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 May 23, 2019
2019COA78
No. 15CA1178, People v. Dominguez — Evidence — Hearsay — Verbal Acts — Opinions and Expert Testimony — Opinion by Lay Witnesses — Testimony by Experts
A division of the court of appeals considers whether the trial
court erred in admitting text messages discovered on the
defendant’s cell phone stating, among other messages, “Can you do
2 for 1500 if I got all of it” and “Can you do 2 for 1600.” The
division rejects the defendant’s argument that these text messages
constituted inadmissible hearsay, concluding, instead, that they
were admissible as verbal acts. The division also rejects the
defendant’s related due process and CRE 403 arguments related to
the text messages.
The division next agrees that the trial court erred in admitting
expert testimony from two police agents under the guise of lay witness testimony. But, it concludes that the admission of this
improper testimony was harmless given the overwhelming evidence
of defendant’s guilt presented at trial.
The division also rejects the defendant’s contention that the
prosecutor committed reversible misconduct during rebuttal closing
argument by misstating the law on reasonable doubt.
Last, the division concludes the defendant’s convictions for
reckless driving and vehicular eluding need not merge. Although
reckless driving is a lesser included offense of vehicular eluding, the
undisputed evidence showed that the defendant committed two
separate and temporally distinct instances of reckless driving, even
if not separately charged. So, under the circumstances here, the
trial court did not plainly err in not sua sponte merging these two
convictions. COLORADO COURT OF APPEALS 2019COA78
Court of Appeals No. 15CA1178 Jefferson County District Court No. 14CR1695 Honorable Randall C. Arp, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Brian Anthony Dominguez,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division VII Opinion by JUDGE DUNN Márquez* and Miller*, JJ., concur
Announced May 23, 2019
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 Brian Anthony Dominguez appeals the judgment of conviction
entered after a jury found him guilty of possession of a controlled
substance with intent to distribute, possession of drug
paraphernalia, vehicular eluding, reckless driving, and driving
under restraint. He also appeals his sentence. We affirm.
I. Background
¶2 While outside the home of his daughter’s grandmother,
Dominguez had a verbal altercation with the grandmother’s
relatives. One of the relatives called 911, and Dominguez drove
away at a high speed.
¶3 Agent Angela Garza later spotted Dominguez’s truck. After
following it for a short time, she attempted to initiate a traffic stop.
Dominguez accelerated away, and a high-speed chase ensued.
Agent Garza and other police agents ultimately stopped their
pursuit. But later, Agent Garza located Dominguez’s abandoned
truck. Police agents found Dominguez hiding nearby and arrested
him.
¶4 Agent Ryan Carmichael then searched Dominguez’s truck and
discovered the following items:
1 • a large bag containing 208 grams (almost half a pound) of
methamphetamine;
• a small bag containing 0.29 grams of methamphetamine;
• a small bag containing 0.47 grams of methamphetamine;
• a third small bag, which was empty;
• a small spoon “that appeared . . . to be the size used to
fill these smaller baggies”;
• an electronic scale with a “white substance” on it, which
was similar in color to the recovered methamphetamine;
• a cell phone;
• a glass smoking pipe; and
• used and unused syringes.
¶5 The prosecution charged Dominguez with possession of a
controlled substance with intent to distribute, possession of drug
paraphernalia, vehicular eluding, reckless driving, and driving
under restraint. 1 At trial, Dominguez conceded all but the
possession of a controlled substance with intent to distribute
1 The prosecution also charged Dominguez with aggravated motor vehicle theft, but the trial court granted Dominguez’s motion for judgment of acquittal on that count.
2 charge. The jury found Dominguez guilty of each count, and the
court sentenced him to twelve years in prison.
II. Text Messages
¶6 Dominguez primarily contends the trial court erred in
admitting text messages discovered on his cell phone because (1)
they were inadmissible hearsay; (2) their admission violated his
right to due process; and (3) they should have been excluded under
CRE 403. These errors, he argues, require the reversal of his
possession of a controlled substance with intent to distribute
conviction. We consider and reject each contention.
