People v. Larry D. Buckner

• Court: Colorado Court of Appeals
• Decided: February 3, 2022
• Docket: 17CA1079
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 3, 2022

2022COA14

No. 17CA1079, People v. Buckner — Constitutional Law — Fourth Amendment — Searches and Seizures — Warrantless Search; Crimes — Unlawful Sexual Behavior — Victim’s and Witness’s Prior History

A division of the court of appeals considers whether the

district court plainly erred by allowing the prosecution to, first,

comment regarding the defendant’s exercise of his Fourth

Amendment right to refuse to consent to a warrantless search and,

second, ask the jury to render a guilty verdict to do justice for the

victim. A majority of the division concludes that the comments

were obviously improper, cumulatively undermined the

fundamental fairness of the trial, and cast doubt on the reliability of

the jury’s verdict. Although the partial dissent disagrees that the prosecutor’s comments warrant reversal, the division reverses the

defendant’s convictions and remands for a new trial.

Because the issue is likely to arise on remand, the division

also concludes that the district court erred by denying the

defendant an evidentiary hearing on his motion to admit evidence

that the victim had a history of false reporting of sexual assaults.

The division concludes that the defendant’s offer of proof was

sufficient to warrant a hearing. In so doing, the division concludes,

as a matter of first impression, that the plain statutory language

“history of false reporting of sexual assaults” in Colorado’s rape

shield statute, section 18-3-407(2), C.R.S. 2021, does not require

that the allegedly false report be made to law enforcement. COLORADO COURT OF APPEALS 2022COA14

Court of Appeals No. 17CA1079 City and County of Denver District Court No. 15CR5224 Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry D. Buckner,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division III Opinion by JUDGE BROWN Lipinsky, J., concurs Furman, J., concurs in part and dissents in part

Announced February 3, 2022

Philip J. Weiser, Attorney General, Ellen Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Larry D. Buckner, appeals his judgment of

conviction and sentence for kidnapping and sexual assault. He

contends that the district court (1) plainly erred by allowing the

prosecution to engage in reversible misconduct and (2) erred by

failing to hold an evidentiary rape shield hearing. We agree with

both contentions.1

¶2 First, we conclude that the district court plainly erred by

allowing prosecutors to improperly comment on Buckner’s exercise

of his Fourth Amendment right to refuse to consent to a warrantless

search and to improperly pressure the jury to render a guilty verdict

to do justice for the victim. Considered cumulatively, these errors

require us to reverse his convictions and remand for a new trial.

¶3 Because the issue is likely to arise on remand, we also

conclude that the district court erred by denying Buckner an

evidentiary hearing on his motion to admit evidence that the victim

had a history of false reporting of sexual assaults. In so doing, and

as a matter of first impression, we reject the People’s argument that

1On appeal, Buckner also contends that the Sex Offender Lifetime Supervision Act of 1998 is unconstitutional. Because we reverse his convictions as set forth below, we need not address the constitutionality of his sentence.

1 section 18-3-407(2), C.R.S. 2021, requires that the allegedly false

reports contemplated by the statute be made to law enforcement.

I. Background

¶4 On September 18, 2015, J.D. told police that she had been

physically assaulted the previous night by an unknown assailant in

an alley several blocks from her apartment. That same day, a

sexual assault nurse examiner (SANE) evaluated J.D. and

documented bodily and genital trauma.

¶5 Four days later, J.D. had a follow-up interview with police

about the September 17 attack. This time she told police that one

of her neighbors “pulled [her] into his apartment, threw [her] on the

couch,” and proceeded to beat and sexually assault her in his

apartment for approximately eight hours starting late on the night

of September 17 and into the early morning of September 18. She

admitted that she fabricated the alley attack story but said she did

so because she was scared. From a photo array, J.D. identified

Buckner, one of her neighbors, as the perpetrator.

¶6 Police arrested Buckner and the People charged him with one

count of second degree kidnapping, two counts of sexual assault,

2 one count of first degree assault, and one count of second degree

assault.

¶7 Buckner went to trial on the charges in October 2016. His

theory of the case was that J.D.’s physical injuries were caused by

her girlfriend during a domestic dispute and that he and J.D. had a

consensual encounter. The jury acquitted Buckner of the assault

charges but hung on the kidnapping and sexual assault charges, so

the court declared a mistrial.

¶8 Buckner was retried on the kidnapping and sexual assault

charges in February 2017. The prosecution and defense theories

remained the same.

¶9 On cross-examination, J.D. admitted that, after she put her

daughter to bed on the night of September 17, she was “kind of

drunk” and had a “loud” fight with her then-underage girlfriend

(now wife) that lasted forty minutes, during which she “ripped a

couple papers off the wall” and “stomped on the ground.” She

denied the fight was physical. The fight ended when J.D.’s

girlfriend called her mother to pick her up. According to J.D., while

she was escorting her girlfriend downstairs, Buckner came to his

doorway and spoke to the couple. J.D.’s girlfriend asked Buckner

3 not to call the police to report the fight; Buckner agreed so long as

J.D.’s girlfriend left.

¶ 10 After her girlfriend left, J.D. said she was trying to go back to

her apartment when Buckner grabbed her, pulled her inside his

apartment, and threw her to the couch. J.D. testified to the various

sexual acts Buckner forced on her, including forcing her to perform

oral sex on him and forcing her to engage in vaginal and anal

intercourse. She said that Buckner’s penis was erect when he was

raping her and that he ejaculated multiple times.

¶ 11 The prosecution presented the testimony of a DNA analyst,

who was able to verify that Buckner’s DNA was found on J.D.’s

vagina, labia, and neck. The DNA analyst did not detect

spermatozoa in the samples and was thus unable to verify that

Buckner had ejaculated on or in J.D.

¶ 12 At trial, Buckner called two witnesses. Buckner’s ex-girlfriend

testified that, in September 2015, he used a catheter every four

days and was unable to “obtain an erection.” She further testified

that Buckner had been unable to have an erection since he had

surgery in 2010.

4 ¶ 13 One of Buckner’s friends testified that he was with Buckner

for part of the evening on September 17. He said that Buckner was

concerned about medication he had taken, was nauseated, and

threw up a couple of times. He testified that, while he was in

Buckner’s apartment, he heard fighting in the apartment upstairs

— including “[t]humping, falling, running.” He said that two women

knocked on Buckner’s door and asked him not to call the police.

Buckner’s friend also testified that he left while Buckner was still

standing in his doorway speaking to the women. As he passed the

women on his way out, he observed “scars or bruising” and

scratches on J.D.

