22CA1444 Peo v Freyta-Duran 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1444 City and County of Denver District Court No. 21CR4693 Honorable Brian R. Whitney, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Carla D. Freyta-Duran,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE FREYRE Sullivan and Martinez*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Claire Pakis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Carla D. Freyta-Duran, appeals her convictions of
one count of first degree criminal trespass (of a dwelling) and two
counts of third degree assault. She contends that the trial court
permitted improper testimony from a police officer, erroneously
admitted other acts evidence, and plainly erred in permitting
prosecutorial misconduct in closing argument. We disagree and
affirm.
I. Background
¶2 Freyta-Duran and Joseph Maynes were in a relationship for
nearly eight years and broke up approximately eight months before
the incident in January 2021. During their time together, Freyta-
Duran and Maynes lived at his home, where they co-parented their
similarly aged children. After the break-up, Maynes began seeing
Regina Deleon. Deleon eventually moved into Maynes’ residence.
Maynes also shared the home with his adult son and a roommate.
¶3 The night before the incident, Maynes’ son spent the night at
Freyta-Duran’s home. Freyta-Duran believed that Maynes’ son
stole money from her son’s room before he left. The next day,
Freyta-Duran and her cousin went to Maynes’ home to confront his
1 son and retrieve the missing money. She claimed that Maynes’
roommate let her inside the home.
¶4 Upon entering the home, Freyta-Duran went directly to
Maynes’ bedroom, kicked open the door, and yelled about the
missing money. Maynes and Deleon were asleep, and Maynes’ son
and roommate were elsewhere in the house. When Freyta-Duran
saw Maynes in bed with Deleon, she “lost control.” As Deleon
dialed 911, Freyta-Duran knocked over and threw items around the
room and hit both Maynes and Deleon. Maynes pushed Freyta-
Duran off of them and attempted to remove her from his room.
Maynes’ son and roommate then escorted Freyta-Duran out of the
house. Freyta-Duran was gone by the time the police arrived.
¶5 The State charged Freyta-Duran with second degree burglary
of a dwelling and two counts of third degree assault as acts of
domestic violence. A jury convicted her of the lesser offense of first
degree criminal trespass, and both counts of third degree assault.
The trial court also found the trespass and the assault convictions
naming Maynes were acts of domestic violence.
2 II. Officer Testimony
¶6 Freyta-Duran contends that the trial court erroneously
admitted an investigating officer’s testimony describing the
condition of Maynes’ bedroom as being consistent with Maynes’ and
Deleon’s descriptions of what occurred. She alleges that this
improperly bolstered their testimony, usurped the jury’s factfinding
function, and provided an improper legal opinion. We disagree.
A. Additional Facts
¶7 Officer Monet Jackson responded to the 911 call placed by
Deleon. The following colloquy occurred during the officer’s direct
examination.
[Prosecutor:] In addition to speaking with Mr. Maynes and Ms. Deleon, did you conduct any other investigation on scene?
[Officer:] Yes.
[Prosecutor:] What investigation did you conduct?
[Officer:] Basically, looking at the scene, seeing if the scene tells us anything. I observed multiple items that appeared to have been thrown around the bedroom, which was consistent with her coming into the residence without Mr. Maynes’ knowledge or permission, entering the bedroom while he was sleeping, slapping him twice on the right side of his face as well as his girlfriend.
3 ¶8 Defense counsel objected and argued that the response
amounted to bolstering and went to “the ultimate issue the jury
must decide.” The trial court overruled the objection, finding that it
“was basically a description of the physical things that [the Officer]
saw.”
B. Standard of Review and Applicable Law
¶9 We review a court’s evidentiary ruling for an abuse of
discretion. People v. Miller, 2024 COA 66, ¶ 40. A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair. Id.
¶ 10 The parties agree that Freyta-Duran preserved her bolstering
and ultimate issue arguments, but the People assert that she did
not preserve her legal opinion argument. We agree and review that
contention for plain error. People v. Arzabala, 2012 COA 99, ¶ 83.
