23CA0007 Peo v Hurd 12-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0007 Arapahoe County District Court No. 20CR1796 Honorable Shay K. Whitaker, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Keason Qwame Hurd,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE HAWTHORNE* Pawar and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 31, 2025
Philip J. Weiser, Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, John P. Finnegan, 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. 2025. ¶1 Defendant, Keason Qwame Hurd, appeals his convictions for
second-degree assault, second-degree kidnapping, felony sexual
assault, and harassment. We affirm.
I. Background
¶2 In July 2020, Hurd was in a relationship with B.R. One
evening, B.R. was asleep in Hurd’s bed when Hurd accessed her cell
phone and viewed a video of B.R. performing a consensual sexual
act with her ex-boyfriend. Hurd became angry and awakened B.R.
to confront her about the video. Hurd then hit B.R.’s mouth with
his hand.
¶3 Hoping to de-escalate the situation, B.R. ran to the bathroom.
Hurd followed her and put her in a “chokehold,” causing her to fall
to the floor. Hurd then urinated on B.R. before hitting her again
and spitting on her. Afterwards, B.R. removed her clothes and put
them in a plastic bag before getting in the shower. Hurd “stood at
the shower” waiting for her.
¶4 Hurd then drove B.R. home in his truck. When they arrived at
her house, B.R. exited the truck. She went back to retrieve her
phone and saw Hurd recording the video “that was in [her] phone . .
. onto his phone.” As she entered the truck, Hurd hit her again and
1 began driving them back to his home. B.R. tried to exit the truck
while it was moving but Hurd pulled her back inside.
¶5 Upon arriving home, Hurd told B.R. that if she did not do
whatever he wanted, he would “beat” her again. He removed B.R.’s
wig and clothes and ordered her to get in the shower. He then
urinated on her again and recorded himself doing so. Hurd then
ordered B.R. to perform oral sex on him, which he continued to
record.
¶6 After B.R. showered and went into the living room, Hurd
followed her and directed her to pose in various positions while he
photographed her nude. While B.R. sat in the living room “staring
into space,” Hurd became aggravated and put her in another
chokehold. B.R. testified that she couldn’t breathe and that she
fainted from the chokehold.
¶7 When B.R. awoke, she was on the couch and found Hurd
rubbing a dirty mop over her body “as if [she] was the floor.” Hurd
told her that he was “mop[ping] the floor with these dirty bitches.”
Hurd was recording himself on his cell phone while he was
“mopping”. B.R. attempted to crawl away from Hurd and hide.
2 Ultimately, she came out of hiding and fell asleep on the couch.
Hurd then drove her home the next morning.
¶8 Two days later, B.R.’s mother noticed that B.R. “wasn’t in a
good state.” B.R. asked her mother to take her to urgent care where
she was examined by a forensic nurse examiner (“FNE”) and
reported the incident to the police.
¶9 The prosecution charged Hurd with first degree assault, sexual
assault, and second degree kidnapping. Hurd’s counsel requested
that the lesser nonincluded counts of harassment and criminal
invasion of privacy be added. The trial court only allowed the
instruction on harassment.
¶ 10 A jury convicted Hurd of second degree assault –
strangulation; sexual assault, causing submission through force or
violence, threat of harm, and threat of retaliation; second degree
kidnapping and the kidnapped person being a victim of sexual
assault; and harassment. The jury also found that Hurd committed
each offense as an act of domestic violence.
¶ 11 Hurd appeals contending that the trial court reversibly erred
by failing to (1) suppress all evidence obtained from his cell phone;
(2) grant a mistrial; (3) suppress prosecutorial misconduct during
3 closing argument; and (4) instruct the jury on the lesser included
offense of invasion of privacy. He also contends that the
cumulative impact of these errors requires reversal. We disagree
and affirm the trial court’s judgment.
II. Cell Phone Warrant
¶ 12 Hurd contends that the trial court erred by denying his motion
to suppress his cell phone records because the search warrant’s
scope was overbroad and not sufficiently particular. He also
contends that the affidavit submitted with the search warrant did
not establish probable cause for the search warrant. We disagree.
