People v. Allgier

         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
                                                             August 23, 2018

                               2018COA122

No. 16CA1801 People v. Allgier — Evidence — Relevancy and
its Limits — Exclusion of Relevant Evidence on Grounds of
Prejudice, Confusion, or Waste of Time; Crimes — Possession of
Weapons by Previous Offenders

     In this case, a division of the court of appeals rejects a plain

error assertion based on CRE 403 and upholds the trial court’s

admission of firearms that were the instrumentality of the crime

(POWPO), although photographs of them had already been

introduced.
COLORADO COURT OF APPEALS                                       2018COA122


Court of Appeals No. 16CA1801
El Paso County District Court No. 15CR6162
Honorable Richard Hall, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cameron Douglas Allgier,

Defendant-Appellant.


                             JUDGMENT AFFIRMED

                                    Division III
                           Opinion by JUDGE WEBB
                                 Fox, J., concurs
                           Nieto*, J., specially concurs

                           Announced August 23, 2018


Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Anne Parker, Alternate Defense Counsel, 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. 2017.
¶1     A jury convicted Cameron Douglas Allgier of possession of a

 weapon by a previous offender (POWPO). He seeks a new trial on

 four grounds:

      the trial court plainly erred in admitting into evidence the

       three firearms that were the basis for the POWPO charge, in

       addition to photographs of them;

      the trial court erred in admitting hearsay statements of a

       witness, which improperly bolstered that witness’s testimony;

      the trial court plainly erred in allowing the prosecutor to

       mischaracterize the evidence and the law during closing

       argument; and

      the cumulative effect of these errors was prejudicial.

 The possible prejudice from admitting firearms into evidence has

 not been addressed in Colorado.

¶2     We affirm.

                             I. Background

¶3     During a burglary, several firearms were stolen. M.S., a

 suspect in the burglary, told police that he had seen defendant — a

 previous offender but not one of the burglars — in the back seat of

 a vehicle next to a box containing some of the stolen firearms. M.S.

                                     1
 also said that the firearms might be found at an apartment in

 Arvada associated with defendant. The police went to the

 apartment, seized three of the stolen firearms, and arrested

 defendant.

        II. Any Error in Admitting the Firearms Was Not Plain

¶4    During the prosecution’s case, a police officer identified two

 photographs depicting the firearms seized from the apartment.

 When the prosecutor offered these photographs, defense counsel

 said, “no objection.” Then the prosecutor had the officer identify

 each of the firearms, which the prosecutor separately offered into

 evidence. Again, as each of the firearms was offered, defense

 counsel said, “no objection.” No colloquy concerning any of these

 exhibits occurred.

¶5    Now, defendant argues that because the firearms were unduly

 prejudicial under CRE 403, the trial court plainly erred in admitting

 them. We conclude that plain error did not occur.

                              A. Waiver

¶6    In the answer brief, the Attorney General argued that we

 should not review this contention for plain error because defendant

 waived it. The Attorney General relied on People v. Rediger, 2015


                                   

, ¶ 59 (Rediger I), aff’d in part and rev’d in part, 

 (Rediger II). There, defense counsel told the trial court that he had

 read the jury instructions and was “satisfied.” Rediger I, ¶ 47. On

 this basis, the division concluded that instructional error had been

 waived. 

64.

¶7    But the supreme court reversed in part, holding that counsel’s

 colloquy with the court did not show either actual knowledge or

 intentional relinquishment of the defendant’s right to have the jury

 correctly instructed on the elements of the offense charged in the

 indictment. Rediger II, ¶ 45. Because the supreme court’s decision

 was announced after briefing had closed in this case, we requested

 supplemental briefs on waiver.

¶8    Defendant did not file a supplemental brief.

¶9    The Attorney General’s supplemental brief seeks to distinguish

 Rediger II as follows:

            [T]he waiver issue here does not raise the
            concern regarding counsel’s possible lack of
            knowledge of the basis for making the relevant
            objection. Both Defendant and his counsel
            were clearly aware of the evidence that the
            prosecution was seeking to admit. Therefore,
            counsel’s statement that he had no objection
            to the admission of the guns into evidence
            cannot be attributable to a lack of knowledge


                                   3
              of the nature of the evidence or to an oversight.
              Unlike Rediger’s “general acquiescence” to the
              jury instructions as a whole, here Defendant
              stated his lack of objection to the admission of
              a very specific and obvious evidence.

  But this attempted distinction assumes something that Rediger II

  does not say — exactly what “known” means in evaluating whether

  defense counsel intentionally relinquished a known right. ¶ 39.

  Nor have we found such a definition in any Colorado case

  considering waiver by counsel in the criminal context.

¶ 10     When the prosecution offers evidence and defense counsel

  responds “no objection,” six explanations are possible.1

        Defense counsel was uninformed of the legal basis for an

         objection.

        Defense counsel knew of the legal basis for an objection, but

         did not recognize the factual basis for an objection.

        Defense counsel knew of both, but failed to connect them.

        Defense counsel was aware of both, but concluded that

         preserving an objection would be meritless.



  1 In identifying these possibilities, we acknowledge the “untenable
  burden” of “assessing counsel’s strategy[, which] does not fall within
  the purview of the trial court.” People v. Gross, 

, ¶ 11.

                                      4
        Defense counsel was aware of both, but concluded that

         admission of the evidence could be of strategic benefit to the

         defendant.

