v. Vialpando

2020 COA 42, 490 P.3d 648

• Court: Colorado Court of Appeals
• Decided: March 19, 2020
• Docket: 17CA1536, People
• 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 March 19, 2020

2020COA42

No. 17CA1536, People v. Vialpando — Constitutional Law — Sixth Amendment — Right to Trial by Jury; Criminal Law — Prosecutorial Misconduct

A division of the court of appeals considers whether a

prosecutor’s statements during closing argument that the

defendant’s “flight continues up to this moment” and that her “flight

has continued up and to this point” were prosecutorial misconduct.

The majority concludes that those comments constituted

prosecutorial misconduct, and further, that this misconduct

requires reversal under the plain error standard.

The majority also concludes that the prosecutor’s comments

on the defendant’s flight in combination with four other instances of

prosecutorial misconduct and one evidentiary error deprived the defendant of her right to a fair trial under the cumulative error

doctrine. Thus, the defendant’s convictions are reversed.

The dissent concurs with the majority’s analysis regarding

sufficiency of the evidence, suppression of an out-of-court

identification, and the trial court’s reasonable doubt illustration,

but concludes that the prosecutor’s misconduct did not constitute

plain error and would therefore affirm the judgment of conviction. COLORADO COURT OF APPEALS 2020COA42

Court of Appeals No. 17CA1536 Adams County District Court No. 16CR150 Honorable Sharon Holbrook, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Yolanda Ursula Vialpando,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS

Division VII Opinion by JUDGE BERGER Lipinsky, J., concurs Fox, J., concurs in part and dissents in part

Announced March 19, 2020

Philip J. Weiser, Attorney General, Elizabeth Ford Milani, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Yolanda Ursula Vialpando exercised her right to a trial by jury.

That jury convicted her of aggravated motor vehicle theft and other

crimes. During closing arguments, the prosecutor told the jury that

Vialpando’s “flight continues to this moment,” and that her “flight

has continued up and to this point.” These comments punished

Vialpando for exercising her constitutional right to a jury trial. This

was plain error, requiring reversal of her convictions.

¶2 Moreover, this error and five other errors that occurred over

the course of Vialpando’s short three-day trial deprived her of her

right to a fair trial under the cumulative error doctrine.

I. Relevant Facts and Procedural History

¶3 J.A.’s car was stolen from her Denver home.

¶4 Eleven days later, around five p.m., two police officers were

sitting in their police vehicle in the parking lot of a motel. One of

the officers testified that he saw a car, which would later be

identified as J.A.’s, drive around the corner of the motel, reverse

over a curb, and turn around to exit the motel parking lot. As the

officers followed the car, they learned it was stolen. The officer who

was driving testified that he activated his emergency lights to make

a traffic stop, but that the car “increased its speed.” The officer said

1 that he did not pursue the car because of the police’s pursuit

policy. Shortly after deactivating his lights, the officer “heard a loud

bang” and later saw that the stolen car had crashed. Several

witnesses told the officers that they saw a male and female flee the

car after the crash.

¶5 One of the witnesses was R.H. She was in her car, stopped at

a traffic light, when she saw the stolen car crash into another,

injuring the other driver. After the crash, R.H. watched a man leave

the passenger side and a woman exit the driver’s side of the stolen

car. They ran away in different directions. R.H.’s car was two lanes

away from the crash.

¶6 After the crash, the police found a purse in J.A.’s stolen car

that contained Vialpando’s identification card, credit card, medical

insurance card, and “miscellaneous female clothing,” which

Vialpando identified at trial as her clothes.

¶7 Based on the items found in the crashed car, the police began

investigating Vialpando. Two officers went to R.H.’s home for an

out-of-court identification. One of the officers testified that he

showed R.H. a series of photographs, and R.H. identified

Vialpando’s photo thirty seconds later.

2 ¶8 Vialpando was charged with vehicular assault, § 18-3-

205(1)(a), C.R.S. 2019; vehicular eluding, § 18-9-116.5, C.R.S.

2019; aggravated motor vehicle theft in the first degree, § 18-4-

409(2), C.R.S. 2019; and driving under restraint, § 42-2-138(1)(a),

C.R.S. 2019.

¶9 At trial, R.H. testified that the fleeing woman was “lighter

skinned” and had a lot of makeup on. R.H. testified further that, at

the time of the crash, the woman was wearing a black and white

striped shirt and skinny black jeans; was in her twenties or thirties;

was slender; had black, wavy, long hair; and was maybe about 5

feet 5 inches or 5 feet 6 inches tall. According to R.H., the woman’s

makeup “made her look younger.”

¶ 10 An officer testified that some of Vialpando’s Facebook photos

showed her with long black hair and wearing “a significant amount

of makeup,” and that she appeared younger than she did at trial.

He also told the jury that Vialpando’s Division of Motor Vehicles

record stated that she was 5 feet 5 inches tall, 155 pounds, with

brown hair and brown eyes, and her Colorado identification

photograph depicted her with “long dark hair.”

3 ¶ 11 R.H. explained that, during the out-of-court identification, she

told the officers that several of the women “were definitely not the

person, and one . . . could be.” She told the jury that she selected

Vialpando’s photo from the lineup and told police that “it could

totally be possible” that she was the woman R.H. saw exit the

crashed car. R.H. was “seventy-five percent” certain. When asked

for an in-court identification, R.H. said that Vialpando “could be”

the woman who had fled the stolen, crashed vehicle.

¶ 12 Vialpando explained to the jury that she was robbed of the

personal items that were found in the stolen car — including her

identification card, purse, insurance card, credit card, and clothing.

In fact, Vialpando reported the robbery the day before the car chase

and crash occurred. Testimony from a police officer supported

Vialpando’s account; the officer testified that Vialpando came to the

Denver police station the day before the car chase to report that she

was robbed at gunpoint, and that several personal items had been

stolen.

¶ 13 Vialpando was found guilty as charged and sentenced to four

years in community corrections.

4 II. Analysis

¶ 14 On appeal, Vialpando asserts six claims of error:

 there was insufficient evidence to support her

convictions;

 the prosecutor engaged in seventeen instances of

prosecutorial misconduct;

 the lead investigating police officer impermissibly testified

that she was the “primary suspect”;

 the cumulative effect of the errors deprived her of a fair

trial;

 R.H.’s identification was unreliable, so it should have

been suppressed; and

 the trial court lowered the State’s burden of proof when it

used analogies to describe reasonable doubt.

A. Sufficiency of the Evidence

¶ 15 We first address Vialpando’s sufficiency of the evidence

arguments because a reversal due to insufficient evidence “may

preclude retrial” on double jeopardy grounds. People v. Coahran,

2019 COA 6, ¶ 40 (quoting People v. Marciano, 2014 COA 92M-2,

¶ 42).

5 ¶ 16 Vialpando claims that there is insufficient evidence to support

her convictions because the prosecution failed to prove identity.

She also claims that there is insufficient evidence to support her

aggravated motor vehicle theft conviction because the prosecution

failed to prove that she knowingly obtained or exercised control over

the motor vehicle of another without authorization, or that she

obtained or exercised control over the vehicle by threat or

deception. Both of Vialpando’s sufficiency of the evidence

arguments are disproved by the record.

1. The Law

¶ 17 The Attorney General disputes that Vialpando fully preserved

her sufficiency of the evidence claims for appeal. But we review the

sufficiency of the evidence de novo, including sufficiency claims

raised for the first time on appeal, Maestas v. People, 2019 CO 45,

¶ 13, to determine whether the evidence at trial was sufficient “in

quantity and quality to sustain the defendant’s conviction.” Clark v.

People, 232 P.3d 1287, 1291 (Colo. 2010).

¶ 18 The Due Process Clauses of the United States and Colorado

Constitutions require proof of guilt beyond a reasonable doubt on

every element of a crime. People v. Marko, 2015 COA 139, ¶ 233,

6 aff’d, 2018 CO 97. To resolve Vialpando’s sufficiency challenge, we

must determine whether the direct and circumstantial evidence,

when viewed as a whole and in the light most favorable to the

prosecution, is sufficient to support a conclusion by a reasonable

fact finder that Vialpando is guilty of the crimes charged beyond a

reasonable doubt. Clark, 232 P.3d at 1291.

¶ 19 “We do not sit as a thirteenth juror to determine the weight of

the evidence presented to the jury.” Id. at 1293. Instead, we must

give the prosecution the benefit of every reasonable inference that

might fairly be drawn from the evidence, and we recognize that (1)

the jury alone resolves the difficult questions of witness credibility

and the weight to be given to conflicting items of evidence; (2) the

jury is not required to accept or reject a witness’s testimony in its

entirety; (3) an actor’s state of mind is not normally subject to direct

proof and must be inferred from her actions and surrounding

circumstances; and (4) if there is evidence on which to reasonably

infer an element of the crime, the evidence is sufficient to sustain

that element. People v. Kessler, 2018 COA 60, ¶ 12.

