23CA0221 Peo v McMurray 12-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0221 City and County of Broomfield District Court No. 21CR68 Honorable Sean Finn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Anthony Douglas McMurray,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division III Opinion by JUDGE LIPINSKY Dunn and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced December 31, 2025
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Anthony Douglas McMurray appeals the judgment of
conviction entered on a jury verdict finding him guilty of sexual
exploitation of a child. We affirm McMurray’s conviction.
I. Background
¶2 A reasonable jury could have found the following facts based
on the evidence introduced at trial.
¶3 K.D., who was seventeen at the time, met Ever Berumen
through social media. She and Berumen arranged to meet in
person for the first time one night in February 2021. That night,
Berumen asked two of his friends, including McMurray, to pick up
K.D. at her home. While in the car, McMurray texted K.D. to ask
whether she was a high school senior, what she did for fun, and if
she drank or smoked. K.D. responded by text that she was a
junior, she liked to read, and she smoked but was not a drinker.
K.D. and McMurray met Berumen at a fast food restaurant, and the
three of them drove to Berumen’s apartment. After a few hours,
Berumen and K.D. went into the bedroom while McMurray was in
another room. K.D. and Berumen engaged in consensual sex. After
having sex with K.D., Berumen invited McMurray into the bedroom,
where McMurray also had sex with K.D. During the encounter,
1 Berumen video recorded McMurray and K.D. on his phone.
Berumen told McMurray to “put on a show” for the video.
¶4 K.D. got dressed and Berumen called an Uber to drive her
home. Once home, K.D. told her brother and mother that she had
been sexually assaulted, and her family called the police. Shortly
afterwards, K.D.’s brother sent McMurray an accusatory text
message. A few hours later, K.D. reported the assault to a police
officer and showed him the text messages that McMurray had sent
her while they were driving to meet up with Berumen.
¶5 The police detained McMurray, questioned him, and seized his
phone. During his interview with a detective, McMurray said that
he had engaged in sex with K.D. at Berumen’s apartment, Berumen
video recorded K.D. and McMurray having sex, Berumen texted the
video to McMurray, and the video was still stored on McMurray’s
phone. In addition, McMurray consented to a forensic download of
his phone. The prosecution charged McMurray with one count of
sexual assault – victim incapable of appraising the nature of the
victim’s conduct and one count of sexual exploitation of a child.
The jury acquitted him of sexual assault but convicted him of
sexual exploitation of a child.
2 ¶6 In this appeal, McMurray contends that (1) the prosecution
failed to introduce sufficient evidence that he possessed or
controlled sexually exploitative material; (2) section
18-6-403(3)(b.5), C.R.S. 2025 (the sexual exploitation statute),
violates Colorado’s guarantee to equal protection of the laws; and
(3) the court reversibly erred by allowing the prosecutor to engage in
misconduct in the form of five improper statements during closing
argument.
II. Analysis
A. Sufficiency of the Evidence
¶7 McMurray contends that “the prosecution’s evidence [was]
legally insufficient” to show that he “possessed or controlled the
video” of sexually exploitative material. We disagree.
1. Sexual Exploitation of a Child
¶8 A person violates the sexual exploitation statute by
“knowingly . . . [a]ccess[ing] with the intent to view, view[ing],
possess[ing], or control[ling] sexually exploitative material for any
purpose.” § 18-6-403(3)(b.5). “Sexually exploitative material”
includes “video . . . that depicts a child engaged in, participating in,
observing, or being used for explicit sexual conduct.”
3 § 18-6-403(2)(j)(I). A “[c]hild” is “a person who is less than eighteen
years of age.” § 18-6-403(2)(a).
¶9 A “minimum requirement” for criminal liability is the
“performance . . . of conduct which includes a voluntary act.”
§ 18-1-502, C.R.S. 2025. Possession is a voluntary act.
§ 18-1-501(9), C.R.S. 2025. One “possess[es]” property if “the actor
was aware of his physical possession or control thereof for a
sufficient period to have been able to terminate it.” Id.
2. Additional Facts
¶ 10 At trial, the jury viewed a video recording of the detective’s
interview of McMurray, in which McMurray admitted that Berumen
had sent him the video via text message.
¶ 11 The detective asked, “What did [Berumen] take a video with?”
