22CA2106 Peo v Kolacny 06-05-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA2106 Douglas County District Court No. 21CR841 Honorable Theresa Slade, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Corey Neil Kolacny,
Defendant-Appellant.
JUDGMENT AFFIRMED, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE MOULTRIE Lipinsky and Johnson, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 5, 2025
Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Robin Rheiner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Corey Neil Kolacny, appeals the conviction entered
on jury verdicts finding him guilty of felony menacing, criminal
mischief, prohibited use of a weapon, violation of a protection order,
and two counts of possession of a weapon by a previous offender.
We affirm Kolacny’s judgment of conviction but reverse the court’s
order imposing surcharges, costs, and fees, and we remand for
amendment of the mittimus.
I. Background
¶2 The prosecution charged Kolacny with the above offenses.
During a bifurcated trial in which the felony menacing, criminal
mischief, and prohibited use of a weapon charges were tried first,
the prosecution presented the following evidence.
¶3 Wil Lowery and Shannon Ball were in Lowery’s car, parked in
a public, on-street parking spot in Castle Rock, when they heard a
loud noise at approximately 10 p.m. Lowery thought someone had
thrown a rock at his car, so he got out to assess and discovered his
car had been damaged. While looking around to see who or what
might have caused the damage, he saw a nearby house. Although
Lowery said it was “pitch black,” he saw someone he described as a
white adult male wearing a lighter colored shirt move in the dark.
1 ¶4 Lowery asked the person why he threw rocks at his car, and
the person responded that Lowery was on private property. As
Lowery continued to ask about the damage to his car, the person
responded, “[If] you step one foot closer, I’m going to blow it.”
Lowery did not see a weapon, but he heard a gunshot and saw a
flash and smoke rising from what he believed to be the muzzle of a
firearm. Lowery and Ball immediately drove away and later called
the police.
¶5 Officer Robert Schuster responded to the scene of the incident.
After confirming that Lowery had been parked in a public parking
space, he saw a person — later identified as Kolacny — leave a
nearby residence and stand behind a truck parked in the
residence’s driveway.
¶6 Officers detained Kolacny, interviewed him, and conducted a
protective sweep of his residence. Kolacny told investigating officers
that he was playing video games and watching television when he
heard a car backfire. Kolacny denied having a firearm, firing a gun
on the night of the incident, or being otherwise involved with the
shooting. Following the protective sweep, Officer Schuster found a
spent .45 caliber shell casing in the driveway and a slingshot in the
2 bed of the truck. Kolacny authorized officers to search his
residence, and Officer Schuster found a “Walther-labeled handgun”
(Walther gun) in a closet next to the front door and ten rounds of
rifle ammunition elsewhere in the home. Officers also found an
unspent .45 caliber bullet and “tactile gloves” in Kolacny’s home,
and, during a pat down search, they found three “nickel-sized
rocks” in Kolacny’s front pants pocket. Samples taken from
Kolacny’s hands and forearms that night later tested positive for
gunshot residue.
¶7 During their investigation, officers asked Kolacny whether he
had information about a neighboring home that was similar in
appearance to Kolacny’s home. The officers learned that the
neighboring home belonged to Kolacny’s grandfather. Officers
testified that Kolacny informed them that he didn’t have access to
his grandfather’s home, the home was locked, and his grandfather
wasn’t there. Officers obtained a warrant to search Kolacny’s
grandfather’s home several hours into their investigation. An officer
testified that, while the police waited for the search warrant, he
didn’t see anyone in the area besides Kolacny, and he didn’t see
anyone enter or exit Kolacny’s grandfather’s home. After obtaining
3 the search warrant for the grandfather’s home, officers entered
through the back door, which they discovered was neither locked
nor latched. Inside, officers found a magazine loaded with .45
caliber bullets and a “Taurus 911” .45 caliber handgun (Taurus
gun).
¶8 The trial was bifurcated so that the jury wouldn’t hear about
Kolacny’s prior offenses — an element of the possession of a
weapon by a previous offender charge — before it considered the
felony menacing, criminal mischief, and prohibited use of a weapon
charges during the first portion of the trial. After the second
portion of the trial, the jury convicted Kolacny as charged.
¶9 On appeal, Kolacny contends that the trial court erred by
admitting irrelevant and unduly prejudicial firearms evidence and
by admitting hearsay testimony regarding the cost of the damage to
Lowery’s car. He also contends that the prosecutor committed
misconduct during opening statements and closing argument.