A. Additional Facts
¶7 Agent Carmichael testified that when he took the cell phone
from Dominguez’s truck and examined it, he saw text messages
that “concern[ed] [him].” He “relayed what [he] saw to . . . agents on
the West Metro Drug Task Force.”
¶8 Agent Adrian Alderete, a member of the West Metro Drug Task
Force, later testified that he executed a search warrant on the cell
phone and discovered a series of text messages sent to it over a
span of approximately two hours near the time of Dominguez’s
3 arrest. The prosecutor moved to admit a photograph of
Dominguez’s cell phone showing the following text messages:
• “[c]an you do 2 for 1500 if I got all of it”;
• “[y]our voicemail is full”;
• “[c]an you do that for me”;
• “[c]all me please”; and
• “[c]an you do 2 for 1600.”
¶9 Dominguez’s counsel objected, contending that the text
messages were inadmissible hearsay. In response, the prosecutor
argued that they were “not . . . statement[s] at all” but “in the
nature of . . . verbal act[s],” so “hearsay doesn’t apply.”
¶ 10 The court overruled the objection, concluding that the text
messages were not hearsay. It explained, “While arguably the texts
are communicative in nature and an inference can be drawn from
them, the Court would find that they are not assertions. None of
the messages on that screen are assertions. They are all inquiries
or questions.”
B. Hearsay
¶ 11 Dominguez says this was reversible error. He argues that the
text messages constituted inadmissible hearsay because they were
4 offered for the truth of the matter “impliedly asserted” in them —
that he “was a drug dealer.” 2 We disagree.
1. Standard of Review
¶ 12 The parties agree that Dominguez preserved this issue but
dispute the standard by which we review it. Dominguez argues for
de novo review, contending that “whether evidence is hearsay
presents a legal question.” The People respond that whether the
court erred in admitting evidence is reviewed for an abuse of
discretion.
¶ 13 The People are correct that we review a trial court’s evidentiary
ruling for an abuse of discretion. People v. Phillips, 2012 COA 176,
¶ 63; see also People v. Cohen, 2019 COA 38, ¶ 10. In determining
if the court abused its discretion, however, we not only consider
whether the court’s ruling was manifestly arbitrary, unreasonable,
or unfair, but also whether its ruling was contrary to the law.
People v. Jackson, 2018 COA 79, ¶ 47. This latter question does
2 In making this argument, Dominguez addresses the text messages together, indicating that a “statement-by-statement analysis is unhelpful.” The People, too, generally analyze them together. Accordingly, we do not conduct a separate analysis for each text message, but instead review them as one.
5 not require deference to the trial court. Instead, the trial court’s
application or interpretation of the law when making an evidentiary
ruling is a question of law we review de novo. See People v. Reed,
216 P.3d 55, 56-57 (Colo. App. 2008); see also E-470 Pub. Highway
Auth. v. 455 Co., 3 P.3d 18, 22 (Colo. 2000); Sos v. Roaring Fork
Transp. Auth., 2017 COA 142, ¶ 48.
¶ 14 We therefore review de novo the trial court’s application of
hearsay law, but, absent a misapplication of the law, the decision to
admit evidence remains in the court’s broad discretion. See
Phillips, ¶ 63; see also Danko v. Conyers, 2018 COA 14, ¶ 26.
2. Discussion
¶ 15 Barring application of an exception, hearsay is inadmissible.
CRE 802; People v. Glover, 2015 COA 16, ¶ 37. Hearsay is an
out-of-court statement “offered in evidence to prove the truth of the
matter asserted.” CRE 801(c); Phillips, ¶ 61. A statement is defined
as “(1) an oral or written assertion or (2) nonverbal conduct of a
person, if it is intended by him to be communicative.” CRE 801(a).
¶ 16 The evidentiary rules do not define “assertion,” leading courts
to struggle with whether an implied assertion falls within the
hearsay definition. A division of this court identified this “classic
6 dilemma” in People v. Griffin, 985 P.2d 15, 17 (Colo. App. 1998).
