22CA1588 Peo v Maniz 01-23-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1588 Morgan County District Court No. 21CR157 Honorable Charles M. Hobbs, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Noe Maniz,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division V Opinion by JUDGE LUM Freyre and Grove, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 23, 2025
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Noe Maniz, appeals the judgment of conviction
entered on a jury verdict finding him guilty of two counts of
violation of bail bond conditions and one count of violation of a
protection order. We affirm in part and vacate in part, and remand
with directions.
I. Background
¶2 In 2020, Maniz was accused of felony offenses in Morgan
County Case No. 20CR76 and Logan County Case No. 20CR266. A
surety posted bonds for him in both cases.
¶3 For Case No. 20CR266, the bond paperwork indicated that
Maniz was required to comply with an accompanying protection
order as a condition of his bond. In turn, the protection order
stated that he could “not possess or consume alcoholic beverages.”
The protection order didn’t list a protected party.
¶4 For Case No. 20CR76, the bond paperwork listed “No Alcohol”
as a condition of Maniz’s bond. A protection order entered in that
case listed A.B. as the protected party and contained the same
prohibition against possession and consumption of alcohol.
1 ¶5 In 2021, Officer Paul Mendoza and other officers were called to
arrest Maniz on multiple outstanding warrants.1 At that time,
Maniz was at the home of Cathy Schrum. Schrum met the officers
outside and consented to their entry into her house. Once inside,
Officer Mendoza located Maniz on a couch in the living room.
Maniz had two cans of beer, one of which was open and “in between
his legs.” Maniz cooperated with the arrest, and the case proceeded
to trial on charges of violating bond conditions in Case Nos.
20CR266 and 20CR76 and violating the protection order in Case
No. 20CR266. (The prosecution did not try Maniz for violating the
protection order in Case No. 20CR76). A jury found Maniz guilty on
all three counts.
¶6 Maniz appeals, asserting that insufficient evidence supports
his conviction for violation of a protection order. He also contends
that the trial court erred by (1) admitting hearsay evidence;
(2) providing a jury instruction on judicial notice that misstated the
law; (3) taking judicial notice of two minute orders; (4) permitting
the prosecution to call a rebuttal witness based on cross-
1 It’s unclear from the record whether the warrants were related to
Case Nos. 20CR76 or 20CR266.
2 examination testimony; and (5) allowing the prosecutor to commit
misconduct. Maniz further contends that cumulative error requires
reversal.
¶7 We agree that the evidence supporting the violation of a
protection order conviction was insufficient and therefore vacate
that conviction. However, we reject Maniz’s other contentions.
II. Sufficiency of the Evidence
¶8 Maniz contends that the evidence was insufficient to convict
him of violating a protection order. We agree.
A. Additional Facts
¶9 The protection order Maniz was charged with violating is a
mandatory protection order entered pursuant to section 18-1-1001,
C.R.S. 2024, in Case No. 20CR266. The order is on a standardized
form that contains boxes for identifying the defendant and the
“protected party.” The order identifies Maniz as the defendant, but
the boxes for “full name of protected party” and the protected
party’s sex, race, and date of birth are all blank. It also contains
checked boxes ordering, as relevant here, that Maniz “shall not
harass, molest, intimidate, retaliate against, or tamper with any
witness to or victim of the acts [he] is charged with committing” and
3 “shall not possess or consume alcoholic beverages.” Finally, the
order says that “compliance with this order is a condition of bond.”
The “no alcoholic beverages” condition is the only protection order
condition that Maniz was accused of violating.
¶ 10 At trial, the jury heard testimony that the initial charges in
Case No. 20CR266 were vehicular eluding, reckless endangerment,
violation of a protection order, violation of bail bonds, second degree
criminal trespass, obstructing an officer, driving under the
influence, and possession of a weapon. It did not hear any other
information about the facts underlying those charges. The court
instructed the jury that it could only consider the charges for the
limited purpose of determining “whether or not Mr. Maniz violated a
provision of the protection order that was designed to protect a
protected person from imminent danger to life or health.”
B. Standard of Review
¶ 11 We review a challenge to the sufficiency of the evidence de
novo, “even if consideration of the issue involves a preliminary
question of statutory construction.” McCoy v. People, 2019 CO 44,
¶ 34.