Finally, he contends that the trial court erred by imposing
surcharges, costs, and fees without allowing him to request a
waiver based on his indigency.
4 ¶ 10 We address each contention in turn. We affirm the judgment
of conviction on all counts but reverse the court’s imposition of
surcharges, costs, and fees and remand for correction of the
mittimus.
II. Firearm Paraphernalia Evidence
¶ 11 Kolacny contends that the district court erred by admitting
evidence of the Walther gun, rifle ammunition, and tactile gloves
(collectively, firearms paraphernalia) because such evidence was
irrelevant and unduly prejudicial. We agree that the court erred by
admitting the firearms paraphernalia but conclude that any error
was harmless.
A. Additional Facts
¶ 12 The morning of trial, defense counsel notified the court that
they1 were objecting to the admission of evidence of the Walther
gun. Defense counsel asserted the Walther gun was not a firearm
capable of shooting a projectile; rather, the Taurus gun was the
“operable” firearm that the prosecution theorized Kolacny fired from
the driveway. Thus, defense counsel argued that evidence of the
1 Kolacny was represented by two public defenders during the trial.
5 Walther gun was irrelevant and unfairly prejudicial. The
prosecution disagreed, asserting that the Walther gun was relevant
to the jury’s consideration of (1) Kolacny’s “bias and credibility,”
based on statements he made to officers the night of the incident;
and (2) the thoroughness of law enforcement’s investigation because
it demonstrated officers had considered but ruled out the Walther
gun as the weapon that was used in the incident.
¶ 13 Defense counsel also asserted that the rifle ammunition was
not relevant to the menacing charge because it was “not related to
the weapon that was fired.” As with the Walther gun, the
prosecution responded that the ammunition was relevant to
Kolacny’s bias and credibility and to whether law enforcement had
conducted a thorough investigation. The trial court determined it
didn’t yet have enough information to rule on the admissibility of
either piece of evidence.
¶ 14 Kolacny’s defense at trial was mistaken identity. During
opening statements, Kolacny’s counsel argued that the investigating
officers had failed to take “a lot of things into consideration” and
prematurely “arrested their only suspect” — Kolacny — who counsel
asserted was the wrong person. During trial, defense counsel
6 renewed the objection to the admission of evidence of the Walther
gun because it was a starter pistol2 incapable of firing bullets. In
response, the prosecution alleged that defense counsel had opened
the door to the evidence’s admission by asserting the officers had
not conducted a thorough investigation. Additionally, the
prosecution disputed defense counsel’s assertion that the Walther
gun was inoperable, arguing that a detective assigned to the case
indicated the Walther gun was capable of firing a live round and
should be considered a weapon. The court again determined it
didn’t have enough information to rule.
¶ 15 During his trial testimony, Officer Schuster said that he
routinely collects exculpatory and inculpatory evidence from crime
scenes to have a “full picture of the investigation.” When he entered
Kolacny’s residence, he was looking for “anything related to . . . the
initial report that rocks had been thrown . . . or anything related to
a firearm.” He thus documented the Walther gun and the rifle
2 Starter pistols’ barrels are specifically designed to fire only blank
cartridges and are most commonly used in track and field competitions to signal the start of events and in special effects to simulate the firing of gunshots. See Merriam-Webster Dictionary, https://perma.cc/Y368-8ZNA.
7 ammunition because anytime officers investigate a scene with a
report of “shots fired . . . , anything that could be related to a
shooting is important.” Similarly, another officer testified that he
made note of the “tactile gloves” because “[p]eople sometimes use
those when they fire weapons.”
¶ 16 On cross-examination, Officer Schuster acknowledged that
there was no ammunition in the Walther gun when he found it. He
also acknowledged that it wouldn’t have been capable of shooting a
.45 caliber bullet. Additionally, Corporal Daniel Moffit, another
responding officer, testified he observed that the barrel channel of
the Walther gun had been sealed with filler, rendering it
permanently inoperable.
B. Standard of Review and Preservation
¶ 17 We review a trial court’s evidentiary rulings for an abuse of
discretion. Gonzales v. People, 2020 CO 71, ¶ 25. A court abuses
its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair or is based on an erroneous understanding
of the law. Yusem v. People, 210 P.3d 458, 463 (Colo. 2009).
¶ 18 We apply the harmless error standard to preserved claims of
error and reverse only for errors that “substantially influenced the
8 verdict or affected the fairness of the trial proceedings.” Hagos v.
