24CA1121 Peo v Newell 07-02-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1121 Jefferson County District Court No. 22CR3448 Honorable Diego G. Hunt, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jordan Newell,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE TOW Harris and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 2, 2026
Philip J. Weiser, Attorney General, Emmy A. Langley, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Chloe Sovinee-Dyroff, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jordan Newell, appeals the judgment of conviction
entered on a jury verdict finding him guilty of first degree
aggravated motor vehicle theft, criminal mischief ($1,000-$2,000),
and reckless driving. We affirm.
I. Background
¶2 The jury heard evidence that would support the following
findings.
¶3 Newell stole an unattended vehicle from a driveway after the
owners left it running with the keys inside. The owners of the
vehicle, Amanda Lujan and Daniel Abeyta, located the vehicle by
using a tracking device that was attached to the keys. They
reported the stolen vehicle and its location to the police. Police
found the vehicle in a parking lot with Newell in the driver’s seat.
Officers set up stop sticks and blocked the parking lot exits with
patrol cars. Officers then approached Newell with their guns
drawn. Newell attempted to drive away and hit one of the parked
patrol cars.
¶4 Officers removed Newell from the vehicle, and once he was on
the ground, one officer placed his knee on Newell’s back to handcuff
him. Newell yelled that he “c[ould]n’t breathe” and began seizing.
1 Newell managed to relay that he had taken fentanyl, and an officer
administered Narcan. Paramedics transported Newell to the
hospital, where he was intubated and remained hospitalized for
four days.
¶5 Newell was released from the hospital and placed in the jail’s
medical observation unit. That same day, Investigator Timothy
Clarkson and Investigator Michael Taplin from the Jefferson County
Sheriff’s Office (JCSO) conducted a custodial interrogation with
Newell at the jail. Newell was sleeping on a bed in the unit when
they entered. After waking him up, Investigator Clarkson read
Newell his rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), and he agreed to speak to the investigators. During the
interrogation, Newell admitted that he took the vehicle.
¶6 The prosecution charged Newell with first degree aggravated
motor vehicle theft, criminal mischief, reckless driving, and
tampering with physical evidence. A jury acquitted Newell of
tampering but convicted him of all other charges. The court
sentenced Newell to one year in the county jail’s work release
program and three years of probation.
2 II. Suppression of Interrogation Statements
¶7 Newell argues the trial court erred by declining to suppress his
statements from his custodial interrogation. We disagree.
A. Additional Background
¶8 During the proceedings, Newell filed two motions to suppress.
Newell’s first motion requested that the court suppress all
statements and evidence obtained in violation of section 24-31-902,
C.R.S. 2025, which — in its present form — dictates when a
Colorado peace officer must wear a body-worn camera. (As we
discuss more fully below, the evolution of the language of this
statute is significant in this appeal; thus, while we refer to
section 24-31-902 generally as the body camera statute, to the
extent particular legislative amendments are relevant to our
discussion, we reference the specific bill number enacting the
relevant change.) Newell argued that Investigators Clarkson and
Taplin violated this statute when they failed to wear their
body-worn cameras during his interrogation. Specifically, Newell
argued that, like “many law enforcement agencies,” the JCSO had
adopted the use of body-worn cameras for certain of its officers
(including Clarkson and Taplin) prior to the statute’s effective date
3 of July 1, 2023, and, therefore, pursuant to section 24-31-902(3),
the body camera statute “applied in full” to the covered JCSO
officers beginning on July 1, 2022.
¶9 Newell’s second motion contended that his statements were
obtained without a valid waiver of his Miranda rights. He also
argued that the statements were involuntary.
¶ 10 At an evidentiary hearing on the motions, Investigator
Clarkson testified that Newell was sleeping in the back of the cell
when he and Investigator Taplin arrived, but that Newell woke up
after the door opened, and the investigators introduced themselves
and asked if they could speak with him. Investigator Clarkson
testified that he “read [Newell] his rights per Miranda off of the card
the department gives us.” He also testified that Newell
“acknowledged that he understood his rights and that he agreed to
talk to us without an attorney present.” Investigator Clarkson
admitted, however, that he failed to bring a Miranda waiver form, so
Newell did not sign anything to indicate his waiver.