An error is plain if it is obvious and substantial, and so undermines
the fundamental fairness of the trial as to cast serious doubt on the
reliability of the judgment of conviction. Hagos v. People, 2012 CO
63, ¶ 14. We review the preserved issues for harmless error. Id. at
¶ 12. An error is harmless if, when viewed in light of the entire trial
record, it did not substantially influence the verdict or affect the
4 fairness of the trial proceedings. People v. Delsordo, 2014 COA 174,
¶ 7.
¶ 11 CRE 701 governs the admission of lay witness testimony and
provides that such testimony is proper if it is “(a) rationally based
on the perception of the witness, (b) helpful to a clear
understanding of the witness’ testimony or the determination of a
fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.”
¶ 12 A prosecutor improperly bolsters a witness’ testimony by
implying that the testimony is truthful, thereby invading the
province of the fact finder. Venalonzo v. People, 2017 CO 9, ¶ 32.
¶ 13 Moreover, a testifying witness may not usurp the jury’s
factfinding role. People v. Robles-Sierra, 2018 COA 28, ¶ 24. CRE
704 provides that opinion testimony that is “otherwise admissible is
not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.” In determining whether witness
testimony usurped the jury’s function, courts consider whether (1)
the witness opined that the defendant committed or likely
committed the crime; (2) the testimony was clarified on cross-
examination; (3) the expert’s testimony usurped the trial court’s
5 function by expressing an opinion on the applicable law or legal
standard; and (4) the jury was properly instructed on the law and
that it could accept or reject the witness’ opinion. People v. Rector,
248 P.3d 1196, 1203 (Colo. 2011). Further, while a witness cannot
testify concerning his belief that the defendant committed the
charged crime, “police officers may testify about the reasons they
took certain investigative steps, even where this testimony touches
upon prohibited subjects.” People v. Penn, 2016 CO 32, ¶¶ 31-32.
C. Analysis
¶ 14 We first reject Freyta-Duran’s assertion that the officer’s
testimony improperly bolstered Maynes’ and Deleon’s testimony.
Instead, we agree with the trial court that the officer described her
investigative steps. See Penn, ¶¶ 31-32. The officer described
interviewing Maynes and Deleon and then investigating the scene to
see what additional information it could provide. Based on her
observations of the bedroom’s appearance, she concluded it was
consistent with what the witnesses described. See id.; see also Vigil
v. People, 2019 CO 105, ¶¶ 26-29 (officer permissibly opined, based
on firsthand observations as a lay witness, that shoeprints at the
crime scene visually matched the defendant’s shoes); People v.
6 Brewer, 720 P.2d 583, 587-88 (Colo. App. 1985) (the officer
permissibly opined, based on his interrogation of the defendant,
that the defendant’s actions were voluntary). Moreover, we reject
Freyta-Duran’s assertion that the officer’s use of the phrase
“consistent with” constitutes an impermissible opinion on the
truthfulness of Maynes’ and Deleon’s statements. As used here, its
purpose was to describe the continuing investigation and not to
opine on credibility. Id. Indeed, the officer never used the word
truth or stated any belief that the witnesses were telling the truth.
¶ 15 For the same reasons, we conclude that the officer’s testimony
did not express an opinion regarding whether the applicable legal
standard was satisfied or otherwise usurp the jury’s factfinding
role. Indeed, she never mentioned the elements of the offenses
charged or tied them to her observations, so we fail to see how any
error was obvious. And the officer’s use of “consistent with” did not
invade the province of the jury since she never said that Freyta-
Duran actually committed the elements of the charged offenses.
See People v. Atencio, 140 P.3d 73, 76 (Colo. App. 2005) (officer’s
testimony that the amount of drugs seized was “consistent with an
7 intent to distribute” did not invade jury’s province because he never
said that the defendant actually possessed that intent).