People, 2012 CO 63, ¶ 12 (quoting Tevlin v. People, 715 P.2d 338,
342 (Colo. 1986)).
¶ 19 We reverse unpreserved claims for plain error. Id. at ¶ 14.
Plain errors are “obvious” and “substantial.” Id. A “plain error” is
an error so obvious that a trial judge should be able to avoid it
without an objection. Scott v. People, 2017 CO 16, ¶ 16. An
obvious error is ordinarily one that contravenes (1) a clear statutory
command; (2) a well-settled legal principle; or (3) Colorado case law.
Id. An error must be “seriously prejudicial” to be considered
substantial; that is, the error must have so undermined the
fundamental fairness of the trial as to cast serious doubt on the
reliability of the defendant’s conviction. People v. Ujaama, 2012
COA 36, ¶ 43; see Hagos, ¶ 14.
¶ 20 Kolacny objected to the admission of evidence of the Walther
gun on the basis that it was irrelevant and that “it would confuse
the jury and be prejudicial to [him].” He also objected to the rifle
ammunition’s admission on relevance grounds. Therefore, we
review these contentions for harmless error.
9 ¶ 21 However, we review for plain error Kolacny’s contention that
the rifle ammunition evidence was unduly prejudicial because he
didn’t contemporaneously object to its admission on that basis.3
We likewise review for plain error Kolacny’s contention that the
testimony about the tactile gloves was irrelevant and unduly
prejudicial because Kolacny didn’t raise any objection to that
testimony.
C. Applicable Law
¶ 22 Evidence must be relevant under CRE 401 and not unfairly
prejudicial under CRE 403 to be admissible. People v Greenlee, 200
P.3d 363, 366 (Colo. 2009), abrogated on other grounds by Rojas v.
People, 2022 CO 8. Evidence is relevant if it has any tendency to
make the existence of a fact of consequence more or less probable.
CRE 401. “Relevant evidence ‘need not prove conclusively the
proposition for which it is offered, . . . but it must in some degree
3 Kolacny’s opening brief refers to the firearms paraphernalia
evidence collectively and argues that the court’s admission of that evidence was “irrelevant and prejudicial.” However, his objection at trial focused on whether the evidence was irrelevant and, therefore, inadmissible under CRE 402. Kolacny acknowledges that he didn’t argue during trial, as he does here, that the rifle ammunition was inadmissible under CRE 403 because any relevant probative value was substantially outweighed by unfair prejudice.
10 advance the inquiry.’” Greenlee, 200 P.3d at 366 (quoting 2 Jack B.
Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence
§ 401.04[2][b] (Joseph M. McLaughlin ed., 2d ed. 2008)).
¶ 23 While relevant evidence is generally admissible, see CRE 402,
CRE 403 permits the exclusion of relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice.
Because CRE 403 strongly favors admissibility, on review, we afford
the evidence its maximum probative value and the minimum
reasonably expected unfair prejudice. People v. Gibbens, 905 P.2d
604, 607 (Colo. 1995).
¶ 24 Under the version of the statute in effect at the time of the
incident, a person commits felony menacing if
by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury . . . [b]y the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon.
§ 18-3-206(1)(a), C.R.S. 2021.
¶ 25 A “[d]eadly weapon” includes “[a] firearm, whether loaded or
unloaded . . . that, in the manner it is used or intended to be used,
is capable of producing death or serious bodily injury.”
11 § 18-1-901(2)(e)(I)-(II), C.R.S. 2024. And a “[f]irearm” is “any
handgun, automatic, revolver, pistol, rifle, shotgun, or other
instrument or device capable or intended to be capable of
discharging bullets, cartridges, or other explosive charges.”
§ 18-1-901(3)(h).
¶ 26 Under the applicable version of the prohibited use of a weapon
statute, a person commits a crime by discharging a firearm
“[r]ecklessly or with criminal negligence.” § 18-12-106(1)(b), C.R.S.
2021.
D. Analysis
1. Walther Gun
¶ 27 The prosecution asserts that evidence of the Walther gun was
relevant to Kolacny’s credibility because the officers’ discovery of it
made it more probable that Kolacny wasn’t truthful when he told
them that he hadn’t possessed any firearms the night of the
incident. We disagree.