¶ 11 Investigator Clarkson described Newell as initially being groggy
but confirmed that “he answered all the questions appropriately,
and in a sensical way,” that he “didn’t appear confused at all,” and
4 that he had no additional questions about his Miranda rights.
Newell initially claimed that he received the stolen vehicle from a
friend. But after Investigator Clarkson showed him pictures of the
vehicle being stolen from the owners’ driveway, Newell admitted
that he took it.
¶ 12 Investigator Taplin testified that Investigator Clarkson advised
Newell of his Miranda rights. He also testified that the tone of the
interrogation was conversational, that Newell agreed to speak with
them, that he did not appear to be experiencing any symptoms or
conditions that may have impacted his ability to understand the
officers, and that he never indicated that he no longer wished to
speak to them. Investigator Taplin confirmed that Newell “changed
his story after he saw [the] picture[s].”
¶ 13 Investigators Clarkson and Taplin testified that their
department had issued body-worn cameras prior to Newell’s arrest.
But they testified that the department sent an internal instruction
to “hold[] off on the use of this equipment” pending a department
directive. Both investigators testified that they were not wearing
their body-worn cameras during Newell’s interrogation because of
this instruction.
5 ¶ 14 The court denied both motions to suppress the statements.
Regarding the statutory claim, the court found that the body
camera statute did not apply because the investigators “were not
wearing their body cameras, as they were not required to do
so . . . by the office . . . at the time.” The court went on to note that,
to the extent the statute did apply, “sufficient evidence has been
presented to rebut any presumption of misconduct that the statute
would require.”
¶ 15 Regarding Newell’s Miranda rights, the court found that his
waiver “was made knowingly, intelligently, and voluntarily.” In
support of this conclusion, the court pointed to Newell’s orientation
to his surroundings, his coherent responses, his capacity to
fabricate a story, his question about obtaining a personal
recognizance (PR) bond, and his being medically cleared to be
moved from the hospital to the jail’s medical unit. The court also
found for the same reasons that Newell’s statements were voluntary
and that there was no evidence of coercion on the part of the
investigators.
6 B. Body Camera Statute
¶ 16 Newell contends that the trial court should have suppressed
the statements he made during the police interrogation because
they were obtained in violation of the body camera statute.
1. Standard of Review and Applicable Law
¶ 17 “A lower court’s ruling on a suppression motion presents a
mixed question of fact and law.” People v. Tomaske, 2019 CO 35,
¶ 7. We defer to a trial court’s findings of fact if they are supported
by sufficient evidence in the record, but we review a lower court’s
conclusions of law de novo. Id. We similarly review issues of
statutory interpretation de novo. McCoy v. People, 2019 CO 44,
¶ 37.
¶ 18 “In construing a statute, our primary purpose is to ascertain
and give effect to the legislature’s intent.” Id. We determine
legislative intent primarily from the plain language of the statute.
Romero v. People, 179 P.3d 984, 986 (Colo. 2007). We give words
and phrases their plain and ordinary meaning. McCoy, ¶ 37. We
also “read statutory words and phrases in context, and we construe
them according to the rules of grammar and common usage.” Id.
We read the statute as a whole, “giving consistent, harmonious, and
7 sensible effect to all of its parts, and we must avoid constructions
that would render any words or phrases superfluous or lead to
illogical or absurd results.” Id. at ¶ 38. “If the statutory language is
clear and unambiguous, we do not engage in further statutory
analysis.” Romero, 179 P.3d at 986. “However, if the statutory
language is ambiguous, we may look to other rules of statutory
construction or to the legislative history to discern the legislature’s
intent.” Id.
¶ 19 As presently enacted, the body camera statute provides that “a
peace officer shall wear and activate a body-worn
camera . . . during any interaction with the public initiated by the
peace officer, whether consensual or nonconsensual, for the
purpose of enforcing the law or investigating possible violations of
the law.” § 24-31-902(1)(a)(II)(A). A peace officer’s failure to activate
their body-worn camera per the statutory requirements will result
in “a permissive inference in any investigation or legal
proceeding . . . that the missing footage would have reflected
misconduct by the peace officer.” § 24-31-902(1)(a)(III). Failure to
comply also creates a rebuttable presumption of inadmissibility for
“any statements or conduct sought to be introduced in a
8 prosecution through the peace officer related to the incident that
were not recorded due to the peace officer’s failure to activate . . .
the body-worn camera.” Id.