4 ¶ 12 “In construing a statute, we seek to effectuate the legislature’s
intent.” Johnson v. People, 2023 CO 7, ¶ 15. “[W]e first consider
the statute’s language, assigning its words and phrases their plain
and ordinary meanings.” McBride v. People, 2022 CO 30, ¶ 23. “We
read these words and phrases in context, and we construe them
according to the rules of grammar and common usage.” Id. As
well, “we read the scheme as a whole, giving consistent,
harmonious, and sensible effect to all of its parts, and we avoid
constructions that would render any words or phrases superfluous
or lead to illogical or absurd results.” Id.
¶ 13 In assessing the sufficiency of the evidence, we review
“whether the evidence before the jury was sufficient both in
quantity and quality to sustain the defendant’s conviction.”
Johnson, ¶ 13 (citation omitted). Our review considers whether the
evidence, “when viewed as a whole and in the light most favorable
to the prosecution, is substantial and sufficient to support a
conclusion by a reasonable mind that the defendant is guilty of the
charge beyond a reasonable doubt.” Id. (citation omitted).
¶ 14 “[W]e give the prosecution the benefit of every reasonable
inference that may fairly be drawn from the evidence . . . .”
5 McBride, ¶ 38. However, those inferences “must be supported by a
‘logical and convincing connection between the facts established
and the conclusion inferred.’” Id. (citation omitted). “A verdict
cannot rest on guessing, speculation, conjecture, or a mere
modicum of relevant evidence.” Id.
C. Applicable Law
¶ 15 Section 18-1-1001(1) requires a court to enter a protection
order in all criminal cases that restrains the defendant from
“harassing, molesting, intimidating, retaliating against, or
tampering with any witness to or victim of the acts charged.”
¶ 16 Section 18-6-803.5(1)(a), C.R.S. 2024, provides that a person
commits the crime of violation of a protection order when, as
relevant here, the person “violates any . . . provision of the
protection order to protect the protected person from imminent
danger to life or health, and such conduct is prohibited by the
protection order.” Under that section, a “protected person” is
defined as “the person or persons identified in the protection order
as the person or persons for whose benefit the protection order was
issued.” § 18-6-803.5(1.5)(a).
6 D. Analysis
¶ 17 Maniz contends that he cannot, as a matter of law, be guilty of
violating a “provision of the protection order [designed] to protect the
protected person from imminent danger to life or health,” § 18-6-
803.5(1)(a) (emphasis added), because the protection order didn’t
identify a “protected person” as defined in section 18-6-
803.5(1.5)(a).
¶ 18 The People respond that section 18-6-803.5 does not
necessarily require a “protected person” to be identified by name.
Instead, they contend that the witnesses to and victims of Maniz’s
underlying offenses are automatically “protected person[s]”
regardless of whether the protection order lists their names or other
identifying information.2
2 This rationale differs somewhat from that offered at trial. There, the prosecution argued that “the community” (rather than the witnesses and victims) was the protected party. Nevertheless, we consider the People’s “witnesses and victims” argument because we may affirm the judgment on any ground supported by the record. People v. Eppens, 979 P.2d 14, 22 (Colo. 1999). We do not address the “community” argument because it was not raised on appeal. See Moody v. People, 159 P.3d 611, 614 (Colo. 2007) (“[A]rguments not advanced on appeal are generally deemed waived.”).
7 ¶ 19 However, we need not resolve this dispute. Assuming, without
deciding, that “protected person[s]” under section 18-6-803.5
includes the witnesses to and victims of Maniz’s actions underlying
Case No. 20CR266, there is insufficient evidence from which a jury
could conclude that the “no alcoholic beverages” provision was
designed to protect those particular individuals from imminent
danger to life or health.