        Defense counsel was aware of both, but concluded that

         declining to object could sow the seeds for appellate reversal

         under the plain error standard, in the event of a conviction.

¶ 11     Where subject to any of the first three explanations, “no

  objection” will never constitute a waiver under Rediger II. The

  fourth, fifth, or sixth explanations could get over this hurdle, but

  often the record will not be adequately informative.

¶ 12     As to the first and second explanations, in some cases defense

  counsel might embellish “no objection” with words indicating

  awareness of the legal or factual basis for an objection. See People

  v. Tee, 

, ¶ 37 (“Opposite to what occurred in Rediger II,

  here the dialogue between defense counsel and the trial court over

  this issue went far beyond a ‘rote statement that [counsel] is not

  objecting . . . .’” (quoting United States v. Zubia-Torres, 

, 1207 (10th Cir. 2008))); see also People v. Kessler, 

, ¶ 35 (The court declined to apply Rediger II where “defense

  counsel took the position that the tests were admissible and that

                                      5
  the only question was the weight to be given them.”). But here,

  counsel said only “no objection” when each firearm was offered.

¶ 13   As to the third explanation, even absent such a statement, our

  supreme court presumes counsel has some level of legal acumen.

  See Stackhouse v. People, 

, ¶ 16 (“‘[W]e presume that

  attorneys know the applicable rules of procedure,’ and we thus ‘can

  infer from the failure to comply with the procedural requirements

  that the attorney made a decision not to exercise the right at

  issue.’”) (citation omitted). As well, the record may compel the

  conclusion that counsel must have been aware of the factual basis

  for an objection. See 

16 (“Allowing a defense attorney who

  stands silent during a known closure to then seek invalidation of an

  adverse verdict on that basis would encourage

  gamesmanship . . . .”).

¶ 14   So, is the courtroom closure in Stackhouse, which was found

  to have been waived based only on defense counsel’s failure to

  object, different from a routine evidentiary question? Although

  Rediger II did not cite Stackhouse, we conclude that the answer is

  yes, for three reasons.




                                    6
¶ 15   First, an unwarranted courtroom closure is structural error,

  while improper admission of evidence is trial error. Compare

  Stackhouse, ¶ 7 (“Such a violation is structural error that requires

  automatic reversal without individualized prejudice analysis.”), with

  People v. Summitt, 

, 327 (Colo. 2006) (subjecting

  “evidentiary trial error” to “harmless error analysis”). The

  magnitude of the error supports the presumption in Stackhouse

  that counsel must have known of the proper legal procedure. ¶ 16.

¶ 16   Second, and because of the structural error dimension, a

  complete courtroom closure, as in Stackhouse, rarely occurs. In

  contrast, the offer of physical evidence that represents the fruit or

  instrumentality of the crime, sometimes referred to as the “corpus

  delicti” — such as the firearms in this case, or drugs or stolen

  property in other cases — is routine, even if cumulative of other

  evidence or testimony. See State v. Smith, 

, 116 (La.

  Ct. App. 2015) (“Fruits and physical evidence of a crime as well as

  weapons used to commit a crime are relevant to show the

  commission of such crime and are therefore generally admissible at

  trial.”). The infrequency of complete courtroom closures supports




                                     7
  the presumption in Stackhouse that counsel could not have

  overlooked what was happening.

¶ 17   Third, a courtroom closure requires specific findings, even

  absent any objection by the parties. See People v. Hassen, 

, ¶ 9 (“[T]rial courts are obligated to take every reasonable

  measure to accommodate public attendance at criminal trials” and

  “must make findings adequate to support the closure.” (first quoting

  Presley v. Georgia, 

, 215 (2010) (per curiam); then

  quoting Waller v. Georgia, 

, 45 (2015))). But the trial

  court need not make findings before admitting fruit or

  instrumentality evidence. And the absence of any specific findings

  when the prosecutor offered the firearms into evidence could have

  lulled defense counsel into making a rote “no objection” response.

¶ 18   These three observations show that the waiver analysis in

  Stackhouse involved a two-step process — the legal requirement of a

  public trial, subject to very limited exceptions, and a courtroom

  closure. But the waiver analysis in Rediger II involved a three-step

  process — the legal requirement that the elemental instruction

  track the charged offense, the elemental instruction that did not

  satisfy this requirement, and defense counsel’s actual recognition of


                                     8
  the deficiency in the instruction. Still, declining to follow Rediger II

  here based on Stackhouse does not end the inquiry. So, we take up

  the fourth, fifth, and sixth explanations for why counsel might have

  foregone an objection.

¶ 19   As to the fourth explanation — choosing not to make a

  meritless objection — “counsel’s failure to argue the issues in

  summation or to object to the patent omission in the charge implies

  that the issues in question were not thought worth contesting; and

  to reverse on this ground would enhance the opportunities for

  ‘sandbagging’ the district judge.” United States v. Whiting, 

, 1309-10 (1st Cir. 1994). To be sure, “[t]he sixth amendment

  right to effective assistance of counsel does not require counsel to

  raise every objection without regard to its merits.” Palmes v.

  Wainwright, 

, 1523 (11th Cir. 1984). Still, the record

  would rarely explain that counsel — despite actual recognition —

  chose not to raise an objection because it was meritless.

