SUMMARY

May 23, 2019

2019COA78

No. 15CA1178, People v. Dominguez — Evidence — Hearsay —

Verbal Acts — Opinions and Expert Testimony — Opinion by 

Lay Witnesses — Testimony by Experts

A division of the court of appeals considers whether the trial 

court erred in admitting text messages discovered on the 

defendant’s cell phone stating, among other messages, “Can you do 

2 for 1500 if I got all of it” and “Can you do 2 for 1600.” The 

division rejects the defendant’s argument that these text messages 

constituted inadmissible hearsay, concluding, instead, that they 

were admissible as verbal acts. The division also rejects the 

defendant’s related due process and CRE 403 arguments related to 

the text messages.

The division next agrees that the trial court erred in admitting 

expert testimony from two police agents under the guise of lay 

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.
witness testimony. But, it concludes that the admission of this 

improper testimony was harmless given the overwhelming evidence 

of defendant’s guilt presented at trial.

The division also rejects the defendant’s contention that the 

prosecutor committed reversible misconduct during rebuttal closing 

argument by misstating the law on reasonable doubt.

Last, the division concludes the defendant’s convictions for 

reckless driving and vehicular eluding need not merge. Although 

reckless driving is a lesser included offense of vehicular eluding, the 

undisputed evidence showed that the defendant committed two 

separate and temporally distinct instances of reckless driving, even

if not separately charged. So, under the circumstances here, the 

trial court did not plainly err in not sua sponte merging these two 

convictions.
COLORADO COURT OF APPEALS 2019COA78

Court of Appeals No. 15CA1178

Jefferson County District Court No. 14CR1695

Honorable Randall C. Arp, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brian Anthony Dominguez,

Defendant-Appellant.

JUDGMENT AND SENTENCE AFFIRMED

Division VII

Opinion by JUDGE DUNN

Márquez* and Miller*, JJ., concur

Announced May 23, 2019

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. 

VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
1

¶ 1 Brian Anthony Dominguez appeals the judgment of conviction 

entered after a jury found him guilty of possession of a controlled 

substance with intent to distribute, possession of drug 

paraphernalia, vehicular eluding, reckless driving, and driving 

under restraint. He also appeals his sentence. We affirm.

I. Background

¶ 2 While outside the home of his daughter’s grandmother, 

Dominguez had a verbal altercation with the grandmother’s 

relatives. One of the relatives called 911, and Dominguez drove 

away at a high speed.

¶ 3 Agent Angela Garza later spotted Dominguez’s truck. After 

following it for a short time, she attempted to initiate a traffic stop. 

Dominguez accelerated away, and a high-speed chase ensued.

Agent Garza and other police agents ultimately stopped their 

pursuit. But later, Agent Garza located Dominguez’s abandoned 

truck. Police agents found Dominguez hiding nearby and arrested

him.

¶ 4 Agent Ryan Carmichael then searched Dominguez’s truck and 

discovered the following items:
2

• a large bag containing 208 grams (almost half a pound) of 

methamphetamine;

• a small bag containing 0.29 grams of methamphetamine;

• a small bag containing 0.47 grams of methamphetamine;

• a third small bag, which was empty;

• a small spoon “that appeared . . . to be the size used to 

fill these smaller baggies”;

• an electronic scale with a “white substance” on it, which 

was similar in color to the recovered methamphetamine;

• a cell phone;

• a glass smoking pipe; and

• used and unused syringes.

¶ 5 The prosecution charged Dominguez with possession of a 

controlled substance with intent to distribute, possession of drug 

paraphernalia, vehicular eluding, reckless driving, and driving 

under restraint.1 At trial, Dominguez conceded all but the 

possession of a controlled substance with intent to distribute 

 1 The prosecution also charged Dominguez with aggravated motor 

vehicle theft, but the trial court granted Dominguez’s motion for 

judgment of acquittal on that count.
3

charge. The jury found Dominguez guilty of each count, and the 

court sentenced him to twelve years in prison.

