 656, 667. “Conversely, when

Colorado statutory law or case law would not have alerted the trial

judge to an unobjected-to error, the error cannot be deemed plain.”

Id. An obvious error affects the substantial rights of the accused

and requires reversal only if “an appellate court, after reviewing the

trial record in its entirety, can say with fair assurance that the error

‘so undermined the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.’” Id.

at ¶ 43, 550 P.3d at 667 (quoting Wilson v. People, 743 P.2d 415,

420 (Colo. 1987)).

2. Evidence of Financial Troubles

a. Additional Facts

¶ 56 Defense counsel filed a pretrial motion to exclude evidence of

Foster’s “general indebtedness” and opposed the prosecution’s

23

notice of intent to admit evidence of Foster’s “financial situation.”

The prosecution argued that the financial evidence would show that

the couple had a “significant dispute” because of their years of

financial problems, establish that Foster did not kill Roxine “by

mistake or accident,” and “refute the anticipated defenses of general

denial or alternate suspect.”

¶ 57 The court said that the financial evidence is “relevant to show

that [Foster] acted after deliberation and with intent, and further

that his conduct was not a mistake or accident” because it showed

how the Fosters’ relationship had deteriorated; “the probative value

of the evidence is not substantially outweighed by the danger of

unfair prejudice”; and it does not “implicate ‘other crimes, wrongs,

or acts’ as contemplated by CRE 404(b).” The court concluded that

the evidence is relevant under CRE 402” and, thus, is admissible

under the res gestae doctrine. (As we explain further below, the

Colorado Supreme Court subsequently discarded the res gestae

doctrine in criminal cases. Rojas, ¶¶ 1-2, 504 P.3d at 300.)

¶ 58 At trial, the prosecution presented substantial evidence of the

Fosters’ financial difficulties, including testimony regarding Foster’s

evasiveness in making a settlement payment in a civil case; his

24

efforts to obtain loans and an advance from his employer; his

struggle to pay bills; and the Fosters’ bankruptcy filing in 2015,

their loss of property through foreclosure in 2018, and their

overdrawn bank balance in 2019. The evidence also included

financial documents such as invoices, a promissory note, bank

records, and a record of Foster’s earnings from the Department of

Labor.

¶ 59 On appeal, Foster contends that the court misconstrued the

law and abused its discretion to the extent it admitted the financial

difficulties evidence under the res gestae doctrine. He also argues

that the court should have excluded the financial evidence because

it was irrelevant, inadmissible character evidence, and unfairly

prejudicial.

b. We Apply Spoto in Light of Rojas

¶ 60 In Rojas, the supreme court explained what type of evidence is

subject to CRE 404(b) and admissible under that rule — how courts

can determine “when the charged crime ends and ‘other’ acts begin”

— in the absence of the res gestae doctrine. Id. at ¶ 42, 504 P.3d at

308. Courts must analyze whether challenged other act evidence is

intrinsic or extrinsic to the charged offense. See id. at ¶ 52, 504

25

P.3d at 309. If the evidence is intrinsic, meaning that it “directly

prove[s] the charged offense” or “occurred contemporaneously with

the charged offense and facilitated the commission of it,” courts

should evaluate admissibility under CRE 401, 402, and 403. Id. If

not, the evidence is extrinsic, and its admission is governed by CRE

404(b) and Spoto. Id.

¶ 61 The financial difficulties evidence was not intrinsic to the

charged offenses because it did not directly prove that Foster

committed any of the charged offenses. And although Foster may

have experienced some of the financial difficulties at the time of the

charged offenses, the difficulties did not facilitate the commission of

the offenses. Thus, the evidence was extrinsic, and we must

consider whether the financial difficulties evidence was admissible

under Spoto.

c. The Financial Difficulties Evidence Was

Admissible Under Spoto

¶ 62 The first two prongs of Spoto are satisfied. As the court

correctly determined, the financial difficulties evidence was

admissible under CRE 401 and 402 because it was logically

relevant to the mens rea element of first degree murder — that

26

Foster killed Roxine after deliberation and with intent. See

§ 18-3-102(1)(a), C.R.S. 2023. The evidence made Foster’s intent to

kill Roxine more probable because it supported the prosecution’s

theory of Foster’s motive — that the Fosters’ marriage was at a

“crisis point” and a “crossroads.”

¶ 63 For example, during closing argument, the prosecutor

described evidence showing how Roxine was “insisting on a way of

life [the Fosters] couldn’t afford” and how it was “costing an

enormous amount of money to try to keep [Roxine] in this

[agricultural] lifestyle.” The prosecutor argued that Foster must

have felt “desperation” as he was “dealing with this, as this ceiling

is crashing down,” and she pointed out that Foster called it a

“blessing” when he was able to sell several of the animals days after

Roxine’s death. The evidence showing the cause of this

“crossroads” in the Fosters’ marriage refuted the defense’s

argument that Foster “did not have a motive to kill his wife.” See

People v. Villanueva, 2016 COA 70, ¶ 55, 374 P.3d 535, 547 (noting

how evidence of motive renders inferences regarding a defendant’s

intent more reasonable).

27

¶ 64 Although the court did not analyze it, the third Spoto prong is

also satisfied. We acknowledge that the financial difficulties

evidence would be inadmissible to prove Foster’s character of

wrongdoing and that he acted in conformity with that character

when he killed Roxine. See CRE 404(b)(1). But nothing in the

record indicates that the prosecution sought to introduce the

financial difficulties evidence for that purpose. Rather, as noted

above, the prosecution used the financial difficulties evidence for

the independent purpose of showing a source of tension in the

Fosters’ marriage and, thus, a possible motive for Roxine’s murder.

This is a permissible use under CRE 404(b)(2).

¶ 65 The fourth Spoto prong is satisfied as well. Consistent with

this prong and CRE 403, the court evaluated the probative value of

the financial difficulties evidence and concluded that it was not

substantially outweighed by the risk of unfair prejudice to Foster.

Giving the financial difficulties evidence its maximum probative

value, we reject Foster’s contention that it “added nothing” to the

other evidence showing the Fosters’ marital strife. On the contrary,

the financial difficulties evidence illustrated one of the reasons why

28

Foster reached “a breaking point” and a “crossroads” in his

marriage.