¶ 20 As relevant here, a person commits aggravated motor vehicle

theft in the first degree if she “knowingly obtains or exercises

7 control over the motor vehicle of another without authorization or

by threat or deception” and one of eight specified aggravating

factors is shown. § 18-4-409(2). Vialpando was charged with

committing three of the aggravating factors: (1) using a motor

vehicle in the “commission of a crime other than a traffic offense”;

(2) causing “five hundred dollars or more [in] property damage”; and

(3) causing “bodily injury to another person” while exercising

control of the motor vehicle.” § 18-4-409(2)(d)–(f). “The critical

inquiry is whether the defendant exercised dominion over a vehicle

in a manner inconsistent with [her] authority.” People v. Harper,

205 P.3d 452, 455 (Colo. App. 2008).

¶ 21 To commit aggravated motor vehicle theft, a person must

knowingly steal a motor vehicle and use it in the commission of a

crime, “regardless of the mens rea associated with the particular

crime committed.” People v. Marquez, 107 P.3d 993, 997–98 (Colo.

App. 2004). The culpable mental state “knowingly” applies to the

defendant’s exercise of control over the vehicle and her awareness

of lack of authority. People v. Stellabotte, 2016 COA 106, ¶ 20,

aff’d, 2018 CO 66. A person acts “knowingly”

8 with respect to conduct or to a circumstance described by a statute defining an offense when [s]he is aware that h[er] conduct is of such nature or that such circumstance exists. A person acts “knowingly” . . . with respect to a result of h[er] conduct, when [s]he is aware that h[er] conduct is practically certain to cause the result.

§ 18-1-501(6), C.R.S. 2019.

2. Application

¶ 22 Giving the prosecution the benefit of every reasonable

inference that might fairly be drawn from the evidence, we conclude

that there is sufficient evidence in the record to allow a reasonable

fact finder to convict Vialpando of the crimes charged.

¶ 23 Vialpando argues that there was insufficient evidence to prove

the charged offenses because the prosecution did not prove identity

— that she was the one who committed the charged crimes.

Specifically, she relies on the fact that J.A. never saw who stole her

car, only R.H. identified her as the woman fleeing from the crashed

vehicle, and R.H.’s initial description of the perpetrator did not

match Vialpando’s appearance in every respect because Vialpando

9 was not in her twenties or thirties, nor did she have long, dark

hair.1

¶ 24 But a jury could reasonably infer that Vialpando was the

person who committed the crimes because (1) J.A. testified that her

vehicle was taken without her consent; (2) R.H. told the jury that

she saw a woman flee — whom she later identified as Vialpando —

from the driver’s side of J.A.’s stolen vehicle; (3) police officers

testified that the driver of J.A.’s stolen vehicle fled the motel parking

lot and sped up, rather than pulling over, after the police activated

their lights; and (4) Vialpando’s identification card and other

belongings were found in J.A.’s stolen vehicle. See People v. Clay,

644 P.2d 81, 82 (Colo. App. 1982) (“A jury can draw reasonable

inferences that arise from the facts of the case.”).

¶ 25 In sum, the evidence was sufficient for the jury to conclude

that Vialpando was driving J.A.’s stolen car, and that Vialpando did

not have authority to do so. Harper, 205 P.3d at 455–56.

¶ 26 While Vialpando testified that her belongings had been stolen

and that she was at the hospital with her mother on December 30,

1At trial, Vialpando had short hair. She testified that she lost her hair in 2010 because she suffered from lupus.

10 2015, the jury could, and evidently did, reject her testimony. See

Kessler, ¶ 12.

¶ 27 Nor can we conclude that the prosecution presented

insufficient evidence that Vialpando knowingly lacked authority to

exercise control over J.A.’s car. Vialpando relies on the fact that

J.A. did not see who stole her car. However, evidence was

presented that the driver of J.A.’s stolen vehicle (1) did not stop

when the police flashed their lights; (2) fled the stolen vehicle after

crashing it; and (3) was later identified by R.H. as Vialpando.

¶ 28 That J.A. did not see who stole her car does not preclude the

jury from finding that Vialpando was guilty. In Harper, 205 P.3d at

455–56, there was sufficient evidence to support the defendant’s

conviction for first degree aggravated motor vehicle theft despite the

“little evidence to support a finding that [the defendant] stole the

car from its owner” because “the evidence supports a reasonable

inference . . . that [the defendant] exercised dominion over the car

in a manner inconsistent with his authority.” The evidence is

sufficient to support that same inference here.

¶ 29 Also, evidence of flight to avoid arrest is admissible to show a

culpable mental state when the defendant knew that the police were

11 seeking her. See People v. Summitt, 132 P.3d 320, 324 (Colo. 2006).

So, even if Vialpando did not steal the car from J.A.’s home, a

reasonable juror could infer that Vialpando was aware that she

lacked authority to exercise control over the car when she drove

away from the motel and crashed the car. See Kessler, ¶ 12 (“[A]n

actor’s state of mind is normally not subject to direct proof and

must be inferred from his or her actions and the circumstances

surrounding the occurrence . . . .”).

¶ 30 Lastly, we reject Vialpando’s assertion that there was

insufficient evidence to support her aggravated motor vehicle theft

conviction because the prosecution presented no evidence that she

used threats or deception to obtain or exercise control over the car.

The prosecution was required to prove that Vialpando exercised

control over the motor vehicle of another without authorization or

by threat or deception. § 18-4-409(2). Because sufficient evidence

was presented proving that Vialpando knowingly exercised control

over J.A.’s stolen vehicle without authorization, the prosecution was

not also required to prove threat or deception.

12 B. The Prosecutor’s “Flight” Comments

¶ 31 During closing argument, the prosecutor told the jury that

Vialpando “ran” away from the crashed car and that she “ran” away

from the police officers in the motel parking lot. The prosecutor

then said that “although she is seated now, that flight continues to

this moment. But it ends today.” Then, during rebuttal closing, the

prosecutor told the jury that Vialpando’s “flight has continued up

and to this point.”

¶ 32 Vialpando argues that the flight comments constituted

prosecutorial misconduct because they were a direct and critical

comment on her right to a jury trial.

¶ 33 In reviewing a prosecutorial misconduct claim, we first

determine whether the conduct at issue was improper based on the

totality of the circumstances, and if there was misconduct, we

determine whether reversal is required under the applicable

standard. People v. McMinn, 2013 COA 94, ¶ 59.

¶ 34 Because this claim was unpreserved, we review only for plain

error. Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010). “To

constitute plain error, prosecutorial misconduct must be flagrant or

glaringly or tremendously improper, and it must so undermine the

13 fundamental fairness of the trial as to cast serious doubt on the

reliability of the judgment of conviction.” McMinn, ¶ 58.

¶ 35 Vialpando had a constitutional right to a jury trial. U.S.

Const. amend. VI. Defendants cannot be punished for exercising a

constitutional right. People v. Pollard, 2013 COA 31M, ¶ 25. A

defendant’s exercise of the right to a trial by jury may not be used

by the prosecution to infer guilt. Dunlap v. People, 173 P.3d 1054,

1080 (Colo. 2007); People v. Rodgers, 756 P.2d 980, 983 (Colo.

1988), overruled on other grounds by People v. Miller, 113 P.3d 743

(Colo. 2005). So, it is obviously improper for a prosecutor to tell the

jury that the defendant should be condemned because she had the

temerity to require the State to prove her guilt beyond a reasonable

doubt. Rodgers, 756 P.2d at 983.

¶ 36 But that is precisely what happened here. During closing

argument, the prosecutor said that Vialpando’s “flight continues to

this moment,” and that her “flight has continued up and to this

point.” The prosecutor told the jury that Vialpando was continuing

to run from responsibility by insisting on a jury trial. Neither the

Attorney General nor the dissent provides any other reasonable

meaning for these comments.

14 ¶ 37 It was permissible for the prosecutor to argue that fleeing the

crime scene was evidence of guilt. Summitt, 132 P.3d at 324. But,

when Vialpando was sitting in the courtroom, she was not fleeing

from anything; she was facing the jury and engaging in the process

that the United States and Colorado Constitutions demand.

¶ 38 In United States v. Hardy, 37 F.3d 753 (1st Cir. 1994), the

United States Court of Appeals for the First Circuit demonstrated

the seriousness with which courts must view comments that

prejudice defendants’ exercise of their constitutional right to a jury

trial. There, the First Circuit held that the trial court abused its

discretion by not granting a mistrial when the prosecutor argued

that the defendants were “still running and hiding today.” Id. at

757, 759. The First Circuit held that a mistrial was necessary,

despite the fact that the trial court had sustained the defendant’s

objection to the comment and had given the jury an instruction to

disregard the comment. Id. at 757.

¶ 39 The misconduct perceived by the First Circuit in Hardy

involved the right to remain silent under the Fifth Amendment, but

the remark was equally prejudicial to the defendant’s right to a fair

jury trial under the Sixth Amendment. Also similar is the recent

15 Colorado Supreme Court case Howard-Walker v. People, which

concluded that the prosecutor’s remark that was “‘intended’ to

emphasize [the defendant’s] decision to remain silent” was “the

most serious error [that] occurred.” 2019 CO 69, ¶ 44 (citation

omitted).

