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 8, 2018
2018COA13
No. 15CA0170, People v. Van Meter — Criminal Law ― Burden of Proof ― Prosecutorial Misconduct
A division of the court of appeals considers whether the trial
court erred in allowing the prosecutor’s use of a partially completed
puzzle of an iconic and easily recognizable space shuttle image — as
an analogy and a visual display — to explain the concept of
reasonable doubt to the jury. The division concludes that the
challenged conduct constituted prosecutorial misconduct but does
not require reversal under the plain error standard of review.
Also, the division rejects the defendant’s assertions that the
trial court reversibly erred in (1) refusing to declare a mistrial after
a prospective juror made potentially prejudicial statements during
voir dire; (2) improperly instructing the jury on the “possession”
element of the crime of possession of a weapon by a previous offender; and (3) allowing evidence showing that the defendant
allegedly used illegal drugs and that the gun he was accused of
possessing was stolen.
Accordingly, the division affirms the judgment. COLORADO COURT OF APPEALS 2018COA13
Court of Appeals No. 15CA0170 El Paso County District Court No. 14CR2764 Honorable Michael P. McHenry, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Wayne Jared Van Meter,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI Opinion by JUDGE FOX Furman and Ashby, JJ., concur
Announced February 8, 2018
Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Meredith K. Rose, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Wayne J. Van Meter, appeals the judgment of
conviction entered on a jury verdict finding him guilty of possession
of a weapon by a previous offender (POWPO). Although the
prosecutor’s use of a partially completed puzzle of an iconic and
easily recognizable space shuttle image to explain the concept of
reasonable doubt constituted prosecutorial misconduct, we
ultimately conclude that the trial court did not reversibly err by
allowing the conduct where no contemporaneous objection was
made. We therefore affirm.
I. Background
¶2 In 1988, Van Meter pleaded guilty to multiple crimes,
including two counts of felony aggravated robbery, and was
sentenced to serve thirty-two years in the Department of
Corrections’ custody. In June 2013, Van Meter was released on
parole.
¶3 Johnny Gilliland, a construction industry employer, hired Van
Meter after his release. In June 2014, Gilliland told Van Meter’s
parole officer that Van Meter had a gun in his car and was possibly
using heroin and stealing from customers. Gilliland directed Van
Meter to a jobsite, where the parole officer and three other officers
1 waited. When Van Meter arrived, the officers arrested him and
found a loaded semi-automatic handgun inside of a toolbox in the
trunk of his car.
¶4 Van Meter was charged with one count of POWPO, pursuant to
section 18-12-108(1), (2)(c), C.R.S. 2017. A jury found him guilty.
II. The Prospective Juror Panel
¶5 Van Meter argues that the trial court reversibly erred in failing
to declare a mistrial after a prospective juror stated in front of the
panel that he was aware of the underlying case because he was a
deputy sheriff and had transported Van Meter to court. We
disagree.
A. Additional Facts
¶6 During voir dire, the following interaction occurred in front of
the panel of prospective jurors:
[THE COURT:] Anyone else believe they’re suffering a true hardship[?]
PROSPECTIVE JUROR: Yes, sir. Not a hardship, but I’m aware of the case. I’m a deputy sheriff.
THE COURT: And you look familiar to me . . . . You’re aware of this particular case, the [Van Meter] case?
2 PROSPECTIVE JUROR: Yes, sir. I’ve transported him to court.
The trial court then dismissed the prospective juror for cause, and
defense counsel asked to approach the bench.
¶7 Defense counsel argued that the prospective juror’s statement
suggested that Van Meter “is in custody” and, thus, might bias the
entire panel. Defense counsel then requested a new panel of
prospective jurors. The trial court denied the request, determining
that the statement did not taint the panel “in a trial that’s
necessarily going to involve the jurors gaining knowledge of the fact
that [Van Meter] has a prior felony conviction.” The trial court also
noted that the statement did not indicate when the prospective
juror transported Van Meter to court.
B. Preservation and Standard of Review
¶8 The parties agree that this issue was properly preserved.
¶9 We review a trial court’s decision to deny a mistrial for an
abuse of discretion. People v. Marko, 2015 COA 139, ¶ 29 (cert.
granted on other grounds Oct. 24, 2016). An abuse of discretion
occurs when a trial court’s ruling is manifestly arbitrary,
unreasonable, or unfair, or contrary to law. People v. Relaford,
3 2016 COA 99, ¶ 25. “Under the abuse-of-discretion standard, an
appellate court must affirm the trial court’s decision if there is any
evidence in the record to support the trial court’s finding.” People
v. Muckle, 107 P.3d 380, 383 (Colo. 2005). Moreover, the “trial
court is in a better position to evaluate any adverse effect of
improper statements or testimony on a jury, [so] it has considerable
discretion to determine whether a mistrial is warranted.” People
v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009), aff’d sub nom. People
v. Simon, 266 P.3d 1099 (Colo. 2011).