A. Additional Facts
¶ 13 During the police investigation, B.R. reported that Hurd used
his cell phone to record himself urinating on her, to film her
performing oral sex on him, and to photograph her after her
shower. When Hurd was taken into custody, his cell phone was “in
his personal belongings.” The police officer’s affidavit supporting
the search warrant for Hurd’s cell phone described the events that
B.R. told officers at the hospital, where she reported the incident
with Hurd. The warrant authorized a forensic extraction of the
following from Hurd’s phone:
4 • Any and all artifacts that would tend to establish
ownership and/or use of the cellular phone, including
but not limited to assigned phone number, device ID,
serial number, electronic identifying number, associated
cloud account.
• Any and all contacts contained within the cellular
phone’s native contacts list or within any downloaded
application, which would potentially contain contact
information for the victim, [B.R.] and [Hurd].
• Any and all call logs […] which would potentially identify
communication between the victim and suspect.
• Any and all [messages], including partial and deleted
messages or chats [… ] which would potentially contain
communications between victim and suspect.
• Any and all images, videos, or audio files, including
partial or deleted files […] which may depict the victim or
any sexual activity.
• Any and all device location, mapping, or GPS
information, which may assist with determining the
locations of the alleged physical and sexual assaults.
5 ¶ 14 Hurd filed a motion to suppress the evidence obtained from
his cell phone, relying generally on People v. Coke, 2020 CO 28, and
arguing that “the warrant application and affidavit did not establish
probable cause” and that it “was unconstitutionally lacking in
particularity.” The prosecution responded that the warrant
“particularized” the items to be seized, each supported by probable
cause as outlined in the officer’s affidavit and further limited the
scope to relevant crimes and information connecting B.R. and Hurd.
¶ 15 After a hearing, the trial court denied the motion in part and
ordered that the evidence collected from the search warrant be
further restricted to “a timeline, not as to photos and videos, but
[…] a timeline for the other items and materials from July 1 to July
13, the date of […] Hurd’s arrest.”
B. Standard of Review and Applicable Law
¶ 16 “In reviewing a suppression order, we defer to the trial court’s
findings of fact if they are supported by the record and review its
legal conclusions de novo, taking into consideration the totality of
the circumstances, to determine whether the suppression order
should be upheld or set aside.” People v. Davis, 187 P.3d 562, 563-
64 (Colo. 2008). If we determine the court erred by failing to
6 suppress evidence, the error is reversible unless it was harmless
“beyond a reasonable doubt.” Niemeyer v. People, 2024 CO 58, ¶ 50
(quoting Hagos v. People, 2012 CO 63, ¶ 11).
¶ 17 The United States and Colorado Constitutions protect
individuals against “unreasonable searches and seizures.” U.S
Const. amend. IV; Colo. Const. art. II, § 7. When analyzing the
legality of a search, the touchstone is reasonableness. People v.
Davis, 2019 CO 24, ¶15. And reasonableness generally requires a
warrant. Id. at ¶ 16.
¶ 18 A lawful search warrant must describe with particularity both
“the place to be searched” and “the things to be seized.” People v.
Pacheco, 175 P.3d 91, 94 (Colo. 2006). Particularity limits the
government’s discretion in examining private information and
prohibits general exploratory rummaging. People v. Seymour, 2023
7 CO 53, ¶44. To satisfy particularity, a cell phone search warrant
must include specific limitations based on (1) the type of alleged
criminal activity; (2) the identity of the alleged victim; and (3) if
applicable, the timeframe within which the suspected crime
occurred. People v. Herrera, 2015 CO 60, ¶ 20; see also Coke, ¶ 34
(finding insufficient particularity where the warrant permitted the
7 officers to search all texts, videos, pictures, contact lists, phone
records, and any data based on ownership absent a specific or
reasonable timeframe).
¶ 19 However, “a warrant doesn’t lack particularity simply because
it is broad.” Seymour, ¶46. “Likewise, a search isn’t
unconstitutional simply because the government, in some lightning-
fast, digital sense, very cursorily examines unrelated documents.”
Id. at ¶47. “Even when a warrant is adequately particularized, ‘it is
certain that some innocuous documents will be examined . . . to
determine whether they are, in fact, among those papers authorized
to be seized.’” Id. (quoting Andresen v. Maryland, 427 U.S. 463, 482
n.11(1976)).
¶ 20 The warrant’s description of the property to be seized should
permit the officer charged with executing the warrant to know with
a reasonable degree of certainty what should be seized. Coke, ¶ 34.