There, the division explained the “dilemma is how to treat a
statement or conduct by a person out of court, not subject to
cross-examination at trial, described by a witness at trial, from
which a fact finder could infer a separate fact.” Id.
¶ 17 Griffin stated that CRE 801(a) “resolves the dilemma by
focusing solely on whether the assertion or conduct by the
out-of-court witness was intended to imply to the testifying witness
a separate fact in question at trial.” Id. at 17-18; see also Fed. R.
Evid. 801 advisory committee’s note (The definition of a statement
under the federal counterpart to CRE 801 excludes “from the
operation of the hearsay rule all evidence of conduct, verbal or
nonverbal, not intended as an assertion. The key to the definition
is that nothing is an assertion unless intended to be one.”).
¶ 18 Dominguez takes issue with Griffin’s intent-based approach.
He argues it is based on an interpretation of the commentary in
Fed. R. Evid. 801, which is not included in CRE 801. Further, he
notes that courts in other jurisdictions have criticized the federal
view. See, e.g., State v. Dullard, 668 N.W.2d 585, 593-95 (Iowa
2003). But see Hernandez v. State, 863 So. 2d 484, 486 (Fla. Dist.
7 Ct. App. 2004) (applying the intent-based approach); State v.
Carrillo, 750 P.2d 878, 882 (Ariz. Ct. App. 1987) (same), aff’d in
part, vacated in part on other grounds, 750 P.2d 883 (Ariz. 1988).
¶ 19 We need not revisit Griffin here. This is so because we
conclude that the text messages were properly admitted verbal acts
(as argued by the prosecution at trial), which are not hearsay. See
People v. Thompson, 2017 COA 56, ¶ 135; People v. Scearce, 87 P.3d
228, 233 (Colo. App. 2003); see also United States v.
Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009).
¶ 20 “A verbal act is an utterance of an operative fact that gives rise
to legal consequences.” Scearce, 87 P.3d at 233 (citation omitted).
It’s offered not for its truth, but to show that it was made.
Thompson, ¶ 135. Thus, verbal acts aren’t hearsay. Id.; Scearce,
87 P.3d at 233; see also United States v. Montana, 199 F.3d 947,
950 (7th Cir. 1999) (“Performative utterances are not within the
scope of the hearsay rule, because they do not make any truth
claims.”).
¶ 21 The text messages sent to Dominguez’s cell phone don’t make
any truth claims; rather, they suggest a request to purchase
something at a proposed price. Such statements have a legal effect
8 regardless of their truth. See Scearce, 87 P.3d at 233 (recognizing
examples of a verbal act include oral utterances constituting the
offer and acceptance for a contract); see also Cloverland-Green
Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201, 218 n.20 (3d
Cir. 2002) (“[A] statement offering to sell a product at a particular
price is a ‘verbal act,’ not hearsay, because the statement itself has
legal effect.”); Little v. State, 105 A.2d 501, 503 (Md. 1954)
(recognizing that the “verbal act of taking a bet” was not
inadmissible hearsay); 5 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s Federal Evidence § 801.11(3) (2d ed. 2018) (examples of
a verbal act include contract offers and illegal solicitations).
¶ 22 Even more to the point, “the purchase of a drug, legally or
illegally, is a form of contract.” Garner v. State, 995 A.2d 694, 700
(Md. 2010) (citation omitted). And, “[t]he . . . words of [a] . . .
would-be [drug] purchaser are . . . categorized . . . as verbal parts of
acts . . . [that] are not considered to be assertions and do not fall
under the scrutiny of the Rules Against Hearsay.” Id. (citation
omitted).