¶ 16 To the extent Freyta-Duran claims the officer’s testimony was
“speculative” because the officer did not personally observe the
events in the bedroom, we reject that claim and conclude that the
officer’s statement about Freyta-Duran’s state of mind, while
perhaps inartful, constitutes a reasonable inference from her
observations and the witness interviews she conducted. Brewer,
720 P.2d at 587-88. Moreover, the testimony, when viewed in
context, did not so undermine the fundamental fairness of the trial
itself as to cast serious doubt on the reliability of the judgment of
conviction. The prosecutor admitted photos of the scene, so the
jurors had an independent basis from which to decide whether the
physical evidence was consistent with Maynes’ account.
¶ 17 Finally, even assuming the testimony should have been
excluded, we conclude its admission was harmless. The officer’s
statements were brief, constituted a small part of her entire
testimony, and constituted an even smaller part of the trial. People
v. Mendenhall, 2015 COA 107M, ¶ 69 (concluding that the
screening testimony was harmless because it was brief and
8 constituted a small part of the witness’ entire testimony). Moreover,
the prosecutor did not argue the statements as evidence of Freyta-
Duran’s guilt in closing argument. Additionally, Freyta-Duran
testified, so the jury was able to independently assess the credibility
of all the participants. See Davis v. People, 2013 CO 57, ¶ 21
(finding no error in the admission of the detective’s credibility
assessments during the interviews because the witnesses testified
at trial, so the jury had ample opportunity to independently judge
their credibility). Further, the court instructed the jury that it
should consider police officers’ testimony as it would any other
witness, and absent contrary evidence, we presume the jury
understood and followed this instruction. See Washington v.
People, 2024 CO 26, ¶ 31. Finally, the jury’s acquittal on the most
serious charge demonstrates that it was not improperly influenced
by the officer’s testimony. See People v. Larsen, 2017 CO 29, ¶ 16
(a split verdict is an indication the outcome was not affected by
prejudice).
¶ 18 Accordingly, we discern no abuse of discretion in the
admission of this evidence.
9 III. Other Acts Evidence
¶ 19 Freyta-Duran next contends that the admission of evidence
about her attempts to “damage the cars” outside of Maynes’ house
when leaving constitutes inadmissible CRE 404(b) evidence that
requires reversal. We decline to address this issue because we
conclude Freyta-Duran invited any error.
¶ 20 “The doctrine of invited error prevents a party from
complaining on appeal of an error that he or she has invited or
injected into the case; the party must abide the consequences of his
or her acts.” People v. Rediger, 2018 CO 32, ¶ 34. The invited error
doctrine applies to errors implicating constitutional rights. See
Horton v. Suthers, 43 P.3d 611, 619 (Colo. 2002); see also Montoya
v. People, 2017 CO 40, ¶ 35 (noting that “the constitutional
requirement that the prosecution prove the elements of a crime
beyond a reasonable doubt” does not foreclose a defendant’s loss of
the right to demand such proof because of the defendant’s own
conduct). But it only applies to a narrow range of cases in which
the error results from trial strategy and not mere oversight.
Rediger, ¶ 34.
10 ¶ 21 During Maynes’ direct examination, the prosecutor elicited his
account of the altercation inside the house and that he and his son
escorted Freyta-Duran out of the house. The prosecutor asked no
questions about what occurred outside the house. On cross-
examination, the following colloquy occurred:
[Defense counsel]: After [your son] came up to the room – came into the room, it’s you, Matthew, Ms. Deleon, [defendant] and [defendant’s cousin] all in your house.
[Maynes]: Yes.
[Defense counsel]: Then [defendant] left the house.
[Maynes]: She -- we forced her out of the house.
[Defense counsel]: Okay. She left in her own car.
[Maynes]: Yeah.
[Defense counsel]: She was not there -- she was not there when the police arrived.
[Maynes]: No. I mean, there was also a big commotion out in the front as well before she left.