¶ 20 “Imminent” means “threatening to occur immediately” or
“[a]bout to take place.” Black’s Law Dictionary 824 (12th ed. 2024);
see also People v. Hasadinratana, 2021 COA 66, ¶ 26 (holding that,
in the context of choice of evils defense, “‘[i]mminent’ means ‘likely
to happen without delay; impending; threatening’” (quoting
Moczygemba v. Colo. Dep’t of Health Care Pol’y & Fin., 51 P.3d 1083,
1087 (Colo. App. 2002))). From the charges underlying the
protection order, the jury could infer that Maniz engaged in
behavior that was dangerous to the public after consuming alcohol,
including driving under the influence. Therefore, the jury could
also infer that the “no alcoholic beverages” condition was designed
to protect the community at large from imminent danger because if
Maniz consumed alcohol, there was an immediate threat that his
8 subsequent actions would endanger the health or life of any
community member he happened to encounter.
¶ 21 However, section 18-6-803.5 does not merely require that the
defendant violate a condition designed to protect the community in
general. Rather, the jury must conclude that the defendant violated
a condition designed to protect the “protected person” in particular.
§ 18-6-803.5(1)(a). The jury received no information about the
witnesses to or victims of Maniz’s actions underlying the protection
order, including where they lived or how often Maniz might
encounter them. Thus, while the jury could reasonably infer that
Maniz’s alcohol consumption presented an immediate threat that he
might harm someone, there was no evidence from which a jury
could infer (without speculating) that the “no alcoholic beverages”
condition was designed to protect against an immediate threat that
his alcohol consumption would endanger the particular individuals
who witnessed or were victimized by the underlying crimes.
¶ 22 For these reasons, we vacate Maniz’s conviction for violation of
a protection order.
9 III. Hearsay Concerning Bond Conditions
¶ 23 Maniz contends that the trial court abused its discretion by
admitting Officer Mendoza’s testimony that Maniz’s bond condition
in Case No. 20CR266 was in place at the time of his arrest. Maniz
asserts that the testimony was hearsay based on out-of-court
statements made by police dispatch and contained on detention
paperwork.3 He further contends that this error substantially
impacted the outcome of the case because Officer Mendoza’s
testimony was the only evidence proving that the Case No. 20CR266
bond condition remained in effect when Maniz was caught with
beer. We are not persuaded.
A. Legal Principles and Standard of Review
¶ 24 Hearsay is an out-of-court statement offered in evidence at
trial to prove the truth of the matter asserted. CRE 801(c); see
People v. McFee, 2016 COA 97, ¶ 10. Hearsay statements are
3 Officer Mendoza relied on these same sources when testifying that
the protection order in Case No. 20CR266 remained active at the time of Maniz’s arrest. Because we vacate the violation of a protection order conviction for insufficient evidence, our analysis focuses only on the bond conditions.
10 generally deemed inadmissible unless they fall within a recognized
exception. CRE 802; see McFee, ¶ 10.
¶ 25 We review a trial court’s evidentiary rulings for an abuse of
discretion. Russell v. People, 2017 CO 3, ¶ 5. A trial court abuses
its discretion when it misapplies the law or when its ruling is
manifestly arbitrary, unreasonable, or unfair. People v. Baker, 2021
CO 29, ¶ 29.
¶ 26 We review evidentiary errors for harmlessness. Russell, ¶ 6.
Reversal is not required “when there is no reasonable probability
that the error contributed to the defendant’s conviction,” id.,
meaning that the error did not “substantially influence[] the verdict
or affect[] the fairness of the trial proceedings,” People v. Hamilton,
2019 COA 101, ¶ 13 (quoting Tevlin v. People, 715 P.2d 338, 342
(Colo. 1986)).
B. Additional Facts
¶ 27 To prove that Maniz violated the no-alcohol condition of his
bail bond in Case No. 20CR266, the prosecution needed to prove
“beyond a reasonable doubt that the terms of the bond were in
effect at the time” Maniz was discovered in possession of the beer.
People v. Luna, 2013 COA 67, ¶ 17.
11 ¶ 28 At trial, Officer Mendoza testified about the status of the bond
conditions:
Q. (By [the prosecution]) Officer, were these conditions of bond . . . in place when you came into contact with [Maniz] . . . ?
A. Yes, they were.
Q. How do you know?
A. We verified with — through our dispatch.
[The defense]: Objection. Hearsay.
THE COURT: Overruled.
A. And we received the paperwork once we were at the Morgan County Detention Center.
Q. (By [the prosecution]) So the cases had not yet been — there hadn’t been a resolution to them yet?
A. No, not at that time.
C. Analysis
¶ 29 The first question, asking whether the bond conditions were
still in place, and Officer Mendoza’s answer, “Yes, they were,” were
not hearsay because that exchange did not contain or reference any
out-of-court statement. See CRE 801(c).