2. Statutory History
¶ 20 In 2020, the General Assembly passed S.B. 20-217, enacting
the body camera statute. Ch. 110, sec. 2, § 24-31-902, 2020 Colo.
Sess. Laws 446. The statute was aimed at enhancing law
enforcement integrity amid concerns of police brutality. 2d Reading
on S.B. 20-217 before the S., 72d Gen. Assemb., 2d Reg. Sess.
(June 8, 2020). S.B. 20-217 required that “[b]y July 1, 2023, all
local law enforcement agencies in the state . . . shall provide
body-worn cameras for each peace officer of the law enforcement
agency.” 2020 Colo. Sess. Laws at 446.
¶ 21 Following the passage of S.B. 20-217, law enforcement
agencies expressed confusion regarding the effective dates for the
various sections. See Hearing on H.B. 21-1250 before the S. State,
Veterans & Mil. Affairs Comm., 73d Gen. Assemb., 1st Reg. Sess.
(May 25, 2021). In 2021, the General Assembly addressed these
concerns with the passage of H.B. 21-1250. Ch. 458, sec. 2,
§ 24-31-902, 2021 Colo. Sess. Laws 3055. H.B. 21-1250 added
9 language to the body camera statute clarifying that the body
camera statute “does not require a law enforcement agency to
provide its law enforcement officers with body-worn cameras prior
to July 1, 2023.” 2021 Colo. Sess. Laws at 3058. However, the new
section also provided, as discussed below, that “[i]f a peace officer is
wearing a body-worn camera . . . the remaining portions of [the
body camera statute] apply on and after July 1, 2022.” Id.
3. Analysis
¶ 22 The crux of the issue in this case is whether the body camera
statute obligated the investigators to wear the body-worn cameras
their department had issued to them prior to the statute’s effective
date. Newell argues the language of the body camera statute is
ambiguous. Specifically, he contends that “the plain language of
subsection (1)(a)(II) and subsection (3) leads to absurd illogical
results” because when read together they require that “an officer
must wear a [body-worn camera] by July 1, 2022, if the officer is
wearing a [body-worn camera].” The People argue that the statutory
language is not ambiguous as “it states that officers are required to
use a body-camera when a peace officer is wearing a body-worn
camera,” and that “the requirement does not turn on whether or not
10 an officer previously had a body-camera.” We agree with the
People.
¶ 23 Subsection (3) explicitly states that the remaining portions of
the body camera statute apply on or after July 1, 2022, “[i]f a peace
officer is wearing a body-worn camera.” § 24-31-902(3) (emphasis
added). Put another way, as of July 1, 2022, peace officers were
required to activate their body-worn cameras pursuant to the
circumstances described in subsection (1)(a)(II)(A), on the condition
that the peace officer was wearing one. See Merriam-Webster
Dictionary, https://perma.cc/FS8S-8SNW (defining “if” as “on
condition that”). Meanwhile, subsection (1)(a)(I) states that law
enforcement agencies “shall provide body-worn cameras” by July 1,
2023. § 24-31-902(1)(a)(I) (emphasis added); see also People v.
Garcia, 2016 COA 124, ¶ 13 (“‘[S]hall’ is generally mandatory.”). In
other words, prior to July 1, 2023, a peace officer was required to
activate a body-worn camera only if they were wearing one. Then,
starting July 1, 2023, peace officers were required to both wear and
activate the camera when engaging in any conduct described in
subsection (1)(a)(II)(A).
11 ¶ 24 Investigators Clarkson and Taplin interrogated Newell on
December 20, 2022. Because the interrogation occurred before
July 1, 2023, the investigators were only required to activate their
body-worn cameras if they were wearing them. It is undisputed
that the investigators were not wearing body-worn cameras at the
time they interrogated Newell. Therefore, provisions of the body
camera statute are inapplicable, and Newell is entitled to neither a
permissive inference of misconduct on the part of the investigators
nor a rebuttable presumption of inadmissibility for the statements
made.