¶ 20   An appellate court could infer such a conscious choice only by

  examining the evidence and concluding that any objection would

  not have had any obvious purpose. Because at that point the

  waiver inquiry would be the converse of the plain error inquiry


                                      9
  mandated by Rediger II, ¶ 48 (“An error is plain if it is obvious . . .

  .”), we discern no judicial economy in undertaking it.

¶ 21   Turning to the fifth explanation, the record could support the

  inference of a strategic calculation to benefit the defense based on

  defense counsel’s later use of the evidence. See United States v.

  Smith, 

, 1267 (10th Cir. 2008) (finding waiver where

  counsel not only represented that he had no objection to the

  admission of certain evidence but also relied on the evidence);

  People v. Bondsteel, 

, ¶ 130 (“We decline to review the

  [DNA] match statements for plain error because . . . the record

  creates a strong inference that defense counsel did not object to

  these statements as a matter of strategy rather than due to

  inadvertence.”) (cert. granted Oct. 31, 2016). But here, defense

  counsel did not seek to obtain any benefits from the firearms. Nor,

  for that matter, do we see how counsel could have done so.

¶ 22   Finally, as to the sixth explanation, the possibility that defense

  counsel did not object “because [counsel] perceives some slightly

  expanded chance to argue for ‘plain error’ later,” Henderson v.

  United States, 

, 276 (2013) (emphasis in original), is

  most troublesome yet hardest to discern. True, “plain error review


                                     10
  provides a strategic hedge against potentially risky litigation

  decisions, and encourages defense counsel not to object to

  inadmissible evidence — at least at the margins.” United States v.

  Smith, 

, 1302-03 (11th Cir. 2006) (Tjoflat, J.,

  specially concurring). But despite extensive recognition by both

  state and federal courts of the sandbagging problem, we have not

  found a test for detecting it as a basis for finding a waiver.

¶ 23    Of course, an appellate court would be justifiably suspicious

  of sandbagging if the objection was obviously meritorious,

  admission of the evidence would clearly prejudice the defendant,

  and defense counsel was experienced. But because “appellate

  courts are poorly situated to discern litigation strategy,” 

sandbagging inference on direct appeal would be

  speculative.2 And in any event, the “limited scope of [plain error]

  review discourages a defense counsel from sandbagging a district

  judge by holding in his pocket a legal argument.” United States v.


  2“Only after a hearing in which evidence was offered could this
  Court have known why the appellant’s counsel failed to object.
  Perhaps counsel had a certain strategy in mind. Perhaps counsel
  was sandbagging the State. Perhaps counsel was seeking an
  advantage on direct appeal.” State v. Bolen, 

, 930
  (W. Va. 2006) (Maynard, J., dissenting).

                                     11
  Redrick, 

, 481 (D.C. Cir. 2016). As well, in the heat of

  battle, even the best lawyers simply make mistakes. See People v.

  Weathers, 

, 883 (Ill. 1975). For these reasons, we

  cannot conclude that defense counsel said “no objection” — not

  once but three times — to feather defendant’s appellate nest.

¶ 24   As the special concurrence ably points out, the waiver

  question is by no means free of doubt. In the view of some courts,

  “[t]hough a party’s failure to object usually results in a forfeiture

  subject to plain-error review, when the ‘subject matter [is]

  unmistakably on the table, and the defense’s silence is reasonably

  understood only as signifying agreement that there was nothing

  objectionable,’ the issue is waived on appeal.” United States v. Soto,

  

, 96 (1st Cir. 2015) (quoting United States v. Christi, 

, 142 (1st Cir. 2012)).

¶ 25   But a closer look at some such cases shows that defense

  counsel had earlier recognized the possible need for an objection.

  See United States v. Comstock, 

, 675 (8th Cir. 2008)

  (“[T]his Court has ‘found pretrial objections waived when an

  appellant’s counsel affirmatively stated “no objection” at trial to the

  admission of evidence previously sought to be suppressed.’”


                                     12
  (quoting United States v. Gonzalez-Rodriguez, 

, 951

  (8th Cir. 2001))); United States v. Cunningham, 

, 502

  (7th Cir. 2005) (“Although Cunningham’s trial counsel initially

  objected to admission of the pictures, he later explicitly withdrew

  his objection and furthermore failed to make any additional

  objections in the proceedings below to their admission.”). We

  decline to take this path based on defense counsel’s voir dire

  questions about prospective jurors’ attitudes toward firearms.

  Asking such general questions would be prudent in any POWPO

  case, rather than only in those cases where prejudice somehow

  inheres in the particular firearms at issue.

¶ 26   Actual recognition seems to be what Rediger II requires to find

  a waiver. And recognition is the third step that we posit separates

  Rediger II from Stackhouse. We will assume defense counsel’s

  general familiarity with the prejudice limitation in CRE 403 and

  counsel’s awareness that if admitted, the firearms would be there

  for the jurors to see. But the third step — actual recognition that

  the firearms might create prejudice subject to CRE 403 scrutiny —

  poses the inadvertence or intentional relinquishment dilemma. See




                                    13
  People v. Foster, 

, ¶ 38 (listing “several imponderables”

  inherent in attempting to make such an assessment).

¶ 27   In the end, “[t]he line between waiver and forfeiture is often

  blurry.” United States v. Garcia, 

, 541 (7th Cir. 2009).

  Because “[t]he distinction is not always easy to make,” and here

  defense counsel declined to explain the decision not to object, “our

  task is to use conjecture as to whether the defendant’s failure to

  object was accidental or deliberate, and to do so, we evaluate the

  record as a whole.” 