¶ 40 Thus, while Vialpando testified on her own behalf, that

testimony did nothing to dispel the prejudicial effect of commenting

on her right to a trial by jury. A prosecutor may not use the

invocation of either right to infer the defendant’s guilt. Dunlap, 173

P.3d at 1080. The supreme court has held that “there is ‘no

significant difference between the impropriety of a prosecutor’s

comments on a defendant’s exercise of his right to remain silent

and a prosecutor’s comments on a defendant’s exercise of his

equally fundamental right to a jury trial.’” Rodgers, 756 P.2d at 983

(emphasis added) (quoting People v. Rodgers, 734 P.2d 145, 146

(Colo. App. 1986)). If anything, the right to a jury trial is among the

most basic rights guaranteed to criminal defendants by both the

Colorado and the United States Constitutions.

¶ 41 We conclude that the prosecutor here, like the prosecutors in

Hardy and Howard-Walker, criticized the defendant for exercising

16 her constitutional right and unfairly prejudiced her in the eyes of

the jury. This misconduct was flagrant, glaring, and tremendously

improper.

¶ 42 The next question is whether this error requires reversal

because it undermined the fundamental fairness of the trial, casting

serious doubt on the reliability of the conviction. McMinn, ¶ 59.

¶ 43 One of the critical determinants of whether unpreserved errors

require reversal is an evaluation of the quantity of the evidence of

guilt. See Howard-Walker, ¶¶ 46–47. Logically, if the evidence is

overwhelming, it is unlikely that even multiple instances of

prosecutorial misconduct affected the jury’s determination of guilt.

But if the case is close, that same prosecutorial misconduct may

well have influenced the verdict, thereby depriving the defendant of

a fair trial. See id. at ¶¶ 46–48. “An improper comment that may

seem insignificant where the evidence is overwhelming can assume

a very different aspect in a close case.” Hardy, 37 F.3d at 759.

¶ 44 The evaluation of the evidence of guilt in this case is not

simple, even though it may appear to be at first glance. Without

more, the discovery of multiple items belonging to Vialpando in the

stolen car after it crashed appears to be strong evidence of guilt.

17 But Vialpando claimed, with record support from the testimony of a

police officer, that she reported the robbery of those items prior to

the chase and crash. The prosecution’s theory was that the alleged

robbery and the police reports were fabricated by Vialpando in an

attempt to explain away the discovery of her personal items in the

car.

¶ 45 But the uncontroverted evidence is that Vialpando made the

police report of the alleged robbery before the chase and crash. To

credit the prosecution’s theory, the jury would have to cast

Vialpando as a master criminal playing three-dimensional chess

with the police, establishing her defense theory before she knew

having one would be necessary. Of course, these factual

determinations were, and are, for the jury.

¶ 46 But if Vialpando was robbed as she alleged, then the strength

of the prosecution’s evidence is reduced. Apart from the evidence

found in the crashed car, the sole evidence linking her to the

robbery is R.H.’s testimony that she was “75% sure” that it was

Vialpando.

¶ 47 Because the evidence of Vialpando’s guilt was not

overwhelming, we conclude that the prosecutor’s flight comments

18 undermined the fundamental fairness of her trial so as to cast

serious doubt on the reliability of her convictions. Thus, she must

be given a new trial.

C. Cumulative Error

¶ 48 Vialpando also argues that the aggregate impact of numerous

errors deprived her of a fair trial. Although we reverse her

convictions based on plain error, we also address her cumulative

error argument because the determination of plain error is a

difficult question on which judges may disagree.

¶ 49 We agree that cumulative error is an independent basis for

reversing Vialpando’s convictions. The prosecutor’s flight

comments, coupled with four other instances of prosecutorial

misconduct and an evidentiary error, deprived her of a fair trial.

¶ 50 When reviewing for cumulative error, a court asks whether the

identified errors, in combination, deprived the defendant of her

constitutional right to a fair trial. Howard-Walker, ¶¶ 24–25. This

“standard governs, regardless of whether any error was preserved or

unpreserved.” Id. at ¶ 26.

¶ 51 “[T]he question is not whether the errors were ‘brief’ or

‘fleeting’ but whether, viewed in the aggregate, the errors deprived

19 the defendant of a fair trial.” Id. at ¶ 40. “[R]eversal is warranted

when numerous errors in the aggregate show the absence of a fair

trial, even if individually the errors were harmless or did not affect

the defendant’s substantial rights.” Id. at ¶ 26.

¶ 52 In addition to the flight comments, we conclude that the

prosecutor engaged in four kinds of prosecutorial misconduct, most

of which were repeated multiple times.

1. Improper Illustrations of Reasonable Doubt

¶ 53 First, during voir dire, the prosecutor attempted to illustrate

the concept of beyond a reasonable doubt, but in doing so, he

improperly trivialized the State’s burden of proof.

¶ 54 The prosecutor asked potential jurors if they could recognize,

“beyond a reasonable doubt,” the American flag in the courtroom

even though it was folded and not entirely visible. They all

responded they could. The prosecutor then asked a potential juror

if she was on the gameshow “Who Wants to be a Millionaire”

whether she could identify the flag for the one-million-dollar

question. The juror responded that it was the United States flag.

¶ 55 This colloquy trivialized reasonable doubt and, thus,

attempted to lower the prosecution’s burden of proof. See People v.

20 Camarigg, 2017 COA 115M, ¶ 45 (noting that reasonable doubt

analogies can be inappropriate when they trivialize the State’s

burden). If the prohibition against “trivializing” reasonable doubt is

to mean anything, then it must apply here, where the prosecutor

analogized finding the defendant guilty to submitting an answer on

a game show. In a similar case, the Washington Court of Appeals

held that the prosecutor’s remark, “[t]o be able to find reason to

doubt, you have to fill in the blank,” was flagrant misconduct.

State v. Johnson, 243 P.3d 936, 939–41 (Wash. Ct. App. 2010).

¶ 56 It is also improper to illustrate reasonable doubt with “iconic

images,” like the American flag. Camarigg, ¶ 47 (citing cases

holding that the use of the Statue of Liberty and Abraham Lincoln

improper because they are iconic images). The danger is that, by

using iconic, easily recognizable images, the jury may conclude that

guilt beyond a reasonable doubt is easy to determine, and thus,

that the reasonable doubt standard is a low burden of proof. These

statements on reasonable doubt were improper.

2. Improper Statements of Personal Belief

¶ 57 Next, during the prosecutor’s opening statement, he told the

jury, “I think you’ll agree with me at the end of testimony, that the

21 defendant is guilty of the charges,” and he later said, “I think you’ll

agree with me that it was, in fact, the defendant who ran.” These

two statements were clearly improper because they expressed

“personal belief as to the guilt of the defendant by the prosecutor.”

Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005).

¶ 58 And during closing argument, the prosecutor improperly

expressed his personal opinion as to Vialpando’s guilt for a third

time by attacking her credibility. He told the jury that he did not

have to prove why Vialpando made a false report “or what we

believe is a false report” regarding Vialpando’s reported robbery.

(Emphasis added.)

3. Improper Questions About the Veracity of Another Witness

¶ 59 It was also improper for the prosecutor to repeatedly ask

Vialpando on cross-examination whether another witness, a police

officer, was “mistaken.” This is because it is categorically improper

to ask a witness to opine on the veracity of another witness, and

this prohibition includes questions asking whether another witness

is mistaken. Liggett v. People, 135 P.3d 725, 732–35 (Colo. 2006).

This improper question was repeated by the prosecutor four times.

22 4. Improper Mischaracterization of the Evidence

¶ 60 Lastly, the prosecutor mischaracterized the evidence in his

closing argument. He asked the jury “why didn’t [Vialpando] go out

and get a new ID?” But Vialpando’s unrebutted testimony was that

she did get a new ID. Prosecutors may not misstate the evidence.

People v. Van Meter, 2018 COA 13, ¶ 24.

¶ 61 Although these errors are less serious than the prosecutor’s

flight comments, “technical errors may have a significance requiring

a reversal in a close case.” Howard-Walker, ¶ 45 (quoting Oaks v.

People, 150 Colo. 64, 67, 371 P.2d 443, 446 (1962)). As discussed

in Part II.B, if the evidence of the items found in the car is explained

away, this is a close case.

5. Improper Testimony Identifying Vialpando as the “Primary Suspect”

¶ 62 In addition to multiple instances of prosecutorial misconduct,

testimony given by the lead investigating officer constituted

evidentiary error. A witness may not opine that the defendant is

guilty or testify that he or she believes the defendant committed the

crime. People v. Penn, 2016 CO 32, ¶ 31.

23 ¶ 63 But here, the lead investigating officer testified that Vialpando

was the “primary suspect.” The Attorney General contends that the

officer’s testimony was permissible both because police officers can

properly explain steps they took in the course of their investigation

and because the testimony dispelled any implication that the

investigation was cursory.

¶ 64 But this testimony did nothing to explain the officer’s

investigation, nor did it bolster the thoroughness of the

investigation. In no way did the testimony dispel any purported

implication that the investigation was not thorough because simply

naming a suspect demonstrates nothing about the thoroughness of

the investigation that led to that conclusion.

¶ 65 Caution is warranted when the course-of-the-investigation

exception is used to admit otherwise inadmissible evidence. People

v. Bobian, 2019 COA 183, ¶ 51 (Berger, J., specially concurring)

(citing United States v. Cass, 127 F.3d 1218, 1223 (10th Cir. 1997)).

We conclude that the exception is inapplicable here.

¶ 66 Thus, the effect of the testimony identifying Vialpando as the

primary suspect could only have been an improper one:

demonstrating the officer’s belief that Vialpando was guilty.