II. Text Messages

¶ 6 Dominguez primarily contends the trial court erred in 

admitting text messages discovered on his cell phone because (1) 

they were inadmissible hearsay; (2) their admission violated his 

right to due process; and (3) they should have been excluded under

CRE 403. These errors, he argues, require the reversal of his 

possession of a controlled substance with intent to distribute 

conviction. We consider and reject each contention.

A. Additional Facts

¶ 7 Agent Carmichael testified that when he took the cell phone 

from Dominguez’s truck and examined it, he saw text messages 

that “concern[ed] [him].” He “relayed what [he] saw to . . . agents on 

the West Metro Drug Task Force.”

¶ 8 Agent Adrian Alderete, a member of the West Metro Drug Task 

Force, later testified that he executed a search warrant on the cell 

phone and discovered a series of text messages sent to it over a 

span of approximately two hours near the time of Dominguez’s 
4

arrest. The prosecutor moved to admit a photograph of 

Dominguez’s cell phone showing the following text messages:

• “[c]an you do 2 for 1500 if I got all of it”;

• “[y]our voicemail is full”;

• “[c]an you do that for me”;

• “[c]all me please”; and

• “[c]an you do 2 for 1600.”

¶ 9 Dominguez’s counsel objected, contending that the text

messages were inadmissible hearsay. In response, the prosecutor

argued that they were “not . . . statement[s] at all” but “in the 

nature of . . . verbal act[s],” so “hearsay doesn’t apply.”

¶ 10 The court overruled the objection, concluding that the text 

messages were not hearsay. It explained, “While arguably the texts 

are communicative in nature and an inference can be drawn from 

them, the Court would find that they are not assertions. None of 

the messages on that screen are assertions. They are all inquiries 

or questions.”

B. Hearsay

¶ 11 Dominguez says this was reversible error. He argues that the 

text messages constituted inadmissible hearsay because they were 
5

offered for the truth of the matter “impliedly asserted” in them —

that he “was a drug dealer.”2 We disagree.

1. Standard of Review

¶ 12 The parties agree that Dominguez preserved this issue but 

dispute the standard by which we review it. Dominguez argues for

de novo review, contending that “whether evidence is hearsay 

presents a legal question.” The People respond that whether the 

court erred in admitting evidence is reviewed for an abuse of 

discretion.

¶ 13 The People are correct that we review a trial court’s evidentiary 

ruling for an abuse of discretion. People v. Phillips, 2012 COA 176, 

¶ 63; see also People v. Cohen, 2019 COA 38, ¶ 10. In determining

if the court abused its discretion, however, we not only consider 

whether the court’s ruling was manifestly arbitrary, unreasonable,

or unfair, but also whether its ruling was contrary to the law. 

People v. Jackson, 2018 COA 79, ¶ 47. This latter question does

 2 In making this argument, Dominguez addresses the text messages 

together, indicating that a “statement-by-statement analysis is 

unhelpful.” The People, too, generally analyze them together. 

Accordingly, we do not conduct a separate analysis for each text 

message, but instead review them as one.
6

not require deference to the trial court. Instead, the trial court’s 

application or interpretation of the law when making an evidentiary 

ruling is a question of law we review de novo. See People v. Reed, 

216 P.3d 55, 56-57 (Colo. App. 2008); see also E-470 Pub. Highway 

Auth. v. 455 Co., 3 P.3d 18, 22 (Colo. 2000); Sos v. Roaring Fork 

Transp. Auth., 2017 COA 142, ¶ 48.

¶ 14 We therefore review de novo the trial court’s application of 

hearsay law, but, absent a misapplication of the law, the decision to 

admit evidence remains in the court’s broad discretion. See

Phillips, ¶ 63; see also Danko v. Conyers, 2018 COA 14, ¶ 26.

2. Discussion

¶ 15 Barring application of an exception, hearsay is inadmissible. 

CRE 802; People v. Glover, 2015 COA 16, ¶ 37. Hearsay is an 

out-of-court statement “offered in evidence to prove the truth of the 

matter asserted.” CRE 801(c); Phillips, ¶ 61. A statement is defined 

as “(1) an oral or written assertion or (2) nonverbal conduct of a 

person, if it is intended by him to be communicative.” CRE 801(a).