¶ 23 Like similar offers or solicitations, the text messages were not
admitted here for the truth of the matter being asserted in them
9 (whether Dominguez could do “2 for 1500” or “2 for 1600”) or the
truth of their arguably implied assertion (that Dominguez was
someone who could provide “2 for 1500” or “2 for 1600”), but for the
fact that a request to purchase something at a proposed price was
made, which is not hearsay. Id. at 697, 704 (concluding that an
unidentified caller’s out-of-court statement asking, “[C]an I get a
40?” (a request to purchase cocaine) was admissible as a verbal
act); see Rodriguez-Lopez, 565 F.3d at 315 (noting that evidence of
“ten successive solicitations for heroin” received by the defendant
was not offered “for [its] truth, but as evidence of the fact that [the
solicitations] were made”); cf. State v. Chavez, 239 P.3d 761, 762-63
(Ariz. Ct. App. 2010) (holding that text messages seeking to
purchase drugs (“Can you deliver a ‘T’ to the house?”) were
admissible because they were not offered to prove the truth of the
matter asserted); State v. Connally, 899 P.2d 406, 408-10 (Haw.
1995) (concluding that statements that the defendant would
perform sex acts for money were “verbal acts” and not offered to
prove the truth of the matter asserted).
10 ¶ 24 We therefore conclude that the trial court did not err in finding
the text messages were not assertions under CRE 801 and thus
admissible.
C. Due Process
¶ 25 Dominguez alternatively contends that “[i]f CRE 801 aligns
Colorado with the federal intent-based approach, then . . . the rule,
as applied, violates his due process rights.” This is so, he
continues, because, under federal law, the burden is on the party
claiming an intended assertion to show that intent, which,
according to Dominguez, is fundamentally unfair and amounts to
burden shifting.
¶ 26 Dominguez did not make this argument to the trial court and
it is thus unpreserved. See Reyna-Abarca v. People, 2017 CO 15,
¶ 47. But because we do not rely on the intent-based approach in
concluding that the trial court did not err in admitting the text
messages, we need not consider Dominguez’s due process
contention.
D. CRE 403
¶ 27 Dominguez also contends that the trial court’s admission of
the text messages violated CRE 403. More specifically, he argues
11 the prejudice from the text messages substantially outweighed their
probative value because the probative value depended on
speculative assumptions which served to prejudice, confuse, or
mislead the jury. We disagree.
¶ 28 Dominguez did not object to the admission of the text
messages under CRE 403. We thus review for plain error. People v.
Allgier, 2018 COA 122, ¶ 30. We will not reverse under this
standard unless the error was obvious and so undermined the
fundamental fairness of the trial itself as to cast serious doubt on
the reliability of the judgment of conviction. Id.; accord Hagos v.
People, 2012 CO 63, ¶ 14.
¶ 29 CRE 403 strongly favors the admission of evidence. People v.
Greenlee, 200 P.3d 363, 367 (Colo. 2009). But “[e]ven relevant
evidence is excludable if it is ‘unfairly’ prejudicial . . . .” People v.
Brown, 313 P.3d 608, 615 (Colo. App. 2011) (citation omitted). To
be excluded, “the danger of unfair prejudice must substantially
outweigh the legitimate probative value of the evidence.” People v.
James, 117 P.3d 91, 94 (Colo. App. 2004).
¶ 30 In reviewing the disputed evidence, we “must afford [it] the
maximum probative value attributable by a reasonable fact finder
12 and the minimum unfair prejudice to be reasonably expected.”
People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). Evidence is not
unfairly prejudicial “simply because it damages the defendant’s
case” but, instead, must have an “undue tendency to suggest a
decision on an improper basis, commonly but not necessarily an
emotional one, such as sympathy, hatred, contempt, retribution, or
horror.” People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990).
¶ 31 Nothing in the text messages here was inflammatory or incited
the jury to render a verdict on an improper basis. The text
messages plainly suggest an offer to purchase “2 for 1500” or “2 for
1600,” and giving these messages their maximum probative value,
such a solicitation was relevant to the charged crimes. While the
texts may have hurt Dominguez’s defense, we don’t agree that they
were unfairly prejudicial.
¶ 32 We are unpersuaded by Dominguez’s contention that People v.