¶ 14 In closing argument, Buckner’s attorney argued that J.D. “got

into a physical altercation in the upstairs apartment with [her

girlfriend] on the evening in question, September 17, 2015.” He

argued that J.D. sustained “significant visible injuries” during the

fight. Afterward, J.D. and Buckner had “some kind of consensual

encounter” during which his DNA was transferred to her, but they

did not have sexual intercourse because Buckner could not have an

erection. Defense counsel argued that J.D. was motivated to lie

about what took place that night because she “got beaten brutally

5 by her girlfriend” and “couldn’t tell the truth” because her girlfriend

was underage. J.D. feared her girlfriend “was very likely going to be

arrested” for what happened that night.

¶ 15 After the second trial, the jury convicted Buckner of

kidnapping and sexual assault.

II. Analysis

A. Prosecutorial Misconduct

¶ 16 Buckner contends that the district court plainly erred by

allowing prosecutors to improperly (1) comment on his refusal to

consent to a DNA test as evidence of his guilt and (2) pressure the

jury to do justice for the victim. We conclude that both comments

were obviously improper and that together they cast doubt on the

reliability of the conviction, requiring reversal.

1. Standard of Review and Generally Applicable Law

¶ 17 We engage in a two-step analysis when reviewing a claim of

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010). First, we “must determine whether the prosecutor’s

questionable conduct was improper based on the totality of the

circumstances and, second, whether such actions warrant reversal

according to the proper standard of review.” Id.

6 ¶ 18 Closing argument may properly include the facts in evidence

and the reasonable inferences drawn from those facts, as well as

the law on which the jury has been instructed. Domingo-Gomez v.

People, 125 P.3d 1043, 1048 (Colo. 2005). A prosecutor must not

“intentionally misstate the evidence or mislead the jury as to the

inferences it may draw” from that evidence. Id. at 1049 (quoting

ABA Standards for Crim. Just., Prosecution Function & Def.

Function § 3-5.8 (3d ed. 1993) (hereinafter, ABA Standards)).

¶ 19 We acknowledge that a prosecutor must have “wide latitude in

the language and presentation style used to obtain justice.” Id. at

1048. But while a prosecutor is “free to strike hard blows,” she “is

not at liberty to strike foul ones.” Id. (quoting Wilson v. People, 743

P.2d 415, 418 (Colo. 1987)). Indeed, “[w]hile a prosecutor can use

every legitimate means to bring about a just conviction, she has a

duty to avoid using improper methods designed to obtain an unjust

result.” Id. “Overzealous advocacy that undermines the quest for

impartial justice by defying ethical standards cannot be permitted.”

Id.

¶ 20 Defense counsel did not object to the statements Buckner

contends constitute prosecutorial misconduct. We review alleged

7 prosecutorial misconduct to which no contemporaneous objection

was made for plain error. Id. at 1053. Plain error occurs only when

an error is obvious and so undermines the fundamental fairness of

the trial itself as to cast serious doubt on the reliability of the jury’s

verdict. Id. “Only prosecutorial misconduct which is ‘flagrantly,

glaringly, or tremendously improper’ warrants reversal.” Id.

(quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). If we

find multiple instances of prosecutorial misconduct, we “must

carefully review whether the cumulative effect of the prosecutor’s

statements so prejudiced the jury’s verdict as to affect the

fundamental fairness” of the trial. Id.

2. Refusal to Consent to a DNA Test

¶ 21 Buckner contends that the prosecutor improperly commented

on his “refusal” to consent to a DNA test. We agree.

a. Additional Background

¶ 22 After his arrest, Buckner voluntarily spoke with Detective

Mary McIver for about thirty minutes in the jail. During the

recorded conversation, the detective asked Buckner about

consenting to a DNA test. Buckner was equivocal — he neither

consented to nor refused a DNA test. Instead, he pondered aloud

8 how his DNA could be found on J.D. and, if it was found there, “is it

[his] fault?” By the end of the conversation, the detective told

Buckner that she would get a court order for the DNA test.

¶ 23 Ultimately, the prosecution secured a court order for a buccal

swab from Buckner. As noted, Buckner’s DNA was detected on

swabs from J.D.’s vagina, labia, and neck.

¶ 24 In opening statement, the prosecutor focused on the

importance of the DNA evidence, telling the jury, “We got his

DNA . . . his DNA is inside her vagina, DNA on the outside of her

vagina, DNA is on her anus.”

¶ 25 During trial, without objection from defense counsel, the

prosecutor elicited testimony that, pursuant to a court order for a

buccal swab, an investigator with the District Attorney’s Office had

taken a saliva sample from Buckner in an interview room at the

courthouse. The prosecutor also admitted the recorded

conversation between Buckner and the detective into evidence for

9 the jury’s consideration, again without a contemporaneous

objection from Buckner.2

¶ 26 In closing argument, when arguing to the jury about why it

should discount “Mr. Buckner’s side” of the story, the prosecutor

told the jury, “[Buckner] refuses to give his DNA sample to Detective

McIver. In fact, he gets visibly nervous, starts stuttering on the

interview when she’s asking about the DNA.” Defense counsel did

not object.

b. Right to Refuse to Consent to a Warrantless Search

¶ 27 By prohibiting unreasonable searches and seizures, the

Fourth Amendment to the United States Constitution “necessarily

grants to individuals the right to refuse warrantless entries and

searches.” People v. Pollard, 2013 COA 31M, ¶ 26. A cheek swab or

saliva sample to obtain DNA is a search subject to Fourth

Amendment protections. See People v. Lancaster, 2015 COA 93, ¶

14.

2 Before trial, Buckner moved to suppress his statements and all evidence gathered as a result of such statements as involuntarily given and a violation of Miranda v. Arizona, 384 U.S. 436 (1966). The court denied the motion.

10 ¶ 28 It is well settled that a person should not be penalized for

exercising a constitutional privilege. Pollard, ¶ 25 (collecting cases).

Thus, “a person’s refusal to consent to a search may not be used by

the prosecution — either through the introduction of evidence or by

explicit comment — to imply the person’s guilt of a crime.” Id. at

¶ 32. “[T]he prosecution impermissibly ‘uses’ a person’s refusal to

consent to a search when it introduces evidence of the refusal,

without having a proper purpose for admission of the evidence, or

when it argues to the jury that such evidence is probative of guilt.”

Id. at ¶ 30. The prosecution may properly use evidence of a

person’s refusal to consent to a warrantless search for purposes

other than to support an inference of guilt. Id. at ¶ 29.

c. Analysis

¶ 29 Buckner contends that it was improper for the prosecutor to

“emphasize Buckner’s guilt and/or consciousness of guilt based on

his refusal to consent to a warrantless body search.” We agree.

¶ 30 The People acknowledge that it would be improper for the

prosecution to introduce evidence of, or urge an inference of guilt

based on, a defendant’s refusal to consent to a cheek swab. See

Pollard, ¶ 28; Lancaster, ¶ 14. They argue, however, that

11 introduction of the challenged evidence and the prosecutor’s

comments about it could not have impermissibly penalized Buckner

for exercising his constitutional right to refuse to consent to the

cheek swab because Buckner never actually refused to consent.

