23CA1346 Peo v Johnson 06-18-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1346 Jefferson County District Court No. 21CR3250 Honorable Jason Carrithers, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Sean Phillip Johnson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE BROWN Harris and Tow, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 18, 2026
Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Jenna S. Baker, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Leah Scaduto, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Sean Phillip Johnson, appeals the judgment of
conviction entered on a jury verdict finding him guilty of internet
luring of a child and attempt to commit sexual assault on a child.
We affirm.
I. Background
¶2 In 2021, Investigator Paul Spokas, an investigator for the
Child Sex Offender Internet Investigations Unit of the Jefferson
County Sheriff’s Office, posed as a thirteen-year-old girl on the
Whisper application (the persona).1 On Whisper, the persona
posted, “What’s ur whisper secret[?]” and Johnson responded, “My
secret? I like younger . . . [.] I also would meet someone to fuck,
but haven’t yet.” The persona and Johnson exchanged several
messages on Whisper. In those messages, the persona told
Johnson multiple times that she was thirteen years old.
¶3 The conversation moved from Whisper to text messages. In
one message, Johnson indicated that he “love[d] ageplay [sic],”
which he explained as “[p]retending you’re [twelve] or something.”
1 The Whisper application is a social media application that allows
anonymous users to post in a general feed. Other users can interact with that post on the general feed or contact a user directly.
1 After the persona insisted she was actually thirteen and told
Johnson she was not going to text him anymore if he did not believe
her, Johnson responded that he was “down it’s cool” and said, “I
like to be careful on devices others can read, but I’ll whisper in your
ear that I love it.” Johnson later texted, “I really like you’re
[thirteen],” and “I would want to kiss you right away.” He also told
the persona, “I’m just being careful honestly in case someone reads
this ever,” and he sent sexually explicit texts about what he wanted
to do to the persona.
¶4 At one point, Johnson and the persona arranged a video chat.
Investigator Spokas used a prerecorded video of an adult volunteer
posing as the persona, appearing to have technical difficulties, and
then hanging up.
¶5 The persona and Johnson arranged to meet in person for
lunch at a fast food restaurant. The persona sent a screenshot of a
map with a middle school marked and texted Johnson that she
would sneak out during lunch. On the day of the arranged
meeting, Investigator Spokas posed as a restaurant employee and
identified Johnson when he ordered food through the drive-through.
2 Investigator Spokas and two other police officers arrested Johnson
at the restaurant.
¶6 Johnson was charged with internet luring of a child and
attempt to commit sexual assault on a child. A jury convicted him
as charged. The district court sentenced Johnson to ten years to
life of sex offender intensive supervised probation.
II. Challenge for Cause
¶7 Johnson contends that the district court violated his
constitutional right to a fair and impartial jury by denying his
challenge for cause to Juror B.P. We perceive no error.
A. Applicable Law and Standard of Review
¶8 Criminal defendants have a constitutional right to trial by an
impartial jury. U.S. Const. amends. VI, XIV; Colo. Const. art. II,
§ 16. “A defendant’s right to an impartial jury is violated if the trial
court fails to remove a juror biased against the defendant.”
Morrison v. People, 19 P.3d 668, 672 (Colo. 2000). To that end, a
trial court “shall sustain a challenge for cause” based on “[t]he
existence of a state of mind in the juror evincing enmity or bias
3 toward the defendant or the [S]tate.” § 16-10-103(1)(j), C.R.S. 2025;
see Crim. P. 24(b)(1)(X).2
¶9 Even so, “[a] prospective juror’s expression of concern or
indication that [they] possess[] a preconceived belief as to some
aspect of the case does not . . . mandate exclusion of that juror for
cause.” Marko v. People, 2018 CO 97, ¶ 21; see People v. Marciano,
2014 COA 92M-2, ¶ 8 (“While jurors often express concern or
indicate preconceived beliefs during voir dire, such concerns and
beliefs do not automatically disqualify them from service.”). If, after
further examination and rehabilitative efforts, the trial court
believes that a juror will follow the law and be impartial, the court is
not required to remove the juror for cause. People v. Clemens, 2017
CO 89, ¶¶ 15-16.
¶ 10 We review for an abuse of discretion a trial court’s ruling on a
challenge for cause, id. at ¶ 13, considering the entire voir dire of
the prospective juror, People v. Oliver, 2020 COA 97, ¶ 7. A court
2 We note that section 16-10-103(1)(j), C.R.S. 2025, and Crim. P.
24(b)(1)(X) are not identical, but both the Colorado Supreme Court and divisions of this court have treated them as “functional equivalents.” People v. Oliver, 2020 COA 97, ¶ 8 n.1. Neither party argues any substantive difference between the statute and rule, so we treat them as equivalent too.