Franklin, 782 P.2d 1202 (Colo. App. 1989), requires a different
result. In Franklin, a prosecution witness testified that “just before
the [charged] shooting, he tried to follow the victim out the front
door but was prevented from doing so by an ‘unnamed man’ who
had been seen talking to defendant,” and this man “told the
13 witness, ‘Now is not a good time to go out,’ then counted off three
shots as they were fired.” Id. at 1204. Given that the probative
value of these statements “follows only if a number of speculative
assumptions about the statements [were] made,” the division held
that “they could only have served to prejudice, confuse, or mislead
the jury,” and concluded that they were inadmissible under CRE
403. Id. at 1206.
¶ 33 Unlike the statements in Franklin, we don’t agree that the text
messages, sent directly to Dominguez’s cell phone, required “a
number of speculative assumptions” that rendered them unfairly
prejudicial under CRE 403. Thus, we perceive no error, let alone
plain error, in the admission of the text messages.
III. Lay Witness Testimony
¶ 34 Agents Carmichael and Alderete testified at trial. The
prosecution didn’t qualify either as an expert witness. Dominguez
contends that the trial court erred in allowing them to offer expert
testimony under the guise of lay testimony. We see no reversible
error.
14 A. Additional Facts
¶ 35 The prosecutor asked Agent Carmichael why he had taken the
electronic scale from Dominguez’s truck. Dominguez’s counsel
objected, arguing that the question “calls for an expert opinion.”
The court overruled the objection, and Agent Carmichael testified,
“[f]rom [his] training and experience, [he] kn[e]w that electronic
scales are often used to weigh drugs in order to distribute drugs.
You can see on this scale that there is a white substance on the
scale. This is consistent with a scale used for drug distribution.”
¶ 36 Later, the prosecutor asked Agent Alderete about the
“significance” of the text messages “2 for 1500” and “2 for 1600”
found on Dominguez’s cell phone. Dominguez’s counsel objected
“to that as expert testimony.” In response, the court instructed the
prosecutor to “[l]ay further foundation.” After discussing Agent
Alderete’s police training and experience with the West Metro Drug
Task Force, the prosecutor again asked, “so based on your training
and experience, . . . what, if any, significance did [these] [text]
message[s] have to you?”
¶ 37 Over Dominguez’s counsel’s renewed objection, Agent Alderete
testified,
15 So in speaking about methamphetamine, . . . it would lead [him] to believe . . . that this person is asking for 2 ounces of methamphetamine. An ounce of methamphetamine runs, on the low end, . . . about $500; on the high end, you might pay a thousand, 1100. So this fits right in that range of a couple of ounces of methamphetamine.
¶ 38 Agent Alderete later testified, without objection, that over an
ounce of methamphetamine was “[n]ot typically . . . what we see” for
personal use. And, regarding requests for the purchase of
methamphetamine, he testified, again without objection, “[t]ypically
if you have a customer you deal with all the time and you start
talking numbers, it’s known. It’s very rare for somebody to say
methamphetamine, cocaine, heroin. There’s always code words.
Most of the time there’s code words that are sent.”
B. Standard of Review and Applicable Law
¶ 39 A lay witness may testify “in the form of . . . opinions or
inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’[s]
testimony or the determination of a fact in issue, and (c) not based
on scientific, technical, or other specialized knowledge.” CRE 701.
But when a witness’s testimony requires scientific, technical, or
16 specialized knowledge, the witness must be qualified as an expert
by virtue of his “knowledge, skill, experience, training, or
education.” CRE 702.
¶ 40 To determine whether a witness’s testimony constitutes a lay
opinion under CRE 701 or an expert opinion under CRE 702, we
look to “the basis for the witness’s opinion.” Venalonzo v. People,
2017 CO 9, ¶ 22. If the testimony is expected “to be based on an
ordinary person’s experiences or knowledge, then the witness is
offering lay testimony.” Id. at ¶ 23. But when the witness’s
testimony “could not be offered without specialized experiences,
knowledge, or training, then the witness is offering expert
testimony.” Id.
¶ 41 We review a trial court’s rulings admitting witness testimony
for an abuse of discretion. People v. Bryant, 2018 COA 53, ¶ 55.