¶ 66 Even if the financial evidence created the risk of unfair

prejudice by evoking “society’s general stigma against the poor” and

painting Foster as “rude, uncooperative, evasive, and dishonest,” as

Foster argues, we are not persuaded that the minimum unfair

prejudice attributable to the evidence had an undue tendency to

suggest a decision on an improper basis. See Vanderpauye, ¶ 59,

530 P.3d at 1228-29; Allgier, ¶ 31, 428 P.3d at 721. Thus,

although we might have reached a different conclusion than the

court if we were deciding in the first instance how much of the

financial difficulties evidence to admit, the court “had substantial

discretion to decide this issue,” and we cannot say that the court’s

conclusions were “manifestly arbitrary, unreasonable, or unfair.”

Owens, ¶ 117, 544 P.3d at 1228.

¶ 67 In sum, because the financial difficulties evidence satisfies the

Spoto test, the court did not err by admitting it.

3. Character for Dishonesty

¶ 68 Foster contends that the prosecution’s “extensive evidence

that [Foster] told false or exaggerated ‘tall tales’ about his past” was

29

irrelevant, unfairly prejudicial, inadmissible character evidence, and

improper impeachment. Specifically, he cites the prosecution

witnesses’ testimony that Foster told them he had worked in law

enforcement, volunteered for a fire department, or served in the

military; he had prior run-ins with drug cartels and members of

organized crime; and he was in a witness protection program

because he was a witness in the federal case. He points to twenty-

seven photos that the prosecution introduced depicting Foster’s

military and law enforcement paraphernalia. The prosecution also

introduced evidence that Foster did not have any military or law

enforcement experience; he exaggerated the seriousness of, and the

scope of his involvement in, the federal case; and he was not in a

witness protection program.

¶ 69 In challenging the alleged character evidence, Foster also

points to testimony regarding two other legal matters in which he

was involved. One was the Wellington incident, for which the

officers dropped their investigation because of the lack of

corroborating evidence. In the other matter, arising from a

motorist’s collision with Foster’s cows, Foster allegedly testified

falsely during a deposition.

30

¶ 70 The People respond that the evidence about Foster’s “fixation

with law enforcement . . . and blame-deflection was relevant and

highly probative of Foster’s intent (and ability to carry out the

murder)” and also tended to disprove Foster’s theory that a “stray

bullet” struck Roxine. They also argue that the prosecution was

“entitled to introduce evidence (including of ‘tall tales’) that tended

to prove [Foster] used deceit to influence police on how they were

investigating the case.”

a. Additional Facts

¶ 71 To determine whether the character for dishonesty evidence is

relevant and whether it was used for an impermissible purpose, we

must examine the arguments and theories that the prosecution

presented at trial.

¶ 72 In the prosecution’s opening statement, the prosecutor told

the jury that, although Foster attempted to blame others for

Roxine’s death, the evidence would show “the people that [Foster]

wants to blame either don’t exist, they weren’t in the area or they

have some other alibi on the date of the incident.” The prosecutor

argued that Foster wanted the officers investigating Roxine’s death

to believe “somebody else was to blame for murdering his wife” for

31

the purpose of “influenc[ing] their decisions on how they were

investigating this case.”

¶ 73 During closing argument, the prosecutor emphasized the

inconsistencies among Fosters’ various accounts of Roxine’s death,

asserting that he threw out “more names” of possible suspects as

he became “desperate” when the investigating officers cleared the

individuals whom Foster had previously identified. The prosecutor

further asserted that Foster told the officers “stories . . . in an effort

to avoid responsibility . . . and to cause them to make decisions

that would not lead to the arrest of the person who killed [Roxine],

but to other people, to waste time in these side investigations that

lead nowhere.”

¶ 74 We next describe the specific character for dishonesty evidence

that Foster challenges on appeal.

i. Testimony from Officers and Photos of

Law Enforcement Paraphernalia

¶ 75 Foster takes issue with certain of the officers’ testimony about

their investigation of Roxine’s death. Norcross testified that military

paraphernalia was found in the Fosters’ house and that an FBI

agent informed her that neither of the Fosters had served in the

32

military. In addition, Foster points to twenty-seven photos that the

prosecution introduced depicting Foster’s law enforcement

paraphernalia and officers’ testimony describing the photos.

¶ 76 Additionally, Worley testified that, when he was walking Foster

to the patrol car, Foster made an unprompted “statement about

being a witness in a federal trial.” Conrad testified that, when she

questioned Foster in the patrol car, Foster started talking about

“the Smiths.”

ii. Kristopher Hammond

¶ 77 Kristopher Hammond, the lawyer who represented the

motorist whose car struck Foster’s cows, testified to the following:

• During a deposition in the case arising from the cow

incident, Foster testified that he and Roxine were

separated. (According to the parties, this testimony

suggested that Foster lied under oath because he and

Roxine were not separated.)

• During that deposition, Foster said he was trained and

volunteered as an emergency medical technician (EMT),

and that he had been in the federal witness protection

program.

33

• After Roxine died, Foster accused Hammond of giving her

murderer the address where Roxine could be found.

• After Foster and the motorist entered into a settlement

agreement, Foster repeatedly put off making his

settlement payment to the motorist, at one point telling

Hammond, “I am under constraints and grief along with

fear of my own life and other family members until we

have more answers. I am being very careful about

releasing any info at this moment.”

• On a previous occasion, Foster accused Hammond of

working for “Smith Rancho,” which Hammond repeatedly

denied.

• In all of Hammond’s dealings with Foster, he never met

Roxine, never conversed with her over the telephone,

never exchanged any messages with her, and had no

reason to believe she knew about the lawsuit.

iii. Jaydin Connell

¶ 78 The prosecution called Jaydin Connell, who had purchased

livestock from the Fosters. Connell testified that, following Roxine’s

death, he thought he should provide the “tip line” with “some

34

information that [the Fosters] had shared” with him. According to

Connell, the Fosters had told him they were “neighbors of the drug

cartel,” and that they had “problems with the drug cartel killing

cows, and poisoning water.” The Fosters told Connell that they

“testified against this . . . drug cartel at some point.”

iv. Robert Bonino

¶ 79 The prosecution called Robert Bonino, who sold Foster hay

and who obtained a civil judgment against Foster when he failed to

pay. Foster had suggested Bonino as a potential suspect to the

officers. During his testimony regarding his interactions with

Foster, Bonino said that Foster claimed to have served in the

military. Bonino also testified that he was not connected with

Roxine’s shooting.

v. Jeffery Patton

¶ 80 Foster’s coworker Jeffery Patton also testified for the

prosecution. Patton described Foster’s stories: Foster was an ex-

deputy marshal; he had killed a Chinese courier who was carrying

fentanyl; “there was a contract put on his life after that,” and a

Chinese hit man was after him; he was in a “WITSEC” program; an

Italian hit man was also after him; when Roxine died, Foster told

35

Patton that “they killed her”; Foster shared an article with him

regarding a person suspected of killing Roxine; and Foster

mentioned that his supervisor’s father may have been involved with

Roxine’s death. Patton also testified that Foster “discussed on

multiple occasions” that he was an “eight-time champ” at U.S.