¶ 30 Officer Mendoza’s second and third answers — that he knew
the bond conditions were still in place because he “verified with
12 dispatch” and “received the paperwork” — are arguably hearsay
because they refer to out-of-court statements made by third parties
at dispatch or on the paperwork. But even if we assume that the
trial court erred by overruling Maniz’s hearsay objection to those
responses,4 such an error does not convert the initial exchange into
hearsay. At most, the responses suggest that Officer Mendoza
lacked personal knowledge about whether the bond conditions were
in place when he found Maniz with the beer. See CRE 602 (“A
witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that he has personal knowledge of
the matter.”). But Maniz did not object on that basis at trial, and
he doesn’t raise a personal knowledge error on appeal. See Moody
v. People, 159 P.3d 611, 614 (Colo. 2007) (“[A]rguments not
advanced on appeal are generally deemed waived.”).
¶ 31 Any hearsay error is therefore harmless. Even if the trial court
had sustained Maniz’s hearsay objection and prohibited Officer
Mendoza from testifying about how he knew that the bond
4 Arguably, the only alleged error Maniz preserved was his objection
as to the testimony that Officer Mendoza “verified with dispatch.” But because it doesn’t matter for purposes of this analysis, we treat both purported errors as if they were preserved.
13 conditions were in place (and even if it also prohibited Officer
Mendoza’s subsequent testimony about whether Maniz’s prior cases
had been resolved), the jury still would have heard Officer
Mendoza’s initial testimony that the bond conditions were in effect
when he came to arrest Maniz. We cannot conclude that
information about the source of Officer Mendoza’s knowledge
substantially affected the outcome of the case. See Hamilton, ¶ 13.
And evidence that Maniz’s prior cases hadn’t been resolved — and
thus, that the bond conditions were still in place — is cumulative of
Officer Mendoza’s initial testimony. See McFee, ¶ 90 (“When
evidence is merely cumulative, any error in its admission is
harmless.”).
IV. Jury Instruction on Judicial Notice
¶ 32 Maniz contends that the trial court plainly erred when it
instructed the jury that “[a] judicially noticed fact is one which the
court determines is not subject to reasonable dispute.” See Doyle v.
People, 2015 CO 10, ¶¶ 5, 15. However, Maniz tendered a proposed
jury instruction containing this exact language. Review is therefore
precluded under invited error. See People v. Gross, 2012 CO 60M,
14 ¶ 2 (“[T]he invited error doctrine precludes plain error review of a
defense-tendered instruction.”).
V. Judicial Notice of Minute Orders
¶ 33 Maniz next asserts that the trial court erred by taking judicial
notice of minute orders that stated Maniz was present at hearings
where his bond conditions were set. We disagree.
A. Legal Principles and Standards of Review
¶ 34 “[A] [trial] court has discretion to take judicial notice of an
adjudicative fact.” People v. Sena, 2016 COA 161, ¶ 23. “A
judicially noticed fact must be one not subject to reasonable dispute
in that it is either (1) generally known within the territorial
jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” CRE 201(b).
¶ 35 The occurrence of legal proceedings or other court actions are
proper facts for judicial notice under CRE 201. Sena, ¶ 23; see
Doyle, ¶ 11 (recognizing that judicial notice of court records can
include transcripts, convictions, and court orders). But taking
judicial notice of “acts or conditions that were the subject of prior
litigation, including court findings and conclusions, for no greater
15 reason than their reflection in court records,” is not proper. Doyle,
¶ 11.
B. Applicable Facts
¶ 36 The trial court took judicial notice of minute orders from Case
Nos. 20CR76 and 20CR266, which were offered by the prosecution
as evidence that Maniz was aware of his bond conditions.
¶ 37 The minute order from Case No. 20CR76 stated that Maniz
had appeared in custody via video at a hearing where bond was set
with standard conditions. The minute order from Case No.
20CR266 stated that Maniz appeared in person for an advisement
hearing, bond was set, the bond conditions were to comply with the
protection order, and the conditions included no consumption or
possession of alcohol.