C. Discussion
¶ 42 Given that Agent Carmichael’s opinion on the electronic scale
was expressly based on his “training and experience,” we agree that
this was an expert opinion. See People v. Stewart, 55 P.3d 107, 124
(Colo. 2002) (holding that where “an officer’s testimony is based not
only on her perceptions and observations of the crime scene, but
17 also on her specialized training or education, she must be properly
qualified as an expert before offering testimony that amounts to
expert testimony”); see also People v. Kubuugu, 2019 CO 9, ¶ 14
(concluding that a police officer’s opinion testimony based on “his
training and experience” constituted expert testimony).
¶ 43 Agent Alderete’s opinions regarding the price range for
methamphetamine, the amount of methamphetamine for personal
use, and use of code words when purchasing methamphetamine,
offered after he testified at length regarding his training and
experience with the drug task force, were also improper expert
opinions. See Kubuugu, ¶ 14; Stewart, 55 P.3d at 124; see also
Bryant, ¶ 64 (“A hallmark of expert testimony by law enforcement
officers is that an officer testifies as to his extensive experience in
the field.”); People v. Veren, 140 P.3d 131, 138-39 (Colo. App. 2005)
(concluding that the police officers’s testimony that “possession of a
large amount of nonprescription pseudoephedrine is indicative of a
person’s intent” to manufacture methamphetamine was expert
testimony).
¶ 44 We aren’t persuaded otherwise by the People’s contention that
Agents Carmichael’s and Alderete’s opinions were within an
18 ordinary person’s knowledge because of news coverage and
mainstream entertainment (including fictional television shows)
that have discussed or dramatized drug distribution. While such
topics may be generally more prevalent in our society, we can’t
agree that Agents Carmichael’s and Alderete’s opinions, admittedly
based on their specialized police training and experience,
encompass an ordinary person’s experiences or knowledge.
¶ 45 Because the agents gave expert testimony under the guise of
lay testimony, we conclude the trial court abused its discretion in
admitting it. See Kubuugu, ¶ 14; Stewart, 55 P.3d at 124.
¶ 46 Reversal, however, is required only if the improper expert
testimony substantially influenced the verdict or affected the
fairness of the proceedings. 3 Hagos, ¶ 12; Stewart, 55 P.3d at 124.
“[T]he strength of the properly admitted evidence supporting the
guilty verdict is clearly an ‘important consideration’ in the harmless
3 We recognize that Dominguez did not object to Agent Alderete’s testimony on personal use and code words and that the People dispute Dominguez’s preservation of his objection to Agent Carmichael’s testimony. But because we conclude that the admission of these improper statements was harmless, we need not determine this preservation issue or conduct a separate plain error analysis.
19 error analysis.” Pernell v. People, 2018 CO 13, ¶ 25 (citation
omitted). So, when the evidence overwhelmingly shows guilt, an
error is generally harmless. Id. That occurred here.
¶ 47 Dominguez defended against the possession of a controlled
substance with intent to distribute count on the theory that he had
no intent to distribute the methamphetamine.4 But overwhelming
evidence showed otherwise.
¶ 48 Dominguez possessed a bag with nearly half a pound of
methamphetamine, small bags containing less than one gram of
methamphetamine, a small spoon “that appeared . . . to be the size
used to fill these smaller baggies,” and an electronic scale with a
white substance on it. As well, the properly admitted text messages
circumstantially supported the inference that Dominguez
distributed drugs.
¶ 49 Of even greater consequence, Dominguez’s own statements
demonstrated an intent to distribute methamphetamine. First,
following his arrest, Dominguez admitted to a police agent that the
4At trial, Dominguez conceded guilt on the possession of drug paraphernalia, vehicular eluding, reckless driving, and driving under restraint counts. And he does not contend that the improper expert testimony requires the reversal of these convictions.
20 methamphetamine “cost him $4,000” but that “a bag that size
would cost $6,800 on the street.” This testimony also rendered
Agent Alderete’s testimony on the price range for methamphetamine
cumulative, as Dominguez’s estimate equates to $850 per ounce,
which is in the price range described by Agent Alderete. See
Bryant, ¶ 77 (finding the admission of improper expert testimony
harmless where it was cumulative of other evidence admitted at
trial).