24 Although this was lay testimony, it contained an added degree of

prejudice because the testimony was from the lead investigating

officer in the case. Martinez v. State, 761 So. 2d 1074, 1080 (Fla.

2000) (“[T]here is an increased danger of prejudice when the

investigating officer is allowed to express his or her opinion about

the defendant’s guilt.”).

6. Cumulative Effect of the Errors

¶ 67 Under cumulative error review, the ultimate question is

whether the errors deprived the defendant of a fair trial. Howard-

Walker, ¶ 40.

¶ 68 There is no formula or algorithm into which an appellate court

inputs errors, and then the formula spits out the result — harmless

error or reversal. Rather, as the supreme court demonstrated in

Howard-Walker, appellate judges must use careful judgment to

evaluate the errors both individually and cumulatively to reach a

conclusion whether the fairness of the trial was impaired. Not

surprisingly, given this process, judges viewing the same evidence

and acting entirely in good faith may come to different conclusions

regarding harmlessness. Such is the case here.

25 ¶ 69 In our view, the teaching of Howard-Walker is that when there

are multiple instances of documented (not just alleged)

prosecutorial misconduct, an appellate court must look long and

hard at whether the defendant received a fair trial because a fair

trial is the only constitutional means of depriving a person of his or

her liberty. U.S. Const. amend. XIV.

¶ 70 From voir dire to closing arguments, Vialpando’s trial was

infected with errors. And like in Howard-Walker, these six

identified errors occurred over the course of a relatively short trial

— here, three days. See Howard-Walker, ¶ 3 (two days). The

prosecutorial misconduct, in combination with the officer’s

improper testimony that Vialpando was the primary suspect,

deprived her of a fair trial.

D. Reliability of R.H.’s Identification

¶ 71 Vialpando next argues that the trial court reversibly erred by

denying her motion to suppress the out-of-court photo

identification. We address this argument because it is likely to

arise on retrial. The trial court’s findings on reliability are

supported by the record, so we conclude that the identification was

properly admitted.

26 1. The Law

¶ 72 The constitutionality of pretrial identification procedures is a

mixed question of law and fact. Bernal v. People, 44 P.3d 184, 190

(Colo. 2002); People v. Martinez, 2015 COA 37, ¶ 9. We defer to the

trial court’s factual findings, but “we may give different weight to

those facts and may reach a different conclusion in light of the legal

standard.” Martinez, ¶ 9.

¶ 73 Vialpando objected to the out-of-court identification, so “if the

district court erred, we apply the constitutional harmless error

standard to determine whether reversal is required.” Id. at ¶ 10.

“Under this standard, the prosecution must show that the error was

harmless beyond a reasonable doubt,” and we reverse if there is a

reasonable possibility that the error contributed to the conviction.

Id.

¶ 74 To determine whether an out-of-court identification is

admissible, we apply a two-part test. Bernal, 44 P.3d at 191. The

defendant must first demonstrate that the identification was

impermissibly suggestive. Id. If the defendant does not carry her

burden, the inquiry is over and the identification is admissible. If

the defendant meets this burden, the prosecution must

27 demonstrate that the identification was nevertheless reliable under

the totality of the circumstances. Id. at 192.

¶ 75 The trial court found, with record support, that the lineup was

impermissibly suggestive, so we proceed to the second part of the

test and review whether the identification was nonetheless reliable.

To determine reliability, courts consider the five Bernal factors: (1)

the witness’s opportunity to view the suspect at the time of the

crime; (2) the witness’s degree of attention; (3) the accuracy of the

witness’s prior description of the suspect; (4) the level of certainty

demonstrated by the witness at the confrontation; and (5) the

length of time between the crime and the confrontation. People v.

Singley, 2015 COA 78M, ¶ 15.

¶ 76 These factors, however, must sufficiently weigh against “the

corrupting effect of the suggestive identification.” Id. (quoting

People v. Borghesi, 66 P.3d 93, 104 (Colo. 2003)). Identification

testimony is admissible when “the totality of the circumstances

does not suggest a very substantial likelihood of misidentification.”

People v. Godinez, 2018 COA 170M, ¶ 58 (quoting Borghesi, 66 P.3d

at 104).

28 2. Application

¶ 77 We conclude that the evidence presented at the suppression

hearing supports the trial court’s reliability finding.

¶ 78 As to the first factor, Vialpando argues that R.H.’s

identification was unreliable because she saw the suspect for less

than a minute after witnessing a highly traumatic event. But the

trial court found, with record support, that

[R.H.] was not . . . the direct victim of any crime at that point, so she wasn’t in some sort of fear or otherwise trying to figure out how to get out of a circumstance. Instead she was simply a perceiving witness of an unusual event to have occurred within her proximity.

¶ 79 As to the second Bernal factor, Vialpando asserts that R.H.’s

attention was divided because she watched two people flee the

crash. But R.H. gave a detailed description of the suspect’s

clothing, indicating that R.H. had a high degree of attention. Also,

the trial court found that she was not distracted by “other collateral

matters, she was not listening to the radio, not on the telephone

and was alone in the car.” Thus, the record supports the court’s

finding that “the accident itself focused [R.H.’s] attention as did the

conduct of the occupants of the vehicle.”

29 ¶ 80 On the third factor, Vialpando argues that R.H.’s description

was significantly inconsistent with Vialpando’s appearance. But

the record refutes this claim. R.H.’s description of the suspect’s

height and build matched Vialpando’s height and build. And while

Vialpando had short hair at trial, several witnesses identified her as

having long hair, photos presented at trial depicted her with long

hair, and Vialpando acknowledged that she sometimes wore a wig.

(Vialpando also testified that the wig was one of the items that had

been taken from her during the robbery.) Regarding the age

discrepancy, the court acknowledged that R.H.’s estimated age

differed from Vialpando’s age but recognized that an “individual

may have difficulty estimating the age of an individual that they

don’t know, given the fact that people display their age very

differently.” Also, R.H. testified that the suspect was wearing a lot

of makeup, which the court noted could have made the suspect

appear younger than her age.

¶ 81 As to the fourth factor — the level of certainty — Vialpando

points to R.H.’s testimony that it was only “possible” that Vialpando

was the woman she had seen fleeing the crash and that she was

only seventy-five percent certain. But the trial court noted that

30 R.H.’s uncertainty was driven by her desire “to be very certain

about her identification and not overestimate.” The court found

R.H.’s testimony credible, concluding that her identification had “a

high level of certainty.”

¶ 82 Lastly, the court found that the length of time between the

crime and the identification — approximately a week — was not

“unacceptably lengthy” because what R.H. witnessed was “still

relatively fresh in her mind.” We agree. See Bernal, 44 P.3d at 194

(remanding to determine reliability when there was a six-week gap

between the robbery and the photo array).

¶ 83 After weighing these factors against the suggestive

identification procedures, we cannot conclude that the trial court

erred in admitting the identification.

E. Reasonable Doubt Analogies

¶ 84 Finally, we briefly address Vialpando’s claim regarding the

trial court’s reasonable doubt analogies during voir dire.

¶ 85 This case is the most recent installment in what appears to be

a never-ending series of cases involving trial judges’ well-

intentioned but almost always misguided efforts to explain

reasonable doubt with analogies and examples. “Since at least

31 1914, Colorado appellate courts have been discouraging trial courts

from creating their own formulations of reasonable doubt.” People

v. Knobee, 2020 COA 7, ¶ 28. While always admonishing, our

published and unpublished cases have not reversed when analyzing

these problematic statements or instructions that attempt to

further define reasonable doubt, with only one exception.2 Compare

Knobee, 2020 COA 7 (holding that the trial court’s reasonable doubt

instruction constituted structural error requiring reversal), with

People v. Tibbels, 2019 COA 175 (cataloguing, in an appendix,

twenty-three decisions addressing reasonable doubt explanations,

none requiring reversal).

¶ 86 We are hopeful that the Colorado Supreme Court’s recent

decision in Johnson v. People, 2019 CO 17, will put the final nail in

the coffin as to reasonable doubt analogies. There, the supreme

court reasoned that the trial court’s reasonable doubt comments

2 Judge Dailey argued in dissent in People v. Knobee that not all statements made by a trial court on reasonable doubt are jury instructions, so not all erroneous statements on reasonable doubt require reversal under structural error. 2020 COA 7, ¶ 72 (Dailey, J., concurring in part and dissenting in part). Because we reverse on other grounds, we do not address whether the trial court’s statements in this case were jury instructions.

32 were “problematic.” Id. at ¶ 17. The court also noted the United

States Supreme Court’s admonition that attempts to further define

reasonable doubt “do not provide clarity.” Id. at ¶ 13 (citing Holland

v. United States, 348 U.S. 121, 140 (1954)).

¶ 87 Because we reverse Vialpando’s conviction without regard to

the problematic analogies used by the trial court, we do not decide

whether the use of those analogies is a separate ground for reversal,

on the basis of structural error or otherwise. Presumably, given the

uniform rejection of these analogies by this court, the Colorado

Supreme Court, and the United States Supreme Court, a retrial will

not be burdened by such analogies.

III. Conclusion

¶ 88 The judgment of conviction is reversed. The case is remanded

for a new trial.