McMurray responded, “His phone . . . . [I]t’s on the phone. Both
our phones.” The detective asked, “Is it still on there? Both your
phones?” McMurray replied, “[Berumen] took it on his phone. He
probably deleted it, but it’s on my phone for sure. I didn’t delete
nothing. . . . But it’s on my phone.” (Emphasis added.) McMurray
said that Berumen sent him the video “through text.”
4 ¶ 12 McMurray told the detective, “I have the video on my phone,
but it’s not saved on my phone, but it’s on the messages.”
¶ 13 The forensic download of McMurray’s phone corroborated his
statements about when and how he received the video. The
download showed that, a few hours after McMurray’s encounter
with K.D., at 2:33 a.m., Berumen sent McMurray a text containing
the video showing McMurray having sex with K.D. McMurray’s
phone logged a “read” receipt indicating that the text message was
read at 2:39 a.m. At no point during the interview did McMurray
expressly say that he had watched the video, although several times
he described what the video would show. For example, he told the
detective:
I think in the video you’re going to be able to see — [describing sex with K.D.] — [Berumen] already came in with the flash. So, you’re going to see it clearly. So I did that for about like — ten, twenty sec — I think the video will be like forty seconds, thirty seconds, something like that.
(Emphasis added.)
¶ 14 After asking McMurray if he or Berumen had washed any
clothing or sheets in the apartment following their encounters with
K.D., McMurray responded that they had not and that “[i]t’s on the
5 video, too, you’re going to see the same sheets.” (Emphasis added.)
The detective then informed McMurray that K.D. told the police “she
[was] going in and out of consciousness at the apartment while you
guys [were] having sex with her.” McMurray responded, “No, that’s
a lie. The video is going to show you she was wide awake.”
3. Standard of Review and Applicable Law
¶ 15 “We review the record de novo to determine whether the
evidence presented was sufficient in both quantity and quality to
sustain a defendant’s conviction.” McCoy v. People, 2019 CO 44,
¶ 63, 442 P.3d 379, 392.
¶ 16 “The prosecution has the burden of establishing a prima facie
case of guilt through the introduction of sufficient evidence.” Id.
“To determine whether the prosecution presented sufficient
evidence to support a conviction,” we consider “whether the relevant
evidence, both direct and circumstantial, 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.”
People v. Donald, 2020 CO 24, ¶ 18, 461 P.3d 4, 7 (quoting Clark v.
6 People, 232 P.3d 1287, 1291 (Colo. 2010)). “It does not matter that
we might have reached a different conclusion were we the triers of
fact.” Gorostieta v. People, 2022 CO 41, ¶ 17, 516 P.3d 902, 905.
4. The Evidence Was Sufficient to Support McMurray’s Conviction for Sexual Exploitation of a Child
¶ 17 McMurray contends he did not “possess” or “control” the video
because he did not solicit, intentionally receive, download, or view
it. However, section 18-1-501(9) does not say that a person
possesses property only if the person solicited, intentionally
received, downloaded, or viewed it. See also Black’s Law Dictionary
1407 (12th ed. 2024) (defining “possess” as “[t]o have in one’s actual
control; to have possession of”); id. at 1408 (defining, as relevant
here, “possession” as “[t]he fact of having or holding property in
one’s power; the exercise of dominion over property”)
¶ 18 Because section 18-1-501(9) does not require proof of
solicitation, intentional receipt, downloading, or viewing, we decline
to read those additional actions into the statute. See People in
Interest of T.B., 2019 CO 53, ¶ 53, 445 P.3d 1049, 1056 (declining
to read limitations into section 18-6-403 that do not appear in the
statute); see also § 2-4-101, C.R.S. 2025 (“Words and phrases [in a
7 statute] shall be read in context and construed according to the
rules of grammar and common usage.”). Unlike the General
Assembly, courts have no authority to rewrite statutes. People v.
Rau, 2022 CO 3, ¶ 34, 501 P.3d 803, 813.
¶ 19 The cases that McMurray cites in support of his reading of
section 18-1-501(9) merely demonstrate that soliciting, intentionally
receiving, or downloading a sexually exploitative video may be
evidence of possession, but they do not hold that these actions are
required to establish possession. See Fabiano v. Armstrong, 141
P.3d 907, 910 (Colo. App. 2006) (“[E]vidence that a person has
knowingly received prohibited material in an e-mail could be
accepted as proof that the person knowingly possessed the
material . . . .” (emphasis added)); Marsh v. People, 2017 CO 10M,
¶ 28, 389 P.3d 100, 107 (“[K]nowingly seeking out and viewing child
pornography . . . constitutes knowingly possessing or controlling it.”