Marshals Service marksmanship competitions.

vi. Amanda Wright

¶ 81 The prosecution called Amanda Wright, who worked at the

hospital where Foster was a security guard. Wright testified that

Foster told her he worked for the U.S. Marshals Service with

Wright’s great-grandfather and great uncle, he was a Marine Corps

veteran, and he had won national shooting competitions. According

to Wright, Foster gave a presentation to patients about his alleged

experience in the Marine Corps. Wright also testified that Foster

told her Roxine was shot by people who worked with the drug cartel

“that he put away during his service” as a U.S. marshal and who

were after him. Wright further testified that Foster shared an

article with her about a person who (according to Foster) the officers

thought shot Roxine. Foster also told Wright that the officers

started to think Roxine’s death was an accident and that the

36

sheriff’s office didn’t want to hear about other suspects because

they “are scared a guy that is a big part of this deal has a daughter

who works for the U.S. Attorney’s office.”

vii. Scott Swanson

¶ 82 The prosecution called Special Agent Scott Swanson from the

BLM, who became acquainted with Foster when Foster was a

witness in the federal case. Swanson testified to the following:

• Foster was a witness to a trespass by the Smiths onto

BLM land.

• The case had nothing to do with drug cartels, fentanyl, or

Foster’s alleged role as a U.S. marshal.

• The U.S. attorney who prosecuted the federal case

decided not to continue using Foster as a witness

because of Foster’s “lack of candor,” and Foster never

testified against the Smiths at any hearing or trial.

• Swanson investigated the alleged attempted murder of

Foster in Wellington. Foster told Swanson that a man

tried to shoot him, Foster shot him twice in the chest,

and the man ran off.

37

• Because of a lack of corroborating physical evidence and

because Foster was not cooperating, Swanson decided

not to pursue the Wellington case.

• Foster was not in a federal witness protection program,

although the Fosters were given an escort when they

moved from Wellington to Fruita and were provided with

live-feed cameras on their property.

• Several times, Foster called Swanson to report people on

his property whom he felt threatened by, but “nothing

significant . . . ever happened.”

• During his investigation of the Wellington incident,

Swanson never came across any evidence that Foster had

ever worked for the U.S. Marshals Service.

b. The Court Did Not Plainly Err

by Admitting the Character for Dishonesty Evidence

¶ 83 Foster does not provide any citations in the record showing

that defense counsel objected to the admission of any of the

character for dishonesty evidence, other than ten of the photos. We

review the court’s admission of the ten photos (together with two

additional photos) in Part II.B.4 below. We review the court’s

38

admission of the other character for dishonesty evidence for plain

error.

i. While Certain of the Character for Dishonesty Evidence Was

Inadmissible, It Was Not Obvious

¶ 84 We agree with Foster that the photos and certain of the

testimony were inadmissible.

¶ 85 First, we agree with Foster that the photos of Foster’s law

enforcement paraphernalia were irrelevant. The parties cite no

record evidence indicating that Foster ever showed the

paraphernalia to anyone. Nor is there evidence that Foster told the

officers he was a U.S. marshal or served in the military.

Nevertheless, the court did not plainly err by admitting these photos

into evidence because their irrelevance was not obvious,

particularly as the officers obtained the photos during their

investigation, and the prosecution moved to admit them in a group

of other photos, the relevance of which Foster does not challenge on

appeal.

¶ 86 Second, we agree with Foster that the relevance of the

following testimony depended on an impermissible conformity

39

inference, and that its probative value was substantially outweighed

by the risk of unfair prejudice:

• Hammond’s testimony suggesting that Foster lied under

oath when he said during his deposition that he and

Roxine were separated and that he worked as an EMT;

• Bonino’s testimony suggesting that Foster lied to him

about serving in the military; and

• Wright’s testimony suggesting that Foster lied about

serving in the Marine Corps and about winning shooting

competitions.

¶ 87 Unlike the other challenged character for dishonesty evidence,

the above testimony was irrelevant because Foster told these

alleged lies outside the context of Roxine’s death, the alleged lies did

not provide a context for Foster’s later statements to these

witnesses about his theories regarding Roxine’s death, and the

alleged lies did not show that Foster used deceit to influence the

officers. Thus, the above testimony was inadmissible under CRE

403 and CRE 404(b).

¶ 88 Nevertheless, we conclude that the propensity inference and

unfair prejudice attributable to such testimony was not obvious

40

because the challenged statements involved comparatively minor

details integrated into the witnesses’ larger narratives (which the

prosecutor introduced for non-propensity purposes). Moreover,

neither Hammond nor Bonino commented on the veracity of

Foster’s statements — their falsity would have only been apparent

when considered in conjunction with other evidence. We also reject

Foster’s argument that the court abused its discretion by failing to

give a limiting instruction pursuant to Rojas, ¶¶ 52, 56, 504 P.3d at

309-10. Rojas does not suggest that a court plainly errs by failing

to give a limiting instruction on its own accord regarding evidence

that the court admitted without objection and where the

impermissible use of the evidence was not obvious.

¶ 89 In sum, the court did not plainly err by admitting the

irrelevant photographs and unfairly prejudicial testimony.

ii. The Remaining Character for Dishonesty Evidence

Was Admissible

¶ 90 Apart from the two categories of evidence noted above, the

remaining character for dishonesty evidence was relevant, the

relevance did not depend on a propensity inference, and its

probative value was not outweighed by the risk of unfair prejudice.

41

¶ 91 First, we reject Foster’s argument that the remaining character

for dishonesty evidence was irrelevant. Such evidence falls into

four general categories: (1) statements that Foster and others told

officers during the investigation into Roxine’s death; (2) Foster’s

statements to friends and acquaintances about Roxine’s death,

including his theories of who shot her; (3) testimony that provided

context or laid a foundation for Foster’s statements about Roxine’s

death; and (4) evidence that tended to discredit or disprove Foster’s

statements about Roxine’s death.