¶ 31 True, during his conversation with the detective, Buckner

neither agreed nor refused to submit to a DNA test. He asked

questions. He appeared confused. He was equivocal.3 At trial,

however, the prosecutor unequivocally characterized Buckner’s

statements to the detective as a refusal to consent to the search.

She said, “He refuses to give his DNA sample to Detective McIver.”

¶ 32 During closing argument, a prosecutor may “point to different

pieces of evidence and explain their significance within the case.”

Domingo-Gomez, 125 P.3d at 1048. Although arguments of counsel

are not evidence, People v. Rodriguez, 914 P.2d 230, 278 (Colo.

1996), a prosecutor should not intentionally misstate the evidence

3On appeal, Buckner also contends that the district court plainly erred by admitting evidence that he did not voluntarily consent to have his DNA sample taken. Because Buckner did not clearly consent to or refuse the search, however, we doubt admission of the evidence constituted plain error. But we need not decide this question because we reverse based on how the prosecution mischaracterized and misused the evidence.

12 or mislead the jury as to the inferences it may draw from that

evidence, Domingo-Gomez, 125 P.3d at 1049. Indeed, “[p]rosecutors

have a higher ethical responsibility than other lawyers because of

their dual role as both the sovereign’s representative in the

courtroom and as advocates for justice.” Id. Because prosecutors

represent the State and the People of Colorado, “their ‘argument is

likely to have significant persuasive force with the jury.’” Id.

(quoting ABA Standards § 3-5.8 cmt.).

¶ 33 Under these circumstances, given the prosecutor’s

characterization of Buckner’s conduct, it would have been

reasonable for a juror to reach the suggested conclusion — that

Buckner refused to consent to a DNA test — from the admitted

evidence. We are not persuaded by the People’s argument that

Buckner’s Fourth Amendment rights were not implicated because

he “neither agreed to nor refused a DNA test.”

¶ 34 The People next contend that the prosecution did not

introduce or use evidence of Buckner’s refusal to consent to the

DNA test for an improper purpose. See Pollard, ¶ 29 (collecting

cases where evidence of a refusal to consent to search was admitted

for a proper purpose, including to impeach a defendant’s assertion

13 that he did not live at a particular place, to rebut a claim of

cooperation or self-defense, or to establish dominion or control over

premises). They argue that Buckner’s “sudden nervousness when

asked about DNA testing indicated that his prior story was not

truthful.” We are not persuaded.

¶ 35 We acknowledge that the prosecutor did not expressly state

that the jury should consider Buckner’s refusal to consent to a DNA

test as evidence of his guilt, but the prosecutor’s use of refusal

evidence may be improper even in the absence of such an overt

statement. See id. at ¶ 31 (“The introduction of this type of

evidence is erroneous, even if it is not accompanied by, or followed

with, an explicit reference or comment relating it to the defendant’s

consciousness of guilt . . . .”). As the Ninth Circuit has explained,

the prosecution’s use of evidence that a defendant refused a search

“can have but one objective to induce the jury to infer guilt.” United

States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978). The

prosecutor can argue that, “if the defendant were not trying to hide

something,” they would have consented to the search. Id.

“[W]hether the argument is made or not, the desired inference may

14 be well drawn by the jury.” Id. This is why “the evidence is

inadmissible in the case of refusal to let the officer search.” Id.

¶ 36 Moreover, although prosecutors are generally permitted to

comment on the demeanor of an individual during an interview, see

People v. Thames, 2019 COA 124, ¶ 32, the prosecutor here did not

simply argue to the jury that Buckner’s “nervousness” meant his

story was not credible; she specifically referenced his refusal to

consent to give a DNA sample. Cf. United States v. Clariot, 655 F.3d

550, 555-56 (6th Cir. 2011) (“The exercise of a constitutional right,

whether to refuse to consent to a search, to refuse to waive Miranda

rights or to decline to testify at trial, is not evidence of guilt. And

evidence of nervousness in the context of being asked to waive some

of these rights is a weak, if indeed even legitimate, indicator of

criminal behavior.” (citing, among other cases, Wainwright v.

Greenfield, 474 U.S. 284, 295 (1986), and Florida v. Royer, 460 U.S.

491, 507 (1983))).

¶ 37 The prosecutor did not reference Buckner’s refusal to impeach

or rebut a specific claim he made (e.g., that he cooperated with the

investigation). The People contend that the refusal evidence

suggested that Buckner was dishonest during his interview and

15 that the prosecutor properly argued the evidence that way. But,

considering the facts of this case, the only “dishonesty” in

Buckner’s interview that could be impeached by his refusal to

consent to a DNA test was his claim that he did not do what J.D.

alleged. In other words, the only claim the refusal evidence

impeached or rebutted was Buckner’s claim that he was not guilty.

¶ 38 Considered in context, the prosecutor used Buckner’s refusal

to voluntarily provide a DNA sample to infer his guilty knowledge or

consciousness of guilt, a prohibited purpose. Pollard, ¶ 28.

Therefore we conclude that the prosecutor’s statement was

improper.

3. Justice for the Victim

¶ 39 Buckner contends that the prosecutor improperly asked the

jury to do justice for the victim. We agree.

¶ 40 A prosecutor may not “pressure jurors by suggesting that

guilty verdicts are necessary to do justice for a sympathetic victim.”

People v. Marko, 2015 COA 139, ¶ 221 (quoting People v. McBride,

228 P.3d 216, 223 (Colo. App. 2009)), aff’d on other grounds, 2018

CO 97; see also United States v. Young, 470 U.S. 1, 18 (1985) (“The

prosecutor was also in error to try to exhort the jury to ‘do its job’;

16 that kind of pressure, whether by the prosecutor or defense

counsel, has no place in the administration of criminal justice.”); cf.

Domingo-Gomez, 125 P.3d at 1049 (“The prosecutor should not

make arguments calculated to appeal to the prejudices of the jury”

and “should refrain from argument which would divert the jury

from its duty to decide the case on the evidence.” (quoting ABA

Standards § 3-5.8)).

¶ 41 During rebuttal closing argument, referencing J.D., a different

prosecutor argued, “Her day of justice is a long time coming. That’s

today. Hold him accountable for what he did to that girl that

night.” Defense counsel did not object. The prosecutor’s plea for

justice for J.D. was the last thing the jury heard before being

instructed regarding the verdict forms and taken back to the jury

room to begin deliberations.

¶ 42 A prosecutor may not pressure jurors to “do justice” for a

victim. The prosecutor’s final statement to the jury in rebuttal

closing argument did just that. It was improper.