¶ 28 As captured in bodycam footage, Kolacny stated that he wasn’t
in possession of any guns on the night of the incident. But he
didn’t testify at trial. See People v. Segovia, 196 P.3d 1126, 1130
(Colo. 2008) (“If a witness takes the stand and testifies, [he] puts
12 [his] credibility in issue. Thus, the opposing party is entitled to
impeach the witness’s credibility.”) (citation omitted). Therefore, the
prosecution couldn’t use the Walther gun as extrinsic evidence to
challenge the credibility of Kolacny’s pretrial statements. See CRE
608(b) (noting that, generally, extrinsic evidence of specific
instances of a witness’s conduct can’t be used to attack or support
the witness’s character for truthfulness); see also People v. Thomas,
2014 COA 64, ¶ 42 (explaining that CRE 608(b) doesn’t prevent
admission of extrinsic evidence that specifically contradicts
defendant’s direct testimony). Accordingly, evidence of the Walther
gun was not relevant to Kolacny’s credibility.
¶ 29 Moreover, prosecution witnesses testified that the Walther gun
was inoperable and incapable of firing .45 caliber — or any other
caliber — ammunition. Thus, the admission of evidence of the
Walther gun didn’t advance the jury’s inquiry into whether Kolacny
had committed the offenses of menacing and prohibited use of a
weapon because those offenses were based on allegations that an
unknown person fired an unseen weapon into the air.
¶ 30 And we disagree with the People’s assertion that, regardless of
the Walther gun’s operability, it was relevant to rebut defense
13 counsel’s assertion that law enforcement hadn’t conducted a
thorough investigation. While “evidence may be independently
relevant to show that police conducted a thorough investigation,”
People v. Marks, 2015 COA 173, ¶ 34, defense counsel didn’t argue
that the officers hadn’t thoroughly investigated Kolacny; she argued
that law enforcement hadn’t investigated anyone else. Therefore,
the Walther gun evidence could not logically advance the jury’s
determination of whether law enforcement had investigated anyone
other than Kolacny.
¶ 31 Nonetheless, we conclude that the court’s error in admitting
evidence of the Walther gun was harmless. The prosecution
produced evidence at trial that, immediately following the incident,
Kolacny was the only individual observed in the area for several
hours while officers waited for a warrant to search the grandfather’s
house. It also produced a spent .45 caliber shell casing recovered
from the driveway of Kolacny’s home, which was immediately next
door to his grandfather’s house, and elicited testimony confirming
that officers were able to enter the grandfather’s home through an
unlocked door after obtaining the warrant; that officers recovered
the .45 caliber Taurus gun and .45 caliber magazine from the
14 grandfather’s home; and that Kolacny’s hands and forearms later
tested positive for gunshot residue.
¶ 32 And the jury — as evidenced by the substance of the jury
questions it submitted to the court during trial — carefully
evaluated the evidence presented to it. Contrary to Kolacny’s
assertion that the jurors’ extensive questions show “confusion” and
“distraction caused by the admission of the firearms
paraphernalia,” the record reflects that the jurors asked questions
throughout the trial. For example, the jury asked questions about,
among other things, Lowery’s and Ball’s actions and observations,
the distance between Kolacny’s home and Lowery’s car, the location
of Kolacny’s home relative to his grandfather’s home, whether there
were fingerprints on the .45 spent shell casing from Kolacny’s
driveway, whether Kolacny’s hands were tested for gunshot residue,
and whether the spent shell casing matched the type of ammunition
found in the Taurus gun’s magazine. And while the jurors asked a
few questions related to the Walther gun, they weren’t fixated on it.
¶ 33 Thus, considering the entirety of the record, we can’t conclude
that the court’s erroneous admission of evidence of the Walther gun
substantially impacted the verdict or affected the fairness of the
15 trial. See Masters v. People, 58 P.3d 979, 1002-03 (Colo. 2002) (“If
a reviewing court can say with fair assurance that, in light of the
entire record of the trial, the error did not substantially influence
the verdict or impair the fairness of the trial, the error may properly
be deemed harmless.” (quoting People v. Gaffney, 769 P.2d 1081,
1088 (Colo. 1989))).
2. Rifle Ammunition
¶ 34 Kolacny asserts that the rifle ammunition was irrelevant —
and the court’s admission of it was therefore erroneous — because
(1) there was no evidence that a rifle was involved in menacing the
victims; (2) the rifle ammunition was too large to fit in either the
Walther or the Taurus guns; and (3) neither the spent shell casing
found in Kolacny’s driveway nor the unfired live round inside the
Taurus gun was a rifle cartridge. We agree.