¶ 92 Such evidence is relevant for multiple purposes. Of primary

importance, evidence indicating that Foster knowingly provided

false theories and false suspects to the officers tends to establish

elements of attempt to influence a public servant: that Foster

(1) attempted to influence Norcross, Conrad, and Worley; (2) by

means of deceit; (3) with the intent to alter or affect the officers’

decisions and actions when they were investigating Roxine’s death.

See § 18-8-306, C.R.S. 2023; People v. Norman, 703 P.2d 1261,

1269 (Colo. 1985).

¶ 93 Further, by discrediting Foster’s claims (whether made to

officers or to friends and acquaintances) that various individuals

42

had motives for killing Roxine, the prosecution sought to eliminate

any reasonable doubts the jury may have had regarding whether

Foster was the shooter. Similarly, evidence that Foster suggested

false theories and false suspects — based on knowingly exaggerated

“tall tales” about people he knew were not likely to be “after him” or

who did not exist at all — demonstrated his consciousness of guilt

and made it more probable that he shot Roxine. See People v.

Summitt, 132 P.3d 320, 324 (Colo. 2006) (noting that a defendant’s

conduct that is apparently calculated to avoid detection, arrest,

prosecution, or conviction is often relevant in suggesting a guilty

mind).

¶ 94 Because the character for dishonesty evidence was probative

of material facts — whether Foster shot Roxine and whether he

attempted to influence the investigation by means of deceit — the

evidence was “relevant and presumptively admissible.” Rojas, ¶ 3,

504 P.3d at 300.

¶ 95 Second, we reject Foster’s argument that the remaining

character for dishonesty evidence was impermissible under CRE

404(a) or (b). The relevance of such evidence did not depend on a

propensity inference that these rules prohibit — that Foster must

43

have a character for dishonesty because he told “tall tales” in the

past and, therefore, he must have acted in conformity with that

character when he spoke with the officers. Rather, the evidence

was relevant for non-propensity purposes: Foster told “tall tales”

about the possible suspects and their motives for killing Roxine to

deflect his liability for Roxine’s death because of his guilty mind.

Moreover, the prosecution offered the evidence of Foster’s

statements to the officers — combined with the evidence

establishing that such statements were deceitful — as direct

evidence that Foster had attempted to influence public servants.

Thus, such evidence constitutes “intrinsic acts” falling outside the

scope of CRE 404(b). See Rojas, ¶ 44, 504 P.3d at 308.

¶ 96 Third, although it is a closer call whether the risk of unfair

prejudice substantially outweighed the probative value of the

remaining character for dishonesty evidence, we determine that

admission of the evidence was not error — let alone plain error —

under CRE 403. Having determined that such evidence was

relevant for non-propensity purposes, we are not convinced that the

prejudicial effect of the evidence was unfair to Foster. The evidence

of the alleged falsehoods that Foster told — although perhaps

44

excessive — does not have an undue tendency to suggest a decision

on an emotional basis such as hatred, contempt, retribution, or

horror. See Allgier, ¶ 31, 428 P.3d at 721. Even Foster

characterizes the alleged falsehoods as “tall tales” and “self-

aggrandizing” stories.

¶ 97 Thus, giving the evidence “the maximum probative value

attributable to it by a reasonable factfinder and the minimum

unfair prejudice that may be reasonably expected from it,”

Vanderpauye, ¶ 59, 530 P.3d at 1228–29, the risk of unfair

prejudice does not substantially outweigh the probative value.

¶ 98 Fourth, we reject Foster’s argument that the character for

dishonesty evidence was improper impeachment under CRE 608,

CRE 806, and People v. McLaughlin, 2023 CO 38, 530 P.3d 1206.

The prosecution did not introduce the character for dishonesty

evidence to impeach Foster. Rather, as explained above, such

evidence demonstrated Foster’s consciousness of guilt by showing

that he attempted to shift the blame for Roxine’s death onto

individuals who he knew had nothing to do with her death or who,

like the alleged hit men, did not even exist. It was also direct

evidence of Foster’s attempt to influence the officers by deceit.

45

¶ 99 The authorities on which Foster relies are inapposite. CRE

608 only governs evidence of a witness’s conduct and character,

and Foster did not testify at trial. CRE 806 is similarly unavailing.

Under this rule, when a hearsay statement or certain nonhearsay

statements have been admitted in evidence, “the credibility of the

declarant may be attacked . . . by any evidence which would be

admissible for those purposes if declarant had testified as a

witness.” CRE 806. The supreme court held in McLaughlin that,

“when a defendant-declarant’s statements are admitted under the

rule of completeness, the prosecution may not impeach the

defendant-declarant under CRE 806.” McLaughlin, ¶ 4, 530 P.3d at

1207 (emphasis added). But the court did not admit any of the

character for dishonesty evidence under the rule of completeness.

Rather, the prosecution sought admission of the evidence to prove

that Foster committed the charged offenses.

¶ 100 In sum, except as noted, the character for dishonesty evidence

was admissible, and the court did not plainly err by admitting such

evidence that we hold was irrelevant.

46

4. Photos

¶ 101 In addition to the fifteen photos analyzed above, Foster

contends that the court erred by admitting twelve other photos.

Those photos fall into four categories:

• five photos, to which defense counsel objected, depicting

Foster with what appears to be U.S. marshal badges and

gear (the U.S. marshal uniform photos);

• two photos, to which defense counsel objected, depicting

Foster in what appears to be his uniform as a security

guard (the security uniform photos);

• three photos, to which defense counsel objected, showing

Foster holding a firearm — two in which he is dressed in

U.S. marshal regalia with the firearm pointed to the

ground, and one in which he is wearing a security officer

uniform with the firearm over his shoulder (the uniform-

firearm photos); and

• two photos, to which defense counsel did not

contemporaneously object, showing Foster dressed in

what appear to be civilian clothes and holding a handgun

47

level with his chin pointed at the camera (the aimed

firearm photos).

¶ 102 Defense counsel objected to the photos in the first three

categories on the ground that they were irrelevant and implicated

Foster’s Fifth Amendment right to remain silent. Specifically,

defense counsel argued that the prosecution was trying to establish

that Foster was representing himself as a U.S. marshal and then to

impeach that representation, which would “infringe upon [Foster’s]

ability to remain silent” because Foster did not take the photos to

show others. Defense counsel further asserted that the prosecution

was “opening the door . . . to [Foster’s] credibility and that’s a

violation of his self-incrimination rights.”

¶ 103 The court concluded that the photos were relevant and that

their admission would not violate Foster’s Fifth Amendment rights

because they were not testimonial.