(emphasis added)); Marsh, ¶ 26, 389 P.3d at 107 (expressly
rejecting “limit[ing] the definition of possession to include only those
instances where the defendant has saved images” when the
evidence showed that the defendant viewed the images online).
Similarly, Marsh holds that the presence of automatically cached
8 images on a device “can constitute evidence that the defendant
knowingly possessed the images.” Marsh, ¶¶ 28-29, 389 P.3d at
107 (emphasis added).
¶ 20 In addition, McMurray argues that the evidence does not
establish that he possessed the video because it “does not indicate”
that he viewed it. The People counter that “[t]he prosecution did
not have to prove that McMurray ‘viewed’ the video because he was
charged with possessing or controlling it.” We agree with the
People.
¶ 21 The sexual exploitation statute criminalizes “view[ing],
possess[ing], or control[ling]” the material. § 18-6-403(3)(b.5)
(emphasis added). “[W]hen the word ‘or’ is used in a statute, it is
presumed to be used in the disjunctive sense, unless legislative
intent is clearly to the contrary.” People v. Montoya, 2025 COA 89,
¶ 51, ___ P.3d ___, ___ (quoting Armintrout v. People, 864 P.2d 576,
581 (Colo. 1993)). For example, the use of “the disjunctive ‘or’” in
the failure to leave the premises statute means there are two ways
to commit the offense. Id. at ¶¶ 50-51, ___ P.3d at ___; see
§ 18-9-119(2), C.R.S. 2025 (“Any person who barricades or refuses
police entry to any premises or property through use of or
9 threatened use of force and who knowingly refuses or fails to leave
any premises or property upon being requested to do so by a peace
officer . . . commits a class 2 misdemeanor.” (emphasis added)).
¶ 22 Because we assume the General Assembly intended each word
in the sexual exploitation statute to have a distinct meaning, Marsh,
¶ 22, 389 P.3d at 105, a person can commit the crime of sexual
exploitation of a child by possessing or controlling the sexually
exploitative material, even if the person never viewed it, see
§§ 18-6-403(3)(b.5), 18-1-501(9).
¶ 23 For this reason, the prosecution was not required to prove that
McMurray viewed the video to prove that he possessed or controlled
it in violation of section 18-6-403(3)(b.5). See People v. Edwards,
520 P.2d 1041, 1042 (Colo. 1974) (“[E]vidence of any of the
alternative ways that a crime can be committed will support a
general verdict.” (quoting Hernandez v. People, 396 P.2d 952, 955
(Colo. 1964)).
¶ 24 Even though the prosecution was not required to prove that
McMurray viewed the video, evidence that he had viewed it was
relevant to whether he possessed or controlled it. See Marsh, ¶ 28,
389 P.3d at 107. Although McMurray maintains that “the evidence
10 does not indicate” that he watched the video, we are required to
view the evidence in the light most favorable to the prosecution.
See Donald, ¶ 18, 461 P.3d at 7.
¶ 25 The jury could have reasonably found from McMurray’s
statements during the interview that he viewed the video.
McMurray said during the interview that “you’re going to see it
clearly”; “[i]t’s on the video too, you’re going to see the same sheets”;
and “[t]he video is going to show you she was wide awake.” The
jury could have reasonably interpreted these statements to mean
that McMurray viewed the video and was not merely recalling what
Berumen recorded on the video. More significantly, McMurray’s
statements during the interview demonstrate that he knew the
video was accessible on his phone, it remained on his phone when
the police seized it, and he “didn’t delete” it. McMurray argues that
his conduct was not a “voluntary act” because he possessed the
video for “less than twenty-four hours” before he “reported it to
police,” and, therefore, he did not possess it “for a sufficient period
of time such that the possession could have been terminated.” In
the same breath, McMurray argues he did not commit a voluntary
act because he did “terminat[e] possession within twenty-four
11 hours . . . willfully” by removing his phone’s password before police
seized his phone. McMurray concedes that “he technically could
have deleted the message in a few seconds” but that he “did not
delete it only to report it to police,” which is a
“reasonable . . . purpose of possession.” We are unpersuaded.