¶ 35 The People admit that the rifle ammunition couldn’t be fired
from either the Walther gun or the Taurus gun. And we reject the
People’s argument that the ammunition was relevant to challenge
Kolacny’s truthfulness because, as we’ve already concluded, the
prosecution couldn’t use extrinsic evidence to challenge Kolacny’s
credibility.
16 ¶ 36 We likewise reject the People’s argument that admission of the
ammunition was relevant to the jury’s determination of the
menacing charge, for two reasons. First, because the rifle
ammunition alone couldn’t satisfy the definition of “[f]irearm,”
§ 18-1-901(3)(h), its admission couldn’t assist the jury in
determining whether Kolacny had menaced the victims by using a
deadly weapon. Second, because Lowery didn’t see the item that
caused the damage to his car or produced the flash and smoke that
he believed came from a firearm, we reject the assertion that the
rifle ammunition was probative of the jury’s determination of
whether Kolacny had used “any article,” § 18-3-206(1)(a), C.R.S.
2021, in a manner that caused the victims’ to reasonably believe
that a deadly weapon was involved. See People v. Carlson, 712 P.2d
1018, 1022 (Colo. 1986) (“In determining whether the challenged
evidence relates to a fact of consequence to the determination of
this case, we must necessarily look to the elements of the crime[s]
charged.”). Thus, the rifle ammunition was irrelevant, and the
court erred by admitting it.
¶ 37 Regardless, we conclude the court’s error — even if obvious —
did not substantially affect the fundamental fairness of the trial so
17 as to cast serious doubt on the reliability of the judgment of
conviction.
¶ 38 Our review of the record doesn’t indicate that the jury was
unduly focused on the rifle ammunition. While the jury asked
numerous questions during the trial, it asked only two questions
related to the ammunition: whether a rifle was found in Kolacny’s
residence and whether the rifle ammunition was pictured in one of
the prosecution’s admitted exhibits. Thus, we conclude that the
court’s erroneous admission of the rifle ammunition didn’t
substantially influence the verdict, impact the fundamental fairness
of the trial, or cast serious doubt on the reliability of Kolacny’s
3. Tactile Gloves
¶ 39 Kolacny argues that evidence about the tactile gloves was
irrelevant because the prosecution presented no evidence Kolacny
wore the gloves the night of the incident or that the gloves were
otherwise involved. We agree.
¶ 40 At trial, while officers testified that tactile gloves may indicate
that a person uses firearms, the presence of the tactile gloves in
Kolacny’s residence — without more — didn’t help the jury
18 determine at any fact at issue, such as the identity of the shooter or
the type of weapon fired.
¶ 41 Nonetheless, we conclude the court didn’t plainly err by
admitting evidence about the tactile gloves. The testimony about
the tactile gloves was limited. And in closing argument, the
prosecution did not emphasize the gloves as key evidence
supporting any of the charges. Accordingly, we conclude the
limited references to the tactile gloves weren’t so prejudicial as to
cause us to seriously doubt the reliability of Kolacny’s conviction.
See People v. Lahr, 2013 COA 57, ¶ 24 (“[A]ll inadmissible evidence
is not equally prejudicial,” and on review, we may deem
inadmissible evidence to have less prejudicial impact when it is only
minimally referenced.).
III. Hearsay Testimony
¶ 42 Kolacny contends that the trial court reversibly erred by
admitting hearsay testimony about the cost of the damage to
Lowery’s car. We disagree.
¶ 43 During direct examination, Lowery testified that he had owned
his car — an Audi A4 — for four to five months before the incident.
19 He also said that he was “really into cars,” and that he knew his car
had no previous damage because he looked at it frequently. When
the prosecutor asked Lowery to estimate the cost of the damage to
his car, Lowery said that he believed it amounted to about $2,000.
Defense counsel objected to Lowery’s testimony, arguing Lowery
was “getting into [hearsay] in regards to an estimation.” The court
overruled the objection, noting that Lowery could testify to the value
of the damage to his car to the extent that he knew the value. The
court further noted, “If it comes to an exact estimate or exact
damages, that’s a different topic.”
¶ 44 The prosecutor then asked Lowery if he had sought
information about what it would cost to fix his car and, if so,
whether that information changed his estimate of the value of the
damage to the car. Lowery responded that he had and that his
estimation of the damage to his car “was very similar to what [he]
was quoted.”