¶ 16 The evidentiary rules do not define “assertion,” leading courts 

to struggle with whether an implied assertion falls within the 

hearsay definition. A division of this court identified this “classic 
7

dilemma” in People v. Griffin, 985 P.2d 15, 17 (Colo. App. 1998). 

There, the division explained the “dilemma is how to treat a 

statement or conduct by a person out of court, not subject to 

cross-examination at trial, described by a witness at trial, from 

which a fact finder could infer a separate fact.” Id. 

¶ 17 Griffin stated that CRE 801(a) “resolves the dilemma by 

focusing solely on whether the assertion or conduct by the 

out-of-court witness was intended to imply to the testifying witness 

a separate fact in question at trial.” Id. at 17-18; see also Fed. R. 

Evid. 801 advisory committee’s note (The definition of a statement 

under the federal counterpart to CRE 801 excludes “from the 

operation of the hearsay rule all evidence of conduct, verbal or 

nonverbal, not intended as an assertion. The key to the definition 

is that nothing is an assertion unless intended to be one.”).

¶ 18 Dominguez takes issue with Griffin’s intent-based approach. 

He argues it is based on an interpretation of the commentary in 

Fed. R. Evid. 801, which is not included in CRE 801. Further, he 

notes that courts in other jurisdictions have criticized the federal

view. See, e.g., State v. Dullard, 668 N.W.2d 585, 593-95 (Iowa 

2003). But see Hernandez v. State, 863 So. 2d 484, 486 (Fla. Dist. 
8

Ct. App. 2004) (applying the intent-based approach); State v. 

Carrillo, 750 P.2d 878, 882 (Ariz. Ct. App. 1987) (same), aff’d in 

part, vacated in part on other grounds, 750 P.2d 883 (Ariz. 1988).

¶ 19 We need not revisit Griffin here. This is so because we 

conclude that the text messages were properly admitted verbal acts

(as argued by the prosecution at trial), which are not hearsay. See 

People v. Thompson, 2017 COA 56, ¶ 135; People v. Scearce, 87 P.3d 

228, 233 (Colo. App. 2003); see also United States v. 

Rodriguez-Lopez, 565 F.3d 312, 314 (6th Cir. 2009). 

¶ 20 “A verbal act is an utterance of an operative fact that gives rise 

to legal consequences.” Scearce, 87 P.3d at 233 (citation omitted). 

It’s offered not for its truth, but to show that it was made. 

Thompson, ¶ 135. Thus, verbal acts aren’t hearsay. Id.; Scearce, 

87 P.3d at 233; see also United States v. Montana, 199 F.3d 947, 

950 (7th Cir. 1999) (“Performative utterances are not within the 

scope of the hearsay rule, because they do not make any truth 

claims.”).

¶ 21 The text messages sent to Dominguez’s cell phone don’t make 

any truth claims; rather, they suggest a request to purchase 

something at a proposed price. Such statements have a legal effect 
9

regardless of their truth. See Scearce, 87 P.3d at 233 (recognizing 

examples of a verbal act include oral utterances constituting the 

offer and acceptance for a contract); see also Cloverland-Green 

Spring Dairies, Inc. v. Pa. Milk Mktg. Bd., 298 F.3d 201, 218 n.20 (3d 

Cir. 2002) (“[A] statement offering to sell a product at a particular 

price is a ‘verbal act,’ not hearsay, because the statement itself has 

legal effect.”); Little v. State, 105 A.2d 501, 503 (Md. 1954) 

(recognizing that the “verbal act of taking a bet” was not 

inadmissible hearsay); 5 Jack B. Weinstein & Margaret A. Berger, 

Weinstein’s Federal Evidence § 801.11(3) (2d ed. 2018) (examples of 

a verbal act include contract offers and illegal solicitations).