¶ 26 Significantly, the sexual exploitation of a child statute
criminalizes the possession of sexually exploitative material for any
time period and “for any purpose.” § 18-6-403(3)(b.5).
¶ 27 In Fabiano, the division held that the Colorado statutes do not
“contain any requirement that the prohibited material be retained
for any minimum period of time.” 141 P.3d at 910. Fabiano
acknowledges that, unlike in this case, the owner of a device may
not be deemed to possess an unsolicited message containing
“previously unknown material” so long as the owner “immediately
delete[s]” the material from the owner’s device. Id. at 909 (emphasis
added).
¶ 28 McMurray does not dispute that he knew the contents of the
video; rather, he argues that he retained the video on the phone for
the sole purpose of reporting it to police or that reporting it to the
detective within twenty-four hours of receiving it negated his
12 possession of the video. In support of this argument, he cites
section 18-7-109(2)(b), C.R.S. 2025, which allows juveniles to wait
seventy-two hours before reporting their possession of a private
intimate image to police — but McMurray was not a juvenile at the
time Berumen sent him the video.
¶ 29 The jury could have reasonably disbelieved McMurray’s
argument that he merely preserved the video so he could turn it
over to the police. The record shows that McMurray did not
voluntarily contact the police to report the video; he still had the
video in his text messages when the police brought him in for
questioning, nearly twenty-four hours after Berumen sent him the
video; the officers seized McMurray’s phone before the detective
interviewed him; and McMurray knowingly retained the video on his
phone the entire time. McMurray had ample time to delete the
video before his arrest, but he chose not to do so. In any event,
under section 18-6-403(3)(b.5), McMurray did not need to possess
or control the video for a minimum time period to commit the
offense; there was no grace period within which he could delete the
video without culpability after becoming aware of its contents. See
13 Fabiano, 141 P.3d at 910. And under the statute, his motives for
not deleting the video are immaterial. See 18-6-403(3)(b.5).
¶ 30 We conclude that the evidence was sufficient in both quantity
and quality such that the jury reasonably could have found that
McMurray possessed or controlled sexually exploitative material in
violation of section 18-6-403(3)(b.5).
B. Equal Protection
¶ 31 McMurray contends that the sexual exploitation statute
violates the guarantee of equal protection under the Colorado
Constitution, Colo. Const. art. II, § 25, because, while the sexual
exploitation statute and section 18-3-405.6, C.R.S. 2025 (the sexual
gratification statute), proscribe similar conduct, the former
punishes such conduct more harshly than does the latter.
McMurray presents both as-applied and facial challenges to the
sexual exploitation of a child statute. We need not reach the merits
of McMurray’s equal protection argument, however, because he did
not preserve it in the trial court, and he fails to present a plain error
argument on appeal.
¶ 32 In his opening brief, McMurray does not tell us — as
C.A.R. 28(a)(7)(A) requires — the standard of review applicable to
14 his equal protection argument “with citation to authority, whether
the issue was preserved, and if preserved, the precise location in
the record where the issue was raised and where the court ruled.”
¶ 33 McMurray belatedly concedes in his reply brief that he did not
preserve the argument. He asserts, however, that, even though he
did not preserve the argument, we must review it under the de novo
standard. He is incorrect.
1. Standard of Review and Applicable Law
¶ 34 The parties agree the issue is unpreserved but dispute what
standard of review applies.
¶ 35 We have the discretion to address an unpreserved
constitutional claim “when we believe that doing so would best
serve the goals of efficiency and judicial economy.”
Fuentes-Espinoza v. People, 2017 CO 98, ¶ 19, 408 P.3d 445, 448;
People v. Mountjoy, 2016 COA 86, ¶¶ 35, 39-40, 431 P.3d 631, 639
(applying this principle to as-applied and facial challenges), aff’d on
other grounds, 2018 CO 92M, 430 P.3d 389.
¶ 36 And we apply the plain error standard when we chose to
exercise our discretion to review an unpreserved constitutional
argument. See People v. Price, 2023 COA 96, ¶ 47, 542 P.3d 268,
15 279 (“[W]e only reverse unpreserved constitutional errors for plain
error.”). But we only review plain error arguments that an appellant
presents to us. See Moody v. People, 159 P.3d 611, 614 (Colo.