Given modern cell phones’ immense storage capacities and ability to
collect and store many distinct types of data in one place, courts
have recognized that cell phones “hold for many Americans ‘the
privacies of life’” and are, therefore, entitled to special protections
from searches. Id. at ¶ 37 (citation omitted). And a warrant
8 authorizing the search of a cell phone simply for general indicia of
ownership violates the Fourth Amendment’s particularity
requirement. See Herrera, ¶¶ 4, 18.
C. Analysis
¶ 21 We conclude that the court did not err by denying Hurd’s
motion to suppress because the warrant was sufficiently particular.
¶ 22 Unlike in Coke, where the warrant lacked details about the
alleged victim or when the assault occurred, here the officer’s
affidavit and subsequent warrant narrowed what could be seized to
information that related to Hurd or B.R. The officer’s affidavit, in
particular, described the alleged crimes, when they were committed,
and the history between Hurd and B.R. Herrera, ¶ 20; see also
Coke, ¶ 34.
¶ 23 On appeal, Hurd relies on Coke and Herrera to suggest that
the warrant lacked particularity. But these cases are
distinguishable. The warrant in Coke authorized police to “search
all texts, videos, pictures, contact lists, phone records, and any
data that showed ownership or possession.” Coke, ¶ 38 (emphasis
added). It also allowed law enforcement to search for and seize “any
. . . fruits or proceeds of a crime, or data intended to be used in the
9 commission of a crime.” Id. at ¶ 35. The warrant in Herrera
authorized a search of the defendant’s cellphone for text messages
between the defendant and the putative child victim as well as for
“indicia of ownership.” Herrera,¶ 18. In contrast, the officers
executing Hurd’s warrant did not rely on a general search warrant
like those in Coke and Herrera. While the warrant did permit the
search of “[a]ny and all artifacts that would tend to establish
ownership and/or use of the cellular phone,” it was more limited:
only items such as “assigned phone number, device ID, serial
number, electronic identifying number, associated cloud account”
could be seized. Further, the warrant specified the types of
information to be searched (communications, images, videos, audio
files, call logs, and device locations that pertained to the alleged
crime), and narrowed what could be seized to information that
related to Hurd or B.R. Also, by incorporating the probable cause
affidavit, the warrant was restricted to evidence pertaining to Hurd’s
assault on B.R.
¶ 24 Recently, a division of this court distinguished the search
warrant before it in People v. Rodriguez-Ortiz, 2025 COA 61, 574
P.3d 1196, from the general search warrant addressed in Herrera.
10 The Rodriguez-Ortiz division concluded that the Hererra warrant
authorized a search of the “entire contents” of the defendant’s
phone. People v. Herrera, 2015 CO 61, ¶ 34. But the warrant in
Rodriguez-Ortiz authorized the collection of “location data and
certain message content surrounding the crimes [] within the six-
month timeframe of the crimes.” 2025 COA 61, ¶ 34. The
Rodriguez-Ortiz division also concluded that while the warrant could
have been more particular by limiting each category using the
language “related to the crimes,” the warrant’s incorporation of the
attached affidavit served the same function. Id. at ¶ 34. The
division ultimately concluded that the warrant “did not allow for a
general rummaging in” the defendant’s phone and personal
information, rather it targeted specific data that could be used to
establish the defendant as a suspect. The search warrant before us
also incorporates the officer’s affidavit and thus limited the
warrant’s scope by the parameters found in the officer’s affidavit.
So the warrant did not authorize a general rummaging in Hurd’s
phone but instead targeted specific data that law enforcement used
to establish Hurd as a suspect. See People v. Roccaforte, 919 P.2d
799, 803-804 (Colo. 1996) (recognizing a broad search warrant is
11 nonetheless permissible when the requested evidence is justified by
the nature of the crime or crimes). We conclude that the search
warrant satisfied the particularity requirement required by the
Fourth Amendment.
¶ 25 Hurd also contends that the affidavit submitted with the
search warrant did not establish probable cause for the search
warrant. However, on appeal, Hurd does not develop this argument
to explain why the affidavit did not establish sufficient probable
cause. So we decline to address his argument further. See People
v. Rodriguez-Morelos, 2022 COA 107M, ¶ 49 (declining to address a
defendant’s conclusory and underdeveloped argument), aff’d, 2025
CO 2.
III. Prior Bad Acts Evidence
¶ 26 Hurd contends that the trial court erred by denying his motion
for a mistrial after it improperly admitted CRE 404(b) evidence. We
are not persuaded and conclude that because the alleged references
made to Hurd’s prior bad acts were fleeting and ambiguous, the
trial court did not abuse its discretion.