C. Law and Analysis
¶ 10 “When a prospective juror makes a potentially prejudicial
statement during voir dire, the trial court may issue a curative
instruction; canvass the jury; or declare a mistrial.” Vititoe v. Rocky
Mountain Pavement Maint., Inc., 2015 COA 82, ¶ 20. Generally, a
curative instruction issued after a prejudicial statement is made
remedies any harm caused by the statement. People v. Mersman,
148 P.3d 199, 203 (Colo. App. 2006). “However, to receive a
curative instruction, a defendant must request it, and a trial court
does not commit plain error if it does not give a curative instruction
sua sponte.” Id. (concluding that the trial court did not commit
4 plain error in failing to issue a curative instruction or canvass the
jury where defense counsel failed to request either remedy).
¶ 11 Because a mistrial is the most drastic of remedies, one is “only
warranted where the prejudice to the accused is too substantial to
be remedied by other means.” People v. Collins, 730 P.2d 293, 303
(Colo. 1986). Factors relevant to whether a mistrial is warranted
include the nature of the inadmissible evidence, the weight of the
admissible evidence of the defendant’s guilt, and the value of a
cautionary instruction. Tillery, 231 P.3d at 43.
¶ 12 A defendant’ s due process right to a fair trial may be
implicated when a jury is exposed to information outside of properly
admitted evidence or information included in the court’s
instructions. Marko, ¶¶ 30, 32. In determining whether a jury’s
exposure to such extraneous information violated a defendant’s
right to a fair trial, we ask, first, whether the information was
improperly before the jury and, second, “whether there is a
reasonable possibility that the extraneous information influenced
the verdict” to the defendant’s detriment. Id. at ¶ 31.
¶ 13 Even if the prospective juror’s comments here were potentially
prejudicial, we conclude that the trial court did not err in declining
5 to declare a mistrial because there is no “reasonable possibility that
the extraneous information influenced the verdict” to Van Meter’s
detriment. See id. The challenged comments were brief, totaling
only a few lines in the multi-page transcript from the two-day trial,
and trial counsel never mentioned them again. See People v. Lahr,
2013 COA 57, ¶ 24 (noting that inadmissible evidence typically will
have less prejudicial impact if it appears only in a fleeting
reference). The record supports the trial court’s determination that
the challenged comments did not taint the entire panel because
they did not necessarily imply that the deputy sheriff transported
Van Meter to court for the underlying case — rather than for a
previous case — especially where the POWPO charge required the
jury to learn that Van Meter had a prior felony conviction:
aggravated robbery.
¶ 14 Moreover, the record indicates that all who ultimately served
on the jury indicated that they would be fair and impartial; the
deputy sheriff and the only other potential juror who indicated that
she could not be impartial were dismissed for cause. “As a result,
plaintiff’s contention relies solely ‘on speculation as to the effect, if
any, the potential jurors’ statements had on the actual jurors.’”
6 Vititoe, ¶ 31 (citation omitted); see also United States v. Jones, 696
F.2d 479, 491-92 (7th Cir. 1982) (holding that the defendants were
tried by an impartial jury even though two prospective jurors made
improper comments and the entire panel heard those comments
where the two prospective jurors were dismissed).
¶ 15 Additionally, defense counsel did not request that the trial
court canvas the jury or issue a curative instruction — two lesser
means to remedy any prejudice from the challenged statements.
See Collins, 730 P.2d at 303. The trial court, therefore, did not err
in failing to act sua sponte. See Mersman, 148 P.3d at 203.
¶ 16 For these reasons, we conclude that the trial court did not
abuse its discretion in declining to declare a mistrial and the jury’s
exposure to the deputy sheriff’s brief comments did not deprive Van
Meter of a fair trial or due process. See Relaford, ¶ 25; Marko, ¶ 31.
III. Prosecutorial Misconduct
¶ 17 Van Meter next asserts that the trial court reversibly erred by
allowing the prosecutor to show the jury a picture of an incomplete
puzzle depicting an iconic and easily recognizable image of a space
shuttle to explain the prosecution’s burden of proof, despite the
lack of a contemporaneous objection. Although the challenged
7 behavior constituted prosecutorial misconduct, the trial court did
not commit plain error by allowing it.
¶ 18 The trial court instructed the prospective jurors on the
prosecution’s burden of proof and defined “reasonable doubt” as
a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence or the lack of evidence in the case. It is a doubt which is not a vague, speculative, or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.