Simply put, this record does not

  foreclose the possibility that defense counsel overlooked the

  possible prejudice from having the firearms present in the

  courtroom.

¶ 28   For these reasons, we decline the Attorney General’s invitation

  to read Rediger II narrowly on a record no more favorable to the

  prosecution than the record in that case. After all, in Rediger II

  defense counsel told the court more than once that he was reading

  the prosecutor’s tendered instructions. With respect for the views

  expressed in the special concurrence, we leave to the supreme court

  excluding from the heightened waiver scrutiny in Rediger II

  evidentiary issues that lack constitutional significance as well as


                                    14
  reconciling any discrepancy between Rediger II and Stackhouse.

  See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 

, 484 (1989) (“If a precedent of this Court has direct application

  in a case, yet appears to rest on reasons rejected in some other line

  of decisions, the Court of Appeals should follow the case which

  directly controls, leaving to this Court the prerogative of overruling

  its own decisions.”).

¶ 29   So, we reject waiver and take up plain error analysis.

                     B. Standard of Review and Law

¶ 30   Ordinarily, we review the district court’s evidentiary rulings for

  an abuse of discretion. People v. Faussett, 

, ¶ 33.

  However, if defense counsel failed to object to the admission of

  evidence, we reverse only if the admission of the evidence went

  beyond an abuse of discretion and rose to the level of plain error.

  Hagos v. People, 

, ¶ 14. An error is plain where it is

  obvious and substantial, and casts serious doubt on “the basic

  fairness of the trial itself” and “the reliability of the judgment of

  conviction.” Wilson v. People, 

, 419-20 (Colo. 1987).

¶ 31   “Because the balance required by CRE 403 favors admission, a

  reviewing court must afford the evidence the maximum probative


                                      15
  value attributable by a reasonable fact finder and the minimum

  unfair prejudice to be reasonably expected.” People v. Folsom, 

, ¶ 33 (quoting People v. Elmarr, 

, ¶ 44).

  “Consistent with this preference for admission, evidence is not

  unfairly prejudicial merely because it damages the defendant’s

  case.” People v. Valdez, 

, ¶ 37. And evidence is

  unfairly prejudicial only if it has 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, 

, 147 (Colo. 1990).

                               C. Analysis

¶ 32   Defendant argues that because “[s]howing someone a gun, a

  [AR 15] style rifle for that matter, evokes a very different response

  than a picture, or even showing them a scope or other item,”

  admission of the firearms — in addition to the photographs — was

  plain error. The three firearms were an AR 15 rifle,3 a 9mm high-

  point assault rifle, and a 12-gauge shotgun.


  3 “An ‘AR 15 is the civilian version of the military’s M4 carbine.
  Contrary to what most people believe AR doesn’t stand for assault
  rifle, rather it stands for the original manufacturer Armalite Rifle.
  AR 15 is semiautomatic and doesn’t meet Federal requirements to

                                    16
¶ 33    As to prejudice, defendant cites no legal authority, nor have we

  found any in Colorado, holding that admission of firearms

  connected to a crime is unduly prejudicial. Cf. People v. Watson,

  

, 1343 (Colo. App. 1982) (“As for the revolvers, it has

  been consistently held that weapons found during a search are

  admissible as a part of the history of the arrest . . . .”). Defendant

  does not suggest how the nature of these three firearms was

  somehow particularly likely to evoke prejudice. Nor does he point

  to any testimony concerning their capabilities that might have done

  so.

¶ 34    Still, a closer look shows that at least one court has expressed

  concern about juror attitudes about firearms:

             Personal reactions to the ownership of guns
             vary greatly. Many individuals view guns with
             great abhorrence and fear. Still others may
             consider certain weapons as acceptable but
             others as “dangerous.” A third type may react
             solely to the fact that someone who has
             committed a crime has such weapons. Any or
             all of these individuals might believe that

  be classified as an assault rifle.’” State v. Schroeder, No. 16-1786,
  

, at *2 n.2 (Iowa Ct. App. May 16,
  2018) (unpublished table decision) (quoting AR 15, Urban
  Dictionary,
  https://www.urbandictionary.com/define.php?term=AR%2015 (last
  visited Apr. 24, 2018)).

                                     17
              defendant was a dangerous individual . . . just
              because he owned guns.

  State v. Rupe, 

, 597 (Wash. 1984). Concern has also

  arisen from the number of firearms involved:

              Two dozen guns in a courtroom is undoubtedly
              an alarming sight. The prosecutor’s repeated
              assurances that the weapons were not loaded
              and that all were examined multiple times to
              verify that they were secure demonstrated an
              awareness that jurors would be apprehensive
              in the presence of this much weaponry.

  United States v. Klebig, 

, 715 (7th Cir. 2009).

¶ 35   Unlike in Klebig, here only three firearms were admitted. Still,

  somewhat like in that case, the trial court wondered aloud what

  should be done with those three firearms, after they had been

  admitted:

              The Court now directs that the weapons be
              taken somewhere and locked up. The Court
              doesn’t anticipate bringing them back and
              giving them to the jury to deliberate because
              the Court sees no evidentiary purpose to that.

  Although some questions about attitudes toward firearms were

  asked during voir dire, the responses from the seated jurors afford

  little insight into all of their attitudes. So, recognizing at least some




                                     18
  possibility of prejudice, the balancing process must turn to

  probative value.