¶ 38 To the extent Maniz argues that the trial court erred by taking
judicial notice of the minute orders themselves, we disagree. It is
well established that “[a] court may take judicial notice of the
contents of court records in a related proceeding.” People v. Sa’ra,
117 P.3d 51, 56 (Colo. App. 2004). And a court order is part of the
contents of a court record.
16 ¶ 39 Nonetheless, Maniz also argues that the trial court abused its
discretion by taking judicial notice of the contents of the minute
orders. As we understand him, he contends that the court took
judicial notice of the minute orders’ underlying “findings of fact”
that he was present in the courtroom (or via video) when the bond
conditions were read. In support, he refers to a pretrial hearing
where the trial court stated that it could take “judicial notice of
those [bond hearing] events and the minute orders of those
proceedings.”
¶ 40 But whatever the court may have said at the pretrial hearing,
at trial, it took judicial notice of the minute order in Case No.
20CR76 as “a document out of its own files.” In doing so, the court
instructed the jury that “a judicially noticed document carries no
additional or exceptional weight over any other evidence.” Later,
the court also took judicial notice “of the minute order” in Case No.
20CR266. At no time during trial did the court indicate that it took
judicial notice of any of the underlying adjudicative facts contained
in either minute order. Cf. Doyle, ¶ 13 (distinguishing between
judicial notice of “the fact that the defendant did not appear at the
[prior] proceeding” and judicial notice of the court’s “own prior
17 finding [that the defendant failed to appear] and the effect of that
finding, as reflected in court records”).
¶ 41 For these reasons, we perceive no error.
VI. Rebuttal Evidence
¶ 42 Maniz contends that the trial court erred by permitting the
prosecution to call a rebuttal witness after the defense rested
without presenting any evidence in its case-in-chief. We disagree.
¶ 43 Before trial, Maniz filed a motion to exclude Schrum as a
witness because the prosecution failed to timely endorse her. As a
sanction for the late endorsement, the trial court ordered that the
prosecution could not call Schrum to testify except as a rebuttal
witness.
¶ 44 During opening statements, defense counsel argued that
Maniz did not possess the beer that officers found near him:
You’re going to learn that the police assumed Mr. Maniz possessed alcohol because there were two beer cans on the floor in Cathy Schrum’s living room. You will see that the police did not take even the simplest of steps to verify who those beers belonged to or how they got into the home.
18 ¶ 45 On direct examination, Officer Mendoza testified that he knew
Maniz was drinking beer at the time of the arrest because he found
Maniz with an open beer can between his legs and smelling of
alcohol. On cross-examination, defense counsel challenged Officer
Mendoza on whether he actually saw Maniz drinking beer or
holding a beer can. She also elicited testimony that the house
belonged to Schrum and that Schrum “came in with [the police]”
when Maniz was found with the beer. Officer Mendoza also testified
on cross-examination that he “had no reason to believe that
[Schrum] wasn’t allowed to drink alcohol” and that he didn’t ask
Schrum if she had been drinking or if the beer cans were hers.
¶ 46 After the defense rested without calling any witnesses, the
prosecution asked to call Schrum as a rebuttal witness to address
the testimony elicited during Officer Mendoza’s cross-examination.
Maniz objected, but the trial court permitted the prosecution to call
Schrum for the purposes of rebutting “whether or not the alcohol or
beer could be hers or she possessed it.”
¶ 47 Schrum then testified that she didn’t drink or keep liquor or
beer in her home because she was an alcoholic.
19 B. Legal Principles and Standard of Review
¶ 48 Rebuttal evidence is evidence that “tends to contradict the
adverse party’s case, whether it be challenging the testimony of a
specific witness or refuting the adverse party’s entire theory or
claim.” People v. Welsh, 80 P.3d 296, 304 (Colo. 2003).
¶ 49 “In order to present rebuttal evidence, the offering party
necessarily must demonstrate that the evidence is relevant to rebut
a specific claim, theory, witness or other evidence of the adverse
party.” Id. The rebuttal evidence may take a variety of forms,
including “any competent evidence which explains, refutes,
counteracts, or disproves the evidence put on by the other party,
even if the rebuttal evidence also tends to support the party’s case-
in-chief.” Id. (quoting People v. Rowerdink, 756 P.2d 986, 994
(Colo. 1988)).