¶ 22 Even more to the point, “the purchase of a drug, legally or 

illegally, is a form of contract.” Garner v. State, 995 A.2d 694, 700 

(Md. 2010) (citation omitted). And, “[t]he . . . words of [a] . . .

would-be [drug] purchaser are . . . categorized . . . as verbal parts of 

acts . . . [that] are not considered to be assertions and do not fall 

under the scrutiny of the Rules Against Hearsay.” Id. (citation 

omitted).

¶ 23 Like similar offers or solicitations, the text messages were not 

admitted here for the truth of the matter being asserted in them 
10

(whether Dominguez could do “2 for 1500” or “2 for 1600”) or the 

truth of their arguably implied assertion (that Dominguez was 

someone who could provide “2 for 1500” or “2 for 1600”), but for the 

fact that a request to purchase something at a proposed price was 

made, which is not hearsay. Id. at 697, 704 (concluding that an 

unidentified caller’s out-of-court statement asking, “[C]an I get a 

40?” (a request to purchase cocaine) was admissible as a verbal 

act); see Rodriguez-Lopez, 565 F.3d at 315 (noting that evidence of 

“ten successive solicitations for heroin” received by the defendant 

was not offered “for [its] truth, but as evidence of the fact that [the 

solicitations] were made”); cf. State v. Chavez, 239 P.3d 761, 762-63 

(Ariz. Ct. App. 2010) (holding that text messages seeking to 

purchase drugs (“Can you deliver a ‘T’ to the house?”) were 

admissible because they were not offered to prove the truth of the 

matter asserted); State v. Connally, 899 P.2d 406, 408-10 (Haw. 

1995) (concluding that statements that the defendant would 

perform sex acts for money were “verbal acts” and not offered to 

prove the truth of the matter asserted). 
11

¶ 24 We therefore conclude that the trial court did not err in finding 

the text messages were not assertions under CRE 801 and thus 

admissible. 

C. Due Process

¶ 25 Dominguez alternatively contends that “[i]f CRE 801 aligns 

Colorado with the federal intent-based approach, then . . . the rule, 

as applied, violates his due process rights.” This is so, he 

continues, because, under federal law, the burden is on the party 

claiming an intended assertion to show that intent, which,

according to Dominguez, is fundamentally unfair and amounts to 

burden shifting.

¶ 26 Dominguez did not make this argument to the trial court and 

it is thus unpreserved. See Reyna-Abarca v. People, 2017 CO 15, 

¶ 47. But because we do not rely on the intent-based approach in 

concluding that the trial court did not err in admitting the text 

messages, we need not consider Dominguez’s due process 

contention.

D. CRE 403

¶ 27 Dominguez also contends that the trial court’s admission of 

the text messages violated CRE 403. More specifically, he argues
12

the prejudice from the text messages substantially outweighed their

probative value because the probative value depended on 

speculative assumptions which served to prejudice, confuse, or 

mislead the jury. We disagree.

¶ 28 Dominguez did not object to the admission of the text

messages under CRE 403. We thus review for plain error. People v. 

Allgier, 2018 COA 122, ¶ 30. We will not reverse under this 

standard unless the error was obvious and so undermined the 

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

the reliability of the judgment of conviction. Id.; accord Hagos v. 

People, 2012 CO 63, ¶ 14.

¶ 29 CRE 403 strongly favors the admission of evidence. People v. 

Greenlee, 200 P.3d 363, 367 (Colo. 2009). But “[e]ven relevant 

evidence is excludable if it is ‘unfairly’ prejudicial . . . .” People v. 

Brown, 313 P.3d 608, 615 (Colo. App. 2011) (citation omitted). To 

be excluded, “the danger of unfair prejudice must substantially 

outweigh the legitimate probative value of the evidence.” People v. 

James, 117 P.3d 91, 94 (Colo. App. 2004).

¶ 30 In reviewing the disputed evidence, we “must afford [it] the 

maximum probative value attributable by a reasonable fact finder 
13

and the minimum unfair prejudice to be reasonably expected.” 