C. Miranda Waiver
¶ 25 Newell next argues that his Miranda waiver was not knowing,
intelligent, or voluntary. Newell also argues the ensuing statements
were involuntary. Accordingly, he contends, the trial court should
have suppressed his statements. We disagree.
¶ 26 As noted, when reviewing a suppression motion ruling, we
defer to a trial court’s findings of fact but review its legal
conclusions de novo. Tomaske, ¶ 7. And the validity of a Miranda
waiver and the voluntariness of a defendant’s statements are legal
12 questions that we review de novo. People v. Smiley, 2023 CO 36,
¶ 12; Effland v. People, 240 P.3d 868, 878 (Colo. 2010). But we
defer to the trial court’s findings of fact that underpin those
ultimate determinations so long as the findings are supported by
competent evidence in the record. See People v. Humphrey, 132
P.3d 352, 356 (Colo. 2006); People v. Hutton, 831 P.2d 486, 488
(Colo. 1992).
¶ 27 A defendant has a constitutional right to not be compelled to
be a witness against themself in any criminal case. See U.S. Const.
amend. V; Colo. Const. art. II, § 18. This right applies during
custodial interrogation. Miranda, 384 U.S. at 444. To protect this
right, law enforcement agents are required to adhere to certain
guidelines during a custodial interrogation. Id. A suspect may
waive these Miranda protections provided the waiver is “made
voluntarily, knowingly, and intelligently under the totality of the
circumstances.” People v. Torres, 2026 CO 15, ¶ 34.
¶ 28 Newell does not challenge the voluntariness of his Miranda
waiver. Consequently, we focus our consideration of Newell’s
waiver (as opposed to his statements) on whether it was knowing
and intelligent. See People v. Knedler, 2014 CO 28, ¶ 11. A
13 Miranda waiver is knowing and intelligent if “it was ‘made with a
full awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.’” Smiley, ¶ 16
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). A defendant
need only minimally understand their rights to knowingly and
intelligently waive them. See People v. Al-Yousif, 49 P.3d 1165,
1172 (Colo. 2002). We consider the totality of the circumstances
when evaluating whether a Miranda waiver was knowing and
intelligent, including such factors as (1) the length of time between
the initial Miranda advisement and the interrogation; (2) whether
the defendant or the interrogating officer initiated the interview;
(3) whether and to what extent the interrogating officer reminded
the defendant of their rights before the interrogation; (4) the clarity
and form of the defendant’s acknowledgment and waiver; (5) the
defendant’s background and experience with the criminal justice
system; (6) any language barriers; and (7) the defendant’s age,
experience, education, background, and intelligence. Knedler, ¶ 13.
¶ 29 Regardless of whether a Miranda waiver is valid, the
defendant’s statements must be suppressed if those statements are
involuntary. People v. Zadran, 2013 CO 69M, ¶ 9. The
14 voluntariness doctrine requires a two-step inquiry. People v.
Ramadon, 2013 CO 68, ¶ 20. First, we must ask whether the police
conduct was coercive. Id. Second, if we find it was coercive, we
must then determine whether the coercive police conduct played a
significant role in inducing the statements. Id. The court must
again consider the totality of the circumstances when assessing the
voluntariness of a defendant’s statements. Id. The court may
consider factors such as (1) whether the defendant was in custody
or free to leave; (2) whether the defendant was aware of the
situation and understood and waived their Miranda rights;
(3) whether the defendant had the opportunity to confer with
counsel prior to the interrogation; and (4) the physical conditions of
the location where the interrogation occurred. See id.
2. Analysis
a. Knowing and Intelligent Waiver
¶ 30 Newell argues that his Miranda waiver was not knowing and
intelligent because (1) the investigators initiated the interview;
(2) his acknowledgment and waiver lacked clarity; (3) he had limited
experience with the criminal justice system; and (4) he was young.