¶ 50 We review a trial court’s admission of evidence for abuse of
discretion. Id. And we only reverse an erroneous ruling if the
admission of the evidence “substantially influenced the verdict or
affected the fairness of the trial.” Id. at 310.
20 C. Analysis
¶ 51 Maniz does not cite, and we have not found, any law that
prohibits the calling of a rebuttal witness simply because the
defense did not present any evidence in its case-in-chief. Rather,
rebuttal evidence may be presented to rebut “a specific claim,
theory, . . . or other evidence of the adverse party.” Welsh, 80 P.3d
at 304 (emphasis added). Here, defense counsel presented the
theory that the beer did not belong to Maniz and elicited testimony
tending to show that the beer might have belonged to Schrum.
Accordingly, the trial court acted within its significant discretion to
allow Schrum’s limited testimony that she did not keep any alcohol
at her home. See Warden v. Exempla, Inc., 2012 CO 74, ¶ 22
(“Colorado evidentiary rules afford a party presenting rebuttal
evidence significant leeway so long as the evidence rebuts some
portion of an opposing party’s claim.”).5
5 Because we conclude that Schrum’s testimony was proper
rebuttal testimony, we need not reach Maniz’s contention that Schrum’s testimony violated the trial court’s discovery sanction.
21 VII. Prosecutorial Misconduct
¶ 52 Maniz contends that the prosecutor committed misconduct
during his opening statement and closing argument because he
(1) misstated the law regarding Maniz’s bond condition;
(2) expressed a personal opinion about one of the underlying
offenses; and (3) called for the jury to convict in order to protect the
community. We discern no reversible error.
¶ 53 A prosecutor must “scrupulously avoid comments that could
mislead or prejudice the jury.” Domingo-Gomez v. People, 125 P.3d
1043, 1049 (Colo. 2005). To review the prosecutor’s conduct, we
use a two-step analysis. Wend v. People, 235 P.3d 1089, 1096
(Colo. 2010). First, we evaluate whether the prosecutor’s conduct
was improper under the totality of the circumstances. Id. Second,
if improper, we determine whether the misconduct warrants
reversal under the applicable standard of review. Id.; see also
People v. Robinson, 2019 CO 102, ¶ 18.
¶ 54 Where, as here, the claims of prosecutorial misconduct are
unpreserved, we review them for plain error. Hagos v. People, 2012
CO 63, ¶ 14. To meet this standard, the conduct must be
22 “flagrantly, glaringly, or tremendously improper” such that it “so
undermines the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the jury’s verdict.” Domingo-
Gomez, 125 P.3d at 1053 (citation omitted). “Prosecutorial
misconduct in closing argument rarely constitutes plain error.”
People v. Smalley, 2015 COA 140, ¶ 37; see also Hagos, ¶ 23
(noting that reversals on plain error review “must be rare to
maintain adequate motivation among trial participants to seek a
fair and accurate trial the first time”).
B. Analysis
1. “No Alcohol” Condition
¶ 55 When discussing the bond conditions during closing
argument, the prosecutor stated,
“[W]ell, does that mean that he’s never allowed to touch a beer? Does that mean he’s never allowed to be around a beer? Yes, it does. It says “no alcohol.” You’re not supposed to be around it, you’re not supposed to be drinking it, you’re not supposed to be looking at it. No alcohol means no alcohol.
Maniz contends that the prosecutor misstated the law because his
broad description of the bond condition, “No Alcohol,” was not a
reasonable interpretation of the bail bond statute, which states that
23 a court may order a defendant to “abstain from the use of alcohol.”
§ 16-4-105(6)(a), C.R.S. 2024.
¶ 56 We reject Maniz’s contention because the prosecutor’s
comment did not describe the law regarding the court’s authority to
impose bond conditions. Instead, he was arguing about the bond
conditions specific to Maniz — one of which was simply “No
Alcohol.” While perhaps inartful or hyperbolic, the prosecutor’s
comment was not a flagrantly or obviously improper interpretation
of that condition, given its broad wording. See People v. McMinn,
2013 COA 94, ¶ 60 (“[B]ecause 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.”). Moreover, assuming without
deciding that the prosecutor misinterpreted the bond condition, his
comment was brief and not repeated, so any error was not plain.