¶ 104 Defense counsel did not object to the admission of the aimed

firearm photos. However, he asked the court to “reconsider” their

admission after the court excluded a similar photo a few minutes

later. The court said, however, it would not reconsider the

48

admissibility of the aimed firearm photos “[i]f they’re already

admitted.”

¶ 105 On appeal, Foster contends that the uniform and uniform-

firearm photos were admitted for improper impeachment, and that

all twelve photos were irrelevant, unfairly prejudicial, and

inadmissible character evidence.

¶ 106 First, for the reasons explained in Part II.B.3.b.ii above, we

reject Foster’s argument that the photos were used for improper

impeachment.

¶ 107 Second, we agree with the People that the uniform-firearm

photos and the aimed firearm photos had at least some tendency to

show that Foster was “comfortable with guns and was able to use

guns,” which “made it more likely that [Foster] was capable and

able to use a firearm to kill his wife, rather than the . . . stray-bullet

theory.” Accordingly, these photos were relevant — if only

marginally so.

¶ 108 However, we agree with Foster that the uniform photos were

irrelevant. The U.S. marshal uniform photos were irrelevant for the

same reasons as the photos depicting the law enforcement

paraphernalia discussed in Part II.B.3.b.i above. The security

49

uniform photos were irrelevant because Foster’s employment as a

security guard had no connection to the charged offenses and thus

did not tend to make any material fact more or less probable.

Nevertheless, although the court should have excluded these photos

under CRE 402, their admission was harmless because the jury

heard admissible testimony about how Foster held himself out as a

former U.S. marshal, was employed as a security guard, and owned

guns. We do not see how photos showing Foster posing in such

uniforms would have evoked the jury’s emotions against Foster any

more than did the testimony establishing these same facts.

¶ 109 Third, we disagree that the relevance of the photos depended

upon an impermissible inference regarding Foster’s character for

dishonesty. As explained in Part II.B.3 above, the fact that Foster

held himself out as a former U.S. marshal — which tied into his

efforts to suggest that other suspects may have killed Roxine — was

relevant for the independent, permissible purpose of suggesting

Foster’s consciousness of guilt. And the security uniform photos do

not suggest a character of dishonesty because Foster was actually

employed as a security guard.

50

¶ 110 Fourth, to the extent the uniform-firearm photos and the

aimed firearm photos could have suggested that Foster had a

“character for violence and aggression,” Foster did not raise that

argument before the court, and we conclude that the court did not

plainly err by admitting them into evidence. See Martinez v. People,

2015 CO 16, ¶ 14, 344 P.3d 862, 868 (“Plain error review is equally

applicable when a party alters the grounds for his objection on

appeal.”).

¶ 111 We are not persuaded that a depiction of an individual holding

a firearm, without more, implies that the individual has a character

for violence or aggression, particularly when, like Foster in the

uniform-firearm photos, the individual is not aiming the gun at an

animate target. Even if some viewers might interpret the two aimed

firearm photos as showing Foster in “a menacing fashion,” as Foster

argues, the propensity inference and risk of unfair prejudice was

not obvious because defense counsel affirmatively said he had “no

objection” to the admission of the photos, which were admitted in a

group with other photos that depicted Roxine smiling. And the

court did not abuse its discretion by refusing to reconsider

admission of the aimed firearm photos when defense counsel

51

objected to their admission after the fact. Accordingly, any error in

admitting the uniform-firearm photos and aimed firearm photos

was not plain.

¶ 112 In sum, except as noted, the photos were admissible, and the

court did not plainly err by admitting the alleged character evidence

that we hold was irrelevant.

5. Evidence of Marital Strife

¶ 113 Over Foster’s objection to the admission of any evidence of

“discord in [the Fosters’] marriage,” the court allowed the

prosecution to introduce communications between the couple in

which Roxine expressed anger and frustration toward Foster. The

communications, which dated as far back as two years before

Roxine’s death, included discussions of divorce, swearing and

name-calling, and arguments over housework. On appeal, Foster

contends (1) the evidence was improper character evidence that he

was a “deadbeat husband” or a cheating spouse who was “likelier to

commit crimes”; and (2) the court abused its discretion by failing to

limit the evidence “to the most probative time period, such as the

three to six months preceding [Roxine’s] death” because the older

52

the communications, the more the “probative value decreased, and

the risk of unfair prejudice increased.” We disagree.

¶ 114 First, the relevance of the evidence did not depend upon an

impermissible character inference. Rather, the prosecution

presented the evidence for the independent purpose of showing that

the Fosters’ “marriage was coming to an end,” which, the

prosecution argued, was why Foster “decided to take actions into

his own hands by murdering his wife.” During closing argument,

the prosecutor argued that the voicemails and text messages show

the “mounting anger, frustration and fear, the breakdown of [the

Fosters’] marriage.” The prosecution’s theory of Foster’s motive for

killing Roxine was that Roxine treated Foster “like dirt. He [was]

demeaned, he [was] called names” until he reached “a breaking

point.”

¶ 115 Second, we discern no abuse of discretion in the court’s

admission of communications dating as far back as two years

before Roxine’s death. As the prosecutor argued in closing, the

breakdown of a thirty-nine-year marriage does not “happen

overnight or within a couple of days.” It was not manifestly

arbitrary, unreasonable, or unfair for the court to admit a two-year

53

period of communications to show the mounting problems in the

Fosters’ marriage.

C. Prosecutorial Misconduct

¶ 116 Foster argues that the prosecutor committed misconduct

during closing argument by (1) misstating the evidence;

(2) denigrating the defense; (3) appealing to the jury’s emotions;

(4) improperly attacking Foster’s credibility; and (5) expressing a

personal opinion that Foster was guilty.

1. Standard of Review

¶ 117 We engage in a two-step analysis when reviewing a claim of

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

(Colo. 2010). We determine, first, 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.

¶ 118 Because Foster did not object to any of the statements he

challenges on appeal, we review for plain error. See id. at 1097. To

warrant reversal under this standard, the prosecutorial misconduct

must be “flagrantly, glaringly, or tremendously improper” and cast

serious doubt on the reliability of the jury’s verdict. Domingo-

54

Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (quoting People

v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)).

2. Applicable Law

¶ 119 Because “[a]dvocates must be able to present their best case to

achieve just results,” prosecutors have “wide latitude in the

language and presentation style used to obtain justice.” Id. at

1048. During closing argument, a prosecutor “may refer to the

strength and significance of the evidence, conflicting evidence, and

reasonable inferences that may be drawn from the evidence.”