4. The Improper Comments Require Reversal

¶ 43 Because Buckner’s counsel did not object at trial, reversal is

not warranted in the absence of plain error. Pollard, ¶ 22. Plain

17 error is both obvious and substantial. Id. at ¶ 24. Plain error is

error that is “so clear-cut, so obvious, that a trial judge should be

able to avoid it without benefit of objection.” Id. at ¶ 39. For an

error to be this obvious, it must contravene a clear statutory

command, a well-settled legal principle, or Colorado case law. Id. at

¶ 40; People v. Ujaama, 2012 COA 36, ¶ 42. To be substantial, an

error must so undermine the fundamental fairness of the trial itself

as to cast serious doubt on the reliability of the judgment of

conviction. Pollard, ¶ 43.

¶ 44 We first conclude that allowing the prosecutors’ statements

was obvious error. The first prosecutor’s use of evidence that

Buckner refused to consent to a DNA test was obviously improper

because (1) a DNA test is a search, Lancaster, ¶ 14; (2) a person has

the constitutional right to refuse to consent to a warrantless search,

Pollard, ¶ 26; (3) it is “well settled” that a person cannot be

penalized for exercising a constitutional privilege, id. at ¶ 25; and

(4) the prosecution may not use evidence of a person’s refusal to

consent to a search to infer guilt, id. at ¶¶ 28, 30. The second

prosecutor’s statements to the jury saying that the victim’s “day of

justice” is “today” and imploring the jury to hold Buckner

18 accountable for “what he did to that girl that night” were obviously

improper because a prosecutor may not “pressure jurors by

suggesting that guilty verdicts are necessary to do justice for a

sympathetic victim.” Marko, ¶ 221 (quoting McBride, 228 P.3d at

223).

¶ 45 Having determined that allowing the prosecutors’ statements

was obvious error, we must next determine whether reversal is

warranted. Wend, 235 P.3d at 1096.

¶ 46 We “review the combined prejudicial impact of the prosecutor’s

improper statements” to determine whether their cumulative effect

“so prejudiced the jury’s verdict as to affect the fundamental

fairness” of Buckner’s trial. Domingo-Gomez, 125 P.3d at 1053.

“Factors to consider include the language used, the context in

which the statements were made, and the strength of the evidence

supporting the conviction.” Id.; see also Wend, 235 P.3d at 1098

(“We focus on the cumulative effect of the prosecutor’s statements

using factors including the exact language used, the nature of the

misconduct, the degree of prejudice associated with the

misconduct, the surrounding context, and the strength of the other

evidence of guilt.”); People v. Nardine, 2016 COA 85, ¶ 65 (same).

19 And although “‘[t]he lack of an objection may demonstrate defense

counsel’s belief that the live argument, despite its appearance in a

cold record, was not overly damaging,’ such deference must be

tempered to allow an appellate court to correct particularly

egregious errors.” Nardine, ¶ 64 (quoting People v. Rodriguez, 794

P.2d 965, 972 (Colo. 1990)). “Ensuring fundamental fairness in

trial is the beacon of plain error review.” Id.

¶ 47 In Pollard, ¶¶ 18-47, a division of this court considered

whether it was plain error to allow the prosecution to introduce

evidence that the defendant did not allow police to search his car

and then argue to the jury that it should infer guilt from that

evidence. In closing argument, the prosecutor in that case argued

to the jury, “And when you consider [the defendant telling police not

to look in his car] your reason and common sense tells you what

does he have to hide? Why not let him go in?” Id. at ¶ 21. Because

the evidence against the defendant was “far from overwhelming”

and because the prosecutor’s improper comment on the defendant’s

refusal to consent to the search went directly to his theory of

defense — that he did not knowingly possess the drugs in question

— the division concluded that “the recurring references to

20 defendant’s refusal to consent to the search, and the prosecution’s

explicit use of that evidence to imply guilty knowledge on his part,

cast serious doubt on the reliability of his conviction, necessitating

reversal for a retrial.” Id. at ¶¶ 44, 47.

¶ 48 Similarly here, the evidence against Buckner was not

overwhelming. J.D. claimed that Buckner subjected her to hours of

physical and sexual abuse, during which he held or repeatedly

obtained an erection sufficient to engage in oral sex, vaginal

intercourse, and anal intercourse, and ejaculated multiple times.

Buckner’s theory of the case was that J.D. had been physically

assaulted by her girlfriend and that he and J.D. had some kind of

consensual encounter thereafter that did not include intercourse.

The indisputable physical evidence — the fact that Buckner’s DNA

was found on J.D. — was consistent with both stories. Thus, the

case hinged on credibility; to convict Buckner, the jury had to

believe J.D.

¶ 49 The prosecutor’s use of Buckner’s refusal to consent to provide

a DNA sample went directly to whether the encounter was

consensual. Buckner admitted he and J.D. had contact. So, if the

contact was consensual, why would Buckner not give up his DNA?

21 Why did the prosecution have to get a court order to collect it?

What was he trying to hide? The prosecutor’s comments on

Buckner’s refusal had but one objective: to induce the jury to infer

guilt. See Prescott, 581 F.2d at 1352.

¶ 50 Aside from a consciousness of guilt improperly inferred from

Buckner’s refusal, the other affirmative evidence supporting only

J.D.’s account was her physical injuries. The prosecution in the

second trial relied on the fact that J.D. had been beaten to support

its theory that what happened between J.D. and Buckner was a

violent sexual assault rather than a consensual encounter. But

J.D. admitted that she got into a fight with her girlfriend on the

evening in question, although she denied it was a physical fight.

And the first jury acquitted Buckner of the assault charges,

suggesting it did not believe J.D. when she said Buckner was the

one who beat her up, and hung on the sexual assault and

kidnapping charges, suggesting the evidence on those counts was

not overwhelming. The prosecution and defense proceeded on the

same theories in the second trial.

¶ 51 J.D. also had credibility issues. She admittedly fabricated a

detailed account of being abducted and assaulted in an alley and

22 told police and medical professionals that her physical injuries were

caused by that attack. She was also impeached several times

during her testimony at trial for giving details about the assault

that were different from those to which she had previously testified

under oath.

¶ 52 For his part, and although the jury was free to reject it,

Buckner offered evidence corroborative of his defense, including

testimony from his ex-girlfriend that he was incapable of getting or

maintaining an erection and testimony from a friend who observed

physical injuries on J.D. before she claimed Buckner assaulted her.

¶ 53 In sum, the evidence was not overwhelming.4 And in such a

case, the prosecutor’s argument assumes greater significance and

4 We are not persuaded by the People’s argument that any error could not have been prejudicial because Buckner relied on the portion of his interview with the detective that he now argues was inadmissible. Cf. People v. Pollard, 2013 COA 31M, ¶¶ 34-38 (concluding that the defendant did not invite error by referencing and relying on improperly admitted evidence of his refusal to consent to a search). We have not (and need not have) determined whether admitting the evidence was erroneous; we have concluded that the prosecutor engaged in improper conduct by using the fact that Buckner did not voluntarily provide the detective with a DNA sample to infer consciousness of guilt. But even if the interview was admissible, and even if Buckner relied on the interview during trial, the prosecutor was obliged not to use the evidence to penalize

23 weighs more heavily on the jury’s decision than it might otherwise.