12 A. Additional Facts
¶ 27 Before trial, Hurd filed a motion objecting to the admission of
Hurd’s prior bad acts that were outside the charged allegations.
During the pretrial conference, the prosecution acknowledged that
they “did not file [a] 404(b)” and that they “[understood] the
constraints of that.” The court advised the parties to approach the
bench during trial if either party felt that “a door has been opened”
to any prior bad acts evidence.
¶ 28 During trial, the prosecution asked B.R. why she had not run
away to get help. B.R. responded, “I don’t know . . . I knew what
was going to happen. It is also something similar [to something
that] happened before.” Defense counsel objected and, after a
bench conference, the court struck B.R.’s answer and instructed
the jury to disregard it.
¶ 29 As the prosecutor continued, B.R. said that she was “pretty
sure his neighbors heard [them] fighting before.” Defense counsel
objected, and the court sustained the objection. Hurd’s counsel
requested a mistrial because B.R. had mentioned prior bad acts
twice and a curative instruction would not “cover that.” The court
denied the mistrial because it found that B.R.’s second statement
13 could have referred to the same night “an hour or so before [] the
altercation had taken place previously.” The court denied the
request for mistrial, gave the prosecutor the opportunity to “clean
up that statement,” and admonished B.R. about her statements.
¶ 30 The prosecutor later asked B.R. if she had an eye injury
because of the incident and B.R. said, “I don’t remember if I had
like a busted eye socket or not at that time. I don’t know if it was
that time.” Defense counsel again requested a mistrial based on
this “reference to a prior bad act.” The court denied the request
because it “did not hear [the testimony] as a statement that was
being made in terms of reference to another event. But that [B.R.]
just didn’t know if she had a broken eye socket.”
¶ 31 Next, B.R.’s mother testified that Hurd “secretly recorded her
one other time and [B.R.] said it wasn’t as humiliating.” Defense
counsel asked the court to strike the statement and again requested
a mistrial. The court denied the request but struck the response
and told the prosecutor, “[W]e need to dance very closely at this
point in time if these witnesses don’t want to have to come back
and do this a second time.”
14 ¶ 32 Finally, the prosecution called the FNE as an expert in
“forensic nurse examination, strangulation, and intimate partner
violence.” The court qualified her as an expert but noted it would
not allow testimony about “a cycle of violence.” The prosecution
asked the FNE if someone “who has been subjected to intimate
partner violence sometimes have a delay in reporting.” The FNE
responded,
[FNE]: Yes.
[Prosecutor]: Why is that?
[FNE]: Well, as I explained a little earlier, intimate partner violence is a very complex cycle of violence. Many of these patients in these relationships do love and care for that person, even though that person is hurting them. And this cycle repeats itself multiple times throughout the course of the relationship and typical cycles of violence […]
¶ 33 The prosecutor interrupted the FNE and ended the direct
testimony shortly afterward. Before cross-examination, defense
counsel objected to the testimony and requested a mistrial, arguing
the FNE “essentially told the jury that this has happened before.”
The court denied the request.
15 B. Standard of Review and Applicable Law
¶ 34 “A mistrial is a drastic remedy that is warranted only when the
prejudice to the [moving party] is so substantial that its effect on
the jury cannot be remedied by other means.” People v. Cousins,
181 P.3d 365, 373 (Colo. App. 2007) (quoting People v. Dore, 997
P.2d 1214, 1221 (Colo. App. 1999)).
¶ 35 A trial court has broad discretion to grant or deny a motion for
a mistrial, and we will not reverse its decision absent an abuse of
that discretion and prejudice to the moving party. People v. Salas,
2017 COA 63, ¶ 9. “A trial court can better evaluate any adverse
effect that improper testimony might have upon a jury than can a
reviewing court. Thus, absent an abuse of discretion, the trial
court’s denial of a motion for mistrial will not be disturbed on
review.” People v. Ned, 923 P.2d 271, 274 (Colo. App. 1996).
¶ 36 Other acts evidence is excluded by Rule 404(b)(1) when its
only logical relevance depends on the inferences that (1) a
defendant’s prior misconduct shows his or her bad character; and
(2) the defendant, due to that bad character, thus engaged in the
wrongful conduct at issue. People v. Shores, 2016 COA 129, ¶ 33
(citing People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990)). When
16 “inadmissible evidence of other crimes is brought to the attention of
the jury, the factors relevant to the exercise of discretion to declare
a mistrial include the nature of the inadmissible evidence, the
weight of admissible evidence of guilt, and the value of a cautionary
instruction.” People v. Vigil, 718 P.2d 496, 505 (Colo. 1986).