People v. Walters, 148 P.3d 331, 334 (Colo. App. 2006). Prosecutors

“can use every legitimate means to bring about a just conviction,”

but they have a “duty to avoid using improper methods designed to

obtain an unjust result.” Domingo-Gomez, 125 P.3d at 1048.

¶ 120 For example, a prosecutor may not intentionally misstate the

evidence or the law, id. at 1048-49; make remarks for the “obvious

purpose of denigrating defense counsel,” People v. Jones, 832 P.2d

1036, 1038 (Colo. App. 1991); use tactics calculated to inflame the

passions of the jury, People v. Manyik, 2016 COA 42, ¶ 29, 383 P.3d

77, 83; accuse a defendant of having lied, People v. McBride, 228

55

P.3d 216, 221 (Colo. App. 2009); or express a personal belief as to

the guilt of the defendant, Domingo-Gomez, 125 P.3d at 1049.

¶ 121 “Claims of improper argument must be evaluated in the

context of the argument as a whole and in light of the evidence

before the jury.” People v. Geisendorfer, 991 P.2d 308, 312 (Colo.

App. 1999). We accord prosecutors the benefit of the doubt when

their remarks are ambiguous or inartful. McBride, 228 P.3d at 221.

3. The Prosecutor Did Not Flagrantly Misstate the Evidence

¶ 122 Foster contends that the prosecutor asserted facts not in

evidence or misstated evidence when discussing during closing

argument (1) the distance from which the bullet was fired; (2) the

evidence suggesting how long Roxine had been dead by the time

officers arrived; and (3) expert testimony on whether the bullet

ricocheted. Although we agree that the prosecutor misstated the

evidence in the first two instances, those misstatements were not

“flagrantly, glaringly, or tremendously improper.” Domingo-Gomez,

125 P.3d at 1053 (quoting Avila, 944 P.2d at 676). We disagree that

the prosecutor misstated the evidence in the third instance.

Therefore, none of the challenged statements casts serious doubt on

the reliability of the jury’s verdict.

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¶ 123 First, Foster challenges the prosecutor’s assertion that the

bullet had “a lot of energy behind it” and was “fired from much

closer than a mile or a mile and a half or a mile and a quarter.” The

prosecutor did not refer to any evidence supporting this statement,

but rather asked the jurors to use their “common sense” about “the

energy, the force behind [the] bullet as it tore through [Roxine’s]

body.” As Foster notes on appeal, evidence introduced at trial

indicated that the bullet could have been fired a mile and a half

away from Roxine.

¶ 124 Although we are not persuaded it was proper for the

prosecutor to urge the jurors to rely on their “common sense” to

determine how far the bullet traveled, the misconduct was not

obvious because other evidence allowed the jury to draw a

reasonable inference that the bullet was shot from less than a mile

away. For example, the jury heard testimony regarding the layout

of the land, the trajectory of the bullet, and physical barriers that

made it unlikely that the bullet traveled that far. And during

closing argument, defense counsel directed the jury’s attention to

expert testimony that the bullet could have traveled up to one and a

half miles but “[n]ot with any accuracy.” Therefore, the error was

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not plain. (Foster does not develop his related argument that the

prosecutor’s statements regarding the distance the bullet traveled

improperly suggested that the prosecutor possessed expertise on

the topic. The evidence regarding this topic underscores that the

prosecutor presented an argument properly grounded in the

evidence and was not offering an opinion of her own.)

¶ 125 Second, Foster takes issue with the prosecutor’s statement

that, by the time officers arrived at the crime scene, Roxine’s body

temperature had already cooled to lukewarm, which, according to

the forensic pathologist who conducted Roxine’s autopsy and

testified at trial, “takes an hour or more.” The forensic pathologist

testified, however, that Roxine’s body would have cooled “probably

within an hour or so,” and that blood pooling in a person’s back, as

was observed on Roxine’s body, would “give a hint” that the person

had “been dead at least for several minutes, an hour or two.”

(Emphasis added.)

¶ 126 Allowing the prosecutor to make this misstatement was not an

obvious error because the forensic pathologist’s testimony was an

approximation of the time it takes a body to cool, and there were

signs, apart from the temperature of Roxine’s body, suggesting that

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she may have been dead for more than an hour by the time the first

responders arrived. We are not convinced that the misstatement

was material because even if, as Foster argues, it “falsely suggested

there was evidence [Foster] delayed calling the police after his wife’s

death,” the record does not show that the prosecution emphasized

this point or asked the jury to infer Foster’s guilt from it. To the

extent the prosecutor insinuated that Foster delayed calling the

police, she focused on Foster’s statement to the officers that he had

gone to the SUV to pick up his phone to call 911, even though the

officers later discovered that Foster had in his vest pocket another

phone that apparently was not a “work phone,” as he had told the

officers. Foster does not challenge such evidence or statements on

appeal.

¶ 127 Third, the prosecutor did not misstate the evidence when she

asserted during closing argument that the jury heard from “[t]he

experts who examined this bullet and told you there is no evidence

of ricochet on this bullet.” As the parties point out on appeal, the

experts who testified at the trial disagreed whether there was

evidence of ricochet. We reject Foster’s argument that the

prosecutor was claiming evidence of ricochet “didn’t exist.” Rather,

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the context shows that the prosecutor highlighted the testimony of

those “experts who examined [the] bullet and told [the jurors] there

is no evidence of ricochet.” This is permissible because “closing

argument allows advocates to point to different pieces of evidence

and explain their significance within the case.” Domingo-Gomez,

125 P.3d at 1048. Similarly, defense counsel highlighted the

opinions of those experts who testified there was evidence of

ricochet.

¶ 128 Accordingly, to the extent the prosecutor misstated the

evidence or injected her own purported expertise and personal

opinion into her closing, the error was not plain.

4. The Prosecutor Did Not Denigrate the Defense

¶ 129 Foster contends that the prosecutor denigrated the defense

when she argued that “the Defense wants to change the evidence in

this case, so they can make that argument” about a ricocheted

bullet. According to Foster, this statement attacked the integrity of

defense counsel and implied that the defense was being presented

in bad faith. We reject Foster’s strained interpretation of the

prosecutor’s words. The prosecutor immediately followed this

statement with an exhortation to the jury to “think thoughtfully and

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carefully through that evidence to judge the credibility of that

evidence as you evaluate the facts in this case.”