4 abuses its discretion when its ruling is manifestly arbitrary,
unreasonable, or unfair, or when it misapplies the law. Id.
Employing this standard “gives deference to the trial court’s
assessment of the credibility of prospective jurors’ responses,
recognizes the trial court’s unique role and perspective in evaluating
the demeanor and body language of prospective jurors, and serves
to discourage reviewing courts from second-guessing the trial court
based on a cold record.” Id. (quoting Clemens, ¶ 13).
B. Additional Background
¶ 11 During voir dire, the district court asked each juror to answer
a series of questions displayed on a posterboard. In response, B.P.
explained, among other things, that he worked “for the director of
the police academy at Red Rocks Community College,” that he
worked “with police officers every day,” and that he “believe[d] [he]
could be fair with both sides.” When the prosecutor asked B.P.
what his job entailed, B.P. said that he is not a police officer and
that his work at the police academy consists of “preparing different
course materials and other . . . administrative or secretarial tasks.”
¶ 12 Continuing with voir dire of B.P., the prosecutor explained
that jurors must assess the credibility of witnesses. She said,
5 I want you to kind of imagine there’s a line in front of me, and somewhere in the middle, neutral, a police officer or a witness walks in, and I put them in the middle. I don’t know this person. I haven’t heard from them, they could be a good officer or a bad officer, or a good witness or a bad witness. If an officer walks in and they have a badge and a uniform, maybe they have a firearm, on one end[,] I believe absolutely everything that person says, they’re a police officer, they’re in uniform, so I trust them. On the other end, I believe nothing that person says . . . .
The prosecutor asked B.P., “Given your experience, [are] you able to
assess from that middle ground? Can you assess each officer
fairly?” B.P. responded, “I think so. I think . . . any evidence or
testimony that they would provide would just be dependent on their
individual experience, rather than just wearing a uniform.”
¶ 13 Later, defense counsel asked the panel if “anyone here . . .
feel[s] that police officers . . . or law enforcement are more credible
than other people?” B.P. apparently raised his hand, and the
following exchange occurred:
[B.P.]: On the topic of credibility for police officers, I think they’re more prepared to be credible.
[Defense Counsel]: Okay.
6 [B.P.]: They have body-worn cameras that they wear, they have set areas through the city they would be in throughout the day if they’re on patrol. Any calls are logged. So they have a lot of their day on paper, per se.
[Defense Counsel]: Sure.
[B.P.]: So that they can be prepared to be credible if they need to be.
[Defense Counsel]: Right. And in the course of your work at the police academy, are officers . . . trained or informed about how to testify in court?
[B.P.]: There are mock trials that happen in the academy, yes.
[Defense Counsel]: Okay. And what kind of training do they get in association with these mock trials?
[B.P.]: How to . . . properly convey . . . what happened. Or how to communicate with the [j]udge or different moving parts in the courtroom.
[Defense Counsel]: Maybe even speak to the jury?
[B.P.]: Sure.
¶ 14 Defense counsel moved to strike B.P. for cause because he
worked for the police academy and believed “law enforcement is
more prepared to be credible when testifying,” which counsel
understood to mean that B.P. “thought police were more credible.”
7 The district court denied the challenge because, considering the full
voir dire, B.P. “always expressed that he could be fair.” Counsel did
not use a peremptory challenge on B.P., and he served on the jury.
C. The District Court Did Not Abuse Its Discretion by Denying Johnson’s Challenge for Cause to Juror B.P.
¶ 15 Johnson contends that the district court abused its discretion
by denying his challenge for cause to Juror B.P. because “B.P.’s
statements revealed that he could not apply the credibility
instruction equally to lay and law enforcement witnesses” and
would assume that police officers were more credible. We disagree.
¶ 16 True, a juror who indicates that police officers are more
credible simply because of their position may be unable to render
an impartial verdict. People v. Sandoval, 733 P.2d 319, 321 (Colo.
1987). And we acknowledge that B.P. apparently raised his hand
when defense counsel asked whether anyone thought police officers
were more credible. But we do not read B.P.’s actual responses as
reflecting a belief that police officers are inherently more credible.3
3 Johnson argues that B.P. “could not apply the credibility
instruction equally to lay and law enforcement witnesses,” but no one asked B.P. about the credibility instruction or whether he would judge the credibility of a lay witness differently than a law enforcement witness.