15 ¶ 31 The court found, based on the investigators’ testimony, that
(1) Newell was “oriented to his surroundings and situation”; (2) “he
was coherent and his responses to the questions asked were logical
and tracked”; and (3) “there was no indication to [the investigators]
other than Mr. Newell being in the [medical unit] that there were
any medical issues or that Mr. Newell was somehow incoherent.”
The court also noted that while the investigators described Newell
as being “tired,” he was able to answer questions coherently,
logically, and rationally. Finally, the court noted that Newell
possessed the capacity to fabricate a story and had the “presence of
mind to ask whether or not law enforcement could help [him] obtain
a PR bond.” These findings have record support, and we therefore
defer to them. Humphrey, 132 P.3d at 356.
¶ 32 Newell correctly asserts that the investigators initiated the
conversation, but his other contentions are unpersuasive. Newell’s
acknowledgment and waiver was clear. Both investigators testified
that Newell “agreed to speak with [them],” and while they could not
recall the exchange verbatim, they indicated that Newell asked no
questions about his Miranda rights and did not attempt to end the
conversation at any point. Moreover, he had enough experience
16 with the criminal justice system to ask if the investigators would be
able to assist him in getting a PR bond.
¶ 33 Reviewing all the circumstances, we conclude that Newell
knowingly and intelligently waived his rights. See Al-Yousif, 49 P.3d
at 1172.
b. Voluntary Statements
¶ 34 Newell next argues that his statements were involuntary
because (1) he was in custody and not free to leave; (2) it is not
clear from the evidence that Newell was advised of, understood, and
waived his Miranda rights; (3) he did not have the opportunity to
confer with anyone before the interrogation; (4) his statements were
made during the interrogation and not volunteered; and (5) he was
in a weakened state before and during the interrogation.
¶ 35 Significantly, Newell does not explicitly assert that the officers
coerced his statements during the interrogation. Nor does he direct
us to any specific evidence that would establish such coercion.
Thus, Newell’s challenge arguably fails to clear the first hurdle and
our inquiry could end. See Colorado v. Connelly, 479 U.S. 157, 167
(1986) (“We hold that coercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary’ . . . .”).
17 However, we note that the People also fail to explicitly address
whether the police conduct was coercive, instead (taking Newell’s
lead) focusing on whether Newell’s statements were voluntary
notwithstanding the fact that he was ill, in custody, subject to
interrogation, and naive about the justice system.
¶ 36 But even if we were to broadly read Newell’s challenge to
encompass a claim of coercive police conduct, we would reject it.
¶ 37 During the suppression hearing, the court found that the
investigators introduced themselves before questioning Newell, that
their tone was conversational, and that “there was no evidence of
any threats, promises, or coercion on the part of law enforcement to
elicit any of the statements that the defendant may have made.”
The court then reiterated its findings regarding Newell’s general
demeanor and coherency throughout the interrogation. Once again,
we defer to the trial court’s factual findings, as they have record
support. Hutton, 831 P.2d at 488.
¶ 38 We agree that Newell was in custody and not free to leave. We
also agree that Newell’s statements were made in response to
questions as opposed to being volunteered and that he did not have
18 the opportunity to confer with anyone prior to the interrogation.
But we find that his remaining assertions are belied by the record.
¶ 39 First, as noted above, Newell was advised of his Miranda
rights, understood them, and waived them.
¶ 40 Second, we disagree with Newell’s assertion that the evidence
demonstrates that he was in a weakened state. The court must
consider a “defendant’s mental and physical condition just prior to
the interrogation.” Ramadon, ¶ 20. Here, the evidence shows that
Newell was sleeping prior to the interrogation and that he appeared
to be “tired” and “slightly groggy.” But he was coherent throughout
the entire conversation. Moreover, he was healthy enough to be
released from the hospital to the jail’s medical unit.
¶ 41 In short, based on the trial court’s factual findings, we discern
nothing to suggest that Newell’s statements were the product of
police coercion. See id.
III. Prosecutorial Misconduct
¶ 42 Newell next argues that prosecutorial misconduct deprived
him of a fair trial. We disagree.