¶ 130 Reading the prosecutor’s statements in the context of her

argument as a whole, and giving her the benefit of the doubt, see

McBride, 228 P.3d at 221, the statement can be interpreted as a

perhaps inartful rhetorical flourish commenting on the weakness of

the evidence supporting the defense’s theory compared to the

evidence supporting the prosecution’s case.

5. The Prosecutor Did Not Improperly Appeal to

the Jury’s Emotions

¶ 131 Foster contends that the prosecution improperly appealed to

the jury’s emotions when the prosecutors

• described Roxine during opening statement as a

“hardworking ranch woman who was murdered by her

coldblooded husband”;

• stated during closing argument that Roxine was a

“[m]other, grandmother, [and] wife” who was

“[u]nsuspecting” when she was “[s]hot in the back

defenseless”; and

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• calculated Roxine’s exact age at the time of her death and

asserted that “she could still be alive talking to her

children regularly, celebrating [her] grandson’s first

birthday, celebrating every joy and milestone her family

reaches.”

¶ 132 We agree with the People that these statements fall under the

category of “rhetorical devices” and “oratorical embellishment,”

People v. Samson, 2012 COA 167, ¶ 31, 302 P.3d 311, 317, which

prosecutors may use to humanize a potentially unsympathetic

victim. Indeed, the prosecutor devoted more of her closing

argument to discussing Roxine’s flaws and how Foster was at a

“breaking point” because of the way Roxine spoke to and treated

him. Defense counsel similarly argued that the evidence showed

that Roxine had “a bit of a temper.”

¶ 133 Read in context of the argument as a whole and in light of the

evidence, the statements were not intended to induce the jury to

determine Foster’s guilt on the basis of passion or prejudice.

Rather, they evoked, in the prosecutor’s words, the “one thing [that]

unite[d] almost every person in [the] courtroom” — the “belief that

[Roxine] should not have lost her life.”

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¶ 134 Accordingly, we discern no error in the court’s allowance of

such statements.

6. Although Some of the Prosecutor’s Statements Improperly

Attacked Foster’s Credibility, There Was No Plain Error

¶ 135 Foster points to three instances during the prosecutor’s

closing argument where he alleges the prosecutor improperly

attacked his credibility.

¶ 136 As an initial matter, we note that there is no general

prohibition against attacking a defendant’s credibility during

closing argument. Such a prohibition would essentially prevent the

prosecution from obtaining a conviction for any offense that

includes an element of “deceit,” such as attempt to influence a

public servant. § 18-8-306. Rather, the prohibition addresses

inflammatory expressions such as “lie,” which risk communicating

the lawyer’s personal opinion about the defendant’s credibility or

improperly swaying the jury by evoking emotional reactions against

the defendant. See Wend, 235 P.3d at 1096. Prosecutors also may

not say in closing argument that evidence proves the defendant’s

bad character — even if such evidence was properly admitted

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during trial for a permissible use. See McBride, 228 P.3d at 223;

CRE 404.

¶ 137 Foster first points to the prosecutor’s characterization of

Foster as an “actor.” In response to defense counsel’s assertion

that Foster consistently repeated the same story of Roxine’s death

across twenty months, the prosecutor stated, “I suppose like most

actors [Foster] was well capable of delivering performance, reciting

lines as if he had memorized them for a play.” We reject Foster’s

assertion that the statements were “synonymous” with, or “equally

inflammatory” to, terms like “lie,” “deceit,” and “BS,” which courts

have found to be improper. See People v. Serra, 2015 COA 130,

¶ 87, 361 P.3d 1122, 1138. However, characterizing Foster as an

“actor” was an impermissible comment on his character. The

prosecutor did not simply argue that Foster was “acting” or

“performing” when Foster recounted Roxine’s death to the officers.

Rather, the statements suggested that the jury could infer Foster

was engaged in a performance in conformity to his character as an

“actor” who “performs.”

¶ 138 Nevertheless, because the statements were not inflammatory

and did not draw a contemporaneous objection, we are not

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persuaded that this improper character attack was obvious or

substantial, and it therefore did not constitute plain error. Cf.

Domingo-Gomez, 125 P.3d at 1050-52 (disapproving of the

prosecutor’s argument that the defendant “did not tell you the

truth,” but explaining that such language did “not have the same

degree of rhetorical power” as saying the defendant “lied,” and

concluding that it did not fall “to the level of improper expressions

of the prosecutor’s personal opinion”); People v. Mason, 643 P.2d

745, 752-53 (Colo. 1982) (expressing “strong disapproval” of the

prosecutor’s references to the defendant as a “con man,” but

concluding there was no plain error).

¶ 139 Second, Foster takes issue with the prosecutor’s discussion of

the alleged attempt on Foster’s life. Although Foster contends that

the prosecutor argued that Foster fabricated the alleged Wellington

incident, the argument, read as a whole, suggests a different

purpose. The prosecutor argued that the investigation into the “oft-

mentioned and never corroborated shootout in Wellington” led

“[e]xactly nowhere”; Foster declined to “take some additional steps

to possibly further this investigation”; and, as a result, the U.S.

attorney in the federal case decided not to use Foster as a witness

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against the Smiths. Even without Foster’s testimony in that case,

the prosecutor argued, “it result[ed] in a successful prosecution, a

plea deal of the Smiths. So, how key was [Foster] really to any of

those events?” Thus, the prosecutor was not discussing the alleged

Wellington events merely to attack Foster’s character, but rather to

discredit Foster’s suggestion to officers that the Smiths may have

been involved in Roxine’s death.

¶ 140 Finally, Foster argues the prosecutor improperly attacked his

character when she highlighted Foster’s testimony in the civil case,

“under penalty of perjury,” that he and Roxine were separated, and

then asserted that “that’s some pretty compelling evidence of

credibility as it reflects on [Foster].”

We agree.

¶ 141 As discussed in Part II.B.3.b.i above, the evidence that Foster

lied during the civil suit was relevant only by way of an

impermissible propensity inference. The prosecutor’s statements

during closing argument reaffirm that the prosecution intended that

the evidence established that Foster had a bad character and acted

in conformity with that character when he employed deceit to

influence the investigation into Roxine’s death. However, we are not

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convinced that the prosecutor’s reliance on the conformity inference

was so obvious that the court should have interrupted the

prosecutor’s argument and struck it from the record. Therefore, the

error was not plain.