¶ 45 During closing argument, the prosecutor referenced Lowery’s
estimate of the cost of repairing his car stating, “[H]e told you that
he got an estimate . . . that can confirm that amount.”
20 B. Standard of Review and Preservation
¶ 46 We review a court’s admission of hearsay evidence for an
abuse of discretion. People v. Valles, 2013 COA 84, ¶ 53. A court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair or based on an erroneous understanding of
the law. Yusem, 210 P.3d at 463.
¶ 47 As an initial matter, the parties dispute whether Kolacny
preserved this issue for review. Because Kolacny objected to the
testimony as improper hearsay, we conclude that the issue was
sufficiently preserved.
¶ 48 Hearsay is “a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). Hearsay statements
are generally inadmissible unless an exception applies. CRE 802.
¶ 49 A person commits criminal mischief when he or she knowingly
damages another person’s real or personal property. § 18-4-501(1),
C.R.S. 2024. The damage element reflects the economic loss to the
victim, in terms of actual value, which is generally determined by
market value. People v. Dunoyair, 660 P.2d 890, 894-95 (Colo.
21 1983). In criminal mischief cases, “the value of the damage may be
determined by the costs of repair and replacement,” People v
Waters, 641 P.2d 292, 294 (Colo. 1981), as shown by competent
evidence, People v. Moore, 226 P.3d 1076, 1084 (Colo. App. 2009).
¶ 50 When Kolacny was charged, criminal mischief was a class 6
felony if the aggregate damage to the property at issue was between
$1,000 and $5,000. § 18-4-501(4)(b)-(d), C.R.S. 2021. Thus, to
prove Kolacny committed felony criminal mischief, the prosecution
had to prove, among other things, that the damage Kolacny caused
to Lowery’s car amounted to between $1,000 and $5,000. See
§ 18-4-501(1), (4)(d), C.R.S. 2021; see also People v. Jamison, 220
P.3d 992, 993 (Colo. App. 2009) (noting the burden is on the
prosecution to prove the value of damage to property beyond a
reasonable doubt).
¶ 51 Kolacny contends Lowery’s testimony that Lowery’s estimation
of the damage to his car “was similar to what [Lowery] was quoted”
constituted hearsay because he asserted the estimation to prove the
truth of the amount of the damage and “crossed the line by
incorporating a third-party professional estimate.”
22 ¶ 52 Even if we assume Lowery’s testimony was based on
information from a professional estimate and, thus, constituted
hearsay, we conclude any error was harmless. See Hagos, ¶ 12.
Kolacny doesn’t challenge the admissibility of Lowery’s testimony
about Lowery’s own estimation of the damage to his car. And
because that testimony was based on Lowery’s personal knowledge,
it was sufficient to support the damages element of the criminal
mischief charge. See CRE 602 (witnesses may testify to matters of
which they have personal knowledge); People v. Payne, 2014 COA
81, ¶ 26 (“[A]n owner is [always] competent to testify as to the value
of his or her property,” so long as the testimony “relate[s] to the
property’s value at the time of . . . the crime.”); see also People v.
Coahran, 2019 COA 6, ¶¶ 42-43 (victim’s testimony estimating
amount of damages to car could reasonably support defendant’s
conviction for felony criminal mischief). While Lowery’s testimony
was the only evidence of damage to his car in an amount necessary
to support a conviction for a class 6 felony, Kolacny’s counsel had
the opportunity to cross-examine Lowery on his statement but
didn’t do so.
23 ¶ 53 We acknowledge that one of the responding officers testified
that his estimate of the damage to Lowery’s car was only about
$500. But it was up to the jury to assess the credibility of witness
testimony, consider it along with the other evidence presented, and
resolve any conflicts in the evidence. See People v. Poe, 2012 COA
166, ¶ 14 (the jury, as the fact finder, resolves conflicts,
inconsistencies, and disputes in the evidence). Accordingly, we
reject Kolacny’s assertion that Lowery’s testimony substantially
influenced the verdict or affected the fairness of the trial
proceedings.
IV. Prosecutorial Misconduct
¶ 54 Kolacny next asserts that the prosecutor committed
misconduct during her opening statement and closing argument by
misstating the law on the presumption of innocence. We disagree.
¶ 55 During her opening statement — after discussing the evidence
related to the victims’ report of the incident and the resulting law
enforcement investigation, and before discussing the evidence
related to Kolacny’s words and actions that night — the prosecutor
24 told the jury, “[A]s we go through this trial, to look at the
misdirections and mistruths.”