¶ 50 Second, in a recorded jail call, Dominguez told an unidentified
female that he (1) was going to give her “some information that’s
gonna be useful”; (2) had “$11,000 out there”; (3) had put “all the
numbers together and it [came] out to $11,000 not including what
they found in the truck”; (4) was going to send her a “list” that
showed how to “get ahold of everybody”; and (5) had received a text
message from “Cash” before his arrest saying that he needed
Dominguez to come over because he had “someone who was
looking.”
¶ 51 Given all this evidence, we can’t agree with Dominguez that
the agents’s limited testimony about the electronic scale, price
range for methamphetamine, drug quantities for personal use, and
21 the use of code words substantially influenced the verdict or
affected the fairness of the trial. See Stewart, 55 P.3d at 124-25
(holding improper admission of police officers’s expert testimony
harmless given the overwhelming evidence of guilt); see also People
v. Froehler, 2015 COA 102, ¶ 42; cf. Kubuugu, ¶ 16 (concluding that
improperly admitted expert testimony was not harmless error when
that testimony “was the only evidence that specifically refuted” the
defendant’s exculpatory testimony).
¶ 52 We therefore conclude that Agents Carmichael’s and Alderete’s
improperly admitted expert testimony was harmless.
IV. Prosecutorial Misconduct
¶ 53 Dominguez next contends the prosecutor committed reversible
misconduct in rebuttal closing argument. We are not persuaded.
¶ 54 The court correctly instructed the jury before closing argument
that
reasonable doubt means 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 vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.
22 ¶ 55 During rebuttal closing argument, the prosecutor made the
following comment on this instruction:
Whether it’s such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves, and you can each individually think, what would be a matter of importance to myself, maybe a major life decision, maybe a major purchase. Whatever it is that would be a matter of importance to yourself, would you hesitate.
Well, of course you would. Nobody makes snap decisions about something that’s important to them or important decisions. . . . Do you not act, because if it’s that kind of a doubt, that’s a reasonable doubt.
(Emphasis added.)
¶ 56 Dominguez contends this comment “redefin[ed] ‘reasonable
doubt’” and warrants reversal. Because his attorney did not object
to the comment, we review for plain error. See People v. Ujaama,
2012 COA 36, ¶ 37. To be plain, the error must be (1) obvious and
(2) so grave that it casts serious doubt on the reliability of the
judgment of conviction. Id. at ¶ 43.
¶ 57 Even if we assume (without deciding) that the prosecutor
misstated the law on reasonable doubt, see People v. Van Meter,
23 2018 COA 13, ¶ 31, we conclude reversal is not warranted for two
reasons.
¶ 58 First, the prosecutor’s reasonable doubt comment occurred
only once during rebuttal closing argument, and it was not
repeated. See People v. Carter, 2015 COA 24M-2, ¶ 60 (finding no
plain error in prosecutor’s brief improper comment on reasonable
doubt standard); see also People v. Grant, 174 P.3d 798, 811 (Colo.
App. 2007) (concluding that the prosecutor’s one brief misstatement
of the law in closing argument did not constitute plain error).
¶ 59 Second, the trial court correctly instructed the jury orally and
in writing on reasonable doubt, “neutraliz[ing]” the prosecutor’s
improper comment. People v. Santana, 255 P.3d 1126, 1136 (Colo.
2011). And before making the rebuttal comment, the prosecutor
referred to this instruction. Absent record evidence to the contrary,
we presume that the jury followed the court’s instruction. See Van
Meter, ¶ 33; Carter, ¶ 59.
¶ 60 For these reasons, we see no plain error in the prosecutor’s
single reasonable doubt comment.
24 V. Merger
¶ 61 Last, Dominguez contends that, as a lesser included offense,
his reckless driving conviction must merge with his vehicular
eluding conviction. Under the circumstances here, we don’t agree.
¶ 62 Dominguez didn’t preserve this issue, so we review for plain
error. Reyna-Abarca, ¶ 47.
¶ 63 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect a defendant from suffering multiple
punishments for the same offense. U.S. Const. amend. V; Colo.