See Domingo-Gomez, 125 P.3d at 1055 (Bender, J., dissenting).

¶ 54 Although, for these reasons, we could conclude that the

prosecutor’s improper use of Buckner’s refusal to consent to

provide a DNA sample, by itself, warrants reversal under the plain

error standard, we do not view such improper comments in

isolation. See id. at 1054 (majority opinion) (requiring review of the

cumulative effect of the prosecutor’s improper statements). Recall

that the last thing a prosecutor asked the jury to do before it began

deliberating was to give the victim justice. The prejudice resulting

from this statement likely was exacerbated by its timing. “Rebuttal

closing is the last thing a juror hears from counsel before

deliberating, and it is therefore foremost in their thoughts.” Id. at

1052.

¶ 55 Because the outcome of the case depended on the jury’s

decision regarding whose story to believe, one prosecutor’s misuse

of Buckner’s refusal to consent to a DNA test to infer his guilt

combined with another prosecutor’s plea to the jury to do justice for

Buckner for exercising a constitutionally protected right. Id. at ¶ 25.

24 the victim undermined the fundamental fairness of Buckner’s trial

and cast doubt on the reliability of the jury’s verdict. Accordingly,

we reverse his convictions for kidnapping and sexual assault and

remand the case for retrial.

B. Rape Shield Hearing

¶ 56 Buckner contends that the district court erred by denying his

renewed motion for a rape shield hearing in advance of his second

trial. We agree and address this contention as it is likely to arise on

remand. See People v. Stewart, 2017 COA 99, ¶ 64 (J. Jones, J.,

concurring in part and dissenting in part) (“[O]ur common practice

is to address contentions that pertain to issues likely to arise on

remand. . . . [T]he interest in judicial efficiency demands that we do

so.”).

1. Standard of Review and Applicable Law

¶ 57 The purpose of Colorado’s rape shield statute is to protect

sexual assault victims from humiliating public fishing expeditions

into their past sexual conduct. People v. Cook, 2014 COA 33, ¶ 36.

To that end, the statute creates a presumption that evidence of an

alleged victim’s prior or subsequent sexual conduct is irrelevant to

the criminal trial. § 18-3-407(1); see People v. Weiss, 133 P.3d

25 1180, 1185 (Colo. 2006). There are, however, several exceptions to

this general rule. See Weiss, 133 P.3d at 1185-86.

¶ 58 As relevant here, the rape shield statute allows a defendant to

offer “evidence that the victim . . . has a history of false reporting of

sexual assaults” if the procedure outlined in the statute is followed.

§ 18-3-407(2); Lancaster, ¶ 36. Under this procedure, the moving

party is required to file a written motion setting forth “an offer of

proof of the relevancy and materiality” of the evidence. § 18-3-

407(2)(a). The motion must be accompanied by an affidavit stating

the offer of proof. § 18-3-407(2)(b).

¶ 59 An offer of proof typically states (1) what the anticipated

testimony of the witness would be if the witness were permitted to

testify; (2) the purpose and relevance of the testimony sought to be

introduced; and (3) all the facts necessary to establish the

testimony’s admissibility. Weiss, 133 P.3d at 1186-87. It is a

“preview of the evidence a party is prepared to introduce at an

evidentiary hearing” and “consists of allegations that the party’s

attorney represents would be proven if the court granted the

hearing.” People v. Marx, 2019 COA 138, ¶ 46.

26 ¶ 60 If the court finds that the offer of proof is sufficient, it must

notify the other party of this finding. § 18-3-407(2)(c). If the

prosecution stipulates to the facts in the offer of proof, then the

court must rule on the motion based on the offer of proof without

an evidentiary hearing. Id. Otherwise, the court must set the

matter for an in camera hearing before trial. Id. At the conclusion

of the hearing, if the court finds that the evidence proposed to be

offered regarding the sexual conduct of the victim is relevant to a

material issue in the case, it shall order that the evidence may be

introduced and prescribe the nature of the evidence or questions to

be permitted. § 18-3-407(2)(e).

¶ 61 To warrant a hearing, the defendant’s offer of proof must

“articulate facts which, if demonstrated at the evidentiary hearing

by a preponderance of the evidence, would show that the alleged

victim made multiple prior or subsequent reports of sexual assault

that were in fact false.” Weiss, 133 P.3d at 1182. Proof by a

preponderance of the evidence requires that the evidence must

“preponderate over, or outweigh, evidence to the contrary.” Marx,

¶ 49 (quoting City of Littleton v. Indus. Claim Appeals Off., 2016 CO

25, ¶ 38). In the absence of such a showing, the evidence is

27 “irrelevant, immaterial, and inadmissible in the case at trial.”

Weiss, 133 P.3d at 1189.

¶ 62 Although a defendant may offer more evidence at the hearing

than that set forth in the offer of proof, the offer of proof itself must

make the threshold showing. In other words, if the defendant

established only the facts alleged in the offer of proof at the

evidentiary hearing, those facts must be sufficient to establish, by a

preponderance of the evidence, that the alleged victim made

multiple prior or subsequent false reports of sexual assault.

¶ 63 We review a trial court’s determination of the admissibility of

evidence under the rape shield statute for an abuse of discretion,

but we review its interpretation of the rape shield statute de novo.

Id. A court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or is based on an erroneous view

of the law. People v. Osorio-Bahena, 2013 COA 55, ¶ 21.

2. Additional Background

¶ 64 Twenty-one days before his first trial, Buckner filed a motion

requesting an evidentiary hearing to determine the admissibility of

evidence that J.D. had a history of making false allegations of

sexual assault. In the motion, Buckner alleged that J.D. had made

28 “at least two false allegations of sexual assault,” both of which were

against J.B. — the father of J.D.’s daughter (who was born in

2008). The two alleged instances were that (1) J.D. falsely accused

J.B. of sexually assaulting her on the occasion that her child was

conceived, and (2) J.D. falsely accused J.B. of sexually assaulting

her on a later occasion when J.B. visited J.D. at J.D.’s mother’s

house to spend time with their daughter.

¶ 65 The motion was accompanied by an affidavit signed by

Buckner’s attorney. With respect to the first allegedly false report,

the affidavit attested that, among other things, J.D.’s mother had

provided defense counsel with a recording of a telephone

conversation between J.D. and her girlfriend wherein J.D. admitted

that she falsely told several people that her daughter was conceived

as a result of a sexual assault committed by J.B. when, in fact, J.D.

and J.B. were in a relationship at the time and the sexual

encounter was consensual. According to the affidavit, J.D. further

admitted that she had concocted the story to prevent the girlfriend

from being angry with her for being in a prior relationship with a

man.