¶ 37 We disagree with Hurd’s assertion that the testimonial
evidence for which he requested a mistrial is as problematic as that
addressed in People v. Goldsberry, 509 P.2d 801 (Colo. 1973)
(“when such evidence is so highly prejudicial, as it is here, it is
inconceivable that but for its exposure, the jury may not have found
the defendant guilty.”). Similar to the challenged testimony in Vigil,
P.2d 496 at 505, the potential impact of the fleeting and ambiguous
references to Hurd’s prior conduct is far more difficult to discern.
And considering that the evidence of Hurd’s guilt is substantial, we
perceive no reason to assume that the jury’s verdict was influenced
to any significant extent by the jury’s exposure to the challenged
testimony. See Id. The fleeting and ambiguous testimony was not
so prejudicial as to necessitate the drastic remedy of a mistrial. See
People v. Lahr, 2013 COA 57, ¶ 27 (“[W]e do not view [a] fleeting,
17 ambiguous reference as so prejudicial that the drastic remedy of
declaring a mistrial was required.”).
¶ 38 Moreover, the court took proper steps to remedy any potential
prejudice to the jury caused by the challenged testimony. The court
struck the testimony and instructed the jury to disregard it. It then
instructed the prosecution to cure any confusion with further
questioning, and it admonished the witness. “[A] curative
instruction is generally sufficient to overcome an evidentiary error,
and an instruction is inadequate only when evidence is so
prejudicial that, but for its exposure, the jury might not have found
the defendant guilty.” People v. Gillespie, 767 P.2d 778, 780 (Colo.
App. 1988) (citing Vigil v. People, 731 P.2d 713 (Colo.1987)).
¶ 39 Hurd cites Goldsberry to argue that the curative instruction
striking B.R.’s testimony did not cure the alleged prejudice to the
jury. In Goldsberry, the supreme court said that“[w]hen reference is
made in the presence of the jury to [unrelated] criminal activity, a
mistrial is normally required.” 509 P.2d at 803. But the supreme
court has since clarified that “Goldsberry...did not displace the
general rule that a trial court’s determination whether or not to
grant a mistrial will not be disturbed absent an abuse of
18 discretion.” Vigil, 718 P.2d at 505. And “[t]he circumstances are ...
rare where we ... will depart from the presumption that a jury
follows a court’s curative instructions.” People v. Salas, 2017 COA
63, ¶ 14 (quoting Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1091
(Colo. 2011)). Absent contrary evidence, we presume the jury
understood and followed the trial court’s instructions. See People v.
Abdulla, 2020 COA 109M, ¶ 58 (“[W]e employ the presumption that
the jury understands and applies the given instructions unless a
contrary showing is made . . . .”)
¶ 40 We are not persuaded that the ambiguous testimonial
references to uncharged events necessitated a mistrial. And
defense counsel could have requested a less drastic remedy. See
Abbott, 690 P.2d at 1269 (“[A] mistrial is only warranted where the
prejudice to the accused is too substantial to be remedied by other
means.”) We conclude that the trial court did not abuse its
discretion by denying Hurd’s requests for a mistrial.
IV. Prosecutorial Misconduct
¶ 41 Hurd contends that the prosecution improperly “asked the
jurors to imagine themselves in B.R.’s position” and “lowered its
burden of proof by inaccurately describing the reasonable doubt
19 standard” through “its arguments during voir dire and closing.”.
We disagree.
¶ 42 During voir dire, the prosecutor asked prospective jurors how
they might feel if asked to describe their last consensual sexual
encounter in front of the people in the room. A few jurors
responded that they would feel uncomfortable and embarrassed.
The jurors also added that it would probably be more difficult if the
encounter was nonconsensual and the sexual partner was also
present in the audience. The prosecutor then asked the jurors how
they would expect a victim of a nonconsensual sexual encounter to
“come off or testify or act”. The prospective jurors responded to the
range of reactions and attitudes such a victim might have.
¶ 43 The prosecutor said in her opening statement, “I don’t know
exactly what [B.R.] is going to say while she testifies. But what I do
know is that that is a difficult thing to talk about. She was hurt;
she has to talk about what happened in front of strangers.”