People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). Evidence is not 

unfairly prejudicial “simply because it damages the defendant’s 

case” but, instead, must have an “undue tendency to suggest a 

decision on an improper basis, commonly but not necessarily an 

emotional one, such as sympathy, hatred, contempt, retribution, or 

horror.” People v. Dist. Court, 785 P.2d 141, 147 (Colo. 1990).

¶ 31 Nothing in the text messages here was inflammatory or incited 

the jury to render a verdict on an improper basis. The text 

messages plainly suggest an offer to purchase “2 for 1500” or “2 for 

1600,” and giving these messages their maximum probative value, 

such a solicitation was relevant to the charged crimes. While the 

texts may have hurt Dominguez’s defense, we don’t agree that they 

were unfairly prejudicial. 

¶ 32 We are unpersuaded by Dominguez’s contention that People v. 

Franklin, 782 P.2d 1202 (Colo. App. 1989), requires a different 

result. In Franklin, a prosecution witness testified that “just before 

the [charged] shooting, he tried to follow the victim out the front 

door but was prevented from doing so by an ‘unnamed man’ who 

had been seen talking to defendant,” and this man “told the 
14

witness, ‘Now is not a good time to go out,’ then counted off three 

shots as they were fired.” Id. at 1204. Given that the probative 

value of these statements “follows only if a number of speculative 

assumptions about the statements [were] made,” the division held 

that “they could only have served to prejudice, confuse, or mislead 

the jury,” and concluded that they were inadmissible under CRE 

403. Id. at 1206.

¶ 33 Unlike the statements in Franklin, we don’t agree that the text 

messages, sent directly to Dominguez’s cell phone, required “a 

number of speculative assumptions” that rendered them unfairly 

prejudicial under CRE 403. Thus, we perceive no error, let alone 

plain error, in the admission of the text messages.

III. Lay Witness Testimony

¶ 34 Agents Carmichael and Alderete testified at trial. The 

prosecution didn’t qualify either as an expert witness. Dominguez 

contends that the trial court erred in allowing them to offer expert 

testimony under the guise of lay testimony. We see no reversible 

error.
15

A. Additional Facts

¶ 35 The prosecutor asked Agent Carmichael why he had taken the

electronic scale from Dominguez’s truck. Dominguez’s counsel

objected, arguing that the question “calls for an expert opinion.” 

The court overruled the objection, and Agent Carmichael testified, 

“[f]rom [his] training and experience, [he] kn[e]w that electronic 

scales are often used to weigh drugs in order to distribute drugs. 

You can see on this scale that there is a white substance on the 

scale. This is consistent with a scale used for drug distribution.”

¶ 36 Later, the prosecutor asked Agent Alderete about the 

“significance” of the text messages “2 for 1500” and “2 for 1600”

found on Dominguez’s cell phone. Dominguez’s counsel objected 

“to that as expert testimony.” In response, the court instructed the 

prosecutor to “[l]ay further foundation.” After discussing Agent 

Alderete’s police training and experience with the West Metro Drug 

Task Force, the prosecutor again asked, “so based on your training 

and experience, . . . what, if any, significance did [these] [text] 

message[s] have to you?” 

¶ 37 Over Dominguez’s counsel’s renewed objection, Agent Alderete 

testified, 
16

So in speaking about methamphetamine, . . . it 

would lead [him] to believe . . . that this person 

is asking for 2 ounces of methamphetamine. 

An ounce of methamphetamine runs, on the 

low end, . . . about $500; on the high end, you 

might pay a thousand, 1100. So this fits right 

in that range of a couple of ounces of 

methamphetamine.

¶ 38 Agent Alderete later testified, without objection, that over an 

ounce of methamphetamine was “[n]ot typically . . . what we see” for 

personal use. And, regarding requests for the purchase of

methamphetamine, he testified, again without objection, “[t]ypically 

if you have a customer you deal with all the time and you start 

talking numbers, it’s known. It’s very rare for somebody to say 

methamphetamine, cocaine, heroin. There’s always code words.

Most of the time there’s code words that are sent.”