2007) (noting “the basic principle of appellate jurisprudence that
arguments not advanced on appeal are generally deemed waived”).
To do otherwise would violate the party presentation principle. See
Compos v. People, 2021 CO 19, ¶ 35, 484 P.3d 159, 165 (explaining
that, under the party presentation principle, “we rely on the parties
to frame the issues for decision and assign to courts the role of
neutral arbiter” (quoting Greenlaw v. United States, 554 U.S. 237,
243-44 (2008)).
¶ 37 Plain error review requires a determination of “whether
(1) there was an error, (2) the error was ‘plain,’ or clear and obvious,
and (3) the error was substantial, meaning that it so undermined
the fundamental fairness of the trial itself so as to cast serious
doubt on the reliability of the judgment of conviction.” People v.
Allman, 2012 COA 212, ¶ 17, 321 P.3d 557, 564. An error is
obvious if it was “so clear-cut” that “a trial judge should [have been]
able to avoid it without benefit of objection,” People v. Crabtree,
2024 CO 40M, ¶ 42, 550 P.3d 656, 667 (quoting Romero v. People,
16 2017 CO 37, ¶ 6, 393 P.3d 973, 976), because it “contravene[d] a
clear statutory command, a well-settled legal principle, or
established Colorado case law,” id. McMurray bears the burden of
establishing that an error occurred, see People v. Conyac, 2014
COA 8M, ¶ 54, 361 P.3d 1005, 1020, and that it was obvious at the
time the court made it, see Crabtree, ¶ 73, 550 P.3d at 672.
2. McMurray’s Equal Protection Challenge to the Sexual Exploitation of a Child Statute Fails in the Absence of a Plain Error Argument
¶ 38 McMurray does not argue that the court’s alleged
constitutional error was plain, much less cite any Colorado
statutory or prior case law that would have alerted the trial court
that his conviction violated the guarantee of equal protection. See
Crabtree, ¶ 42, 550 P.3d at 667 (“[W]hen Colorado statutory law or
case law would not have alerted the trial judge to an unobjected-to
error, the error cannot be deemed plain.”). In any event, we are
unaware of any statutory or prior case law that would have alerted
the trial court that McMurray’s conviction for sexual exploitation of
a child violated the guarantee of equal protection.
¶ 39 In sum, even if we were to exercise our discretion to review
McMurray’s unpreserved constitutional claim, his contention would
17 still fail because McMurray waived his equal protection argument
by failing to present a plain error argument in this appeal. See
Moody, 159 P.3d at 614.
C. Prosecutorial Misconduct
¶ 40 McMurray contends that the prosecutor engaged in
misconduct five times during closing arguments. We disagree.
¶ 41 When reviewing prosecutorial misconduct arguments, “we
engage in a two-step process where ‘[e]ach step is analytically
independent of the other.’” People v. Ray, 2025 CO 42M, ¶ 127,
575 P.3d 400, 435 (quoting People v. Robinson, 2019 CO 102, ¶ 18,
454 P.3d 229, 233). “First, we must determine whether misconduct
occurred; that is, whether the prosecution’s conduct was improper
‘in the context of the argument as a whole and in light of the
evidence before the jury.’” Id. at ¶ 128, 575 P.3d at 435 (quoting
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010)).
“Determining whether a prosecutor’s actions constitute misconduct
‘is generally a matter left to the trial court’s discretion.’” Id.
(quoting People v. Snider, 2021 COA 19, ¶ 31, 491 P.3d 423, 431).
“[W]e review the record for an abuse of that discretion.” Id.
18 ¶ 42 While we acknowledge that “[a] prosecutor, while free to strike
hard blows, is not at liberty to strike foul ones,” People v. Yachik,
2020 COA 100, ¶ 58, 469 P.3d 582, 592 (quoting Domingo-Gomez v.
People, 125 P.3d 1043, 1048 (Colo. 2005)), we remain mindful that
“[p]rosecutorial misconduct in closing argument rarely constitutes
plain error,” People v. Sparks, 2018 COA 1, ¶ 4, 434 P.3d 713, 717.