JUDGE LIPINSKY concurs.

JUDGE FOX concurs in part and dissents in part.

33 JUDGE FOX, concurring in part and dissenting in part.

¶ 89 I agree with the majority’s analysis of the sufficiency of the

evidence challenge, and I need not say more on the subject.

Likewise, I concur with the majority’s analysis concerning

Vialpando’s identification challenges and her attack on the trial

court’s efforts to explain reasonable doubt. While I agree with

significant portions of the majority’s opinion, I cannot sign on to the

portion of the opinion that finds reversible cumulative error. I also

would not conclude that the prosecutor’s “flight” comments

punished Vialpando for exercising a constitutional right. In my

view, the majority asks too much of the trial judges whose primary

and rightful role is to neutrally administer justice, not to insert

themselves into a trial with competent counsel on each side.

Because, in my view, any error does not warrant reversal, I would

affirm the judgment of conviction.

¶ 90 The majority fairly sets out the procedural history and the

operative facts. Accordingly, I will not repeat those here except as

necessary to explain my reasoning.

34 I. Prosecutorial Misconduct

¶ 91 Vialpando contends that the trial court reversibly erred by

allowing the prosecutor to commit misconduct during voir dire,

opening remarks, closing and rebuttal closing remarks, and her

cross-examination. I conclude that any asserted misconduct does

not warrant reversal.

A. Additional Background

¶ 92 During voir dire, the prosecutor used two analogies to

question potential jurors about the reasonable doubt standard.

First, the prosecutor pointed to a folded United States flag that was

behind the trial judge, asking a potential juror to explain how he

could tell it was a United States flag. The following colloquy

occurred:

[Prosecutor]: You said it’s an American flag. How can you tell?

[Potential Juror]: Because of the stars and the stipes and the color. . . . I don’t know how many stars are on it.

....

[Prosecutor]: Isn’t it possible that just to trick [potential juror] I snuck in here last night and I got a different flag and I put it up there behind the judge and carefully arranged it . . .

35 so I could trick somebody? . . . [D]oes that mesh with your common sense?

[Potential Juror]: No.

[Prosecutor]: Okay. Would you say that that is speculative?

[Potential Juror]: Yes.

[Prosecutor]: All right. . . . If you were on Who Wants to be a Millionaire and the final question for $1 million is, What is that object? What would your answer be?

[Potential Juror]: A United States flag.

[Prosecutor]: Even though you can’t see every little bit of that flag?

[Prosecutor]: Now, is that based on your own reason and common sense?

[Prosecutor]: Would you believe that that flag is an American flag beyond a reasonable doubt?

¶ 93 During the prosecutor’s opening remarks, he stated, regarding

the evidence against Vialpando, that “I think you’ll agree with me at

the end of testimony — that the defendant is guilty of the charges,”

36 and that “at the end of [the evidence presentation] I think you’ll

agree with me that it was, in fact, the defendant who ran.”

¶ 94 During Vialpando’s cross-examination, the following colloquy

[Prosecutor]: So if the Denver police officer had written that [Vialpando was transient] in his report, he would be mistaken?

[Vialpando]: I didn’t become homeless until after this, when I had to stay and testify or do what I had to do to get this resolved.

[Prosecutor]: So if the Denver police officer had noted that you had long brown hair in his report, he would be mistaken?

[Vialpando]: Well, I did have hair, but it’s in my luggage, and I can wear it, so stolen. But I didn’t have hair that day.

[Prosecutor]: So my question was, though, when you went down to the police station, if the Denver police officer had written that you had long brown hair, you would be mistaken? Or he would be mistaken?

[Vialpando]: Yeah. . . .

[Prosecutor]: I would just like you to answer my question. If the officer wrote that you had

37 long brown hair in his report, he would be mistaken?

[Vialpando]: Could be.

¶ 95 The prosecutor later began his closing arguments with the

following statement:

Yolanda Vialpando, ran. A few moments before she had crashed a stolen 2006 Mercury Mariner . . . [s]he opened the driver’s-side door and ran. . . . Before that she had run . . . from the officers. . . . The defendant ran. And although she is seated now, that flight continues to this moment. But it ends today.

¶ 96 He similarly ended rebuttal closing:

The defendant ran that day. She ran from the police, and she ran after she had an accident that left in its wake [E.H.] severely injured and in pain to this day. And that flight has continued up and to this point. And it ends with you. It ends when you go back to the jury deliberation room and you take out the most powerful tool in this courtroom, a pen, and you end her flight by signing “guilty[.]”

¶ 97 In reference to R.H.’s trial testimony, the prosecutor stated

that R.H. was able to

identify [Vialpando] today . . . she was able to identify her facial features, her body structure, . . . [s]he was able . . . to point the finger and say, yeah . . . that’s her. I’m not 100 percent sure because she was wearing makeup, but, yeah, that’s who I saw get out of the car.

38 ¶ 98 During defense counsel’s closing statements, the trial court

reminded jurors that “opening statements and closing arguments

are not evidence. The closing arguments, as I told you earlier, are

what the attorneys themselves think the evidence has shown. And

so I want to remind you that it is not evidence that you can

consider other than for their argument.”

¶ 99 During rebuttal closing, the prosecutor began with an analogy:

So far this reminds me of a story of a game warden who was tasked in a small town of policing a fishing pond. And so he went down there one day at about dusk, saw a guy walking away from that pond with . . . buckets full of fish. And people don’t typically have licenses, and so he goes up to him and he says, excuse me, sir, do you have a license for those fish? And he says, well, no, sir. These are my pet fish. And the game warden says, what do you mean, your pet fish?

He says, well, I have my pet fish and I take them down to the lake every night and I dump them out into the lake and I let them swim around a little bit, and then I whistle and they jump back into the bucket and we go home. And the game warden says, well, I don’t believe that. But he’s intrigued at this point so he figures he’s got to go see this for himself. So he says, all right. You take me down to the lake and you show me. He says, all right.

So they go down to the shore of the lake. The man, he dumps the fish into the lake, and they

39 swim away. They wait there for a minute. The game warden says, well?

The guy says, well, what?

Well, call them back.

Call who back?

The fish.

What fish?

Now, members of the jury, this is a “what fish” type of case where you have an identification based on a witness with no stake in this case from a six-pack lineup, that saw that person get out of the car and identify her in court today. And if you believe her it’s a guilty verdict. Stacked up against a “what fish” from the defendant, Ms. Vialpando.

¶ 100 Regarding Vialpando’s testimony that she was robbed, the

prosecutor stated,

Now, I’m not saying she has some kind of magic crystal ball. I’m not saying that she didn’t make that report. But what’s important isn’t whether she made the report, what’s important is whether or not she was robbed. Because if she wasn’t robbed, she still has those items on her for when she left them in the car the next day. Because let’s face it, there are lots of reasons people might make a police report. We heard the officer testify from Denver, the star witness for the defense, that there’s a lot —

40 ¶ 101 Defense counsel objected to the “star witness” characterization

of Officer Iverson, and the court reminded the jurors that “this is

not evidence, you are to consider it as argument.”

¶ 102 The prosecutor continued,

You can go on and on and on for all the other reasons that she might have made this up to the officers, but the bottom line is it’s a red herring. It’s a “what fish” story. And the only thing we need to look at is the story itself for us to figure out that it doesn’t make sense. . . . And then we have, for lack of a better word, a cartoonish version of a robbery. A man stops you and says “stick ’em up” with a ski mask on? No details beyond that? Nothing to corroborate it?

And then, quote, “I proceeded to walk west,” is what she said. And then when [defense counsel] pressed her on that, said, Well, why didn’t you run? She testified, Well, I don’t know why I didn’t run. And had to be prompted, Well wasn’t your foot hurting? Oh, yeah, my foot was hurting. My foot was injured. That’s why I didn’t run.

I think we all saw what happened yesterday during her testimony. But that wasn’t the only prompting that Ms. Vialpando was receiving as she was testifying. I’m asking you to use your own common sense when that was occurring.

¶ 103 Regarding Vialpando’s Denver robbery police report, the

prosecutor told the jury, “I don’t have to explain to you why the

41 defendant made that report. It’s not my burden to do that.”

Defense counsel objected, and the court again reminded jurors that

closing statements “are argument. You have already received all of

the evidence that you may properly consider.” The prosecutor

continued,

I don’t have the burden to prove to you why she did what she did as far as that false report — or what we believe is a false report. What the evidence has showed is a false report. What I do have to show is that she was driving that car. And [R.H.] is the person to look to for that. The fact is that her purse and that all of her items were found in that car and not the car that she said the person who reputatively robbed her was driving.

B. Preservation and Standard of Review

¶ 104 In reviewing a prosecutorial misconduct claim, we first

determine whether the conduct at issue was improper based on the

totality of the circumstances, and if there was misconduct, we next

determine whether the misconduct warrants reversal under the

applicable reversal standard. People v. Galvan, 2019 COA 68, ¶ 57

(cert. granted Jan. 13, 2020).