¶ 19 Later, during voir dire, the prosecutor explained that he only
had to prove each element of the charged crime beyond a
reasonable doubt and that it was possible to do so while “missing
pieces” remained. The prosecutor then showed the panel the
following picture of a puzzle of a space shuttle containing thirty-five
pieces — twelve (or thirty-four percent) of which are missing:
8 The prosecutor used this photo to explain his burden of proof,
asking the potential jurors whether “anyone [had] a reasonable
doubt that this is a space shuttle?” After no potential juror raised
his or her hand — which would have indicated that the potential
juror thought the image was not beyond a reasonable doubt a space
shuttle — the prosecutor stated, “If you focus on the pieces that
9 you’re missing, you don’t see the picture, but if you focus on the
pieces that you have, it’s beyond a reasonable doubt a space
shuttle. Isn’t that correct? Does anyone disagree with that? All
right [sic].”
¶ 20 The prosecutor showed the picture to the jury again during
closing arguments, stating the following:
There’s no conspiracy. There might be questions, though. There might be holes in the story. There might be things that you still want to know, that you didn’t hear, that you didn’t see. We talked about this in voir dire. That doesn’t rise to the level of a reasonable doubt. If you focus on the holes in the puzzle, you don’t see the picture. But if you can see that picture, if you can say beyond a reasonable doubt that is what that is, then you should find the defendant guilty. And there will be questions, and there will be holes, but they don’t rise to the level of a reasonable doubt.
¶ 21 The trial court instructed the jurors before they began
deliberating — repeating the pattern “reasonable doubt” definition
— and provided the “reasonable doubt” definition with the written
instructions.
B. Preservation, Standard of Review, and Applicable Law
¶ 22 The parties agree that Van Meter failed to preserve this issue.
10 ¶ 23 Our review of a claim of prosecutorial misconduct involves a
two-step analysis. People v. Howard-Walker, 2017 COA 81M, ¶ 83
(citing Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). We first
determine whether the conduct at issue was improper based on the
totality of the circumstances. Id. Next, we determine whether any
misconduct warrants reversal. Id.
¶ 24 We evaluate claims of improper argument “in the context of
the argument as a whole and in light of the evidence before the
jury.” People v. Geisendorfer, 991 P.2d 308, 312 (Colo. App. 1999).
A “prosecutor has wide latitude to make arguments based on facts
in evidence and reasonable inferences drawn from those facts.”
People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). A
prosecutor also “may employ rhetorical devices and engage in
oratorical embellishment and metaphorical nuance, so long as he or
she does not thereby induce the jury to determine guilt on the basis
of passion or prejudice, attempt to inject irrelevant issues into the
case, or accomplish some other improper purpose.” People v. Allee,
77 P.3d 831, 837 (Colo. App. 2003). A prosecutor may not misstate
the evidence or the law. See Howard-Walker, ¶ 83; Marko, ¶ 206.
11 ¶ 25 Whether a prosecutor committed misconduct is an issue
within the trial court’s discretion. See Strock, 252 P.3d at 1152.
We will not disturb the court’s ruling absent an abuse of discretion
“resulting in prejudice and a denial of justice.” Id. Under this
standard, we ask not “whether we would have reached a different
result but, rather, whether the trial court’s decision fell within a
range of reasonable options.” People v. Rhea, 2014 COA 60, ¶ 58
(citation omitted).
¶ 26 We review unpreserved claims of error for plain error. See
People v. Acosta, 2014 COA 82, ¶ 77. Reversal is required under
this standard only if the error was obvious and “so undermined the
fundamental fairness of the trial itself so as to cast serious doubt
on the reliability of the judgment of conviction.” Hagos v. People,
2012 CO 63, ¶ 14 (citation omitted). “Prosecutorial misconduct
rarely constitutes plain error.” People v. Carter, 2015 COA 24M-2,
¶ 53.
¶ 27 Only two published cases in Colorado have addressed the use
of a puzzle analogy to explain the reasonable doubt standard. See
People v. Camarigg, 2017 COA 115M, ¶ 34; Carter, ¶ 50.
12 ¶ 28 In Camarigg, the prosecutor used a puzzle analogy in rebuttal
closing, describing an incomplete puzzle of an image of a tiger and
explaining how circumstantial evidence was sufficient proof beyond
a reasonable doubt. Camarigg, ¶¶ 36, 38. That division reasoned
that puzzle analogies can be problematic if they (1) “quantify the
concept of reasonable doubt”; (2) “inappropriately trivialize the
state’s burden”; (3) “equate the burden of proof to an everyday
choice”; or (4) “use iconic images, which invite the jury to jump to a
conclusion about a defendant’s guilt.” Id. at ¶¶ 44-47; see also
People v. Centeno, 338 P.3d 938, 947 (Cal. 2014) (“It is . . .
misleading to analogize a jury’s task to solving a picture puzzle
depicting an actual and familiar object unrelated to the evidence.”).