8 ¶ 17 Instead, B.P. indicated that officers are better prepared to
testify because everything they do is documented or recorded in
some way. B.P. said he would assess an officer’s testimony based
on their individual experience. And he said he believed he could be
fair to both sides, which the court credited. See id. (“It is the trial
court’s prerogative to give considerable weight to a potential juror’s
statement that [they] can fairly and impartially serve on the case.”);
Oliver, ¶ 11 (“In determining whether a potential juror can set aside
any preconceived notions and render an impartial verdict, the trial
court may consider a juror’s assurances that [they] can serve fairly
and impartially.”). Considering the entire voir dire, see Oliver, ¶ 7,
we conclude that the district court did not abuse its discretion
when it determined that B.P. would follow the law and be impartial,
see Clemens, ¶ 15.
¶ 18 We are not persuaded otherwise by Johnson’s argument that
B.P.’s expression of impartiality should be discounted because it
preceded his statements about police officer credibility and because
no one rehabilitated B.P. after defense counsel’s questioning. There
was no need for rehabilitation because none of B.P.’s statements
about officers reflected an “automatic acceptance” of their testimony
9 based solely on their status. Sandoval, 733 P.2d at 321; see People
v. Garcia, 2018 COA 180, ¶ 22 (the trial court was not required to
inquire further when the juror unequivocally stated he would follow
the law as instructed).
¶ 19 Given the substantial deference we afford the district court, we
conclude that it did not abuse its discretion by denying Johnson’s
challenge for cause. See People v. Cevallos-Acosta, 140 P.3d 116,
122 (Colo. App. 2005) (the trial court did not abuse its discretion by
denying a challenge for cause against a juror who said he would
weigh police testimony heavily but also said he wanted to make his
judgment based on the facts); People v. Richardson, 58 P.3d 1039,
1043 (Colo. App. 2002) (upholding the trial court’s denial of a
challenge for cause against a juror who had friends and family in
law enforcement and said he would “possibly” believe law
enforcement witnesses more, but who ultimately said “that both
sides would get a fair trial from him,” because the “entire voir dire
of this potential juror . . . support[ed] a finding that the juror would
be impartial”); see also People v. Fleischacker, 2013 COA 2, ¶ 27 (“It
is not necessary that a prospective juror state with absolute
certainty that [they] will set aside all potential bias.”).
10 III. Expert Testimony
¶ 20 Johnson contends that the district court erred by allowing
Investigator Spokas to give unqualified expert testimony about
(1) Voice over Internet Protocol (VoIP) phone numbers; (2) grooming;
(3) the Whisper application; (4) adult fetish websites; and (5) teen
slang. We perceive no reversible error.
¶ 21 CRE 701 governs the admission of lay witness testimony,
while CRE 702 governs the admission of expert testimony. Under
CRE 701, lay witness testimony is limited to “opinions or
inferences” that are (1) “rationally based on the perception of the
witness”; (2) “helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue”; and (3) “not
based on scientific, technical, or other specialized knowledge within
the scope of [CRE] 702.”
¶ 22 “[T]he critical factor in distinguishing between lay and expert
testimony is the basis for the witness’s opinion.” Venalonzo v.
People, 2017 CO 9, ¶ 22. We “must consider whether the testimony
could be based on an ordinary person’s experience or knowledge.”
People v. Murphy, 2021 CO 22, ¶ 21. If so, it is proper lay opinion
11 testimony if it meets the requirements of CRE 701. Id. at ¶¶ 17, 20.
But if a “witness provides testimony that could not be offered
without specialized experiences, knowledge, or training, then the
witness is offering expert testimony.” Venalonzo, ¶ 23.
¶ 23 “Police officers regularly, and appropriately, offer testimony
under CRE 701 based on their perceptions and experiences.”
People v. Tallwhiteman, 124 P.3d 827, 832 (Colo. App. 2005); accord
Murphy, ¶ 21. An officer’s testimony only “becomes objectionable
when what is essentially expert testimony is improperly admitted
under the guise of lay opinions.” People v. Stewart, 55 P.3d 107,
123 (Colo. 2002).
¶ 24 We review a trial court’s evidentiary decisions for an abuse of
discretion. People v. Montoya, 2024 CO 20, ¶ 47. A court abuses
its discretion when its ruling is manifestly arbitrary, unreasonable,
or unfair, or when it misapplies the law. Id.; Oliver, ¶ 7.