¶ 36   Directly contrary to defendant’s argument, “[r]eal evidence is

  relevant and therefore admissible if it is connected in some manner

  with either the accused, the victim, or the crime.” People v. Garcia,

  

, 826 (Colo. App. 1989). In other words, “[e]vidence

  that defendant may have possessed an instrument which could

  have been used in the commission of the crime is admissible,

  provided a proper foundation is laid.” Id.; see also United States v.

  Moreno, 

, 375 (6th Cir. 1991) (“[T]he probative value of

  the presence of the actual firearms in the courtroom was not

  ‘substantially outweighed by the danger of unfair prejudice’ . . . .”

  (quoting Fed. R. Evid. 403)); United States v. Wiener, 

,

  18 (2d Cir. 1976) (“We hold that the gun was relevant to the issues

  upon which Wiener was tried and that the court did not abuse its

  discretion in holding that its probative weight was not overbalanced

  by the inflammatory tendency of the gun as evidence.”) (collecting

  cases).

¶ 37   These authorities have particular weight in this case because

  the firearms were the instrumentality whereby defendant committed


                                    19
  POWPO. See State v. Solomon, 

, 528 (Conn. App. Ct.

  2014) (“[T]he revolver was relevant to show that the defendant

  possessed the means to commit the crime of criminal possession of

  a firearm,” and its admission “cannot be considered unduly

  prejudicial . . . when offered for this limited purpose because mere

  possession of the means to commit a crime, without more, does not

  establish that the defendant had bad character or a propensity for

  violence.”). Likewise, in 

, “[t]he probative

  value of the firearms is clear, since they are the basis for Count 13

  of the indictment.” In contrast, the numerous firearms admitted in

  Klebig were offered only to show that because the defendant owned

  so many lawful firearms, his mistake defense to having purchased

  an unlawful gun lacked credibility.

¶ 38   True, the three firearms were accurately described in the

  photographs admitted into evidence. But defense counsel did not

  propose any stipulation concerning the firearms, in lieu of their

  admission. And even had counsel done so, “[t]he prosecution is

  generally entitled to prove the elements of its case against a

  defendant by evidence of its own choice.” People v. Morales, 

, ¶ 9.


                                    20
¶ 39      For these reasons, we discern no error, and therefore do not

  proceed further along the plain error path, in admitting the firearms

  as the instrumentality of the crime.

       III. Admission of the Detective’s Testimony About Statements of
                       M.S. Does Not Warrant Reversal

¶ 40      After M.S. testified as a prosecution witness, the prosecutor

  called the detective who had interviewed him about the burglary,

  Sergeant Vidmar. When the sergeant began to recount M.S.’s

  statements during that interview, defense counsel objected based

  on “[h]earsay, improper impeachment.” The trial court allowed the

  sergeant to continue.

¶ 41      Later, defense counsel renewed the objection. After hearing

  argument outside the jury’s presence, the court ruled that the

  sergeant could testify as to whether M.S. had “changed his story”

  and “if the interview led this witness to do something else, like drive

  [the burglar] around to a location.” However, “just to have this

  witness say that [the burglar] told him the same thing [the burglar]

  told the jury yesterday, is just bolstering the testimony, which is

  generally not allowed.”




                                      21
¶ 42   Defense counsel did not ask that the prior testimony be

  stricken or request a cautionary instruction; nor, when the jury

  returned, did the court give one sua sponte. Direct examination

  resumed. The sergeant was asked only whether M.S. had changed

  his story — the answer was “no” — and to explain how the interview

  had led the officers to the apartment where the firearms were

  seized, which he did, albeit briefly.

                     A. Standard of Review and Law

¶ 43   A trial court has substantial discretion in deciding questions

  concerning the admissibility of evidence. People v. Elie, 

, 362 (Colo. App. 2006). Where the issue is preserved, we

  reverse a trial court’s evidentiary ruling only if the trial court

  abused that discretion and the error is not harmless. 

  court abuses its discretion when its ruling is manifestly arbitrary,

  unreasonable, or unfair, or when it is based on an erroneous

  understanding or application of the law. People v. Jackson, 

, ¶ 37.

¶ 44   On the one hand, “out-of-court statements cannot be used to

  bolster the trial testimony of witnesses.” People v. Johnson, 

, 860 (Colo. App. 1998). On the other, “a witness’s prior


                                     22
  consistent statements are admissible under two distinct theories.”

  People v. Clark, 

, ¶ 124. They may be admitted under

  CRE 801(d)(1)(B) as substantive evidence or, as pertinent here, they

  are sometimes admissible outside of the rule to rehabilitate a

  witness’s credibility. People v. Eppens, 

, 19-21 (Colo.

  1999).

¶ 45   When a witness’s credibility has been attacked, how much of a

  prior consistent statement is admissible turns on the scope of the

  attack. 

. If the witness’s testimony is attacked

  based on specific facts, only prior consistent statements regarding

  those facts are admissible. People v. Miranda, 

, ¶ 16.

  But where the attack is more general, the jury may hear all relevant

  facts, including consistent and inconsistent statements. 

¶ 46   Defendant argues that “[n]ot only were [the sergeant’s]

  statements not admissible under the rules of evidence, but they

  tended to improperly bolster the credibility of M.S.’s prior

  testimony.”