19 A. Applicable Law and Standard of Review
¶ 43 We apply a two-step analysis to prosecutorial misconduct
claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First,
we must determine whether the prosecutor’s conduct was improper
based on the totality of the circumstances. Id. Second, we must
determine if any improper conduct warrants reversal according to
the proper standard. Id.
¶ 44 A prosecutor has wide latitude to make arguments based on
facts in evidence, People v. Maloy, 2020 COA 71, ¶ 61, and in
responding to arguments made by defense counsel, People v.
Cuellar, 2023 COA 20, ¶ 71. However, this power is not limitless.
Id. For example, a prosecutor may not characterize the defense’s
theory in a way that improperly denigrates defense counsel. Id.
B. Denigration of Defense
¶ 45 Newell contends that three statements from the prosecutor
improperly denigrated defense counsel and mischaracterized the
theory of defense. The statements were:
• “[D]efense yesterday in their opening statement said ‘Mr.
Newell had to think fast[.]’ Mr. Newell had to think fast
because of what he did.”
20 • “[Defense counsel] wants you to believe here today that
law enforcement should not have contacted [Newell] the
way they did. They should not be doing their job. They
should not be enforcing laws. Mr. Newell should have
been allowed to keep that vehicle that day.”
• “When we talk about using our common sense and why
there’s an instruction of not appealing to sympathy,
[defense counsel] is asking you to consider evidence that
doesn’t go to the elements. That’s sympathy.”
We discern no error in the first or third statements and conclude
that, while the second statement was improper, it does not warrant
reversal.
1. Fair Comments on the Evidence and Defense
¶ 46 Because our assessment of the first and third statements is
the same, we address them together.
¶ 47 Throughout her opening statement, defense counsel
emphasized the quick succession of events in the parking lot. She
said that Newell “did not have time to think that day” and that
Newell’s decision to flee and subsequent collision with the patrol car
happened “in a matter of seconds.” And she made other similar
21 statements regarding the rapid-fire nature of the events. Defense
counsel emphasized the manner in which officers approached
Newell in the parking lot. She described how the officers
approached the car window with “their firearms out,” and that one
officer “started running toward[] Mr. Newell screaming; importantly,
never announcing himself; pointing the gun directly in the window
of that car . . . , and ultimately butting that gun up against the
window.” Defense counsel’s main theory — that Newell did not
have time to think — relied in part on the manner in which officers
approached the vehicle because it prompted Newell to react on
instinct and attempt to flee.
¶ 48 The prosecutor then summarized these arguments and
responded to them by stating that Newell “had to think fast,” and
that he had to do so “because of what he did.” Rather than
denigrating the defense, the prosecutor’s statements were a fair
response to the defense’s theory of the case. See People v. Samson,
2012 COA 167, ¶ 37 (finding no prosecutorial misconduct where
the challenged statements were fair comments on the defendant’s
theory of the case). Thus, we cannot say that the prosecutor’s
22 summarization of defense’s opening statement in this manner was
improper. Wend, 235 P.3d at 1096.
¶ 49 In her closing argument, defense counsel stated that the police
officers “saw a very scared Mr. Newell with his hands already in the
air,” after he crashed the vehicle. Defense counsel then addressed
Newell’s state of mind in the immediate aftermath of the crash by
stating that “[h]e was scared [and] [h]e was seizing.”
¶ 50 During rebuttal closing, the prosecutor addressed these
statements by reminding the jurors that they could not make a
decision based on sympathy, rather, they must consider evidence
only as it goes to the elements. And while, in the heat of trial, the
prosecutor inartfully limited the jurors’ consideration to
“only . . . the elements,” it was in the context of reminding them —
correctly — that their verdict could not be based on sympathy.
Thus we do not consider this statement to be misconduct. See
Samson, ¶ 30 (“[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.”).
23 2. Improper Characterization
¶ 51 As to the second statement, however, we agree with Newell
that the prosecutor’s characterization of Newell’s argument as
suggesting that the police should not be doing their job and that
Newell should have been allowed to keep the stolen car improperly
mischaracterized the defense and was unduly pejorative. An
assertion that the police acted too aggressively for the
circumstances is not tantamount to an argument that they should
not have acted at all. And the suggestion that Newell was asserting
that he should have been allowed to keep the car patently twisted
Newell’s theory of defense. However wide the latitude a prosecutor
may have in crafting a closing argument, it is not so expansive as to
permit such reductio ad absurdum fallacies.