¶ 25 If the error is preserved by objection, we review it under the
harmless error standard and will reverse only “if the error
‘substantially influenced the verdict or affected the fairness of the
trial proceedings.’” Hagos v. People, 2012 CO 63, ¶ 12 (citation
omitted). If the error is unpreserved, we review for plain error. Id.
12 at ¶ 14. Plain error is both obvious and substantial. Id. An error is
obvious if it contravenes a statute or rule, a well-settled legal
principle, or established Colorado case law, Campbell v. People,
2020 CO 49, ¶ 25, and is “‘so clear-cut, so obvious,’ [that] a trial
judge should be able to avoid it without benefit of objection,” People
v. Crabtree, 2024 CO 40M, ¶ 42 (quoting Romero v. People, 2017 CO
37, ¶ 6). An error is substantial only 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 (citation
omitted). The defendant bears the burden of establishing that plain
error occurred. People v. Conyac, 2014 COA 8M, ¶ 54.
B. VoIP Testimony
¶ 26 Johnson contends that the district court erred by allowing
Investigator Spokas to testify that Johnson used a VoIP phone
number and that such phone numbers are “untraceable.” We see
no reason to reverse.
¶ 27 Notably, Johnson failed to object to most of the testimony he
now challenges on appeal. And, with one exception, when Johnson
did object, he objected on different grounds. Thus, this claim of
error is largely unpreserved. See Forgette v. People, 2023 CO 4,
13 ¶ 21 (“To preserve an issue for appellate review, a party must make
a timely objection on the record” that is “specific enough to draw
the trial court’s attention to the asserted error.” (citations omitted));
People v. Ujaama, 2012 COA 36, ¶¶ 37-38 (an issue is unpreserved
if the objection is made on different or unspecified grounds that
would not have alerted the trial court to the issue on review).
Ordinarily, we review an unpreserved contention for plain error.
See Hagos, ¶ 14. But because we conclude that any error was
harmless, we treat the whole of Johnson’s contention as preserved.
See id. (“[Plain] error must impair the reliability of the judgment of
conviction to a greater degree than under harmless error to warrant
reversal.”).
1. Additional Background
¶ 28 Investigator Spokas testified during direct examination that
Johnson used Voice over Internet Protocol or VoIP applications or
phone numbers to video call and text the persona. The investigator
explained how to obtain a VoIP phone number and that such
numbers only work on Wi-Fi. The investigator noted using a VoIP
number “obviously . . . keeps somebody more anonymous” because
the number is “not registered to them in any way, shape, or form.”
14 The investigator also explained that he decided to arrange an in-
person meeting because Johnson was using VoIP “services, or these
fake phone numbers that don’t come back to anybody.” Defense
counsel did not object to any of this testimony.
¶ 29 During redirect examination, the prosecutor asked, “The
V[o]IPs, the phone numbers that are not linked back to
individuals[,] . . . how do you get one of those on your phone?”
Investigator Spokas began to answer, “[K]ind of like I said before,
you can just go into —” when defense counsel objected, “This is
outside the scope. I didn’t ask anything about Voice [o]ver Internet
Protocol, and he’s not an expert in this.” The district court
overruled the objection. Investigator Spokas explained that a
person can obtain a VoIP number from different applications and
that the assigned number is not connected to a cellular network
and only works on Wi-Fi.
¶ 30 The prosecutor then asked: If a person deleted a VoIP
application or was not on Wi-Fi “would those V[o]IP numbers, would
you still be able to contact somebody, or would they still be able to
receive communication?” The investigator answered, “No, they
15 cannot —” when defense counsel objected, “Speculation. It’s a Rule
702 problem as well, Judge.” The court overruled the objection.
2. Any Error in Allowing Investigator Spokas’ Testimony on VoIP Phone Numbers Was Harmless
¶ 31 We are not convinced that Investigator Spokas’ VoIP testimony
was expert testimony, but even assuming it was, we conclude that
any error in admitting it was harmless. See Hagos, ¶ 12.