¶ 43 “Second, if we determine the prosecution’s comments were
improper, we then consider whether that misconduct warrants
reversal under the appropriate standard.” Ray, ¶ 130, 575 P.3d at
435. We consider the “severity and frequency of the misconduct,
any curative measures taken by the trial court to alleviate the
misconduct, and the likelihood that the misconduct constituted a
material factor leading to the defendant’s conviction.” Id. (quoting
Strock, 252 P.3d at 1153).
¶ 44 If the appellant “fail[ed] to object to the alleged misconduct at
trial, we review for plain error.” Id. at ¶ 131, 575 P.3d at 435.
“Prosecutorial misconduct constitutes plain error where it (1) is
flagrant or glaringly or tremendously improper and (2) so
undermines the trial’s fundamental fairness as to cast serious
19 doubt on the judgment of conviction’s reliability.” Sparks, ¶ 4, 434
P.3d at 717.
¶ 45 But we review for harmlessness if the appellant preserved the
error through an objection. Ray, ¶ 131, 575 P.3d at 435.
Prosecutorial misconduct is harmless if there is no “reasonable
probability that any error by the trial court contributed to [the
defendant’s] conviction.” People v. Monroe, 2020 CO 67, ¶ 17, 468
P.3d 1273, 1276. When reviewing prosecutorial misconduct for
harmlessness, we must evaluate “the likelihood of prejudice . . . in
the totality of the circumstances, on a case-by-case basis.” Crider
v. People, 186 P.3d 39, 43 (Colo. 2008).
2. The Court Did Not Plainly Err by Allowing the Alleged Prosecutorial Misconduct to Which McMurray Did Not Object at Trial
McMurray raises four prosecutorial misconduct arguments for
the first time on appeal: On three occasions, the prosecutor
allegedly improperly referred to facts not in evidence and did not
draw reasonable inferences from the evidence, and on a fourth
occasion, the prosecutor allegedly wrongfully asked the jury to do
justice for a sympathetic victim. We conclude that the trial court
did not err — much less plainly err — by permitting the prosecutor
20 to present these arguments. (We note that certain of the
prosecutor’s challenged statements appear to relate to the sexual
assault count, on which the jury acquitted McMurray, rather than
the sexual exploitation count. Because the People do not note this
distinction, however, we review all the instances of alleged
misconduct on the merits.)
a. The Prosecutor Did Not Improperly Refer to Facts Not in Evidence
¶ 46 McMurray asserts that, three times during closing argument,
the prosecutor improperly “referred to facts not in evidence to paint
an inaccurate picture to the jury of McMurray’s actions and
intentions.” We disagree.
¶ 47 In those three instances, the prosecutor said:
• McMurray “didn’t care about [K.D.’s] name.”
• “[H]e took what he wanted and he watched the video
afterwards.”
• K.D. “was a sexual object” to McMurray. She was “a
conquest” to him. “She is nameless. She is faceless.
She is the entertainment and he wanted her to put on a
show.”
21 ¶ 48 Although “it is not proper for a prosecutor to refer to facts not
in evidence,” People v. Walters, 148 P.3d 331, 334 (Colo. App.
2006), “[f]inal argument may properly include the facts in evidence
and any reasonable inferences drawn therefrom,”
Domingo-Gomez,125 P.3d at 1048. “[A] prosecutor has wide latitude
in the language and presentation style used to obtain justice.” Id.
¶ 49 First, McMurray contends that the prosecutor “was not
discussing evidence” when she said that “[McMurray] didn’t care
about [K.D.’s] name.” The evidence refutes this argument.
¶ 50 On the video recording of the detective’s interview with
McMurray — which, as noted above, the jury viewed and the court
admitted into evidence — McMurray said, “I don’t even remember
her name. She said her name was something.” The detective
asked, “If I said her name was [K.D.] would that sound right?” To
which McMurray replied, “Yeah, yeah, that’s probably her name,
yeah.” McMurray only referred to K.D. by name once during the
nearly hour-long interview during which McMurray and the
detective repeatedly referred to her.
¶ 51 The prosecutor could reasonably draw the inference that
McMurray did not care about K.D.’s name because he had forgotten
22 it within twenty-four hours of his encounter with her. Thus, we
conclude the prosecutor’s reference to K.D.’s name was not
improper.
¶ 52 Second, McMurray contends that the prosecutor “referenced
no evidence” in support of her assertion that McMurray “took what
he wanted and watched the video afterwards.” Again, the evidence
refutes this argument.