¶ 47   But at trial, defense counsel generally attacked M.S.’s

  credibility. For example, during opening statement counsel said,


                                    23
  “You will hear that [M.S.] has not always told the same version of

  events when he talks about what happened . . . .” Then, in

  cross-examining M.S., counsel elicited details about inconsistencies

  among M.S.’s statements. Thus, the sergeant’s later testimony

  about what M.S. had told him during the interview was “relevant

  and admissible to give the jury a complete picture of [M.S.’s]

  credibility.” Miranda, ¶ 20 (quoting People v. Banks, 

, ¶ 39).

¶ 48   Further, the trial court sustained defendant’s objection to the

  sergeant’s more general statements about what M.S. had said

  during the interview, limiting the testimony to “whether M.S.

  “change[d] his story in any significant detail.” We discern no risk of

  bolstering from this limited testimony.

¶ 49   And to the extent defendant now argues the trial court should

  have given a curative instruction as to the initial statements, he did

  not request one. See People v. Mersman, 

, 203 (Colo.

  App. 2006) (“[T]o receive a curative instruction, a defendant must

  request it, and a trial court does not commit plain error if it does

  not give a curative instruction sua sponte.”).




                                    24
       IV. The Prosecutor’s Statements in Closing Argument Do Not
                Constitute Plain Error Warranting Reversal

                     A. Standard of Review and Law

¶ 50    Defendant points to several statements by the prosecutor that

  he argues either mischaracterized the evidence or misstated the

  law. Defendant concedes that because trial counsel did not object

  to these statements, we review only for plain error.

¶ 51    To warrant reversal under plain error, prosecutorial

  misconduct must be flagrant or glaringly or tremendously improper

  and so undermine “the fundamental fairness of the trial as to cast

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

  People v. Strock, 

, 1152 (Colo. App. 2010) (citation

  omitted). Prosecutorial misconduct in closing argument rarely

  constitutes plain error. People v. Carter, 

-2, ¶ 53.

¶ 52    We evaluate claims of improper argument in the context of the

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

  People v. Samson, 

, ¶ 29. Prosecutors may employ

  rhetorical devices and engage in oratorical embellishment and

  metaphorical nuance. People v. Conyac, 

, ¶ 132.

  Prosecutors also have considerable latitude in replying to opposing



                                    25
  counsel’s arguments and in making arguments based on facts in

  evidence and reasonable inferences that can be drawn from those

  facts. 

133. As well, “because arguments delivered in the

  heat of trial are not always perfectly scripted, reviewing courts

  accord prosecutors the benefit of doubt where remarks are

  ‘ambiguous,’ or simply ‘inartful.’” People v. McBride, 

,

  221 (Colo. App. 2009) (citations omitted).

¶ 53   Even so, prosecutors may not use closing argument to

  misstate the evidence, assert a personal opinion, or insert claims

  calculated to inflame the passions and prejudices of the jury.

  Samson, ¶ 32. In other words, a prosecutor is “free to strike hard

  blows, [but] ‘is not at liberty to strike foul ones.’” 

(quoting Berger v. United States, 

, 88 (1935)).

                                B. Analysis

            1. Defendant’s Statements to Lieutenant Coates

¶ 54   Lieutenant Coates testified on direct examination that

  defendant had told him during the interview that at the Fountain

  Mesa Road house, M.S. asked defendant “if he would hold onto

  some bags for him.” Defendant had explained that firearms “were

  located inside green duffel bags” and “some of them were wrapped


                                     26
  up in a blanket.” M.S. did not give defendant the firearms at the

  Fountain Mesa address; rather, M.S. met up with defendant later at

  the Arvada street address.

¶ 55     During cross-examination, the lieutenant clarified that

  defendant “never stated M.S. showed up with guns. He said that

  [M.S.] showed up with green duffel bags.” And defendant had told

  the lieutenant that he did not look into the bags or ask what was in

  them.

¶ 56     During closing argument, the prosecutor said:

        “We have [defendant] himself stating that M.S. shows up . . .

         and says . . . [h]ere is the duffel bag and a blanket and a

         bunch of heavy stuff there. Will you hold it for me.”

        “[Defendant] testifies that later that evening at the Arvada

         address M.S. shows up with those guns wrapped in a blanket.

         And the bags, he takes them and he puts them into . . . [a]

         room.”

¶ 57     Although defendant points to slight discrepancies between the

  lieutenant’s testimony and the prosecutor’s closing argument, none

  of them rises to the level of plain error. See People v. Arzabala,

  

, ¶¶ 68-72 (no plain error if the misstatements did not

                                      27
  contribute to the defendant’s conviction and the jury heard

  accurate testimony). Further, based on what defendant said had

  occurred at both the Fountain Mesa and Arvada locations, the

  prosecutor’s statements were reasonable evidentiary inferences.

                     2. Sergeant Racine’s Testimony

¶ 58   Sergeant Racine testified that during the search of the Arvada

  apartment, “the two assault weapons were located in an unclosed

  closet in the left-hand bedroom. And the shotgun was located in a

  closet in the living room.”

¶ 59   During closing argument, the prosecutor said:

             When they conduct the search they find
             assault rifles and the shotgun in the attic. Not
             locked up in a safe. Not even wrapped up in
             blankets or some duffle bags but exposed in
             the open. One of the bedrooms that
             [defendant] himself says he put them. But
             now they are open. And a shotgun in the
             living room.