¶ 32 Investigator Spokas testified generally about VoIP phone
numbers, including that someone can obtain one by downloading
an app, that they work only over Wi-Fi, and that they allow
someone to have a separate number that is “more anonymous” and
does not “come back to anybody.” He also testified that Johnson
used a VoIP phone number to communicate with the persona. But
that testimony did not directly prove any element of the charged
crimes and had little bearing on Johnson’s guilt. Johnson did not
contest that he sent sexually explicit text messages to the persona
or arranged to meet her; rather, his primary theory of defense was
that he believed the persona was an adult engaging in “age play” by
pretending to be thirteen. That Johnson used a VoIP number to
communicate with the persona did not disprove that belief.
16 ¶ 33 Investigator Spokas also testified that he had been an
investigator in the Child Sex Offender Internet Investigations Unit
for five years, went through a testing and selection process to
become part of the unit, and studied social media applications. He
said that his work was “geared towards social media, protecting
kids online,” and that the unit also provided “technology safe
presentations” at schools. Based on Investigator Spokas’
background and training, he likely would have been qualified to
testify as an expert regarding VoIP phone numbers had he been
offered as one. See Conyac, ¶ 67 (any error in admitting unqualified
expert testimony was harmless, in relevant part, because the
witness was qualified to offer expert testimony). Investigator
Spokas’ testimony was also helpful to the jury and likely would
have satisfied CRE 702, which allows for the admission of qualified
expert opinion testimony if it will assist the trier of fact to
understand the evidence or to determine a fact in issue. And
Johnson does not argue that the prosecution’s failure to endorse
the investigator as an expert hindered his ability to cross-examine
the investigator effectively or to obtain his own competing expert.
See Conyac, ¶ 69.
17 ¶ 34 Accordingly, we conclude that any error by the district court in
admitting the VoIP testimony as lay testimony was harmless as it
did not substantially influence the verdict or impair the fairness of
the trial. See Zapata v. People, 2018 CO 2, ¶ 62; see also Pernell v.
People, 2018 CO 13, ¶ 22 (“[A]n objected-to trial error is harmless if
there is no reasonable possibility that it contributed to the
defendant’s conviction.”).
C. Grooming Testimony
¶ 35 Johnson contends that the district court erred by allowing
Investigator Spokas to testify about common grooming behavior for
a person who commits sexual assault on children. We perceive no
plain error.
¶ 36 During cross-examination, defense counsel asked Investigator
Spokas about a few of the messages between the persona and
Johnson. Counsel read aloud Johnson’s message that he was
“looking for someone to fuck,” and the persona’s response, “[I]f we
vibe, I’d be down.” Counsel asked the investigator what he
“intend[ed] to convey by saying, if we vibe.” Investigator Spokas
responded, “That’s common vernacular that’s used with teenagers
18 that basically means, if we get along.” Later, when questioning the
investigator about Johnson arranging to meet the persona for
lunch, counsel asked, “[S]o the point was, the first step in whatever
was going to occur here, was to meet for lunch to see if you vibed,
and if you got along with Mr. Johnson?” The investigator
responded affirmatively.
¶ 37 During redirect examination, the prosecutor asked Investigator
Spokas if, “in [his] experience, [it is] common that people engage in
forming friendships or grooming activities,” to which the
investigator stated, “Very often. Yes.” The prosecutor continued,
“Does that include buying someone food or gifts or something like
that?” The investigator said, “Yes.” Defense counsel objected that
the testimony was “[o]utside the scope.” After an off-the-record
bench conference, the district court sustained the objection in part.
The prosecutor then asked the investigator, “And so, in your
experience on some of these websites and sexual conversations, is it
common to engage in relationship-building or vibing, if you will, or
activities like buying lunch, that sort of thing?” Investigator Spokas
answered, “Yes.” Defense counsel did not object.
19 2. The District Court Did Not Plainly Err by Allowing the Challenged Testimony
¶ 38 As a threshold matter, we agree that Investigator Spokas’
testimony about grooming behavior was unqualified expert
testimony. See Romero, ¶ 10 (“[A]n ordinary citizen could not be
expected to be familiar with sexual predators’ strategies . . . .”). But
Investigator Spokas testified about grooming before defense
counsel’s “[o]utside the scope” objection. The court partially
sustained the objection, and the prosecutor rephrased her question
to focus on “relationship-building” and “vibing.” Defense counsel
did not object again, nor did he ask for further relief regarding the
testimony that preceded his objection. See People v. Alemayehu,
2021 COA 69, ¶ 101 (declining to consider an alleged error when
the trial court effectively sustained the defendant’s objection by
ordering the prosecutor to rephrase, and defense counsel requested
no additional relief).