29 ¶ 66 With respect to the second allegedly false report, the affidavit

attested that J.B. had reported to defense counsel that he had

consensual sex with J.D. one night while he was at J.D.’s mother’s

home visiting his daughter and that thereafter, in November 2014,

J.D.’s girlfriend contacted him via Facebook and accused him of

sexual assault. The affidavit relayed J.D.’s mother’s observations

about this incident as well, which corroborated J.B.’s report that

the encounter was consensual.

¶ 67 Buckner’s motion acknowledged that section 18-3-407(2)

“generally requires a written motion to be filed at least thirty-five

days prior to trial in order for the [c]ourt to consider admitting

evidence governed by the Rape Shield statute,” but it argued that

good cause existed for the court to accept the untimely motion.

¶ 68 Five days before Buckner’s first trial was scheduled to begin,

the district court held a hearing on Buckner’s untimely rape shield

motion. The court allowed the parties to present argument but did

not allow the parties to present evidence — specifically, the court

invited the parties to address the issues of whether there was good

cause for the late filing and whether Buckner had alleged multiple

allegations of false reporting.

30 ¶ 69 Following the hearing, the court concluded that there was not

good cause for the late filing and that the affidavit attached to

Buckner’s motion was insufficient to establish more than one prior

false report. Specifically, the court did not view J.B.’s report that

J.D.’s girlfriend had contacted him via Facebook in 2014 and

accused him of sexual assault as “sufficient to establish a sufficient

offer of proof with respect to any prior false report.” The court cited

Weiss and clarified that a “history” of false reporting required more

than one such false report. The court denied Buckner’s motion

without further hearing and the case proceeded to trial.

¶ 70 Before the second trial, Buckner timely renewed his motion for

a hearing under the rape shield statute and attached a new affidavit

signed by his attorney. With respect to the second allegedly false

report, the second affidavit stated that the circumstances made

clear that J.D. told her girlfriend that J.B. had assaulted her and

that the girlfriend subsequently accused J.B. of sexual assault

through Facebook messages.

¶ 71 The district court summarily denied the motion, stating that

“[t]he motion was filed and denied in advance of the first trial in this

matter. The motion asserts no new grounds that would satisfy the

31 statutory criteria or cause the Court to reconsider its previous

denial of the motion.”

¶ 72 After the second jury convicted Buckner of kidnapping and

sexual assault, Buckner filed a timely motion for a new trial

pursuant to Crim. P. 33 in which he argued that the district court

erred by denying his request for a rape shield hearing. The court

summarily denied the motion for new trial.

3. Analysis

¶ 73 Buckner contends that the district court erred by denying him

an evidentiary hearing on his rape shield motion. Specifically, he

contends that the district court erred by concluding that his motion

and affidavit did not sufficiently allege more than one false report of

sexual assault. We agree.

¶ 74 To resolve this contention, we must first address a novel

question of statutory interpretation. If the defendant follows the

required procedure, the rape shield statute creates an exception to

the general rule that a victim’s sexual conduct is presumptively

irrelevant for “evidence that the victim . . . has a history of false

reporting of sexual assaults.” § 18-3-407(2) (emphasis added).

Because Buckner’s motion did not allege that J.D. falsely reported

32 any prior sexual assault to “police or any other authority that might

result in repercussions for J.B.,” the People contend that Buckner

failed to allege that J.D. falsely “reported” anything. In other words,

the People contend that the allegedly false “report” must be made

“to authorities” for it to qualify as “false reporting” under the rape

shield statute. We disagree.

¶ 75 When interpreting statutes, our primary goal is to ascertain

and give effect to the legislative intent. People v. Sosa, 2019 COA

182, ¶ 12. To do so, we look first at the language of the statute,

giving words and phrases their plain and ordinary meanings if the

language is clear and unambiguous. Id. In applying the plain

meaning of a statute, we must give consistent effect to all its parts

and construe each provision in harmony with the overall statutory

design. Id. at ¶ 13. When a statutory term is undefined, we

construe it in accordance with its ordinary meaning. Id.

¶ 76 Section 18-3-407(2) states simply that “evidence that the

victim . . . has a history of false reporting of sexual assaults” may

be admissible if the defendant satisfies the statutory procedures.

The statute does not mandate that such reports be made to “law

enforcement” or to “the authorities.” It does not specify to whom

33 the allegedly false report must be made. “[W]e respect the

legislature’s choice of language, and we do not add words to or

subtract words from a statute.” People ex rel. Rein v. Meagher, 2020

CO 56, ¶ 22. And we note that, if the General Assembly had

intended that only formal reports to law enforcement agencies be

considered when evaluating whether a victim “has a history of false

reporting” it could have made that intention clear, as it has in other

contexts. See, e.g., § 16-2.7-102(1), C.R.S. 2021 (“Any person . . .

may make a missing person report to a law enforcement agency.”);

§ 18-1-711(1)(a), C.R.S. 2021 (providing immunity to any person

who “reports in good faith an emergency drug or alcohol overdose

event to a law enforcement officer, to the 911 system, or to a

medical provider”); § 18-6.5-108(1)(a), C.R.S. 2021 (requiring a

person who observes the mistreatment of an at-risk elder to “report

such fact to a law enforcement agency”).

¶ 77 The term “reporting” is not defined in the statute. Courts may

refer to dictionary definitions to determine the plain and ordinary

meaning of undefined statutory terms. People v. Serra, 2015 COA

130, ¶ 52. The dictionary defines “report” to include, among other

things, “a written or spoken description of a situation, event, etc.,”

34 “a usually detailed account,” or “an account spread by common

talk.” Merriam-Webster Dictionary, https://perma.cc/8ME4-

D8HQ. This common definition contains no requirement that a

“report” be made to a particular audience or recipient.

¶ 78 In the absence of a clear directive from the General Assembly

that a victim’s “history of false reporting” for purposes of the rape

shield statute be limited to only those false reports made to law

enforcement or other “authorities,” we decline to engraft such a

limitation.

¶ 79 The People appear to concede that, if a victim’s comments

during a “private conversation” can be considered a “report” for

purposes of the rape shield statute, then Buckner’s offer of proof

sufficiently demonstrated one instance of allegedly false reporting

(when J.D.’s daughter was conceived). The affidavit alleged that

J.D.’s mother provided defense counsel with a recording of a

conversation during which J.D. admitted to her girlfriend that “she

had falsely told several people that her daughter . . . was conceived

as a result of a sexual assault committed by [J.B.] when, in reality,

the two were in a relationship and the sexual encounter was

consensual.” We conclude that the facts alleged in the offer of

35 proof, if established at the hearing by a preponderance of the

evidence, would be sufficient to prove this first instance of alleged

false reporting.

¶ 80 But the People argue that the district court correctly

concluded that Buckner failed to sufficiently demonstrate a second

instance of allegedly false reporting (regarding the night at J.D.’s

mother’s house). Specifically, the People argue that Buckner

presented no evidence that J.D. was the person who made the

second allegedly false report and that it was unclear whether J.D.’s

girlfriend’s messages to J.B. referred to the first allegedly false

report or the second allegedly false report. Based on the facts

alleged in the second affidavit, however, we disagree.