¶ 105 “Whether a prosecutor committed misconduct is an issue

within the trial court’s discretion.” People v. Van Meter, 2018 COA

42 13, ¶ 25. Accordingly, 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.” Id. (quoting People v. Rhea,

2014 COA 60, ¶ 58).

¶ 106 Vialpando’s attorney generally failed to contemporaneously

object to the prosecutor’s statements that she challenges on appeal

except for the prosecutor’s characterization of Iverson as her “star

witness” and the prosecutor’s statement that it was not his burden

to explain why Vialpando filed a robbery report. I review these two

preserved contentions for harmless error, reversing only if the error

affected Vialpando’s substantial rights, meaning the error

“substantially influenced the verdict or affected the fairness of the

trial proceedings.” Hagos v. People, 2012 CO 63, ¶ 12 (quoting

Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

¶ 107 I review Vialpando’s other, unpreserved contentions for plain

error, reversing only for an “obvious and substantial” error. Hagos,

¶ 14. It is rare for prosecutorial misconduct in closing argument to

be so egregious that it constitutes plain error. Rhea, ¶ 43.

43 C. Law and Analysis

¶ 108 Claims of improper argument are assessed “in the context of

the argument as a whole and in light of the evidence before the

jury.” Van Meter, ¶ 24 (citation omitted). During closing remarks,

prosecutors have wide latitude in the language and style they

choose to employ, especially in responding to an argument by

defense counsel. Domingo-Gomez v. People, 125 P.3d 1043, 1048

(Colo. 2005); People v. Perea, 126 P.3d 241, 247 (Colo. App. 2005).

A prosecutor “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.” Van Meter,

¶ 24 (quoting People v. Allee, 77 P.3d 831, 837 (Colo. App. 2003)).

Additionally, “because arguments delivered in the heat of trial are

not always perfectly scripted, reviewing courts accord prosecutors

the benefit of the doubt when their remarks are ambiguous or

simply inartful.” People v. Samson, 2012 COA 167, ¶ 30.

¶ 109 However, a prosecutor may not misstate the evidence or the

law. Van Meter, ¶ 24. Nor may a prosecutor denigrate defense

44 counsel or imply that defense counsel has presented the

defendant’s case in bad faith. People v. Collins, 250 P.3d 668, 678

(Colo. App. 2010). But, a prosecutor may comment on the strength

of the defense’s theories, or the absence of evidence to support a

defendant’s contentions, and, in doing so, does not shift the burden

to the defense. People v. Serra, 2015 COA 130, ¶ 88; People v.

Estes, 2012 COA 41, ¶ 28.

¶ 110 On cross-examination, a prosecutor may ask “non-prejudicial

questions that highlight the discrepancies and later emphasize any

conflicting accounts by juxtaposing them in closing argument.”

Liggett v. People, 135 P.3d 725, 732 (Colo. 2006). However, when a

prosecutor asks a witness to opine on the veracity of another

witness, such questioning invades the province of the fact finder

and is categorically improper. Id. And “were they lying” type

questions — including asking a defendant whether another witness

was “mistaken” — are improper. People v. Koper, 2018 COA 137,

¶ 32. But, under the plain error standard, even when a prosecutor

asks a defendant if another witness “made up” something, to be an

“obvious” error, the error must also be “substantial”; and reversal is

45 warranted only if the error was “seriously prejudicial.” People v.

Kessler, 2018 COA 60, ¶¶ 47-48.

¶ 111 When determining whether a prosecutor’s statements were

improper and whether reversal is warranted, we may consider the

language used, the context of the statements, whether a statement

improperly expressed the prosecutor’s personal opinion, whether

the statement was an acceptable comment on the credibility of

witnesses, the strength of the evidence, whether the evidence is

conflicting or inconclusive, whether the prosecutor improperly

appealed to the jurors’ sentiments, whether the misconduct was

repeated, and any other relevant factors. People v. Walters, 148

P.3d 331, 335 (Colo. App. 2006); see also People v. Strock, 252 P.3d

1148, 1153 (Colo. App. 2010) (“To determine whether prosecutorial

misconduct requires reversal, we must evaluate the severity and

frequency of the misconduct, any curative measures taken by the

trial court to alleviate the misconduct, and the likelihood that the

misconduct constituted a material factor leading to the defendant’s

conviction.”). And we may “consider a lack of contemporaneous

objection by the defendant” as demonstrating the defense’s belief

“that the live argument, despite its appearance in a cold record, was

46 not overly damaging.” Walters, 148 P.3d at 334 (quoting Domingo-

Gomez, 125 P.3d at 1054). We also focus on the cumulative effect

of a prosecutor’s statements, looking to the language used, the

nature of the misconduct, the degree of prejudice to the defendant,

the surrounding context, and the strength of the evidence against

the defendant. People v. Nardine, 2016 COA 85, ¶ 65.

1. Voir Dire Reasonable Doubt Illustration

¶ 112 Vialpando first contends that the prosecutor’s use of the folded

American flag during voir dire and asking jurors if they would

identify it as an American flag on the gameshow “Who Wants To Be

a Millionaire?” was improper. Specifically, she argues that it

impermissibly (1) quantified the prosecution’s burden of proof by

suggesting that the jurors’ ability to recognize the flag — where only

a portion of it was visible — equaled proof beyond a reasonable

doubt, and (2) trivialized the burden of proof by comparing the

reasonable doubt standard to a trivia question for money.

¶ 113 Assuming the challenged conduct was improper, the trial

court did not commit plain error absent a contemporaneous

objection. See Van Meter, ¶ 32 (holding that the prosecutor’s puzzle

analogy during voir dire was improper but not plain error); People v.

47 Carter, 2015 COA 24M-2, ¶ 58 (assuming that allowing the use of a

puzzle analogy was improper and concluding that it was not

obvious under plain error review); Walters, 148 P.3d at 334; see

also Rhea, ¶ 43.

¶ 114 First, the trial court properly instructed the jury multiple

times on the proper meaning of reasonable doubt, and I presume

the jury followed the court’s instructions. See People v. Tibbels,

2019 COA 175, ¶ 39. Second, the prosecutor’s use of the flag and

gameshow analogy was relatively brief and isolated. See Van Meter,

¶ 33; Carter, ¶ 60. Indeed, the prosecutor did not reference the

analogy in closing arguments. See Van Meter, ¶ 31 (holding that

the prosecutor’s use of a puzzle analogy during voir dire was

improper but not plain error where the prosecutor also showed the

image during closing arguments). And third, the prosecutor’s

reasonable doubt illustrations, when taken in context, were not an

attempt to present inadmissible factual matter or to argue the

prosecution’s case to the jury. See People v. Krueger, 2012 COA 80,

¶ 50 (“A prosecutor engages in prosecutorial misconduct during voir

dire when she misstates the law or ‘intentionally use[s] the voir dire

to present factual matter which the prosecutor knows will not be

48 admissible at trial or to argue the prosecution’s case to the jury.’”

(quoting People v. Adams, 708 P.2d 813, 815 (Colo. App. 1985))).

¶ 115 Accordingly, any error was neither obvious nor substantial,

and given the strength of the evidence against Vialpando, see

Walters, 148 P.3d at 335, I cannot conclude that the prosecutor’s

reasonable doubt analogies so undermined the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction, see Hagos, ¶ 14.

2. Opening Statement

¶ 116 Vialpando next asserts that the prosecutor’s remark during

opening statements that he believed that she was guilty of the

charges was an improper expression of his personal opinion of

Vialpando’s guilt. See Krueger, ¶ 50 (“[A] prosecutor may not . . .

offer a personal opinion as to the defendant’s guilt.”).

¶ 117 Assuming the prosecutor’s remark was improper, it did not

amount to plain error. The comments made up a small part of the

prosecutor’s opening argument, during which the prosecutor

generally fairly summarized the evidence and provided evidence-

based reasons why the jury should find Vialpando guilty. See Van

Meter, ¶ 24. Vialpando’s counsel did not object to the statement.

49 See Walters, 148 P.3d at 334. Further, the trial court provided the

jury with proper credibility and presumption of innocence

instructions. See Strock, 252 P.3d at 1153. Thus, while the

statement may have been inartful, see Samson, ¶ 30, I cannot

conclude that it so undermined the trial’s fundamental fairness as

to cast serious doubt on the reliability of the verdicts, see People v.

Wilson, 2014 COA 114, ¶ 56; see also Rhea, ¶ 43.

3. Vialpando’s Cross-examination

¶ 118 Vialpando argues that the prosecutor’s questions during her

cross-examination, asking whether other witnesses were “mistaken”

in their testimony, improperly required her to comment on witness

veracity. I agree that asking Vialpando if other witnesses were

“mistaken” was improper, see Koper, ¶ 32, but conclude that it did

not amount to plain error, see id. at ¶¶ 47-48.

¶ 119 While the statements were obviously improper, and the trial

court should have stepped in, the error was not substantial. The

prosecutor did not comment on Vialpando’s credibility or that of the

other witnesses, and defense counsel did not object. See Walters,

148 P.3d at 334-35. The prosecutor’s improper line of questioning

was also limited. See Kessler, ¶¶ 47-52 (holding that the

50 prosecutor asking the defendant whether a detective “made up”

something was not a “substantial” error where the question was

only a small part of the defendant’s testimony, the question was

less damaging than explicitly asking if defendant thought the officer

was “lying,” and the evidence against defendant was strong); cf.