¶ 39 Notably, defense counsel explored the topic of “vibing” on
cross-examination. Defense counsel repeatedly asked the
investigator about the messages between Johnson and the persona
arranging to have lunch to check if they “vibed.” And but for the
20 single reference to “grooming” — which was not repeated after
defense counsel’s objection was sustained — the prosecutor’s
redirect questions and the investigator’s answers were appropriately
responsive to cross-examination. On this record, we cannot
conclude that the challenged testimony was obviously unqualified
expert testimony that the district court should have sua sponte
disallowed. See Crabtree, ¶ 42; Campbell, ¶ 25.
D. Other Challenged Testimony
¶ 40 Johnson contends that the district court plainly erred by
allowing Investigator Spokas to testify that (1) it was “apparent” that
there were minors on the Whisper application; (2) there are
adult-only role play and fetish websites that confirm a user’s age;
and (3) the slang terms he used as the persona are “frequently
used” by teens. We perceive no error, let alone plain error.
¶ 41 Investigator Spokas testified that the Whisper application had
no requirements to prove identity or age before signing up and that
the age options a user could choose ranged from fifteen years old to
forty-five and older. During redirect examination, the prosecutor
asked the investigator if, based on his experience, the Whisper
21 application had users under the ages of seventeen and fifteen.
Investigator Spokas answered, “Yes.” The prosecutor then asked if
it was “apparent that there are users under the age of [seventeen]
on the app.” The investigator answered affirmatively “based on
other users who have started conversations with our teen personas”
who “turn[] out to be a real [fifteen year old].” The investigator later
testified that there are websites specifically “designed for adults
with role play or fetishes that require credit card payment and
[identification] confirmation[].” Defense counsel did not object.
¶ 42 Investigator Spokas also testified about various slang terms he
used when posing as the persona and about how teenagers
commonly used those terms. For example, the investigator
explained that “lol” meant “[l]augh [o]ut [l]oud, or [l]aughing [o]ut
[l]oud,” “rn” meant “right now,” “asf” meant “as fuck,” “omg” meant
“oh my god,” “tryna get done” meant “trying to get done,” and “sum”
meant “something.” Defense counsel did not object.
2. The District Court Did Not Plainly Err by Allowing the Challenged Testimony
¶ 43 We acknowledge that Investigator Spokas had training in
investigating child sex offenses on the internet that likely included
22 the topics about which he testified, but that does not mean the
challenged testimony was so outside the experience or knowledge of
an ordinary person that it obviously constituted expert testimony.
See Murphy, ¶ 21; Venalonzo, ¶ 22.
¶ 44 Investigator Spokas’ testimony that it was “apparent” there
were minors on the Whisper application was based on his
observations using the application. Any ordinary person could use
the Whisper application, interact with a user, and provide the same
testimony. See People v. Glover, 2015 COA 16, ¶ 52 (detective’s
testimony about Facebook was not expert testimony because it was
based on knowledge “common among ordinary people using . . .
Facebook”). Similarly, given the widespread use of the internet, one
does not need specialized training or experience to know that there
are fetish websites for adults that require age confirmation. See id.
Because the challenged testimony could be based on an ordinary
person’s experience or knowledge, the court did not err by admitting
it as lay testimony. See Murphy, ¶ 21.
¶ 45 Likewise, the investigator’s testimony about teen slang terms
did not require special training or knowledge. Most of the
referenced abbreviations and acronyms are well known; many have
23 become part of the common vernacular. See, e.g., Merriam-Webster
Dictionary, https://perma.cc/KMX5-Y4E6 (defining “LOL” as “laugh
out loud; laughing out loud”); Merriam-Webster Dictionary,
https://perma.cc/Y6V7-NJ75 (defining “OMG” as “oh my God”);
Merriam-Webster Dictionary, https://perma.cc/YK8X-NKU5
(defining “tryna” as “used for ‘trying to’ in informal speech”). And
others are easily discernable from the context of the messages. See
Glover, ¶ 53 (the meaning of “street slang” was ascertainable from
the context in which it was used); People in Interest of D.I., 2015
COA 136, ¶ 29 (If “an officer’s opinion could be reached by an
ordinary person based on a process of reasoning familiar in
everyday life, it is admissible as lay opinion evidence.” (citation
omitted)). An ordinary person who interacts with a teenager or uses
text messaging to communicate could testify as Investigator Spokas
did. Accordingly, the court did not err by admitting the testimony
as lay testimony. See Murphy, ¶ 21.