¶ 60   While the reference to the attic was incorrect, the rest of the

  statements were based on reasonable evidentiary inferences.

  Specifically, the sergeant testified that, as to the firearms, “you

  could kind of make out there was barrels because there was an

  attempt to like cover them up . . . [but] portions of the gun [were]



                                     28
  exposed.” And reference to an attic — instead of an open closet —

  is not a material difference.

                              3. M.S. Testimony

¶ 61     Defendant points to the following statements by the prosecutor

  as mischaracterizing M.S.’s testimony:

        M.S. saw “at least five weapons” in the car, whereas he

         testified that “at most there were five guns” (emphasis added);

        M.S. gave police “two addresses” as possible locations for the

         stolen firearms, whereas he “only provided the address at

         Arvada apartment”;

        M.S. saw the firearms in the car “the next day,” whereas he

         testified he saw them “on September 24.”

¶ 62     But “divisions of this court have often overlooked minor

  discrepancies between the evidence and closing argument.”

  Bondsteel, ¶ 138; see also People v. Williams, 

, 245

  (Colo. App. 1999) (prosecutor’s statement that forty dollars was

  found in the defendant’s pocket, while there was no testimony

  establishing the exact amount, was not “so prejudicial when

  considered in the context of the entire closing argument as to

  constitute plain error”).

                                     29
                    4. Knowing Possession of a Firearm

¶ 63     The trial court instructed the jury:

              “POSSESSION” as used in these instructions,
              does not necessarily mean ownership, but does
              mean the actual, physical possession, or the
              immediate and knowing dominion or control
              over the object or the thing allegedly
              possessed. “Possession” need not be exclusive,
              provided that each possessor, should there be
              more than one, actually knew of the presence
              of the object, or thing possessed and exercised
              actual physical control or immediate, knowing
              dominion or control over it.

  Defendant argues that, contrary to this instruction, the prosecutor

  “made numerous erroneous statements regarding the knowing

  possession of a firearm” that allowed the jury to convict him “if, at

  any time, the jury could determine that [he] was in the Arvada

  apartment at the same time of [sic] the guns.”

¶ 64     For example, the prosecutor told the jury:

        “I don’t have to prove that he owned the gun. I don’t have to

         prove that he possessed it exclusive of everyone else.

         Everybody in the room with that shotgun, under this definition

         for this crime is possessing that firearm.”




                                      30
        “Possession also need not be exclusive. Provided that each

         possessor, should there be more, actually knew of the

         presence of the object.”

        “If he knew it was there, he is guilty.”

        “If he walked into a room, he sees a shotgun in the closet, he

         has a duty, as a convicted felon, to leave the room.”

¶ 65     True, “‘possession,’ as it is used in [POWPO], is the actual or

  physical control of the firearm.” Beckett v. People, 

, 82

  (Colo. 1990) (quoting People v. Garcia, 

, 554, 

, 231 (1979)). Thus, some of the prosecutor’s statements — i.e.,

  “If he knew it was there, he is guilty” — when read in isolation, do

  not accurately state the law.

¶ 66     Still, a defendant need not have had exclusive control of the

  firearm to be found guilty of possessing it. See People v.

  Tramaglino, 

, 1172-73 (Colo. App. 1989) (evidence

  was sufficient to support POWPO conviction where eyewitness

  testified that she saw the gun in the defendant’s possession and

  police officers later discovered the gun in his automobile); People v.

  Rivera, 

, 626-28 (Colo. App. 1988) (evidence was

  sufficient to support the defendant’s POWPO conviction where he

                                       31
  accompanied his wife and assisted her with the purchase of a

  revolver, which was within “arm’s reach” of defendant), rev’d on

  other grounds, 

(Colo. 1990).

¶ 67     In this regard, the prosecutor also told the jury:

        “Possession, as used in these instructions, does not

         necessarily mean ownership, but does mean actual physical

         possession or the immediate and knowing dominion or control

         over an object or thing allegedly possessed.”

        “[I]f [defendant] knew that those were firearms, and he was

         where he could exercise control or dominion over them, he was

         in possession.”

        “It can’t be a hot potato.”

  And the prosecutor mentioned the trial court’s instruction on

  possession.

¶ 68     Given the prosecutor’s correct statements on possession and

  the reference to the trial court’s instruction, we conclude that any

  misstatements do not constitute plain error. See 

(no plain error where misstatements were offset by the

  prosecutor’s correct statements of law, the trial court’s correct

  instructions, and counsel’s reference to the court’s instructions

                                       32
  during closing); see also People v. Kyle, 

, 502 (Colo.

  App. 2004) (“Even assuming the comment was improper, in light of

  the trial court’s instructions and the other proper argument by the

  prosecutor, we cannot say with fair assurance that any error so

  undermined the fundamental fairness of the trial as to cast serious

  doubt on the reliability of the judgment of conviction.”).

¶ 69   In any event, misstatements by the prosecutor were few in

  number in an otherwise lengthy summation. See People v. Villa,

  

, 357 (Colo. App. 2009) (“We note that the number of

  times the jury is confronted with a misstatement of law is relevant

  in evaluating the nature and extent of the harm. . . . Furthermore,

  the trial court’s instructions to the jury were clear . . . .”). And

  when read in conjunction with the prosecutor’s other statements,

  any error would not have been flagrant or glaring. See People v.