¶ 29 Noting that the prosecutor did not actually display a partial
image of a tiger and contrasting that to “more problematic cases,”
that division held that “any impropriety in the prosecutor’s analogy
was harmless beyond a reasonable doubt.” Id. at ¶¶ 51, 53.
¶ 30 In Carter, the trial court analogized the reasonable doubt
standard to a puzzle during voir dire and later allowed the
prosecutor to make similar comments. Carter, ¶ 50. That division
held that, assuming the challenged statements were improper, the
13 trial court had not committed plain error in allowing them because
the error was neither obvious nor substantial under those
circumstances. Id. at ¶ 61.
C. Analysis
¶ 31 We conclude that the prosecutor’s use of a puzzle analogy,
including the display of an incomplete puzzle of the iconic and
easily recognizable space shuttle image, was improper. During voir
dire, the prosecutor showed the potential jurors an incomplete
puzzle of a space shuttle (with only sixty-six percent of the pieces
present), stated that the image was a space shuttle “beyond a
reasonable doubt,” and asked the potential jurors whether anyone
disagreed, which none did; the prosecutor also showed the image
during closing arguments. By using the iconic and easily
recognizable space shuttle image, the prosecutor “invite[d] the jury
to jump to a conclusion about [the] defendant’s guilt,” especially
because the jury was shown an image and told that it was a space
shuttle “beyond a reasonable doubt.” Camarigg, ¶¶ 47, 51; see also
People v. Katzenberger, 101 Cal. Rptr. 3d 122, 127 (Cal. Ct. App.
2009) (concluding that a prosecutor improperly quantified the
burden of proof by displaying an eight-piece puzzle of the Statue of
14 Liberty missing two pieces and saying “this picture is beyond a
reasonable doubt”). The prosecutor’s use of a two-thirds completed
puzzle analogy also improperly quantified the burden of proof, even
where the prosecutor did not undertake to quantify the number or
percentage of missing pieces. See Camarigg, ¶ 44.
¶ 32 Although the challenged conduct was improper, the trial court
did not commit plain error in allowing the conduct absent a
contemporaneous objection. We are not persuaded that the error in
allowing the conduct, without the benefit of the guidance provided
by this opinion, was “obvious and so clear-cut that a trial judge
should have been expected to avoid it without benefit of an
objection.” Carter, ¶ 58 (assuming that allowing the use of a puzzle
analogy was improper and concluding that it was not obvious for
purposes of plain error review); see also People in Interest of T.C.C.,
2017 COA 138, ¶ 15 (“An error is obvious if it contravenes either a
clear statutory command, a well-settled legal principle, or Colorado
case law.”).
¶ 33 Moreover, in this case, the challenged conduct did not “so
undermin[e] the fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of conviction.”
15 Hagos, ¶ 14 (citation omitted). The trial court instructed the jurors
multiple times on the proper meaning of “reasonable doubt.” See
People v. McKeel, 246 P.3d 638, 641 (Colo. 2010) (“We presume that
jurors follow the instructions that they receive.”); see also State v.
Crawford, 262 P.3d 1070, 1081-82 (Kan. Ct. App. 2011) (concluding
that the prosecutor’s use of a puzzle analogy was misconduct, but
did not require reversal due to correct jury instructions), aff’d, 334
P.3d 311 (Kan. 2014). But see People v. Wilds, 529 N.Y.S.2d 325,
327 (N.Y. App. Div. 1988) (holding that the trial court reversibly
erred in explaining that, even though there might be some blank
spaces in a puzzle of Abraham Lincoln, reasonable doubt is
satisfied if you can still tell that it is Lincoln because “the average
American juror would recognize a jigsaw puzzle of Abraham Lincoln,
long before all of the pieces are in place”). The prosecutor’s use of
the puzzle analogy was relatively brief and isolated. See Carter,
¶ 60; People v. Munsey, 232 P.3d 113, 124 (Colo. App. 2009)
(concluding that it was “unlikely that this comment substantially
influenced the verdict” where the challenged comment was made in
an isolated portion of closing and absent other allegations of
prosecutorial misconduct during closing). And, the lack of a
16 contemporaneous objection is also telling. 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.”) (citation
omitted).
¶ 34 Importantly, the record contains undisputed evidence that the
parole officers saw Van Meter arrive at the jobsite in a car, arrested
Van Meter, immediately searched the car, and found a loaded
handgun in the car’s trunk; Gilliland also testified that he had seen
Van Meter with the gun and had spoken to him about it. See
People v. Butler, 2017 COA 98, ¶ 11 (“The determination of the
credibility of witnesses rests solely within the province of the jury.”);
People v. Munoz-Casteneda, 2012 COA 109, ¶ 35 (holding that the
prosecutor’s improper conduct did not require reversal under plain
error review in light of overwhelming evidence of the defendant’s
guilt). Because all the elements of the POWPO charge were clearly
proven, and the error was neither obvious nor substantial here, we
conclude that the trial court did not plainly err in allowing the
prosecutor’s improper conduct. See Carter, ¶ 57.