¶ 53 The jury could have reasonably found that McMurray watched
the video from at least three pieces of evidence: his descriptions of
the content of the video during his interview with the detective, the
“read” receipt on McMurray’s phone, and the forensic download
from the phone. Accordingly, we conclude that the prosecutor
properly drew from this evidence the inference that McMurray
watched the video. (In any event, as explained above, supra
Part II.A.4, the prosecutor was not required to prove that McMurray
watched the video to obtain a conviction under the sexual
exploitation statute.)
¶ 54 Third, McMurray contends that the evidence did not support
the prosecutor’s assertion that “[K.D.] was a sexual object” and a
“conquest” to McMurray and that, to him, she was “nameless,”
23 “faceless,” and “the entertainment[,] and he wanted her to put on a
show.” As with the first two allegedly improper arguments, the
evidence supports these statements.
¶ 55 During McMurray’s interview, the detective asked, “Was
[Berumen] concerned about like . . . we shouldn’t have done that?”
McMurray replied, “No, we were not thinking nothing like that.”
The detective followed up, “Not anything — she was gone. You guys
were moving on with your day?” McMurray answered, “She was
gone, and we didn’t think — Yeah. . . . [I]t was all normal. We
didn’t think nothing of it. I didn’t think nothing of the girl . . . .”
(Emphasis added.) McMurray admitted that “the only time [he]
even thought about the girl” was when her brother sent him
accusatory text messages after she returned home. Accordingly, we
conclude that the evidence supported the prosecutor’s statements
regarding McMurray’s indifference to K.D.
¶ 56 In sum, we hold that the prosecutor’s first three challenged
statements were reasonable inferences from facts in the record and,
therefore, were not improper.
24 b. The Prosecutor Did Not Urge the Jury to Do Justice for a Sympathetic Victim
¶ 57 In his fourth unpreserved prosecutorial misconduct argument,
McMurray asserts that the prosecutor improperly “urged the jurors
to find McMurray guilty to do justice for K.D. as a sympathetic
victim.” We discern no error.
¶ 58 This argument is premised on the prosecutor’s statement,
I am asking you, the jury to find that [K.D.] was a girl that was brave enough to sit on this stand and tell a room full of adults, a room full of strangers, the most painstaking details of being sexually assaulted by [McMurray]. [K.D.] is the victim in this case because [McMurray] made her one. The defendant is guilty.
¶ 59 “A prosecutor should not encourage ‘the jury to depart from its
duty to decide the case on the evidence [by] asking the jury to
memorialize or pay tribute to the victim by its verdict.’” People v.
Marko, 2015 COA 139, ¶ 221, 434 P.3d 618, 660 (quoting People v.
Dunlap, 975 P.2d 723, 759 (Colo. 1999)), aff’d on other grounds,
2018 CO 97, 432 P.3d 607. Similarly, a prosecutor engages in
misconduct by “pressur[ing] jurors by suggesting that guilty
verdicts are necessary to do justice for a sympathetic victim.” Id.
(quoting People v. McBride, 228 P.3d 216, 223 (Colo. App. 2009)).
25 ¶ 60 First, assuming, without deciding, that the prosecutor’s
statements were improper, we perceive no plain error. Other
divisions have not found plain error when the prosecutor
• expressly asked the jury to vindicate the victims, People
in Interest of J.R., 2021 COA 81, ¶ 47, 495 P.3d 346, 354
(discerning harmless error when the prosecutor asked
the jury to “‘vindicate’ the victims by holding [the
defendant] accountable”); People v. Wallace, 97 P.3d 262,
269 (Colo. App. 2004) (asking the jury to “hold [the
defendant] accountable for the behavior that he did and
the cries that he instilled in these children”);
• misstated that the defendant had lost the presumption of
innocence, McBride, 228 P.3d at 223-24 (“That
presumption of innocence that we had when we started
this case is gone.”);
• appealed to the jurors’ passions or prejudices, People v.
Salazar, 2023 COA 102, ¶ 48, 542 P.3d 1209, 1220
(“Don’t make these boys wait any longer before you tell
them that they are believed and before you convict this
26 man of each and every thing that he is charged with.”);
and
• pressured jurors by suggesting that guilty verdicts were
necessary to do justice for a sympathetic victim, Conyac,
¶¶ 146-147, 361 P.3d at 1030 (“[T]he prosecutor told the
jury that ‘my job is done. The judge’s job is done. You
are now the justice system. Go back into that jury room,
use your common sense and find justice. Find justice for
[the victim].”).