Koper, ¶ 45 (holding that the prosecutor asking the defendant

whether another witness was lying constituted plain error because

“[a]lmost the entirety” of the prosecutor’s cross-examination

consisted of “impermissible questions”). Lastly, I cannot conclude

that the error was substantial because it does not undermine my

confidence in the jury’s verdicts. See People v. McBride, 228 P.3d

216, 224 (Colo. App. 2009) (holding that although the prosecutor’s

statements were obvious error, they did not constitute plain error

because the conduct “was not sufficient to undermine our

confidence” in the verdict).

4. Closing and Rebuttal Remarks

¶ 120 Vialpando first argues that the prosecutor’s flight remarks

during closing and rebuttal were improper because they used

Vialpando’s exercise of her right to a jury trial to create an inference

51 of guilt and undermined her presumption of innocence, thereby

lowering the prosecution’s burden of proof. I disagree.

¶ 121 While possibly inartful, see Samson, ¶ 30, the prosecutor’s

flight remarks were merely examples of oratorical embellishment

and metaphorical nuance, see Van Meter, ¶ 24. The prosecutor was

not attempting to inject irrelevant issues into the case but rather

was highlighting his argument, based on evidence presented, that

Vialpando fled from the police on December 30, 2015, in the motel

parking lot and after the car crash. See id. Moreover, I cannot

conclude that the prosecutor lowered the burden of proof given that

the jury was properly instructed that closing statements were not

evidence and that the prosecution had to prove every element

beyond a reasonable doubt. See Strock, 252 P.3d at 1153.

¶ 122 This case differs from United States v. Hardy, 37 F.3d 753 (1st

Cir. 1994) — on which the majority relies heavily — in several

significant ways. First, in Hardy neither of the two defendants

testified, and the only possible connotation of the running and

hiding statement was “that the defendants were running from the

evidence presented against them, and hiding behind their right to

silence during the trial.” Id. at 758. Here, unlike in Hardy,

52 Vialpando did testify, so the prosecutor’s statement that her “flight

continues to this moment” was not an improper comment on

Vialpando’s exercise of her Fifth Amendment right to silence or

Sixth Amendment right to a jury trial. Rather, the prosecutor’s

language is better understood, in context, as arguing that the

evidence at trial established that Vialpando first ran away from

police in the stolen car after officers spotted the stolen car in the

motel parking lot and, later, ran away from the stolen car after she

crashed it. Second, in Hardy, the defense counsel objected

promptly and moved for a mistrial. Here, in contrast, there was no

contemporaneous objection on this basis, which perhaps

underscores the unimportance counsel attached to the now alleged

impropriety at trial. See Walters, 148 P.3d at 334; see also United

States v. Stark, 507 F.3d 512, 519-20 (7th Cir. 2007)

(distinguishing Hardy and concluding that, viewed in context, the

use of “hiding” in the prosecution’s closing was not plain error).

Finally, the evidence implicating the defendants in Hardy was not

particularly strong. 37 F.3d at 759. The evidence against

Vialpando in this case, by contrast, was significantly stronger: R.H.

53 gave eyewitness testimony and Vialpando’s belongings were found

in J.A.’s stolen vehicle.

¶ 123 Although the Hardy decision does not control here — and I do

not find it particularly persuasive in Vialpando’s case —

prosecutors should recognize the hazard involved in using words

like “run” and “flight” to characterize a defendant’s trial strategy,

especially in a case where she does not testify. Accordingly, skilled

and disciplined prosecutors should “resist the temptation to use

rhetorical cliches that threaten mistrials or reversals on appeal.”

Commonwealth v. Coyne, 686 N.E.2d 1321, 1325 (Mass. App. Ct.

1997).

¶ 124 Second, Vialpando argues that the prosecutor’s references to

her defense theory as a “red herring” and the “what fish” story

improperly suggested to the jury that Vialpando’s defense was not

asserted in good faith. She also contends that the prosecutor’s

reference to Iverson as the defense’s “star witness” was meant to

suggest that she made a false report to the Denver police; thus, she

contends that these veracity comments constituted improper bad

character arguments. I disagree.

54 ¶ 125 Given the prosecutor’s wide latitude in responding to defense

counsel’s arguments in rebuttal closing, see Domingo-Gomez, 125

P.3d at 1048; Perea, 126 P.3d at 247, including the use of oratorical

embellishment and metaphorical nuance, see Van Meter, ¶ 24, I

conclude that the challenged statements were not improper.

Rather, the prosecutor was using these metaphors to argue, based

on reasonable inferences from the evidence presented, that

Vialpando’s defense theory was weak, pointing to the lack of

evidence to support her robbery theory. See Serra, ¶ 88; Estes,

¶ 28; Walters, 148 P.3d at 334 (A prosecutor “may refer to the

strength and significance of the evidence, conflicting evidence, and

reasonable inferences that may be drawn from the evidence.”); see

also Strock, 252 P.3d at 1155 (“[T]he prosecutor’s comments on the

lack of evidence to support Strock’s defense theory that he was not

driving at the time of the accident did not improperly shift the

burden of proof to Strock. Thus, we conclude there was no error,

much less plain error.”).

¶ 126 Third, Vialpando argues that the prosecutor’s statement

during closing that defense counsel was “prompting” Vialpando to

testify a certain way suggested that she engaged in unethical

55 conduct and implied that defense counsel did not have a good faith

belief in Vialpando’s innocence. I again disagree.

¶ 127 When viewed in context, see Van Meter, ¶ 24, the prosecutor’s

statement was not meant to denigrate Vialpando or her counsel.

Rather, it was an attempt to refocus the jury’s attention on relevant

evidence and to encourage the jury to reject Vialpando’s defense

theory that she had been robbed. See Serra, ¶ 89 (recognizing that

while “[r]eferences to a defendant’s or defense counsel’s diversionary

tactics” may be improper when used to denigrate the defendant or

defense counsel, such references are not “improper if, viewed in

context, they are attempts to draw the jury’s focus to relevant

evidence”); see also Wilson, ¶ 52 (“Counsel may also properly

comment on how well and in what manner a witness’s testimony

measures up to the tests of credibility on which the jury is

instructed.”).

¶ 128 Nor do I agree that the prosecutor’s “prompting” statement

was an improper attempt to imply that Vialpando’s counsel did not

have a good faith belief in her client’s innocence. Cf. People v.

Jones, 832 P.2d 1036, 1038-39 (Colo. App. 1991) (holding that the

prosecutor’s statements that “defense counsel should, or did, know

56 the true facts concerning defendant’s presence upon the premises

and that she should concede the accuracy of the prosecution’s

testimony” improperly implied to the jurors that opposing counsel

did not have a good faith belief in her client’s innocence).

Accordingly, the challenged comment was merely another attempt

by the prosecutor to highlight relevant evidence; it was not an

attempt to divert the jury’s attention away from the facts of the case

or make an improper emotional appeal. See Carter, ¶ 72; cf.

Nardine, ¶ 67 (holding that the prosecutor’s misconduct constituted

plain error where he “repeatedly diverted the jurors’ attention from

the facts of the case,” “appealed to community sentiment,” and

“made an emotional appeal to their religious convictions” by

“mischaracteriz[ing] and denigrat[ing] the defense theory”).

¶ 129 Fourth, Vialpando asserts that the prosecutor impermissibly

shifted the burden of proof by stating that it was not his burden to

explain why Vialpando filed the Denver police report, implying that

the defense had the burden to prove that her report was not false.

Although the prosecutor’s statement may have been inartful, see

Samson, ¶ 30, it was also harmless given that the court repeatedly

properly instructed the jury — orally and in writing — on the

57 prosecution’s burden of proof and Vialpando’s presumption of

innocence, see Hagos, ¶ 12.

¶ 130 Fifth, Vialpando contends that the prosecutor misstated the

law on vehicular eluding and aggravated motor vehicle theft. I

disagree.

¶ 131 When reviewing the vehicular eluding charge during closing,

the prosecutor stated,

Eluded or attempted to elude. When you pull away from the officers, when you run the stop lights, it doesn’t matter necessarily if they are pursuing you, that you are eluding or attempting to elude that police officer.

¶ 132 While possibly inartful, see Samson, ¶ 30, the prosecutor did

not misstate the law. Rather, when viewed in context, see Walters,

148 P.3d at 335, the prosecutor was attempting to explain that a

defendant need not get away from the police in order to commit

vehicular eluding, see § 18-9-116.5, C.R.S. 2019. The prosecutor

followed the challenged statement by stating “that’s clearly what

that driving behavior indicates, going on through the on ramp,” and

noting that while J.A.’s stolen vehicle “didn’t get very far,” the driver

was nonetheless attempting to elude the police.

58 ¶ 133 Regarding the aggravated motor vehicle theft charge, the

The defendant does not necessarily need to be the person who stole the car. I want you to read that instruction very closely. She doesn’t necessarily have to be the person who took the car from [J.A.’s] driveway on December 19. All that we would have to show is that she exercised control over the motor vehicle of another without authorization. Who knows who owns the car that you’re driving? Well, you should know. A reasonable person should know who owns that car. It was clearly a stolen vehicle.

¶ 134 I also conclude that the prosecutor did not misstate the law on

aggravated motor vehicle theft. Vialpando misstates the record in

arguing that the prosecutor’s statement misled the jury to believe

that the prosecution was not required to prove that Vialpando

knowingly exercised control over the car without authorization.