See People v. Marko, 2015 COA 139, ¶¶ 217-218 (holding no plain
error for ambiguous statements that were brief and not
emphasized), aff’d on other grounds, 2018 CO 97.
24 2. Personal Opinion
¶ 57 In commenting on the underlying crimes in Case No.
20CR266, the prosecutor said to the jury during his closing
argument, “[Y]ou heard from the Court earlier that he was charged
with vehicle eluding, which is pretty dangerous stuff. In fact, it’s a
very dangerous felony.” (Emphasis added.)
¶ 58 Maniz contends that the prosecutor’s description of eluding as
dangerous was an improper expression of personal opinion. See
People v. Fortson, 2018 COA 46M, ¶ 14 (“[I]t is improper for a
prosecutor to make remarks that evidence personal opinion . . . .”).
But even if that were the case, the jury was instructed that it could
only consider Maniz’s vehicular eluding for the purpose of
determining whether Maniz violated a condition of the protection
order designed to protect the protected person from imminent
danger to life or health. See Marko, ¶ 195 (“[W]e presume jurors
understand and heed jury instructions.”). Therefore, to the extent
the prosecutor’s brief remarks prejudiced the jury, they did so only
with respect to the charge of violation of a protection order, and we
have already vacated that conviction.
25 3. Protecting the Community
¶ 59 In opening statements, the prosecutor said, “I’m asking you to
hold Mr. Maniz accountable for his behavior. This information,
these charges are an important way of supporting the community in
making sure all is safe.”
¶ 60 Then, in closing argument, the prosecutor made two similar
comments:
• “[T]here are no small cases, ladies and gentlemen. The
entire community rests on the fact that crimes are
enforceable. And the second they’re not, the community —
and I don’t mean to be hyperbolic — but the community
stops functioning.”
• “I’m asking you to help protect our community, to keep
society together. Even on a dumb case like this, even on a
guy who just drank alcohol when he wasn’t supposed to,
I’m asking you to hold him to that. Help society stick
together.”
Maniz didn’t object to any of these statements.
¶ 61 We agree with Maniz that these comments were improper. See
People v. Ortega, 2015 COA 38, ¶ 54 (“[A] ‘prosecutor may not urge
26 jurors to convict a criminal defendant in order to protect
community values, preserve civil order, or deter future
lawbreaking.’” (quoting United States v. Monaghan, 741 F.2d 1434,
1441 (D.C. Cir. 1984))). We disagree, however, that reversal is
required.
¶ 62 While the comments were repeated, they were not, in the
aggregate, more pervasive or inflammatory than the improper
commentary in Ortega, which a division of this court concluded was
harmless. Id. at ¶¶ 53-55. In that case, the prosecutor told the
jury,
I have to get you to care. Why should you care about this crime? This isn’t a robbery. This isn’t a homicide. Why should you care? You should care for this city. We do not want an open drug market in Acacia Park right in the heart of Colorado Springs. We do not want an open drug market directly across the street from Palmer High School. We want people to have jobs and to be productive members of society. We don’t want them to be drug dealers.
Now, this is marijuana. I am not going to ask you to care about marijuana. Care about the laws of this state that say distribution of marijuana is illegal. Care about the laws of this state and find the defendant guilty.
Id. at ¶ 48.
27 ¶ 63 The division in Ortega concluded that the improper comments
did not merit reversal because the closing argument was otherwise
proper, two witnesses identified the defendant, and the jury was
“instructed to apply the rules of law to the evidence presented at
trial.” Id. at ¶ 55.
¶ 64 Significantly, the error in Ortega was preserved, so the division
analyzed reversibility under the harmless error standard rather
than the plain error standard applicable here. Id. And like in
Ortega, (1) the jury in this case was properly instructed to apply the
rules of law to the evidence and (2) substantial evidence supported
that Maniz knowingly violated the alcohol-related conditions of his
bail bonds. Furthermore, defense counsel’s lack of objection to any
of the three statements indicates that “the live argument, despite its
appearance in a cold record, was not overly damaging.” People v.
Rodriguez, 794 P.2d 965, 972 (Colo. 1990) (citation omitted).