¶ 61 Similarly, it was not obvious that, under Colorado law, the
prosecutor’s reference to K.D.’s bravery was error. See Salazar,
¶ 46, 542 P.3d at 1220; see also State v. Williams, 926 A.2d 7, 23
(Conn. App. Ct. 2007) (concluding that the prosecutor did not
engage in misconduct by urging the jury to envision the victim as
an eleven-year-old sexual assault victim and not as the “brave
poised young woman[] who testified in this court”). In addition, the
prosecutor did not improperly admonish the jury to “do justice” for
a sympathetic victim. People v. Buckner, 2022 COA 14, ¶¶ 41-44,
509 P.3d 452, 461 (The trial court plainly erred by permitting the
prosecutor to argue, “[The victim’s] day of justice is a long time
27 coming. That’s today. Hold [the defendant] accountable for what
he did to that girl that night.”). Further, McMurray does not point
to any Colorado case holding that a prosecutor engages in
misconduct by commenting on the victim’s disclosure of the
intimate details of a sexual assault to a group of strangers.
¶ 62 Thus, we hold that the court did not plainly err by permitting
the prosecutor to refer to K.D.’s bravery because such argument
was not “flagrant or glaringly or tremendously improper,” nor did it
“so undermine[] the trial’s fundamental fairness as to cast serious
doubt on the judgment of conviction’s reliability.” Sparks, ¶ 4, 434
¶ 63 Moreover, the prosecutor’s arguments regarding McMurray’s
lack of concern about K.D. and her bravery on the witness stand
could not have resulted in an improper verdict on the sexual
exploitation charge because they primarily related to the sexual
assault count — on which the jury acquitted McMurray. When a
jury returns a split verdict, it is unlikely the jury was “swayed by
any potentially improper argument,” People v. Snelling, 2022 COA
116M, ¶ 37, 523 P.3d 447, 486, and permitting the argument did
not “undermine[] the trial’s fundamental fairness as to cast serious
28 doubt on the judgment of conviction’s reliability,” Sparks, ¶ 4, 434
¶ 64 In sum, we conclude that McMurray failed to establish that
the court plainly erred by not sua sponte striking the first four
challenged arguments.
3. The Court Did Not Commit Harmless Error by Allowing the Alleged Prosecutorial Misconduct to Which McMurray Objected to at Trial
¶ 65 McMurray contends that the prosecutor “denigrated defense
counsel” during closing argument when she said that “[t]he only
reason that video was played by the defense was to humiliate [K.D.]”
Defense counsel contemporaneously objected. The court did not
say it was sustaining the objection but responded, “Let’s move on.”
We conclude that any error was harmless.
¶ 66 The People do not argue that the prosecutor did not denigrate
defense counsel. The People acknowledge that defense played the
video at trial “to support [McMurray’s] defense that he was not
guilty of sexual assault (incapable of appraising).” Instead, the
People contend that “there is no error to correct” because the court
sustained defense counsel’s objection by saying, “Let’s move on.”
We do not need to address these arguments, however. Even if we
29 assume that the prosecutor’s statements improperly denigrated
defense counsel and the court erred by not expressly sustaining
defense counsel’s objection, we find that any error was harmless.
¶ 67 Again, the prosecutor’s statements could not have resulted in
an improper verdict because the video primarily related to the
sexual assault charge, of which the jury acquitted McMurray.
Thus, it is highly unlikely that the prosecutor’s statement
questioning defense counsel’s motives resulted in prejudice to
McMurray; there is no reasonable probability the statement
contributed to McMurray’s conviction for sexual exploitation of a
child. See Snelling, ¶ 37, 523 P.3d at 486; Crider, 186 P.3d at 43;
Monroe, ¶ 17, 468 P.3d at 1276.
¶ 68 Therefore, we hold that, even if the court erred by permitting
the prosecutor to suggest that defense counsel played the video only
to humiliate K.D. — and even if the prosecution’s suggestion related
to the sexual exploitation of a child count — the error was
harmless.
III. Disposition
¶ 69 The judgment of conviction is affirmed.
JUDGE DUNN and JUDGE KUHN concur.