B. Standard of Review and Applicable Law

¶ 39 A lay witness may testify “in the form of . . . opinions or 

inferences which are (a) rationally based on the perception of the 

witness, (b) helpful to a clear understanding of the witness’[s]

testimony or the determination of a fact in issue, and (c) not based 

on scientific, technical, or other specialized knowledge.” CRE 701. 

But when a witness’s testimony requires scientific, technical, or 
17

specialized knowledge, the witness must be qualified as an expert 

by virtue of his “knowledge, skill, experience, training, or 

education.” CRE 702.

¶ 40 To determine whether a witness’s testimony constitutes a lay 

opinion under CRE 701 or an expert opinion under CRE 702, we 

look to “the basis for the witness’s opinion.” Venalonzo v. People, 

2017 CO 9, ¶ 22. If the testimony is expected “to be based on an 

ordinary person’s experiences or knowledge, then the witness is 

offering lay testimony.” Id. at ¶ 23. But when the witness’s

testimony “could not be offered without specialized experiences, 

knowledge, or training, then the witness is offering expert 

testimony.” Id.

¶ 41 We review a trial court’s rulings admitting witness testimony 

for an abuse of discretion. People v. Bryant, 2018 COA 53, ¶ 55.

C. Discussion

¶ 42 Given that Agent Carmichael’s opinion on the electronic scale

was expressly based on his “training and experience,” we agree that 

this was an expert opinion. See People v. Stewart, 55 P.3d 107, 124 

(Colo. 2002) (holding that where “an officer’s testimony is based not 

only on her perceptions and observations of the crime scene, but 
18

also on her specialized training or education, she must be properly 

qualified as an expert before offering testimony that amounts to 

expert testimony”); see also People v. Kubuugu, 2019 CO 9, ¶ 14 

(concluding that a police officer’s opinion testimony based on “his 

training and experience” constituted expert testimony). 

¶ 43 Agent Alderete’s opinions regarding the price range for 

methamphetamine, the amount of methamphetamine for personal 

use, and use of code words when purchasing methamphetamine, 

offered after he testified at length regarding his training and 

experience with the drug task force, were also improper expert 

opinions. See Kubuugu, ¶ 14; Stewart, 55 P.3d at 124; see also

Bryant, ¶ 64 (“A hallmark of expert testimony by law enforcement 

officers is that an officer testifies as to his extensive experience in 

the field.”); People v. Veren, 140 P.3d 131, 138-39 (Colo. App. 2005) 

(concluding that the police officers’s testimony that “possession of a 

large amount of nonprescription pseudoephedrine is indicative of a 

person’s intent” to manufacture methamphetamine was expert 

testimony).

¶ 44 We aren’t persuaded otherwise by the People’s contention that 

Agents Carmichael’s and Alderete’s opinions were within an 
19

ordinary person’s knowledge because of news coverage and 

mainstream entertainment (including fictional television shows) 

that have discussed or dramatized drug distribution. While such

topics may be generally more prevalent in our society, we can’t 

agree that Agents Carmichael’s and Alderete’s opinions, admittedly 

based on their specialized police training and experience, 

encompass an ordinary person’s experiences or knowledge. 

¶ 45 Because the agents gave expert testimony under the guise of 

lay testimony, we conclude the trial court abused its discretion in 

admitting it. See Kubuugu, ¶ 14; Stewart, 55 P.3d at 124. 

¶ 46 Reversal, however, is required only if the improper expert 

testimony substantially influenced the verdict or affected the 

fairness of the proceedings.3 Hagos, ¶ 12; Stewart, 55 P.3d at 124. 

“[T]he strength of the properly admitted evidence supporting the 

guilty verdict is clearly an ‘important consideration’ in the harmless 

 3 We recognize that Dominguez did not object to Agent Alderete’s 

testimony on personal use and code words and that the People 

dispute Dominguez’s preservation of his objection to Agent 

Carmichael’s testimony. But because we conclude that the 

admission of these improper statements was harmless, we need not 

determine this preservation issue or conduct a separate plain error 

analysis.
20

error analysis.” Pernell v. People, 2018 CO 13, ¶ 25 (citation 

omitted). So, when the evidence overwhelmingly shows guilt, an 

error is generally harmless. Id. That occurred here.