She --
[Defense counsel]: Okay.
11 [Maynes]: -- I had -- there was some big rocks I had for landscaping. She attempted to pick those up and break Regina’s windshield. My roommate stopped her from doing that.
[Defense counsel]: Okay. And let’s talk a little bit at that. Mr. Maynes, you just told the jury that Ms. Freyta-Duran attempted to smash your windshield; right?
[Maynes]: Regina’s windshield.
[Defense counsel]: Okay. Remember writing the statement with the officers?
[Defense counsel]: And remember signing your name saying it was a true statement?
[Maynes]: Mm-hmm, yes.
[Defense counsel]: Nowhere in that statement do you say that Regina tried to smash the windshield.
[Maynes]: I - - well, she did –
[Defense counsel]: -- or that Ms. Duran tried to smash the windshield.
[Maynes]: Right.
¶ 22 The decisions concerning what witnesses to call and what
questions to ask are matters of trial strategy. See Davis v. People,
871 P.2d 769, 773 (Colo. 1994). While Maynes initially provided a
nonresponsive answer to defense counsel’s question about Freyta-
12 Duran’s absence when the police arrived, counsel never moved to
strike that answer and instead highlighted it by impeaching Maynes
with its omission from his written statement. We therefore
conclude that the admission of this evidence resulted from
counsel’s strategic decision to use this nonresponse for
impeachment purposes and not from mere oversight. Because
Freyta-Duran invited the error that she now asks us to correct, we
decline to address her contention because she must abide the
consequences of her acts. See Rediger, ¶ 34.
IV. Prosecutorial Misconduct
¶ 23 Freyta-Duran next contends that pervasive prosecutorial
misconduct rendered her trial fundamentally unfair and requires
reversal. She alleges the prosecutor improperly argued credibility,
misstated the facts, trivialized the burden of proof, and “barred” the
jury from considering certain evidence. We are not persuaded.
A. Standard of Review and Applicable Law
¶ 24 “Whether a prosecutor’s statements constitute misconduct is
generally a matter left to the trial court’s discretion.” Domingo-
Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005). We will not
disturb the trial court’s rulings regarding such statements absent
13 an abuse of that discretion. People v. Strock, 252 P.3d 1148, 1152
(Colo. App. 2010).
¶ 25 Freyta-Duran’s claims of prosecutorial misconduct are
unpreserved, limiting our review to plain error. See People v. Leyba,
2019 COA 144, ¶ 55, aff’d, 2021 CO 54. Reversal under this
standard requires that the misconduct be obvious and so
undermine the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction. People v.
Walker, 2022 COA 15, ¶ 28. To constitute plain error, the
misconduct must be flagrant or glaring or tremendously improper.
People v. Weinreich, 98 P.3d 920, 924 (Colo. App. 2004), aff’d, 119
P.3d 1073 (Colo. 2005).
¶ 26 When reviewing claims of prosecutorial misconduct, we
conduct a two-step analysis. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we determine whether the prosecutor’s conduct
was improper based on the totality of the circumstances. Id.
Second, if the comments were improper, we evaluate whether they
warrant reversal according to the proper standard of review. Id.
¶ 27 In conducting this analysis, we consider the prosecutor’s
alleged error in the context of the argument as a whole and in light
14 of the evidence before the jury. People v. Samson, 2012 COA 167,
¶ 30. A prosecutor is permitted to comment on the admitted
evidence and the reasonable inferences that can be drawn from the
evidence, employ rhetorical devices, and engage in oratorical
embellishment and metaphorical nuance. Id. at ¶ 31. And because
arguments delivered in the heat of trial are not always perfectly
scripted, we give the prosecutor the benefit of the doubt when their
remarks are ambiguous or simply inartful. Id. at ¶ 30. However,
closing arguments cannot be used to mislead or unduly influence
the jury. Domingo-Gomez, 125 P.3d at 1049. A prosecutor may not,
for example, intentionally misstate the evidence, attempt to inflame
the jurors’ passions, or offer a personal opinion as to the
defendant’s guilt. See id.