¶ 81 The affidavit alleged that defense counsel had spoken with

J.B., who reported that he had consensual sex with J.D. one night

while he was at J.D.’s mother’s home visiting his daughter. The

affidavit also alleged that J.D.’s mother reported that J.B. had

visited the residence to spend time with his daughter and ended up

spending the night. J.D.’s mother reported observing J.B. and J.D.

“lying in bed together, close together, ‘spooning’ with one another”

and that J.D. “gave no indication anything out of the ordinary had

36 occurred the previous night.” The affidavit alleged that, after the

visit, in November 2014, J.D.’s girlfriend contacted J.B. via

Facebook and accused him of sexual assault. The affidavit also

stated that the circumstances surrounding J.B.’s overnight stay

with J.D. at her mother’s house, followed by J.D.’s girlfriend’s

Facebook accusations, “make clear that [J.D.] told [her girlfriend]

that J.B. had assaulted her, and that [the girlfriend] subsequently

accused J.B. of sexual assault through Facebook messages.”

¶ 82 From this evidence it would be reasonable to infer that

(1) J.D.’s girlfriend’s Facebook accusations referred to the alleged

sexual assault on the night J.B. visited his daughter and stayed

with J.D. (rather than referring to an incident alleged to have

occurred over six years earlier), and (2) J.D. was the person who

told her girlfriend she had been sexually assaulted on that

occasion.

¶ 83 We acknowledge that the evidence described in the affidavit

was circumstantial, rather than direct. See COLJI-Crim. D:01

(2020) (defining circumstantial evidence as indirect evidence “based

on observations of related facts that may lead you to reach a

conclusion about the fact in question”). But in determining the

37 sufficiency of evidence, the law makes no distinction between direct

and circumstantial evidence. People v. Bennett, 183 Colo. 125, 131,

515 P.2d 466, 469 (1973); People v. Medina, 51 P.3d 1006, 1013

(Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d

973 (Colo. 2003).

¶ 84 In addition, that the facts may be disputed or may lead to

other reasonable inferences is of no consequence at this stage. The

rape shield statute makes clear that if the offer of proof is sufficient

and if the prosecution does not stipulate to the facts contained in

the offer of proof, “the court shall set a hearing to be held in camera

prior to trial.” § 18-3-407(2)(c) (emphasis added).

¶ 85 Although it is a close call, we conclude that the facts described

in the affidavit — if proved by a preponderance of the evidence at a

hearing — would be sufficient to establish multiple instances of

false reporting. See Weiss, 133 P.3d at 1184. Thus, we conclude

that the district court erred by denying Buckner a hearing on his

motion.

¶ 86 By so concluding, however, we do not intend to minimize what

must be shown by an offer of proof to justify a hearing. Courts

should remain mindful of the purpose of the rape shield statute to

38 protect victims of sexual assault “from humiliating and public

exposure of intimate details of their lives absent a ‘preliminary

showing that evidence thus elicited will be relevant to some issue in

the pending case.’” Marx, ¶ 41 (quoting People v. McKenna, 196

Colo. 367, 371-72, 585 P.2d 275, 278 (1978)).

III. Conclusion

¶ 87 The judgment of conviction is reversed and the case is

remanded for a new trial. If Buckner renews his motion to admit

evidence that J.D. has a history of false reporting of sexual assaults

based on the same offer of proof, the district court shall conduct an

evidentiary hearing under section 18-3-407(2) to determine whether

such evidence is admissible.

JUDGE LIPINSKY concurs.

JUDGE FURMAN concurs in part and dissents in part.

39 JUDGE FURMAN, concurring in part and dissenting in part.

¶ 88 The majority concludes that the combined prejudice of the

prosecutor (1) stating that Buckner refused to voluntarily provide

DNA and (2) asking for justice for the victim during closing remarks

requires reversal under a plain error standard. I disagree that these

brief statements whether considered individually or cumulatively

“so undermined the fundamental fairness of the trial itself so as to

cast serious doubt on the reliability of the judgment of conviction.”

See Hagos v. People, 2012 CO 63, ¶ 14 (quoting People v. Miller, 113

P.3d 743, 750 (Colo. 2005)). Therefore, I respectfully dissent from

this portion of the majority’s opinion. In all other respects, I

concur.

I. The Evidence at Trial

¶ 89 During an interview, a detective asked Buckner if he would

take a DNA test. She briefly explained how DNA worked and what

it could show in his case. The detective then told Buckner that she

might seek a court order for a DNA test and, before he gave her a

definitive answer as to whether he would submit to testing, she told

him, “[W]e’ll go ahead and do it that way.”

40 II. The Prosecutor’s Closing Argument

¶ 90 During closing argument, the prosecutor made these

comments (among others):

Let’s look at two sides to the story. Let’s look at the two sides. You heard -- we’ve gone through [J.D.’s] side. Let’s look at [Buckner’s] side. He denies any type of sexual contact whatsoever with [J.D.].

The detective was very clear with him; you’ve heard and seen that video statement. She was very clear. Detective: You didn’t have any kind of sexual intercourse with her? Defendant: I didn’t do this to this girl. Detective: She’s saying you’re the person that did this -- did that; that it was against her will. Defendant: No. Detective: She’s saying that you raped her with force while beating her up. Defendant: See, I didn’t do that. He denies [she] was even in [his] apartment.

Detective: Did she ever come into your apartment that night? Defendant: The apartment is small. Detective: No. I mean, like, into your apartment, like into your bedroom at all. Defendant: Come on, Man. Detective: I’m asking you because this is stuff she’s telling me. Defendant: No. That’s a lie.

He refuses to give his DNA sample to [the detective]. In fact, he gets visibly nervous, starts stuttering on the interview when she’s asking about the DNA. He didn’t give enough information to her for her to be able to contact [J.D.’s friend]. And, in fact, [J.D.’s friend] never contacted the detective.

41 (Emphasis added.)

III. Defense Counsel’s Closing Argument

¶ 91 During closing argument, defense counsel made these

Upstairs, in the upstairs apartment directly above [Buckner] were [J.D.] and [J.D.’s girlfriend].

They got into a fight. And they got into a fight that wasn’t simply a verbal argument. It wasn’t simply a verbal argument where pictures got pulled off the wall, some stomping, but a full-on domestic violence altercation in which [J.D.] got beat up.

[J.D.] and [J.D.’s girlfriend] then came downstairs. The decision got made between the two of them -- [J.D.’s girlfriend] was leaving. They came downstairs. They knocked on that door; and when Mr. Buckner answered, they asked Mr. Buckner, Please, please do not call the police. Don’t call the police.