¶ 44 In closing argument, the prosecutor said
Let’s talk about [B.R.]. . . . Why is she coming all the way over here from Chicago, being made to go up on the witness stand and
20 subjected to hours of cross-examination of having you guys see embarrassing, horribly humiliating videos of her. . . . Why after this would she go back to him.
Think about in voir dire when we talked a little bit about that. That some people don’t report to the police. Some people go back to their abusers. You heard that there is a hesitancy.
¶ 45 During rebuttal closing argument, the prosecutor reminded
the jurors that they witnessed how difficult it was for B.R to testify
about an intimate and traumatic incident in front of a courtroom
full of strangers.
¶ 46 During closing argument, the prosecutor also discussed the
burden of proof:
You’re also given the definition of reasonable doubt. And it’s a doubt based on your common sense but it can’t be a doubt based on speculation of what if there is something we didn’t hear or what if this happened. If you don’t hear that it happened, it’s speculation to believe that it did. It’s the difference between something that’s possible and evidence that actually occurred in this case.
So, yes, is it possible that something may have happened, yeah. But if there was no evidence of it, then you can’t consider it. That would be speculation. It would be speculative to believe that there was some conversation where he said she could do this to him because you haven’t heard any evidence that there was.
21 ¶ 47 The prosecutor went on to say
You may have questions like, you know, what happened seven days earlier where she called him and she was — you heard a little bit of evidence that she called him and was kind of like saying she wanted to see him or they were talking about potential phone calls that she had with other men. You didn’t hear any evidence though that she said I will consent for you to do anything that you want to me. So that would be speculation.
¶ 48 The prosecution then said in rebuttal argument:
You’re not allowed to speculate. So the fact that her sister did not come to Court or did not cooperate, did not respond to Detective Singleton does not mean that the elements have not been proven beyond a reasonable doubt. The defense wants you to speculate that [B.R.] made it up because she is somehow mad at the defendant that she didn’t want the defendant to follow through with his threats to post the videos so she just made it all up. . . .
¶ 49 Because Hurd did not contemporaneously object to the
prosecutor’s comments, we review his prosecutorial misconduct
claim for plain error. People v. Vialpando, 2022 CO 28, ¶20. We
reverse under the plain error standard only if the court erred and
the error was obvious and substantial. Hagos, ¶14, 288 P.3d at
120. An error is obvious if it contravenes a clear statutory
22 command, a well-settled legal principle, or established Colorado
case law. People v. Crabtree, 2024 CO 40M, ¶ 42. An error is
substantial if it “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 (quoting Wilson v. People, 743 P.2d 415,
420 (Colo. 1987)).
¶ 50 In reviewing a prosecutorial misconduct claim, we conduct a
two-step analysis. 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.
¶ 51 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.” Domingo-
Gomez v. People, 125 P.3d 1043, 1048 (Colo. 2005). 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). However, a prosecutor’s “arguments and
23 rhetorical flourishes must stay within the ethical boundaries” that
our supreme court has drawn. Domingo-Gomez, 125 P.3d at 1048.
¶ 52 Prosecutors must refrain from “express[ing] a personal belief
or opinion as to [the] truth or falsity of [a witness’s] testimony,”
Wilson, 743 P.2d at 419; intentionally misstating the evidence or
the law, Domingo-Gomez, 125 P.3d at 1048-49; and making “golden
rule” arguments because “they encourage the jury to decide the
case based on personal interest . . . rather than on a rational
assessment of the evidence,” People v. Munsey, 232 P.3d 113, 123
(Colo. App. 2009).
¶ 53 A “golden rule” argument invites jurors to put themselves in
the place of the victim and imagine that the defendant wronged
them personally. People v. Dunlap, 975 P.2d 723, 758 (Colo. 1999);
People v. Randell, 2012 COA 108, ¶ 87. Such an argument is
improper in the guilt phase of a case because it could encourage the
jury to base its decision on personal interest and emotion rather
than on a rational evaluation of the evidence. People v. Munsey,
232 P.3d 113, 123 (Colo. App. 2009).
24 C. Analysis
¶ 54 We reject Hurd’s assertion that the prosecutor made an
improper “golden rule” argument. “A true ‘golden rule’ argument
invites jurors to put themselves in the place of the victim and
imagine that the defendant wronged them personally, thereby
inflaming passions and prejudice.” People v. Randell, 2012 COA
108, ¶ 92. Given the totality of the circumstances, we conclude
that no plain error occurred.