B. Analysis
1. Credibility
¶ 28 The trial evidence revealed conflicting accounts of what
occurred in Maynes’ home. After summarizing the evidence and
discussing the jury instructions, the prosecutor focused on
credibility and argued that the jury should credit Maynes’ and
Deleon’s testimony because they were consistent with each other
15 and were corroborated by the physical evidence and the officers’
observations. She then argued that Freyta-Duran’s testimony did
not make sense and noted that Freyta-Duran’s claim that she went
to the house to speak with Maynes’ son was inconsistent with her
going directly to Maynes’ bedroom and kicking in the door. She
also argued the implausibility of Freyta-Duran’s expectation that
Maynes’ adult son would be sharing a bedroom with his father.
When discussing credibility, the prosecutor made the following
statement, challenged here:
Where her story falls apart is how she can’t stick to a single thread and backtracked every time she was confronted with the illogical nature of her story. Because there’s what it was: A story. It was not evidence -- or it wasn’t the truth, it wasn’t the evidence. They weren’t facts.
¶ 29 The prosecutor then rhetorically asked, “[I]f she really was
going there to see [his son], why did she take that hard right to kick
open that door?” The prosecutor then posited that Freyta-Duran’s
plan to confront Maynes’ son was “an excuse to get revenge.”
¶ 30 Defense counsel responded by arguing that “[s]he told you the
truth,” and that Maynes’ and Deleon’s versions did not make sense.
In rebuttal, the prosecution challenged the argument that Freyta-
16 Duran’s testimony was credible, pointing to its “illogic” and
inconsistencies. She noted that the prosecution witnesses had
“nothing to gain” by testifying as they did, while Freyta-Duran did
“have a motive to change her story, to tweak her story, to make it
seem different from what occurred, to downplay what she actually
did.”
¶ 31 We discern no misconduct in the prosecutor’s argument, for
four reasons. First, the jury was tasked with deciding the facts
based largely on the credibility of the witnesses present in the
bedroom, so comparisons of the witnesses’ versions of what
occurred were proper. See Domingo-Gomez, 125 P.3d at 1050 (a
prosecutor may ask the jury not to believe a witness but should not
call the witness a liar). We conclude the prosecutor’s rebuttal was a
proper response to defense counsel’s argument that Freyta-Duran
was telling the truth and was anchored in the instruction telling the
jury it should assess each witness’ motive for testifying when
considering credibility. See People v. Nardine, 2016 COA 85, ¶ 53
(comment on credibility proper when tied to credibility instruction
and argument encouraged jury to consider whether testimony was
corroborated by other evidence).
17 ¶ 32 Second, the prosecutor never called Freyta-Duran a “liar” or
used the word “lie” in her argument. Id. While we acknowledge
that she argued Freyta-Duran’s statement was not the truth (a form
of the word lie), the record shows that she recognized her mistake
and immediately corrected it by saying it was not factual. People v.
Nerud, 2015 COA 27, ¶¶ 53-55 (prosecutor’s argument that two
witnesses were credible not improper when drawn from the
evidence). Although the remark was susceptible to being
considered a personal opinion, it was neither inflammatory nor
intended to evoke a strong emotional response, so we view it as
unintentional and inartful. See Domingo-Gomez, 125 P.3d at 1051-
52 (use of phrase “did not tell you the truth,” though inartful and
susceptible to being considered a personal opinion, was not
improper).