7. The Prosecutor’s Statement that Foster “Is Guilty” Was Not an

Expression of Personal Opinion

¶ 142 In closing argument, the prosecutor stated, “Mr. Foster is

guilty of the 1st degree murder of his wife, Roxine Foster. He’s

guilty of attempting to influence [the officers].” According to Foster,

the prosecutor “exceeded the bounds of permissible advocacy” by

asserting that Foster “is guilty” because that “was a decision for the

jury to make, unswayed by the prosecutor’s personal knowledge or

opinion.”

¶ 143 We agree that a jury could infer a prosecutor’s express

statement that a defendant “is guilty” as the prosecutor’s personal

opinion. However, the context of the statement in the argument as

a whole does not indicate that the prosecutor was attempting to

“convey the impression that evidence not present to the jury, but

known to the prosecutor, supports the charges against the

defendant,” or to “induce the jury to trust the Government’s

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judgment rather than its own view of the evidence,” as Foster

argues, citing Wilson, 743 P.2d at 418-19 (quoting United States v.

Young, 470 U.S. 1, 18-19 (1985)). The statement came at the

conclusion of the prosecutor’s summation of the evidence, and

immediately after the prosecutor exhorted the jury to “[e]xamine the

evidence. Look at the credibility of the witnesses and the evidence

that the People have put in front of you.”

¶ 144 Thus, we conclude that the statement was not “flagrantly,

glaringly, or tremendously improper,” it does not cast serious doubt

on the reliability of the jury’s verdict, and the court did not plainly

err by allowing it. Domingo-Gomez, 125 P.3d at 1053 (quoting Avila,

944 P.2d at 676).

D. Cumulative Error

¶ 145 Foster contends that, if we determine the trial court erred and

that none of the errors requires reversal of his conviction, we should

nevertheless reverse because of their cumulative prejudicial impact.

“For reversal to occur based on cumulative error, a reviewing court

must identify multiple errors that collectively prejudice the

substantial rights of the defendant, even if any single error does

not. Stated simply, cumulative error involves cumulative

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prejudice.” Howard-Walker v. People, 2019 CO 69, ¶ 25, 443 P.3d

1007, 1011 (citation omitted). The relevant inquiry is “whether,

viewed in the aggregate, the errors deprived the defendant of a fair

trial.” Id. at ¶ 40, 443 P.3d at 1014.

¶ 146 We have identified one error that was harmless (admission of

the uniform photos) and seven errors that were not plain because

the errors were not obvious (admission of fifteen photos of Foster’s

law enforcement paraphernalia; admission of testimony from

Hammond, Bonino, and Wright suggesting that Foster lied to them;

the prosecutor’s misstatements of evidence during closing

argument; and the prosecutor’s characterization of Foster as an

“actor” and specific assertion that he lied under oath during his

deposition in the civil case). Additionally, we assume that the court

erred (albeit not plainly) when it admitted the uniform-firearm and

aimed firearm photos because the jury could have viewed those

photos as establishing that Foster had a character for violence or

aggression.

¶ 147 Although we do not condone these numerous errors, we hold

that, even when considered in the aggregate, they did not deprive

Foster of a fair trial. As explained below, the reliability of the

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verdict is a product of the overwhelming evidence supporting the

murder charge, independent from the errors and the logical

connection between the murder charge and the charges for attempt

to influence a public servant — if Foster is guilty of homicide, on

the facts of this case, it follows that he also is guilty of the attempt

to influence a public servant charges. This opinion should not be

read to suggest that these errors would not cumulatively warrant

reversal in the context of another case.

¶ 148 We initially note that most of these errors impermissibly

highlighted Foster’s character for dishonesty. Because dishonesty

is not an element of first degree murder, we are not convinced that

the errors swayed the jury to convict Foster on that charge based on

an impermissible propensity inference. Even if the jurors believed

Foster had a propensity for lying, it is doubtful they would convict

him of murder based on an inference that he was acting in

conformity with his character for dishonesty. Thus, the only errors

that had any bearing on whether Foster shot Roxine were the

admission of the uniform-firearm and aimed firearm photos (which

created the risk of portraying Foster as aggressive or violent) and

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the prosecutor’s misstatements of the evidence during closing

argument.

¶ 149 We are not convinced that the jury premised a guilty verdict

on the five photos or the prosecutor’s misstatements of evidence

because the admissible evidence strongly suggested that Foster

shot Roxine:

• A Colorado Bureau of Investigation firearm and toolmark

expert testified at trial that the .22 bullet recovered from

Roxine’s body was consistent with the Remington

Yellowjacket style bullets that the officers found at the

Fosters’ ranch.

• The officers recovered a Colt M4 .22 caliber rifle from the

back of Foster’s SUV.

• Foster did not tell Norcross about the Colt M4 .22 caliber

rifle when he listed his firearms.

• Roxine was shot from the back.

• The firearm and toolmark expert testified that she

excluded as murder weapons the guns that officers

collected from neighbors.

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• Although some evidence suggested that the bullet

recovered from Roxine’s body could not be conclusively

linked to Foster’s Colt M4 .22 caliber rifle because it was

significantly damaged, Foster does not point to any

evidence suggesting that this rifle could be eliminated as

the murder weapon.

• Apart from the conflicts in the evidence regarding

whether the bullet could have ricocheted before hitting

Roxine and the evidence suggesting that the bullet had

the potential to travel a mile and a half, no evidence

admitted at Foster’s trial indicated that anyone other

than Foster shot Roxine.

• Following the shooting, investigating officers and

volunteers conducted a fruitless search of the

surrounding fields for evidence.

• One officer testified that the tractor was not visible from

the road adjacent to the property (where, according to

defense counsel, someone could have fired the fatal shot).

• All the alternate suspects had alibis.

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¶ 150 The convictions for attempt to influence a public servant

necessarily flow from Foster’s murder conviction because it is

undisputed that Foster told officers he did not shoot Roxine and

suggested alternate suspects. Because the jury found that Foster

shot Roxine (a decision that, as explained above, was unlikely

influenced by any of the trial errors), it would be logical for the jury

to find that Foster also deceived the officers when he told them he

did not shoot her and suggested alternate suspects. Accordingly,

the jury would not have relied on an impermissible character

inference to convict Foster of these charges, even if numerous trial

errors had the tendency to suggest such an inference.

¶ 151 In sum, although we have identified multiple errors, we

conclude that their cumulative impact did not undermine the

reliability of the verdict and did not prejudice Foster’s substantial

rights by depriving him of a fair trial.

III. Disposition

¶ 152 The judgment of conviction is affirmed.

JUDGE FREYRE and JUDGE SCHUTZ concur.