And [Buckner] didn’t want to call the police. He had no interest in involving law enforcement. He definitely did want [J.D.] to get out of there. He wanted [J.D.] to leave because she was beating up her girlfriend, and there’s an altercation going on upstairs.

So whether he encouraged or not, he stepped in and [J.D.’s girlfriend] left. Then he and [J.D.] are alone together. And at some point,

42 she comes back into his apartment, whether she was in his apartment on that evening or some other occasion, got the information about some of the contents of the apartment. We don’t necessarily know. But she -- they were hanging out alone together.

She had been drinking, per her own admission. And at some point, she starts hugging up on him or some kind of a consensual encounter in which his DNA gets on her. That’s what took place. It was short of any form of sexual intercourse; that we know that [Buckner] cannot get an erection. And it certainly wasn’t the violent attack that’s been described.

Now, when we talk about [Buckner’s] story, I want to direct your attention to all of the things, because the district attorney read some portions of the transcript of [Buckner’s] videotaped interview with the detective -- . . . , who is seated over in the courtroom -- read some portions of the transcript. What I want you to do when you go back to deliberate, I want you to watch that video again. And I want you to watch a couple of things very closely.

Remember this is taking place -- this interview is taking place the following week after this incident supposedly occurred. And remember that the interview didn’t happen because [the detective] came downstairs, came to [Buckner], said, Hey, I want to speak with you. Will you please speak with me? The interview happened because [Buckner] went to her. He wanted to talk to her because he didn’t know

43 why he was even in there. He didn’t understand why he was in jail.

IV. Rebuttal Closing Argument

¶ 92 During rebuttal closing argument, the prosecutor made these

You guys determine what the facts are. We can stand up here and repeat over and over the testimony that you’ve already heard, give you our opinions on what we think the facts are, but it’s irrelevant. It’s your job to determine what the facts are.

You’ve heard [J.D.] tell you what happened on September 17th, and you heard his version of events. You can believe all of it, you can believe part of it or you can believe none of it. Right. That’s what the judge told you in his instructions. If you believe what [J.D.] told you, [Buckner] is guilty of kidnapping and he’s guilty of sexual assault.

They want you to take a good long, hard look at [Buckner’s] statements. It’s your evidence, but their argument is that [Buckner] is here because [J.D.’s girlfriend] assaulted [J.D.].

....

And that proof, ladies and gentlemen, is in the DNA. The thing about DNA, it doesn’t choose sides. It doesn’t change its story. It doesn’t forget details. You don’t have to believe in it for it to be true.

44 Her day of justice is a long time coming. That’s today. Hold him accountable for what he did to that girl that night.

(Emphasis added.)

V. Analysis

¶ 93 Our supreme court in Hagos, ¶ 23, stated that “[p]lain error

review allows the opportunity to reverse convictions in cases

presenting particularly egregious errors, but reversals must be rare

to maintain adequate motivation among trial participants to seek a

fair and accurate trial the first time.” “Because this standard was

formulated to permit an appellate court to correct ‘particularly

egregious errors,’ Wilson v. People, 743 P.2d 415, 420 (Colo. 1987),

the error must impair the reliability of the judgment of conviction to

a greater degree than under harmless error to warrant reversal.”

Hagos, ¶ 14; see id. at ¶ 12 (explaining that reversal is required

under the harmless error standard only if the error “substantially

influenced the verdict or affected the fairness of the trial

proceedings” (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo.

1986))). Reversing for prosecutorial misconduct in this case could

blur the distinction between the plain error and harmless error

standards. See id. at ¶¶ 12, 14.

45 ¶ 94 I conclude that these brief statements during closing

arguments — (1) regarding Buckner’s refusal to voluntarily provide

DNA and (2) requesting justice for the victim — did not affect the

fundamental fairness of the proceedings to the degree required by

plain error. See id. at ¶ 14; see also People v. Sepeda, 196 Colo. 13,

25, 581 P.2d 723, 732 (1978) (“[W]e have held on numerous

occasions that prosecutorial misconduct in closing arguments

rarely, if ever, is so egregious as to constitute plain error, within the

meaning of Crim. P. 52(b) . . . .”).

A. Refusal to Provide DNA

¶ 95 Any purported refusal by Buckner to give DNA had little value

to a disputed issue at trial. Buckner’s theory of defense was that

the contact was consensual. And the jury heard evidence from the

detective that Buckner appeared to be cooperative with the DNA

testing. Our case, therefore, is unlike People v. Pollard, where the

prosecutor’s improper comment on the defendant’s refusal to

consent to a search went directly to the theory of defense. 2013

COA 31M, ¶ 47.

¶ 96 The prosecutor’s comments were brief. And our supreme

court has held that “[c]omments that were ‘few in number,

46 momentary in length, and were a very small part of a rather prosaic

summation’ do not warrant reversal under the plain error

standard.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo.

2005) (quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982)).

¶ 97 And, before closing arguments, the trial court instructed the

jurors that they must “not allow bias” to influence their decision,

and that the burden of proof is on the prosecution to prove “beyond

a reasonable doubt the existence of all the elements necessary to

constitute the crime charged.” See People v. Reed, 2013 COA 113,

¶ 28. I presume the jury understood and followed these

instructions.

B. Justice for the Victim

¶ 98 The very brief reference to justice for the victim was not so

inflammatory or evocative of the jury’s sympathy as to cast serious

doubt on the reliability of the judgment or undermine the

fundamental fairness of the proceedings. See Hagos, ¶ 12.

¶ 99 This was not pervasive misconduct. See People v. Nardine,

2016 COA 85, ¶ 65; see also Wend v. People, 235 P.3d 1089, 1098

(Colo. 2010) (“We focus on the cumulative effect of the prosecutor’s

statements using factors including the exact language used, the

47 nature of the misconduct, the degree of prejudice associated with

the misconduct, the surrounding context, and the strength of the

other evidence of guilt.”).

¶ 100 And the timing of this statement at the very end of rebuttal

argument seems to support the implication that the absence of a

defense objection reflects that the defense counsel did not think

that this statement was overly damaging. See People v. Rodriguez,

794 P.2d 965, 972 (Colo. 1990) (“The lack of an objection may

demonstrate defense counsel’s belief that the live argument, despite

its appearance in a cold record, was not overly damaging.” (quoting

Brooks v. Kemp, 762 F.2d 1383, 1397 n.19 (11th Cir. 1985))).

Buckner had given his closing argument, and the last few

statements of rebuttal are similarly prominent in the mind of the

listening defense counsel as they are in the mind of the jury.

¶ 101 In summary, I don’t think the two brief statements made by

the prosecutor during closing arguments “so undermined the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the judgment of conviction.” Hagos, ¶ 14

(quoting Miller, 113 P.3d at 750). In my view, therefore, this is not

48 the rare case of plain error that our supreme court determined

warrants reversal. See Wend, 235 P.3d at 1098.