17 IV. Jury Instruction
¶ 35 According to Van Meter, the trial court erroneously instructed
the jury on the definition of “possession” in the context of the
POWPO charge. We perceive no error.
¶ 36 A person commits the crime of POWPO if the person
“knowingly possesses, uses, or carries upon his or her person a
firearm . . . subsequent to the person’s conviction for a felony . . .
under Colorado or any other state’s law or under federal law.”
§ 18-12-108(1).
¶ 37 During voir dire — after a prospective juror asked defense
counsel, “[A]re you in possession if the weapon is in your
possession?” — defense counsel and the prosecutor approached the
bench to discuss the instructions on the possession element of the
crime of POWPO. The trial court stated,
So I’m looking at a definition of . . . “possession” . . . in the new criminal jury instructions . . . . And if there was one candidate for the least-favorite change in the new instructions, it would be this definition right here. The old definition of “possession” used to talk about being in dominion and control . . . I suppose [the new instruction] does still talk in terms of possession or control,
18 and it just adds — it connects it up to the concept of a voluntary act. So is there any objection to me reading the new definition?
Defense counsel responded, “No objection.”
¶ 38 The trial court then instructed the prospective jurors that
“[p]ossession constitutes a voluntary act if the actor was aware of
his physical possession or control thereof for a sufficient period to
have been able to have terminated it.” One prospective juror
responded, “That’s pretty clear.” Defense counsel further discussed
the definition of “possession” in the context of the crime of POWPO
with the prospective jurors.
¶ 39 After all evidence was presented, the trial court conferred with
the prosecutor and defense counsel to finalize the jury instructions.
The trial court asked whether the parties objected to the page of
instructions containing the definition of terms, including defining
“possession” as “constitut[ing] a ‘voluntary act’ if the actor was
aware of his physical possession or control thereof for a sufficient
period to have been able to have terminated it.” Defense counsel
responded, “No objection.” At the end of the instructional
conference, the trial court reviewed each proposed jury instruction,
19 including the instruction on the definition of “possession.” Defense
counsel again stated, “No objection.”
¶ 40 The parties agree that this issue is unpreserved, but they
dispute whether Van Meter waived his objection to the challenged
instruction. We need not decide the waiver issue because, in any
event, there was no error.
¶ 41 “[A] trial court is obligated to instruct the jury correctly on the
law applicable to the case.” People v. Stewart, 55 P.3d 107, 120
(Colo. 2002). We review jury instructions de novo, considering them
as a whole to determine whether they accurately informed the jury
of the governing law. People v. Lucas, 232 P.3d 155, 162 (Colo.
App. 2009). The trial court has substantial discretion in
formulating the instructions, “so long as they are correct
statements of the law and fairly and adequately cover the issues
presented.” People v. Nerud, 2015 COA 27, ¶ 35 (quoting People
v. Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009)).
¶ 42 Where a defendant fails to object to a trial court’s jury
instruction, we normally apply the plain error standard of review.
People v. Garcia, 28 P.3d 340, 344 (Colo. 2001); Acosta, ¶ 77.
20 Reversal is required under this standard only if the error was
obvious and “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 (citation omitted); People v. Miller, 113
P.3d 743, 750 (Colo. 2005). “[W]ith respect to jury instructions,
reversal under a plain error standard requires a defendant to
‘demonstrate not only that the instruction affected a substantial
right, but also that the record reveals a reasonable possibility that
the error contributed to [the] conviction.’” Garcia, 28 P.3d at 344
(quoting Bogdanov v. People, 941 P.2d 247, 255-56 (Colo. 1997)).
“[A]n erroneous jury instruction does not normally constitute plain
error where the issue is not contested at trial or where the record
contains overwhelming evidence of the defendant’s guilt.” Miller,
113 P.3d at 750; see Crim. P. 30 (“All instructions shall be
submitted to the parties, who shall make all objections thereto
before they are given to the jury. Only the grounds so specified
shall be considered on motion for a new trial or on review.”).
¶ 43 The trial court’s challenged instruction — framing
“possession” in terms of “physical possession or control” — mirrors
21 the generally accepted meaning of the term “possession” and the
pattern instruction in the POWPO context. See People v. Martinez,
780 P.2d 560, 561 (Colo. 1989) (“‘[P]ossession’ is ‘a common term
which is to be given its generally accepted meaning’ [and it means]
‘the actual or physical control of a firearm.’” (quoting People v.