Rather, taken in context, the prosecutor was arguing that

Vialpando knew she lacked authority to drive J.A.’s vehicle. See

Van Meter, ¶ 24; Walters, 148 P.3d at 335. And as with the

vehicular eluding charge, the jury was properly instructed on the

elements of aggravated motor vehicle theft. See Strock, 252 P.3d at

1153.

59 ¶ 135 Lastly, Vialpando argues that the prosecutor misstated the

evidence by (1) stating that R.H. identified Vialpando’s “facial

features” and that she pointed at Vialpando during trial and said

that “that’s who I saw get out of the car”; (2) posing several

rhetorical questions regarding Vialpando’s actions by asking if

Vialpando was robbed, why did she not attempt to get a

replacement identification or health insurance card or replace her

debit card; and (3) stating that Vialpando made “further denials”

about her 1997 felony convictions.

¶ 136 While prosecutors may not misstate the evidence, see Van

Meter, ¶ 24, I am not aware of any Colorado law that requires a

prosecutor to repeat witness testimony verbatim rather than

summarize evidence in closing. And I reject Vialpando’s assertion

that the prosecution’s rhetorical questions, referencing her defense

theory, misstated the evidence. Rather, it was mere oratorical

embellishment, see id., where the prosecutor was free to comment

on the strength of Vialpando’s defense theory. See Serra, ¶ 88;

Estes, ¶ 28. Nor did the prosecutor misstate the evidence when he

stated that Vialpando denied her prior trespass conviction.

Vialpando acknowledged that such a conviction was “possible,” but

60 she also testified that she did not remember being convicted of

trespass.

¶ 137 Given the wide latitude granted prosecutors during closing,

see Domingo-Gomez, 125 P.3d at 1048; Perea, 126 P.3d at 247, the

benefit of the doubt afforded them when their comments are

ambiguous, see Samson, ¶ 30, and the fact that the jury was

repeatedly instructed that closing arguments were not evidence, I

cannot conclude that the prosecutor misstated the evidence.

II. Lay Witness Testimony

¶ 138 Vialpando next contends that the trial court reversibly erred

by admitting lay witness testimony from Thornton Police Officer

John Milstead that Vialpando was the primary suspect, thereby

usurping the jury’s role to decide whether Vialpando was guilty of

the charged crimes. I disagree.

¶ 139 At trial, Milstead testified as a lay witness for the prosecution.

In discussing Vialpando’s arrest, the following colloquy occurred:

[Prosecutor]: Based on all of the information that you had received, Officer, the hard evidence that you collected and the witness statements that you had received, did you

61 identify the person who — that you believed had committed this offense?

[Milstead]: Based on the facts, yes.

[Prosecutor]: And who is that person?

[Milstead]: The defendant.

¶ 140 Defense counsel objected, arguing such a response invaded

the province of the jury, and the court sustained the objection. The

prosecutor then asked Milstead whether he had identified “a

primary suspect,” to which he replied that he had and identified

Vialpando. Defense counsel did not object.

¶ 141 We review a trial court’s decision to admit testimony for an

abuse of discretion. People v. Robles-Sierra, 2018 COA 28, ¶ 23.

An abuse of discretion occurs when a trial court’s ruling is

manifestly arbitrary, unreasonable, or unfair, or if it misapplies the

law. People v. Casias, 2012 COA 117, ¶ 29.

¶ 142 Because Vialpando did not preserve this issue for appeal, I

apply plain error review. Hagos, ¶ 14. Thus, reversal is warranted

only if any error was obvious and substantial, meaning the error so

undermined the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction. Id.

62 C. Law and Analysis

¶ 143 CRE 701 governs the admission of lay witness testimony and

provides that testimony is proper if it is “(a) rationally based on the

perception of the witness, (b) helpful to a clear understanding of the

witness’ testimony or the determination of a fact in issue, and (c)

not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702.”

¶ 144 A testifying witness may not usurp the jury’s factfinding role.

Robles-Sierra, ¶ 24. However, CRE 704 provides that opinion

testimony that is “otherwise admissible is not objectionable because

it embraces an ultimate issue to be decided by the trier of fact.” In

determining whether witness testimony usurped the function of the

jury, it is useful to consider whether (1) the witness opined that the

defendant committed or likely committed the crime; (2) the

testimony was clarified on cross-examination; (3) the expert’s

testimony usurped the trial court’s function by expressing an

opinion on the applicable law or legal standard; and (4) the jury was

properly instructed on the law and that it could accept or reject the

witness’ opinion. People v. Rector, 248 P.3d 1196, 1203 (Colo.

2011). Further, while a witness cannot testify as to his belief that

63 the defendant committed the charged crime, “police officers may

testify about the reasons they took certain investigative steps, even

where this testimony touches upon prohibited subjects.” People v.

Penn, 2016 CO 32, ¶¶ 31-32.

¶ 145 Vialpando argues that Milstead’s testimony that she was the

primary suspect demonstrated his belief that she was guilty of the

charged crimes, improperly usurping the jury’s function. I disagree

with the majority that the effect of Milstead’s testimony identifying

Vialpando as a suspect could only have been an improper one.

¶ 146 Milstead’s statement responded to the prosecutor’s question

regarding the then subject of the investigation. See id. It is not

clear that the officer’s testimony amounted to an opinion that

Vialpando was guilty of the charged crimes as opposed to explaining

the course of his investigation. See id. at ¶¶ 29, 33 (holding that an

officer’s statement that he had “reason to arrest” the defendant

merely “provided context for his action and simply explained . . . the

next step in his investigation”).

¶ 147 Nor can I conclude that Milstead’s testimony amounted to

plain error. See Hagos, ¶ 14. The prosecutor did not dwell on his

statement, nor did either party revisit this testimony during closing

64 argument. See Penn, ¶ 33. Further, Vialpando’s counsel had the

opportunity to clarify Milstead’s testimony on cross-examination

when, through questioning, the officer admitted that R.H. was not

one hundred percent certain regarding her identification and that a

witness told police that the man exiting J.A.’s stolen vehicle may

have been the driver. And, the jury was properly instructed that it

was not bound by the testimony of witnesses but could believe all,

part, or none of their testimony. See Rector, 248 P.3d at 1203

(holding that an expert’s testimony on an ultimate issue did not

constitute plain error where “the jury was properly instructed on

the law and its ability to accept or reject the expert witness

testimony”); People v. Rivera, 56 P.3d 1155, 1164 (Colo. App. 2002)

(Even if a “witness opines with respect to an ultimate issue, the jury

retains its authority to determine the facts from the evidence and

accept or reject such opinions.”).

III. Cumulative Error

¶ 148 Vialpando last argues that the asserted errors, when analyzed

in the aggregate, require reversal because they undermined the

fundamental fairness of the proceedings. I disagree.

65 ¶ 149 Under the doctrine of cumulative error, reversal is required

when numerous errors “collectively prejudice the substantial rights

of the defendant.” Howard-Walker v. People, 2019 CO 69, ¶ 25. A

conviction will not be reversed unless the cumulative effect of any

errors created “cumulative prejudice” and “substantially affected

the fairness of the trial proceedings and the integrity of the fact-

finding process.” Id. at ¶¶ 24-25 (citation omitted).

¶ 150 I have found no errors save for the court allowing the

prosecutor’s reasonable doubt voir dire illustration, the prosecutor’s

brief statement during opening remarks about Vialpando’s guilt,

and the prosecutor cross-examining Vialpando as to whether other

witnesses were mistaken. Even considered in the aggregate, the

prosecutor’s misconduct here does not rise to the level of plain

error. See Domingo-Gomez, 125 P.3d at 1054 (holding that no plain

error occurred where the prosecutor stated that “defense witnesses

lied and made up their stories” and defense counsel failed to make

a contemporaneous objection); People v. Ujaama, 2012 COA 36,

¶¶ 73-74 (holding that the prosecutor’s statement during closing

did not constitute plain error where he undermined defendant’s

presumption of innocence and improperly gave his personal opinion

66 on the case by stating that the defendant had “shattered his

presumption of innocence,” and that the “only way to obtain justice

in this courtroom, to seek what [the jury] . . . sought when [it] took

that oath as jurors, is to find [defendant] guilty of the murder that

he committed”) (alterations in original).

¶ 151 Because (1) the prosecutor’s misconduct does not carry

different weight under a cumulative error analysis; (2) the

misconduct was not overly prejudicial; and (3) the evidence against

Vialpando was strong — R.H. gave eyewitness testimony and

Vialpando’s belongings were found in J.A.’s stolen vehicle — I

conclude that Vialpando was not deprived of a fair trial. Cf.

Nardine, ¶ 68 (holding that the prosecutor’s misconduct warranted

reversal because it was “particularly prejudicial” in a case that

“depended almost entirely on the jurors’ assessment of [the victim’s]

credibility, as there was no eyewitness or physical evidence to

corroborate her claims”); Walters, 148 P.3d at 335 (Prosecutorial

misconduct rarely requires reversal but may be warranted “when

the evidence against a defendant is conflicting and inconclusive and

the prosecutor continually appeals to the jurors’ sentiments.”).

67 IV. Conclusion

¶ 152 For all of the foregoing reasons, I would affirm the judgment of

conviction.