¶ 33 Third, when considered in the context of the complete
argument, we discern nothing that would suggest the prosecutor
expressed a personal opinion of Freyta-Duran’s credibility. Instead,
the record shows that she argued the consistencies between the
physical evidence and her witnesses’ statements, and the
inconsistencies in Freyta-Duran’s statements. Where the jury’s
18 decision rested on credibility determinations, we see no other way
to argue the case effectively. See People v. Wallace, 97 P.3d 262,
270-71 (Colo. App. 2004) (where case turned on which witnesses to
believe, each counsel was entitled to argue their witnesses were
more credible than the other side’s witnesses); see also Domingo-
Gomez, 125 P.3d at 1051 (courts should consider language used,
context of statement, and other relevant factors to determine
whether comment improperly expresses a personal opinion of
credibility).
¶ 34 Finally, we are not convinced that the remark saying Freyta-
Duran’s statement was not evidence, somehow precluded the jury
from considering it. This assertion is contradicted by the trial
court’s instruction stating that the witness testimony was evidence
and its reminder to the jury that the arguments of counsel are not
evidence.
2. Misstatement of Fact
¶ 35 We conclude that the prosecutor’s misstatement of fact was
not intentional and thus forms no basis for reversal. While a
prosecutor may not misstate the facts, such conduct rises to the
level of misconduct only when it is intentional and when the
19 prosecutor intends to mislead the jury as to the inferences it may
draw from the evidence. Domingo-Gomez, 125 P.3d at 1049.
¶ 36 Here, the prosecutor argued that “when [Freyta-Duran] kicked
him repeatedly, . . . she used an act of violence on him and she had
been in a relationship. So it’s domestic violence.” Maynes testified
that Freyta-Duran slapped him with her hands and used her feet to
kick open the door and kick over the fan, so we agree that a
misstatement of fact occurred. Nevertheless, we view this as a
verbal slip that did not affect the outcome of the case. Indeed,
arguments delivered in the heat of trial are not always perfectly
scripted. Samson, ¶ 30. Whether Freyta-Duran used her hands or
feet to assault Maynes has no bearing on whether the assault was
an act of domestic violence. Moreover, Freyta-Duran has not
explained, nor can we see, how this mistake misled the jury in
deciding whether the assault was an act of domestic violence. And
the fact that it drew no objection from defense counsel in the
moment supports our conclusion that it was not intentional. See
Wend, 235 P.3d at 1097 (absence of objection indicates remark not
overly damaging).
20 3. Burden of Proof
¶ 37 When explaining the reasonable doubt instruction, the
prosecutor stated that “beyond a reasonable doubt . . . breaks down
to what is and what ifs.” She described the “what is” as the
concrete facts and the “what ifs” as vague questions and
speculations. She then explained that questions like “what if this
happened” were speculative and not reasonable doubt. As best we
understand Freyta-Duran’s argument, she asserts that these
remarks precluded the jury from considering evidence for which
there was no explanation (like how the pill bottle was overturned)
and that they constituted a misstatement of the law. We disagree
because the trial court properly instructed the jury on its role to
assess witness credibility, its prerogative to accept or reject any
testimony, the presumption of innocence, the definition of
reasonable doubt, and the fact that the prosecutor’s argument was
not evidence. People v. Duncan, 2023 COA 122, ¶ 39 (finding
prosecutor’s statements about “what ifs” doubts did not shift the
burden of proof or constitute misconduct). Moreover, these
remarks occurred during a larger discussion of the reasonable
doubt instruction, which is not challenged here because it properly
21 informed the jury of the law. Therefore, we discern no error, let
alone plain error, in these statements and conclude they did not
trivialize the burden of proof.
V. Cumulative Error
¶ 38 Freyta-Duran last contends that the alleged errors, when
taken together, show that she did not receive a fair trial.
¶ 39 The cumulative error doctrine applies 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, 2019 CO 69, ¶ 24 (quoting
People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).
¶ 40 However, because we have found no errors, we necessarily
conclude the cumulative error doctrine does not apply. See People
v. Villa, 240 P.3d 343, 359 (Colo. App. 2009) (cumulative error
analysis is required only when multiple errors have been identified).
VI. Disposition
¶ 41 The judgment is affirmed.
JUDGE SULLIVAN and JUSTICE MARTINEZ concur.