Garcia, 197 Colo. 550, 554, 595 P.2d 228, 231 (1979))). The
evidence of Van Meter’s guilt was focused on Van Meter’s
possession of a specific gun found at the scene of his arrest. See
Miller, 113 P.3d at 750. Defense counsel explained in detail his
theory that, although the gun was in the car Van Meter drove that
day, he was unaware of its presence because Gilliland set him up.
This defense theory, which focused on the assertion that Van Meter
did not knowingly possess the gun, was ultimately rejected by the
jury. The challenged instruction and any related questions were
discussed at length during voir dire. And, defense counsel
affirmatively declined to object to the challenged instruction three
times. See Domingo-Gomez v. People, 125 P.3d 1043, 1054 (Colo.
2005) (“The lack of an objection may demonstrate the defense
counsel’s belief that the live argument, despite its appearance in a
cold record, was not overly damaging.”) (citation omitted).
22 ¶ 44 Under these circumstances, we are unconvinced that the trial
court’s decision to give the challenged instruction was incorrect or
otherwise confusing to the extent that it constituted plain error.
See Hagos, ¶ 14.
V. Evidentiary Issues
¶ 45 Van Meter next contends that the trial court reversibly erred in
allowing evidence in violation of CRE 402, 403, 404(b), and 802:
namely, evidence that the gun was stolen and that Van Meter was
allegedly using illicit drugs. We disagree.
¶ 46 Before trial, defense counsel moved for disclosure of all prior
or criminal acts the prosecution intended to use or present at trial.
At a hearing in October 2014, the prosecutor stated that “other
than proof of the prior conviction to prove the [POWPO], there is no
404(b) [evidence] anticipated.” The trial court then asked, “So is
there really any ruling to enter today since the defense is on notice
of [the prior case and conviction]?” Defense counsel responded, “I
don’t think there’s anything we can do today, Your Honor.” The
trial court agreed.
23 ¶ 47 At trial, before voir dire, defense counsel said that he had
learned that Gilliland had accused Van Meter of committing various
other bad acts, “includ[ing] a theft from a jobsite while [Van Meter]
was working for [G]illiland, an insurance scam[,] [Van Meter]
actually stealing from [G]illiland, and also [Van Meter] stealing
jewelry from jobsites.” Defense counsel moved to exclude the noted
other bad acts. The prosecutor said that he had no plan to “get into
any of the prior acts,” and the trial court granted the motion,
broadly stating that there “will be no mention of any prior bad acts.”
¶ 48 In his opening statement, defense counsel argued that
Gilliland lied and “set up” Van Meter, who did not know about the
gun in the trunk.
¶ 49 During direct examination of Van Meter’s parole officer, the
prosecutor asked about Gilliland’s report of Van Meter’s alleged
illegal activity. The parole officer testified that Gilliland “claimed
[Van Meter] was possibly using heroin, possibly stealing from
customers, and . . . had a weapon[.]” Defense counsel did not
object. The parole officer continued to describe the investigation
and arrest; he testified, without objection, that he contacted the
Colorado State Police, who used a serial number on the gun found
24 in Van Meter’s car to determine that the gun was stolen before
taking the gun into their custody.
¶ 50 On cross-examination, the following exchange occurred:
Q. [Gilliland] told you about this information, about [Van Meter] supposedly carrying a weapon, correct?
A. He also said he was supposedly using heroin.
Q. Heroin. And also methamphetamine; is that correct?
A. And he also claimed that he was using flush kits to try to beat the urinalysis.
Defense counsel then elicited testimony that Van Meter never tested
positive for heroin or methamphetamine, and neither heroin nor
methamphetamine was found on Van Meter or in his car when he
was arrested. Defense counsel later asked about the gun’s stolen
status. The parole officer responded that he did not know when the
gun was stolen.
¶ 51 During the direct examination of a second parole officer
involved in the investigation, the officer testified, without objection,
that Van Meter’s parole officer “said that he had received
information that [Van Meter] had been using drugs and was in
25 possession of a weapon.” Van Meter does not expressly challenge
the second parole officer’s testimony in his briefs on appeal.
¶ 52 The prosecution examined a third parole officer involved in the
investigation. On cross-examination, defense counsel elicited
testimony that no illegal drugs or other contraband was found on
Van Meter when he was arrested.
¶ 53 Next, during direct examination, Gilliland testified that he was
convicted of four felonies, including methamphetamine possession,
and was on probation. Gilliland also testified that Van Meter’s
behavior was becoming erratic and, when Gilliland asked him
whether he was “getting high again,” he denied it. Further,
Gilliland testified about an incident where Van Meter arrived at a
jobsite and Gilliland noticed that “he was really high . . . I could tell
he was high.”