¶ 56 In addition, during closing argument, the prosecutor said:
I want to talk to you about something the Court has instructed and talked to you about. While a defendant is presumed innocent, he is not presumed credible. Credibility determinations are your province, right? But the defendant’s statements to officers on the night of [the incident], they’re not presumed credible. You don’t have to give him that presumption. You can look at the evidence and his statements, and they don’t line up, right?
¶ 57 Kolacny’s counsel didn’t contemporaneously object to these
statements.
B. Standard of Review, Preservation, and Applicable Law
¶ 58 The primary purpose of an opening statement is to provide the
jury with an outline of what counsel expects the evidence will show.
People v. Bustos, 725 P.2d 1174, 1177 (Colo. App. 1986). “[A]
prosecutor may refer to evidence that subsequently will be adduced
at trial and draw inferences from that evidence.” People v. Estes,
2012 COA 41, ¶ 23. Likewise, a prosecutor has latitude during
closing argument and may refer to “the strength and significance of
the evidence, conflicting evidence, and reasonable inferences that
25 may be drawn from the evidence.” People v. Rhea, 2014 COA 60,
¶ 46 (quoting People v. Walters, 148 P.3d 331, 334 (Colo. App.
2006)). However, “[c]ounsel may not misstate or misinterpret the
law in closing arguments.” People v. Weinreich, 98 P.3d 920, 924
(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005).
¶ 59 We engage in a two-step analysis to review a claim of
prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we “determine whether the prosecutor’s
questionable conduct was improper based on the totality of the
circumstances.” Id. We evaluate the alleged misconduct by
examining the context of the argument as a whole and in light of
the evidence before the jury. People v. Strock, 252 P.3d 1148, 1153
(Colo. App. 2010).
¶ 60 Second, if the prosecutor’s conduct was improper, we
determine whether the misconduct warrants reversal. Wend, 235
P.3d at 1089; People v. Robinson, 2019 CO 102, ¶ 18. Because
Kolacny didn’t object to the prosecutor’s statements, we review for
plain error. See Wend, 235 P.3d at 1097. Only misconduct that is
“flagrantly, glaringly, or tremendously improper” warrants reversal
under the plain error standard. Domingo–Gomez v. People, 125 P.3d
26 1043, 1053 (Colo. 2005) (quoting People v. Avila, 944 P.2d 673, 676
(Colo. App. 1997)). And “[p]rosecutorial misconduct in closing
argument rarely constitutes plain error.” Strock, 252 P.3d at
1152-53.
C. Analysis
1. Opening Statement
¶ 61 Kolacny asserts that the prosecutor’s opening statement,
“[r]ather than being a fair comment on the evidence, . . . gutted the
presumption of innocence,” therefore requiring that all his
convictions be overturned. We disagree.
¶ 62 The prosecutor made the challenged statement in the context
of explaining what she believed conflicts in the evidence would show
at trial. The prosecutor made no other references to “misdirections”
or “mistruths” in either portion of the bifurcated trial. This isolated
statement, when viewed in context, is hardly the kind of
“tremendously improper” statement that would warrant reversal of
Kolacny’s convictions.
¶ 63 However, besides a conclusory statement that the prosecutor’s
alleged misconduct applied to all his convictions, Kolacny doesn’t
present argument as to why his convictions for violation of a
27 protection order and two counts of possession of a weapon by a
previous offender should be reversed. We therefore deem any
argument as to these convictions abandoned. See People v.
Rodriguez, 914 P.2d 230, 249 (Colo. 1996) (A defendant’s “failure to
specifically reassert on . . . appeal all of the claims which the
district court disposed of . . . constitutes a conscious
relinquishment of those claims which he does not reassert.”).
2. Closing Argument
¶ 64 Kolacny first asserts that because he pleaded not guilty, he
must be presumed credible. Kolacny doesn’t cite any Colorado law
to support his assertion, however, and we have found none. To the
contrary, the credibility of any witness — including that of a
defendant — can be questioned. See § 13-90-101, C.R.S. 2024
(“Neither parties nor other [interested] persons . . . shall be
excluded” from the general rule that “[i]n every case the credibility
of the witness may be drawn in question.”). And, as noted, during
closing argument, the prosecution may make reasonable inferences
that may be drawn from the evidence. Walters, 148 P.3d at 334.