IV. Prosecutorial Misconduct
¶ 46 Johnson contends that the district court plainly erred by
allowing the prosecutor to use his post-arrest silence to imply his
guilt in violation of his due process rights. We disagree.
24 A. Applicable Law and Standard of Review
¶ 47 Every person has a constitutional right to remain silent during
police questioning. See U.S. Const. amend. V; Miranda v. Arizona,
384 U.S. 436, 460-61 (1966). Before a custodial interrogation,
police must inform a suspect “that he has a right to remain silent,
that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either
retained or appointed.” Miranda, 384 U.S. at 444. “A person is in
custody for Miranda purposes if [he] has been formally arrested or
if, under the totality of the circumstances, a reasonable person in
the suspect’s position would have felt that [his] freedom of action
had been curtailed to a degree associated with formal arrest.”
People v. Garcia, 2017 CO 106, ¶ 20. It is improper for a prosecutor
to allude to a defendant’s exercise of his right to remain silent “as
indicating a consciousness of guilt,” People v. Wright, 511 P.2d 460,
462 (Colo. 1973), “because the Miranda warnings implicitly assure
the defendant that his silence will carry no penalty,” People v.
Davis, 312 P.3d 193, 198 (Colo. App. 2010) (citing Doyle v. Ohio,
426 U.S. 610, 619 (1976)), aff’d, 2013 CO 57.
25 ¶ 48 We engage in a two-step analysis when reviewing claims for
prosecutorial misconduct. 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, we decide whether such actions warrant reversal under the
proper standard. Id.
¶ 49 We review de novo whether a prosecutor’s comments on a
defendant’s post-arrest silence violated his due process rights.
People v. Castro, 2022 COA 101, ¶ 20. And because the parties
agree that this issue is unpreserved, we will reverse only for plain
error. See Hagos, ¶ 14. For prosecutorial misconduct to constitute
plain error, it “must be flagrant or glaringly or tremendously
improper, and it must so undermine the fundamental fairness of
the trial as to cast serious doubt on the reliability of the judgment
of conviction.” People v. McMinn, 2013 COA 94, ¶ 58.
¶ 50 Investigator Spokas testified that he was working undercover
at the restaurant drive-through on the day of the arranged meeting
between Johnson and the persona. He said he recognized Johnson
in the drive-through as the person from the video chat and alerted
26 the nearby officers, Sergeant Michael Harris and Investigator
Vernon Woodin. Once Johnson parked, Sergeant Harris
approached the car with his gun drawn and ordered Johnson to
step out of the vehicle.
¶ 51 Sergeant Harris’ body camera footage, which defense counsel
admitted at trial, showed that Johnson did not immediately comply.
Investigator Spokas testified that Johnson appeared to be
“manipulating” his phone and “deleting or getting rid of . . . the
evidence of the communication with [the persona].” The officers
eventually removed Johnson from his car and placed him in
handcuffs. Johnson did not speak other than to ask, “What’s going
on?” The arrest lasted forty-four seconds. After Johnson was
placed in a police vehicle, he requested a lawyer and did not make
any other statements.
¶ 52 At trial, Johnson did not testify, but part of his theory of
defense as conveyed through counsel was that he did not believe he
was speaking to an actual child; rather, he “love[d] ageplay [sic].”
Defense counsel also implied that Johnson was trying to determine
if the persona was a scammer. For example, defense counsel asked
Investigator Spokas about “scam baiting,” which involves “engaging
27 and wasting” a scammer’s time. And during closing argument,
defense counsel said, “We don’t really know, we can’t be in the
mind, of Sean Johnson. We don’t know if he’s someone who likes to
flesh out scammers on the Internet.”
¶ 53 During closing argument, the prosecutor said,
And when [Johnson is] stopped by law enforcement, he doesn’t say ha ha caught you, this was a scam. He doesn’t say, I thought she was an adult. He starts deleting things off of his phone. Because this is who he knew he was talking to. And he knew what he was going to do.
C. The District Court Did Not Plainly Err by Allowing the Prosecutor to Comment on Johnson’s Post-Arrest Silence
¶ 54 As an initial matter, we reject the People’s argument that the
prosecutor’s comment was about Johnson’s silence while the
officers were “attempting to arrest” him. See People v. Rios, 2020
COA 2, ¶ 24 (explaining that a prosecutor should avoid commenting
on a defendant’s prearrest silence, but Fifth Amendment
protections do not apply in noncustodial settings). The entire
interaction beginning with the officers ordering Johnson out of his
car until Johnson was in handcuffs was only forty-four seconds.