Const. art. II, § 18; Reyna-Abarca, ¶ 49. A defendant, therefore,
may not be convicted of a lesser included offense when “the
elements of the lesser offense are a subset of the elements of the
greater offense, such that the lesser offense contains only elements
that are also included in the elements of the greater offense.”
Reyna-Abarca, ¶ 64; see also Jackson, ¶ 73. But “[m]ultiple
convictions for two separate offenses the elements of one of which
constitute a subset of the elements of the other can clearly stand if
the offenses were committed by distinctly different conduct.” People
v. Rock, 2017 CO 84, ¶ 17; accord Jackson, ¶ 73.
25 ¶ 64 “A person who drives a motor vehicle . . . in such a manner as
to indicate either a wanton or a willful disregard for the safety of
persons or property is guilty of reckless driving.” § 42-4-1401(1),
C.R.S. 2018. “[R]eckless driving is a lesser included offense of
vehicular eluding.” People v. Esparza-Treto, 282 P.3d 471, 478
(Colo. App. 2011); see also § 18-9-116.5(1), C.R.S. 2018 (elements
of vehicular eluding).
¶ 65 But, here, the undisputed evidence shows that, though not
separately charged, Dominguez committed two separate and
temporally distinct instances of reckless driving. Cf. Rock, ¶ 17
(“Separate convictions for even the same offense are permissible if it
was committed more than once.”); Jackson, ¶ 82 (recognizing that,
to determine whether separate offenses were committed, “we
examine whether the conduct occurred at different locations, was
the product of new volitional departures, was separated by time, or
was separated by intervening events”).
¶ 66 In opening statements, Dominguez’s counsel told the jury that
at the house of Dominguez’s daughter’s grandmother, “Dominguez
sped off driving recklessly without his license and got into the chase
with the police.”
26 ¶ 67 Consistent with Dominguez’s attorney’s opening statement,
the prosecution presented evidence of two distinct reckless driving
incidents. First, testimony about Dominguez leaving the home of
his daughter’s grandmother established the following:
• Dominguez “took off at a very high rate of speed, and he
didn’t stop. There’s a stop sign at the bottom of [the] hill,
and he hit the dip[s] . . . and everything just came flying
out of the truck and landed back down.”
• Dominguez “sped off . . . and when he did that, he hit the
dip of a hill . . . and nearly flipped the truck.”
• He was driving “[r]ecklessly and fast.”
• “He placed the vehicle in drive[,] floored it[,] took off, and
hit the dip at the bottom of . . . the hill and almost rolled
the truck there. The truck went on two wheels spun
around, fishtailed for a while and then he straightened it
out and continued on.”
¶ 68 Second, Agent Garza testified that she later saw Dominguez’s
truck pull up beside her and that she followed the truck for a short
time in traffic before attempting a traffic stop. She stated only at
that point did Dominguez “accelerate” and “pull[] away from” her.
27 She described Dominguez driving fifteen to almost forty miles per
hour over the speed limit, weaving around other cars, and driving in
the median.
¶ 69 With respect to the two incidents, in closing argument
Dominguez’s counsel told the jury, “you heard the evidence, he
peeled away from the house” and after the agents activated their
sirens, he “led them on a high-speed chase.”
¶ 70 Thus, the jury heard evidence (not disputed by Dominguez)
that he recklessly drove away from his daughter’s grandmother’s
house and then, at some later point and in a different location,
recklessly led the police on a high-speed chase. Given the break in
time and space between these two reckless driving incidents, the
undisputed evidence supported “distinctly different conduct”
between the reckless driving and vehicular eluding convictions.
¶ 71 We therefore can’t conclude that the trial court plainly erred in
not sua sponte merging these convictions. See Rock, ¶ 17; cf.
People v. Gingles, 2014 COA 163, ¶ 42 (concluding that because the
evidence supported two separate convictions, there was no double
jeopardy violation).
28 VI. Conclusion
¶ 72 We affirm the judgment of conviction and sentence.
JUDGE MÁRQUEZ and JUDGE MILLER concur.