  Weinreich, 

, 924 (Colo. App. 2004) (“This argument,

  taken in context, is not a misstatement of the law.”), aff’d, 

(Colo. 2005).

                           V. Cumulative Error

¶ 70   Lastly, defendant contends the aggregate impact of numerous

  errors denied his right to a fair trial. But the doctrine of cumulative


                                     33
  error requires that numerous errors be committed, not merely

  alleged. People v. Jones, 

(Colo. App. 1982), aff’d sub

  nom. People v. Curtis, 

(Colo. 1984).

¶ 71   We have found only unpreserved errors that were not plain.

  Whether plain errors can even be considered for cumulative error

  purposes has not been resolved in Colorado. Compare United States

  v. Nunez, 

, 655 (7th Cir. 2008) (“When an appellant

  alleges cumulative error, this Court will only consider plain errors

  and errors which were preserved for appellate review.”), with United

  States v. Delgado, 

, 340 (5th Cir. 2012) (“[P]lain-error

  analysis under [Fed. R. Crim. P.] 52(b) prohibits us from basing a

  reversal on unpreserved errors that are not ‘plain’ under the second

  prong of plain-error review.”).

¶ 72   Be that as it may, we cannot discern how any combination of

  the possible but unpreserved errors in the prosecutor’s closing

  argument — which were not plain — could have deprived defendant

  of a fair trial. See Carter, ¶ 81.

                               VI. Conclusion

¶ 73   The judgment is affirmed.

       JUDGE FOX concurs.


                                       34
JUDGE NIETO specially concurs.




                         35
       JUDGE NIETO, specially concurring.

¶ 74   Although I concur with the majority’s ultimate result, I would

  conclude that defendant’s trial counsel waived any error regarding

  the admission of the firearms into evidence, and would therefore

  decline to review his contention.

¶ 75   Our supreme court has helpfully distinguished between waiver

  and forfeiture in People v. Rediger, 

. Waiver requires

  “intentional relinquishment of a known right,” 

39 (quoting

  Dep’t of Health v. Donahue, 

, 247 (Colo. 1984)), and

  therefore does not involve errors resulting merely from oversight.

  Moreover, such “intentional relinquishments” are not limited to

  explicit acts, but may even include mere implications, if they clearly

  manifest an intent to relinquish the issue. 

42; see also

  Horton v. Suthers, 

, 619 (Colo. 2002) (collecting cases);

  Hansen v. State Farm Mut. Auto. Ins. Co., 

, 1385

  (Colo. 1998) (where defense failed to offer replacement jury

  instruction after trial court rejected its first tendered instruction, it

  waived issue). If a contention has been waived, appellate courts will

  not review it even for plain error. Rediger, ¶ 34.




                                      36
¶ 76   By contrast, courts may still review an issue for plain error

  when a litigant inadvertently relinquished it below through

  apparent “oversight,” because in that case the issue was merely

  “forfeited.” 

¶ 37, 40. Thus appellate courts will not find

  waiver where, for example, the record “bears no indication” that a

  defendant was aware at trial of a potential problem with the jury

  instructions. 

¶ 37-38.

¶ 77   We are thus faced with the question of whether defendant

  intentionally relinquished his right to appeal the issue of whether

  the guns should have been shown to the jury, or instead merely

  overlooked this possibility. In the context of the aforementioned

  precedent, I would conclude that defendant waived the issue.

¶ 78   The record makes plain that defendant’s trial counsel was

  pointedly confronted with the possibility that the guns would be

  shown to the jury and expressly declined to register an objection.

  This knowing and express acquiescence is not analogous to the

  situation in Rediger, where the supreme court saw “no evidence,

  
    Although Horton v. Suthers, 

, 619 n.9 (Colo. 2002),
  noted that it should not be read as applying invited error to a mere
  “failure to object,” here defendant’s express statement of “no
  objection” to admitting the guns goes further than a mere “failure”
  and constitutes an “affirmative[] acquiesce[nce].” 

express or implied” that the litigant’s counsel was even aware

  of the potential problem. 

42. Here, the firearms were

  physically present before counsel and the appearance of the

  weapons was obvious. In voir dire, counsel questioned several

  prospective jurors concerning their attitudes about firearms,

  showing that he was aware of the potential for prejudice. Therefore,

  I would conclude that counsel was aware of the issue and waived

  any CRE 403 objection he might have raised.

¶ 79   Because waiver is a harsh remedy, our supreme court has

  further clarified that it is less likely to perceive waiver when the

  abandoned issue involves constitutional rights. People v. Curtis,

  

, 514 (Colo. 1984) (courts do not presume waiver of

  fundamental constitutional rights). Here, unlike in Curtis and

  Rediger, there are no constitutional rights in issue. Rather, the

  issue involves the admission of admittedly relevant evidence that

  defendant might have argued was unfairly prejudicial under CRE

  403. Therefore, the effect of a waiver here was of more modest

  consequence.

¶ 80   

, is more analogous to the situation

  here. There, after the trial court rejected the defendant’s tendered


                                     38
  jury instruction, it offered the defendant a chance to redraft it. The

  defendant declined to redraft the instruction, and our supreme

  court held that this declination constituted invited error. Similarly,

  here, defendant’s trial counsel was fully aware that the guns would

  be shown to the jury, and nevertheless expressly declined to object.

¶ 81   Accordingly, I would hold that defendant waived his CRE 403

  objection to admission of the firearms, and would decline to review

  his contention.




                                    39