¶ 55 Regarding the statements made during voir dire, the
prosecutor asked the jurors to consider B.R.’s difficulties in
testifying and the overall effect that it would have on her testimony.
The prosecutor did not ask the prospective jurors to place
themselves in the victim’s shoes concerning the offenses charged.
And voir dire is not in a trial’s guilt phase. Voir dire allows counsel
to inquire whether potential jurors hold any biases that would
prevent the defendant from receiving a fair trial. People v. Wilson,
2013 COA 75, ¶ 12.
¶ 56 As to the prosecutor’s closing argument, “prosecutors have
wide latitude in the language and style they choose to employ.”
People v. Duncan, 2023 COA 122, ¶ 31 (quoting People v. McMinn,
25 2013 COA 94, ¶ 60). And “because arguments delivered in the heat
of trial are not always perfectly scripted, reviewing courts accord
prosecutors the benefit of the doubt when their remarks are
ambiguous or simply inartful.” People v. Samson, 2012 COA 167, ¶
30. To determine whether a closing argument was improper, we
consider the language used, the statements’ context, the evidence’s
strength, and whether the prosecutor repeated the misconduct.
People v. Lovato, 2014 COA 113, ¶ 64.
¶ 57 We may also consider a failure to object because it may
“demonstrate defense counsel’s belief that the live argument,
despite its appearance in a cold record, was not overly damaging.”
Id. at ¶ 65 (quoting People v. Wallace, 97 P.3d 262, 269 (Colo. App.
2004)). Given these demanding requirements, “[p]rosecutorial
misconduct in closing argument rarely constitutes plain error.” Id.
(alteration in original) (quoting Liggett v. People, 135 P.3d 725, 735
(Colo. 2006)).
¶ 58 We disagree with Hurd’s argument that the prosecutor’s
closing remarks lowered the prosecution’s burden of proof. The
prosecutor’s statements regarding jurors speculating about
evidence responded to defense counsel’s closing argument that B.R.
26 “regret[ted] those videos exist[ing]” and that “regretting that [she]
consented to something after the fact [did] not negate the fact that
[she] consented to it.” Defense counsel also argued that “the only
way that this is against her will is if he has so badly beaten her,
threatened her to the point that she feels she has to say yes or
something worse will happen.” So the prosecutor’s arguments did
not lower the prosecution’s burden of proof but rather informed the
jury that a verdict could not be supported by “guessing,
speculation, conjecture, or a mere modicum of relevant evidence”
such as that suggested by defense counsel’s arguments. Donald,
¶19. We conclude that the prosecutor’s closing arguments did not
constitute prosecutorial misconduct or plain error. And even if we
conclude that the prosecutor engaged in prosecutorial misconduct,
any error did not rise to the level of being so substantial as to
warrant reversal. “Only prosecutorial misconduct that is ‘flagrantly,
glaringly, or tremendously improper’ warrants reversal under the
plain error test.” People v. Duncan, 2023 COA 122, ¶ 33 (quoting
Hagos, ¶ 14, 288 P.3d at 120).
27 V. Lesser Nonincluded Offense Jury Instruction Was Not Warranted
¶ 59 Hurd contends that the trial court erred by applying the wrong
legal standard when it denied his request for the court to instruct
the jury on the lesser nonincluded offense of criminal invasion of
privacy. We disagree.
A. Standard of Review and Applicable Law
¶ 60 We review the trial court’s decision whether to give a particular
jury instruction for an abuse of discretion. People v. Manyik, 2016
COA 42, ¶ 65; see also People v. Wartena, 2012 COA 12, ¶ 30
(“Whether the record contains sufficient evidence to support
instruction on a lesser offense is a factual inquiry reviewed for an
abuse of discretion.”).