¶ 65 For these reasons, we conclude that the improper comments
do not cast “serious doubt on the reliability of the jury’s verdict.”
Domingo-Gomez, 125 P.3d at 1053.
28 VIII. Cumulative Error
¶ 66 Lastly, Maniz argues that the cumulative effect of the court’s
errors deprived him of a fair trial. We disagree.
¶ 67 Even where we might deem numerous errors harmless
individually, the aggregation of the errors may show that the
defendant did not receive a fair trial. Howard-Walker v. People,
2019 CO 69, ¶ 24. “For reversal to occur based on cumulative
error, a reviewing court must identify multiple errors that
collectively prejudice the substantial rights of the defendant, even if
any single error does not.” Id. at ¶ 25. For purposes of this
analysis, we do not distinguish between actual and assumed errors.
¶ 68 Two errors — insufficient evidence and the prosecutor’s
“improper opinion” commentary — involved only Maniz’s conviction
for violation of a protection order. We vacated that conviction, and
we don’t perceive that these errors caused any prejudice on the
remaining charges of violation of bail bond conditions.
¶ 69 That leaves the hearsay error and two instances of
prosecutorial misconduct. The hearsay error related to the status
of Maniz’s bond condition in Case No. 20CR266 and was, at most,
minimally prejudicial. Because Maniz does not argue lack of
29 personal knowledge on appeal, preclusion of the “hearsay”
statements would not have prevented the jury from hearing Officer
Mendoza’s primary testimony that the bond conditions were still in
place when Maniz was found with the beer. Moreover, the
appearance bond for Case No. 20CR266 was itself admitted into
evidence, and it stated that Maniz’s bond conditions would remain
in effect “until entry of an order for deferred prosecution or deferred
judgment, plea of guilty, nolo contendere, or conviction.” As there
was no evidence that any of these events had occurred, the jury
could also infer, independent of Officer Mendoza’s testimony, that
the bond conditions were in effect at the relevant time. See Luna,
¶¶ 16-18 (“[W]here the record contains evidence that a bond has
been issued prior to the charged date of violation, and no evidence
is offered that the bond was no longer in effect, a reasonable
inference may be drawn that the bond was in effect at the time of
the charged violation.”).6
6 Although the division in People v. Luna drew this conclusion in the
context of a sufficiency analysis and did not consider whether improper admission of other evidence was prejudicial, it nevertheless supports the notion that the bail bond condition itself is additional evidence supporting Maniz’s conviction. 2013 COA 67, ¶¶ 7-9.
30 ¶ 70 Likewise, the prosecutor’s description of the “No Alcohol” bond
condition was brief, isolated, and inconspicuous. It was also
minimally prejudicial. See People v. Vialpando, 2022 CO 28, ¶ 42.
¶ 71 The prosecutor’s repeated calls for the jury to protect the
community likely had some prejudicial impact. See Ortega, ¶ 54;
see also Vialpando, ¶ 43. Even so, the trial court diminished the
impact by properly instructing the jury (1) on the elements for
violation of bond conditions; (2) that opening statements and
closing arguments are not evidence; and (3) that the jury could find
Maniz guilty only if there was evidence beyond a reasonable doubt
that he violated the bail bond conditions. Cf. Vialpando, ¶ 41
(considering jury instructions when analyzing prejudicial impact of
improper reasonable doubt analogies).
¶ 72 Overall, we conclude that the cumulative effect of these actual
and assumed errors was slight, especially considering the other
evidence of Maniz’s guilt: exhibits that established the bond
conditions, testimony from a witness explaining that she reviewed
the bond conditions with Maniz, testimony that officers found
Maniz smelling of alcohol with an open beer can between his legs,
and body camera footage that showed Maniz alone in the living
31 room with the two beer cans near him. See id. at ¶ 46.
Accordingly, the aggregate effect of the errors did not deprive Maniz
of a fair trial. See Howard-Walker, ¶ 24.
IX. Disposition
¶ 73 The judgment of conviction is affirmed in part and vacated in
part, and the case is remanded to the trial court with directions to
vacate Maniz’s conviction for violation of a protection order and
correct the mittimus accordingly.
JUDGE FREYRE and JUDGE GROVE concur.