¶ 52 That being said, and even assuming Newell adequately
preserved his challenge to this statement, we discern no basis for
¶ 53 First, we reject Newell’s contention that we should review this
issue for constitutional harmlessness. “Although any prosecutorial
error can implicitly affect a defendant’s right to a fair trial,”
constitutional harmless error review is limited to errors that
24 “specifically and directly offend a defendant’s constitutional rights”
such as impermissibly commenting on a defendant’s exercise of
[their]right not to testify, [their] right to be tried by a jury, or [their]
right to post-arrest silence. Wend, 235 P.3d at 1097. Claims of
improper denigration of the defense do not directly impact a
defendant’s constitutional rights and are thus reviewed for
harmless error. Cuellar, ¶¶ 80-81.
¶ 54 We agree with the People that the error was harmless. The
jury viewed a video of the police encounter and could make an
independent assessment of the propriety of the police conduct and
its potential impact on Newell’s actions. The investigators also
explained to the jury the reasons for their actions. And the
evidence of both Newell’s theft of the vehicle and his intentionally
driving it into the police car was overwhelming. Reviewing the
entirety of the evidence, we conclude there is no reasonable
probability that the error contributed to Newell’s conviction. See
Washington v. People, 2024 CO 26, ¶ 25 (defining harmless error
(citing Crider v. People, 186 P.3d 39, 42 (Colo. 2008))).
25 C. Value of Property Damaged
¶ 55 Newell next contends that the prosecutor committed
misconduct when she argued that the jury could consider damages
to the stolen vehicle (as opposed to just the police car) as part of the
criminal mischief charge.
1. Additional Background
¶ 56 In the original criminal mischief charge, the prosecution
alleged that Newell “damaged the real or personal property of
Jefferson County, the aggregate damage being two thousand dollars
or more but less than five thousand dollars.” The prosecution later
amended that charge to add Lujan and Abeyta as victims. However,
during trial, in response to Newell’s motion for judgment of
acquittal, the trial court found that the prosecution had presented
no evidence regarding the amount of damages to the stolen vehicle.
Accordingly, the court ruled that the prosecution “would not be able
to move forward with the criminal mischief count where the
aggregate damage is in excess of $2,000 given the failure of proof as
to that element.”
¶ 57 During closing argument, when addressing the criminal
mischief charge, the prosecutor stated that the jury was “allowed to
26 look at the aggregate value of the damage caused by Mr. Newell on
December 16th of 2022,” and that the jury had “the evidence, both
from the JCSO mechanic that told you how much it cost to repair
that patrol vehicle, and then you also do get to see the damage to
Ms. Lujan’s vehicle.” Defense counsel objected “based on earlier
rulings,” which the court overruled.
¶ 58 The jury found that the damage caused was between $1,000
and $2,000.
¶ 59 We are skeptical that the prosecutor committed misconduct,
as she never argued to the jury that the damages totaled more than
$2,000. Moreover, it is not clear that the prosecutor acted in bad
faith or violated the trial court’s prior order, especially given that
the elemental jury instruction on the criminal mischief charge
included a reference to damage to Lujan and Abeyta’s vehicle (and
Newell did not request that reference be eliminated).
¶ 60 But we need not decide whether the prosecutor’s comments
were improper because even assuming they were, any misconduct
was harmless. The prosecution presented evidence that Newell
drove the stolen vehicle into a parked patrol car and that the patrol
27 car sustained $1,832.12 worth of damages. The jury in turn found
Newell guilty of criminal mischief with the total value of property
damage falling between $1,000-$2,000. We thus cannot say that
there is any probability that the prosecutor’s argument related to
the damage to the stolen vehicle contributed to Newell’s conviction.
See Washington, ¶ 25.
IV. Disposition
¶ 61 The judgment is affirmed.
JUDGE HARRIS and JUDGE BROWN concur.