The officers approached Johnson’s car with guns drawn and
28 ordered him to get out. Under such circumstances, a reasonable
person in Johnson’s position “would have felt ‘deprived of his
freedom of action to the degree associated with a formal arrest’” and
would be considered in custody. People v. Null, 233 P.3d 670, 676
(Colo. 2010) (citation omitted). Thus, we understand the prosecutor
to have commented on Johnson’s custodial silence.
¶ 55 To determine whether the prosecutor’s comment was meant to
draw meaning from Johnson’s silence, we consider (1) whether the
remark was meant to create an inference of guilt, and (2) whether
the prosecutor argued that Johnson’s silence was an implied
admission of guilt. See Davis, 312 P.3d at 198-99. We conclude
that the prosecutor’s comment on Johnson’s custodial silence was
intended to suggest his guilt. The remark implied that, if Johnson
were innocent, he would have told arresting officers he believed he
was exposing a scammer or meeting an adult; conversely, his failure
to do so implied his guilt.
¶ 56 We reject the People’s argument that the prosecutor’s
comment was not intended to imply guilt because she “did not
argue that if [Johnson] were innocent, he would have explained his
defense to officers when he was arrested.” The prosecutor need not
29 have so explicitly linked Johnson’s silence to his guilt for the
comment to have been improper. See id. Accordingly, we conclude
that the prosecutor committed misconduct.
¶ 57 Having determined that the prosecutor’s conduct was
improper, we must evaluate whether it warrants reversal under
plain error review. See Wend, 235 P.3d at 1096; see also People v.
Burnell, 2019 COA 142, ¶ 45 (“[N]ot every reference to a defendant’s
exercise of the right to remain silent requires reversal.”). We
conclude that the misconduct was obvious because the law is well
settled that a prosecutor may not use a defendant’s post-Miranda
silence to imply guilt. See Doyle, 426 U.S. at 619; Wright, 511 P.2d
at 462; People v. Coleman, 2018 COA 67, ¶ 35. But we also
conclude that the misconduct does not require reversal because it
did not so undermine the fundamental fairness of the trial as to
cast serious doubt on the reliability of the judgment of conviction.
See Hagos, ¶ 14.
¶ 58 To evaluate the effect of a prosecutor’s comment on a
defendant’s silence, we examine
(1) the prosecutor’s use of the post-arrest silence; (2) which party elected to pursue the line of questioning; (3) the quantum of other
30 evidence of guilt; (4) the intensity and frequency of the reference; and (5) the trial court’s opportunity to grant a motion for mistrial or to give curative instructions.
Castro, ¶ 40.
¶ 59 As discussed, the prosecutor injected the issue into the case
and used Johnson’s silence to imply his guilt. But the prosecutor
made the comment in closing argument in response to the defense
theory that Johnson did not think he was talking to a real child or
was trying to expose an internet scam. The comment was brief, it
was not repeated, and it was not the prosecution’s primary
argument to establish Johnson’s guilt. The district court did not
have the opportunity to give a curative instruction because defense
counsel did not alert the court to the prosecutor’s misconduct. See
Domingo-Gomez v. People, 125 P.3d 1043, 1054 (Colo. 2005) (“The
lack of an objection may demonstrate the defense counsel’s belief
that the live argument, despite its appearance in a cold record, was
not overly damaging.” (citation omitted)).
¶ 60 Importantly, the evidence that Johnson committed the
charged conduct was overwhelming. The persona told Johnson she
was thirteen no less than five times. She also said she was not old
31 enough to drive and planned to sneak out of middle school to meet
him for lunch. Although Johnson discussed age play, he stopped
mentioning it once the persona insisted she was thirteen and said
she would not meet him if he did not believe her. Johnson told the
persona he needed to “be careful on devices others can read”
because he did not “want to get in trouble.” He sent the persona
several sexually explicit messages after she insisted her real age
was thirteen. And he made clear what he wanted to do when he
met the persona for lunch, telling her that he wanted to “kiss [her],
lick [her], fuck [her],” that “sex keeps the weight down,” and that he
could not “wait to find out how [she] taste[d].”
¶ 61 Considering the Castro factors and the record as a whole,
reversal is not required. See McMinn, ¶ 58; Hagos, ¶ 14.
V. Disposition
¶ 62 We affirm the judgment of conviction.
JUDGE HARRIS and JUDGE TOW concur.