Kolacny didn’t testify during the first portion of the trial, but the
jury heard evidence about his statements to officers. The
28 prosecutor, therefore, appropriately pointed out contradictions
between those statements and other evidence in the case. See
People v. Walker, 2022 COA 15, ¶ 41 (“Commenting on the lack of
evidence supporting a defense theory does not shift the burden of
proof.”).
¶ 65 Kolacny next asserts that the prosecutor’s argument was
legally inaccurate because it was the prosecution’s burden to
demonstrate each element of the charged offenses beyond a
reasonable doubt. But Kolacny fails to explain how the prosecutor’s
argument that Kolacny was not entitled to a presumption of
credibility undermined the prosecution’s obligation to prove each
element of the charged offenses beyond a reasonable doubt.
Moreover, the court instructed the jury on the presumption of
innocence — including the prosecution’s burden to prove each
element of each charged offense beyond a reasonable doubt — and
instructed the jury that it was the sole judge of each witness’s
credibility and the weight to afford to each witness’s testimony. We
presume the jury understood and followed these instructions. See
People v. Snelling, 2022 COA 116M, ¶ 22. Additionally, the lack of a
contemporaneous objection to this assertion “demonstrate[s] ‘the
29 defense counsel’s belief that the live argument, despite its
appearance in a cold record, was not overly damaging.’” Walters,
148 P.3d at 334-35 (quoting Domingo-Gomez, 125 P.3d at 1054).
¶ 66 Under the totality of the circumstances, we conclude that
there was no prosecutorial misconduct, let alone conduct that was
flagrant, glaring, or tremendously improper.
V. Surcharges, Costs and Fees
¶ 67 Lastly, Kolacny contends, and the People agree, that the
postconviction court erred by (1) imposing victim assistance
surcharges per count instead of per action and (2) by failing to
provide him with an opportunity to demonstrate his indigence and
request a waiver of surcharges, costs, and fees.
¶ 68 The court imposed a total of $3,283.11 in surcharges, costs,
and fees. See § 18-25-101(1)(a), C.R.S. 2024 (restorative justice
surcharge); § 24-4.1-119(1)(a), C.R.S. 2024 (victim compensation
surcharge); § 24-4.2-104(1)(a)(I), C.R.S. 2024 (victim assistance
surcharge); § 24-33.5-415.6(1), C.R.S. 2024 (genetic testing cost). A
court may waive all or a portion of these fees and surcharges if the
court determines that Kolacny is unable to pay them. See
§ 21-1-103(3), C.R.S. 2024 (authorizing public defender application
30 fee at sentencing); § 18-25-101(4) (authorizing waiver of restorative
justice surcharge); § 24-4.1-119(1.5) (authorizing waiver of victim
compensation surcharge); § 24-4.2-104(1)(c) (authorizing waiver of
victim assistance surcharge); § 24-33.5-415.6(9) (authorizing waiver
of genetic testing cost); see also People v. Fisher, 539 P.2d 1258,
1260 (Colo. 1975). Similarly, a court may order convicted
defendants to pay the costs in their cases unless they are unable to
pay them. § 16-18-101(1), C.R.S. 2024. And the surcharge for the
victims’ assistance fund should only be “levied on each criminal
action resulting in a conviction.” § 24-4.2-104(1)(a)(I) (emphasis
added).
¶ 69 Our review of the record indicates that the court entered its
surcharge, cost, and fees order outside Kolacny’s presence and
didn’t provide him with an opportunity to address his ability to pay.
The court also erroneously imposed a surcharge for the victims’
assistance fund based on each count of conviction. Accordingly, we
remand this case to the trial court to determine whether Kolacny’s
obligation to pay surcharges, costs, and fees should be waived
because he is unable to pay them. See Waddell v. People, 2020 CO
39, ¶ 28 (remanding case to the trial court because it added
31 surcharges outside the defendant’s presence without giving him an
opportunity to request a waiver).
¶ 70 Because we are affirming the judgment of conviction, if the
court determines on remand that Kolacny has the ability to pay
some or all of the victims’ assistance fund surcharge, the court
must only impose that surcharge once, consistent with section
24-4.2-104(1)(a)(I).
VI. Disposition
¶ 71 The judgment of conviction is affirmed. The court’s order
imposing surcharges, costs, and fees is reversed. The case is
remanded to the trial court to determine whether Kolacny’s
obligation to pay some or all of the statutory surcharges, costs, and
fees should be waived because he is unable to pay them and, if
necessary, correct the mittimus accordingly.
JUDGE LIPINSKY and JUDGE JOHNSON concur.