¶ 54 On cross-examination, defense counsel challenged Gilliland’s
credibility by asking him about his prior convictions. The
prosecutor objected on relevance grounds, and defense counsel
stated, “I do intend to get into [Gilliland’s] meth conviction as 404(b)
evidence, as it goes to his knowledge of [meth and] the effects that it
has on people.” The trial court ruled that, when asking Gilliland
26 about his prior convictions, defense counsel could “briefly get into
the nature of the conviction.” Defense counsel then asked Gilliland
about methamphetamine, and the prosecution raised a relevance
objection. Defense counsel stated the following:
Gilliland has testified that he allowed [Van Meter] to remain on job sites while under the influence of methamphetamine. I’m crossing him about what was going on in his mind at that time, that he would actually allow somebody to be unsupervised on a job site that he’s responsible for . . . . We’re attacking this witness and his story saying that there’s all this drug use, that this guy is such a bad guy, he held off on reporting it, that we absolutely do not believe that to be the truth, and we wanted to show the jury this happened.
The trial court ruled that defense counsel had “a little leeway” to
continue with this questioning; defense counsel did so, repeatedly
asking Gilliland about his accusations concerning Van Meter’s gun
and drug use. Defense counsel later asked Gilliland about his
allegations concerning thefts at various jobsites. The prosecutor
objected on the grounds of relevance and CRE 404(b). Defense
counsel responded,
I’m attacking his credibility and opening the door . . . I’m asking about these prior accusations that [G]illiland has made against [Van Meter]. They’re accusations that he’s
27 mentioned to law enforcement more than once, in which he continued to employ [Van Meter] afterwards. It goes towards our theory of defense.
Defense counsel then clarified that he was opening the door to
Gilliland’s prior accusations that Van Meter “stole a number of large
appliances from a home sometime near the date of the arrest . . . .
[O]ur theory is that [G]illiland was doing unlawful things in his
company and that [Van Meter] is essentially a scapegoat.” During
redirect examination, Gilliland, speaking about why he called Van
Meter’s parole officer, testified, “I didn’t know if I should do
something about it. I mean, a high person with a weapon, armed
robbery history, you know, they’re on the road to hurting other
people.”
¶ 55 The prosecutor next questioned a police officer involved in the
investigation. During cross-examination, defense counsel elicited
testimony that the gun was stolen in 2012 while Van Meter was in
prison. Defense counsel asked, “So if somebody was in prison in
2012, they could not have stolen that gun; is that fair to say?” The
officer responded, “That wouldn’t be impossible. It would be
difficult for that person to steal the gun. Could they coordinate it?
28 Of course.” The officer also testified that, when Van Meter was
arrested and the gun was recovered, it was “not [his] concern”
whether Van Meter was connected to the original theft of the gun.
¶ 56 After the close of the prosecution’s case-in-chief, defense
counsel called Van Meter’s parole officer and questioned him about
Van Meter’s alleged illegal drug use. Defense counsel elicited
testimony that Van Meter was not drug tested on the day of his
arrest, nor did the parole officer document that Van Meter was
under the influence of methamphetamine or heroin.
¶ 57 The prosecutor repeatedly referred to Gilliland’s allegations
regarding Van Meter’s illegal drug use during his closing argument
and stated the following:
Was it meth or was it heroin? Lots of questions about whether [Gilliland] knew it was meth, and he’d seen meth and he knows what meth is like and he knows what somebody on meth looks like. Or was it heroin? It doesn’t matter. [Van Meter] is guilty of possessing the weapon. He hasn’t been charged with any drug crime. The fact that he didn’t have any drugs on him when the parole officers found him, [G]illiland explained that to you. He said, if you bought drugs, you’d smoke them or use them.
29 The prosecutor also noted Gilliland’s “criminal history with drugs”
and knowledge of methamphetamine, but emphasized that these
facts do not “mean that what [Gilliland] said on the witness stand
was untruthful.”
¶ 58 During defense counsel’s closing, he reiterated Van Meter’s
theory of the case — Gilliland lied and set him up. Defense counsel
highlighted inconsistencies regarding Gilliland’s allegations of Van
Meter’s drug use, then highlighted other inconsistencies in
Gilliland’s testimony. Regarding why he asked Gilliland about his
prior drug convictions, defense counsel stated,
His prior convictions for methamphetamine, the reason we explored those is because they further bolster his knowledge and the unbelievability of him allowing a person who he knows to be using these drugs to be going into these houses. I wasn’t trying to drag him through the mud, but when a man tells me he doesn’t know about heroin, that heroin is even addictive, we have to talk about the methamphetamine.
¶ 59 We conclude that Van Meter failed to preserve this issue.