¶ 61 A defendant is entitled to an instruction on a lesser
nonincluded offense — “a lesser offense that requires proof of at
least one element not contained in the charged offense” — “so long
as a rational evidentiary basis exists to simultaneously acquit him
of the charged offense and convict him of the lesser offense.” People
v. Naranjo, 2017 CO 87, ¶¶ 15, 17. We review de novo whether
statutory elements support a rational evidentiary basis that would
28 allow a jury to acquit the defendant of a greater offense and convict
him of the lesser offense. People v. Naranjo, 2015 COA 56, ¶ 11
(citations omitted.) In deciding whether the defendant is entitled to
the proffered instruction, the court must consider the evidence in
the light most favorable to the defendant. Mata-Medina v. People,
71 P.3d 973, 979 (Colo. 2003). But “the mere chance that a jury
may reject uncontroverted testimony and convict on the lesser
charge does not require the trial court to instruct the jury on the
lesser charge.” People v. Ramirez, 18 P.3d 822, 827 (Colo. App.
2000).
¶ 62 The theory behind allowing a lesser offense instruction is that
such an instruction “promotes . . . fairer verdicts” because it “helps
ensure that a jury does not convict a defendant of a greater offense
than the one actually committed merely because the greater offense
is the only crime charged and the jury is persuaded that some
crime was committed.” Naranjo, ¶ 16 (concerning lesser
nonincluded offenses); see also Skinner, 825 P.2d at 1047 (The
importance of a lesser offense instruction is that “the jury might not
be aware that it has the option of acquitting the defendant on the
greater charge and convicting him of a lesser charge.”).
29 ¶ 63 The prosecution charged Hurd with sexual assault —
submission against the victim’s will, through the use of physical
force or violence, or threat of harm, or threat of retaliation. § 18-3-
02(1)(a),(4)(a),(b),(c), C.R.S. 2025. Hurd’s proposed lesser
nonincluded instruction on criminal invasion of privacy defines the
crime as: “knowingly observ[ing] or tak[ing] a photograph [or video]
of another person’s intimate parts […] without that person’s
consent, in a situation where the person observed or photographed
has a reasonable expectation of privacy.” § 18-7-801, C.R.S. 2025.
B. Analysis
¶ 64 Though Hurd argued that criminal invasion of privacy was “a
lesser non-included of the acts that are included by the
[p]rosecution” and that “[t]hey’re proof of this – []all these charges,”
the trial court found that the offense did not “specifically relate to
any of the crimes” charged in the case. In other words, the trial
court ruled there was no rational evidentiary basis that would
support instructing the jury on the lesser nonincluded offense. We
agree.
30 ¶ 65 The jury convicted Hurd of the lesser-included offense of
second-degree assault, sexual assault, second-degree kidnapping,
and the lesser nonincluded harassment offense.
¶ 66 We agree with the trial court that a rational evidentiary basis
did not exist to acquit Hurd of the charged sexual assault -
submission against the victim’s will, through the use of physical
force or violence, or threat of harm, or threat of retaliation offense --
and simultaneously convict him of the proposed lesser included
offense of criminal invasion of privacy. Considering the trial
evidence, including the videos taken by Hurd on his phone during
his assaults on B.R., we agree with the trial court that no rational
evidentiary basis existed to convince the jury to simultaneously
acquit Hurd of the sexual assault charge and convict him on the
criminal invasion of privacy charge. That is, there is no risk that
the jury would view the explicit and graphic videos of the sex acts
and conclude that the acts were consensual, and only the nude
photographs were not, leaving them with the only option of
convicting of the greater offense.
¶ 67 Moreover, Hurd’s theory of defense did not include a claim
that he was guilty of criminal invasion of privacy. Instead, he
31 claimed that he did not assault or kidnap B.R. and that any sexual
conduct was consensual. The “consent” element in his proposed
lesser nonincluded jury instruction does not refer to the victim’s
consent to sexual conduct but to the victim’s consent to her
intimate parts being photographed. § 18-7-801; see also People v.
Wartena, 2012 COA 12, ¶ 36 (“A lesser nonincluded offense
instruction is tantamount to a defendant’s theory of the case
instruction” and “is in the nature of a strategy” (quoting People v.
Skinner, 825 P.2d 1045, 1047-48 (Colo. App. 1991).
¶ 68 We conclude that the trial court did not abuse its discretion by
refusing to instruct the jury on the lesser-included offense of
criminal invasion of privacy.
VI. Cumulative Error
¶ 69 Since we have rejected all of Hurd’s claims on appeal, we
necessarily reject his cumulative error argument. People v. Walton,
167 P.3d 163, 169 (Colo. App. 2007) (Because there are not
multiple errors to compound, the defendant cannot be awarded
relief on a cumulative error basis.).
VII. Disposition
¶ 70 The judgment is affirmed.
32 JUDGE PAWAR and JUDGE YUN concur