Although the trial court never made a definitive ruling regarding the
challenged evidence’s admissibility, Van Meter later failed to
30 contemporaneously object to the challenged evidence. See Camp
Bird Colo., Inc. v. Bd. of Cty. Comm’rs, 215 P.3d 1277, 1289-90
(Colo. App. 2009) (“Once the trial court makes definitive rulings
either at or before trial, the objecting party need not renew the
objection contemporaneously during trial to preserve a claim of
error on appeal.”). The trial court broadly ruled on the first day of
trial that there “will be no mention of any prior bad acts”; this
ruling resolved Van Meter’s pretrial Rule 404(b) motion, which only
referenced alleged thefts. The Rule 404(b) motion made no mention
of the evidence Van Meter now challenges.
¶ 60 We review unpreserved claims of error for plain error. See
Acosta, ¶ 77. We review a trial court’s evidentiary rulings for an
abuse of discretion. Relaford, ¶ 25.
C. Applicable Law
¶ 61 To be admissible, evidence must be relevant. CRE 402.
“‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” CRE 401.
31 ¶ 62 Evidence of other acts is not admissible to prove the character
of a person in order to show that the person acted in conformity
with that character. CRE 404(b). However, such evidence is
admissible for other purposes, such as to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. See id.
¶ 63 To admit evidence of other acts under CRE 404(b), a trial court
must find that the evidence (1) “relates to a material fact”; (2) is
“logically relevant”; (3) has such relevance “independent of the
intermediate inference, prohibited by CRE 404(b), that the
defendant has a bad character” and acted in conformity therewith;
and (4) satisfies CRE 403 by having probative value that is not
“substantially outweighed by the danger of unfair prejudice.”
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). The third prong
of this test “does not demand the absence of the inference”; rather,
it “merely requires that the proffered evidence be logically relevant
independent of that inference” because all evidence of other bad
acts could support a propensity inference. People v. Snyder, 874
P.2d 1076, 1080 (Colo. 1994).
32 ¶ 64 Hearsay is “a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). If an out-of-court
statement is not offered for its truth, it is admissible as nonhearsay
evidence as long as it is relevant. See CRE 402; see also People
v. Welsh, 176 P.3d 781, 790 (Colo. App. 2007). If a statement is
hearsay, it is inadmissible unless it falls within an exception to the
hearsay rule. CRE 802.
D. Analysis
¶ 65 We conclude that any error in allowing the challenged
evidence did not rise to the level of plain error.
¶ 66 We are not persuaded that any error in allowing the
challenged evidence was obvious where defense counsel offered no
contemporaneous objections and strategically chose to elicit Rule
404(b) evidence, regardless of his earlier motion, to further his
theory that Gilliland lied and set up Van Meter. See Hagos, ¶ 14.
Defense counsel expressly stated that he was “opening the door” to
evidence of Van Meter’s involvement in various alleged thefts to
challenge Gilliland’s credibility. Defense counsel also elicited
testimony about methamphetamine, making the first mention of
33 that drug at trial during the cross-examination of Van Meter’s
parole officer. Defense counsel then extensively used evidence of
Gilliland’s methamphetamine possession conviction to further
challenge his credibility. Additionally, the evidence that the gun
was stolen and that Van Meter was allegedly using illegal drugs
arguably explained why the investigation proceeded the way it did.
See People v. Penn, 2016 CO 32, ¶¶ 31-33 (reasoning that officers
may, in some circumstances, testify about “the reasons they took
certain investigative steps, even where this testimony touches upon
prohibited subjects”).
¶ 67 Further, admitting the challenged evidence did not “so
undermin[e] the fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of conviction.”
Hagos, ¶ 14 (citation omitted). As already detailed, there was
overwhelming evidence of Van Meter’s guilt, including Gilliland’s
testimony. See People v. Clark, 2015 COA 44, ¶ 175 (“It is the
function of the [trier of fact], and not the reviewing court, to weigh
evidence and determine the credibility of the witnesses.”) (citation
omitted); Munoz-Casteneda, ¶ 35; see also Page v. Clark, 197 Colo.
306, 313, 592 P.2d 792, 796 (1979) (The fact finder’s “presence
34 during the presentation of testimonial evidence provides an
unparalleled opportunity to determine the credibility of the
witnesses and the weight to be afforded the evidence[.]”). Also, both
Gilliland’s and Van Meter’s prior felony convictions and criminal
histories garnered substantial attention at trial. Thus, we remain
unconvinced that evidence of Van Meter’s alleged criminal acts
unfairly prejudiced the jury against him, but not against Gilliland.
¶ 68 For these reasons, we conclude that the trial court did not
plainly err in allowing the challenged evidence. See Hagos, ¶ 14.
VI. Conclusion
¶ 69 The judgment is affirmed.
JUDGE FURMAN and JUDGE ASHBY concur.