¶ 47 Dominguez defended against the possession of a controlled 

substance with intent to distribute count on the theory that he had 

no intent to distribute the methamphetamine.4 But overwhelming 

evidence showed otherwise.

¶ 48 Dominguez possessed a bag with nearly half a pound of 

methamphetamine, small bags containing less than one gram of 

methamphetamine, a small spoon “that appeared . . . to be the size 

used to fill these smaller baggies,” and an electronic scale with a 

white substance on it. As well, the properly admitted text messages 

circumstantially supported the inference that Dominguez 

distributed drugs.

¶ 49 Of even greater consequence, Dominguez’s own statements 

demonstrated an intent to distribute methamphetamine. First, 

following his arrest, Dominguez admitted to a police agent that the 

 4 At trial, Dominguez conceded guilt on the possession of drug 

paraphernalia, vehicular eluding, reckless driving, and driving 

under restraint counts. And he does not contend that the improper 

expert testimony requires the reversal of these convictions.
21

methamphetamine “cost him $4,000” but that “a bag that size 

would cost $6,800 on the street.” This testimony also rendered 

Agent Alderete’s testimony on the price range for methamphetamine 

cumulative, as Dominguez’s estimate equates to $850 per ounce, 

which is in the price range described by Agent Alderete. See 

Bryant, ¶ 77 (finding the admission of improper expert testimony 

harmless where it was cumulative of other evidence admitted at 

trial).

¶ 50 Second, in a recorded jail call, Dominguez told an unidentified 

female that he (1) was going to give her “some information that’s 

gonna be useful”; (2) had “$11,000 out there”; (3) had put “all the 

numbers together and it [came] out to $11,000 not including what 

they found in the truck”; (4) was going to send her a “list” that 

showed how to “get ahold of everybody”; and (5) had received a text 

message from “Cash” before his arrest saying that he needed 

Dominguez to come over because he had “someone who was 

looking.”

¶ 51 Given all this evidence, we can’t agree with Dominguez that 

the agents’s limited testimony about the electronic scale, price 

range for methamphetamine, drug quantities for personal use, and 
22

the use of code words substantially influenced the verdict or 

affected the fairness of the trial. See Stewart, 55 P.3d at 124-25 

(holding improper admission of police officers’s expert testimony 

harmless given the overwhelming evidence of guilt); see also People 

v. Froehler, 2015 COA 102, ¶ 42; cf. Kubuugu, ¶ 16 (concluding that 

improperly admitted expert testimony was not harmless error when 

that testimony “was the only evidence that specifically refuted” the 

defendant’s exculpatory testimony).

¶ 52 We therefore conclude that Agents Carmichael’s and Alderete’s

improperly admitted expert testimony was harmless.

IV. Prosecutorial Misconduct

¶ 53 Dominguez next contends the prosecutor committed reversible 

misconduct in rebuttal closing argument. We are not persuaded.

¶ 54 The court correctly instructed the jury before closing argument

that 

reasonable doubt means a doubt based upon 

reason and common sense which arises from a 

fair and rational consideration of all of the 

evidence, or the lack of evidence, in the case. 

It is a doubt which is not vague, speculative or 

imaginary doubt, but such a doubt as would 

cause reasonable people to hesitate to act in 

matters of importance to themselves.
23

¶ 55 During rebuttal closing argument, the prosecutor made the 

following comment on this instruction:

Whether it’s such a doubt as would cause 

reasonable people to hesitate to act in matters 

of importance to themselves, and you can each 

individually think, what would be a matter of 

importance to myself, maybe a major life 

decision, maybe a major purchase. Whatever 

it is that would be a matter of importance to 

yourself, would you hesitate.

Well, of course you would. Nobody makes 

snap decisions about something that’s 

important to them or important decisions. . . .

Do you not act, because if it’s that kind of a 

doubt, that’s a reasonable doubt.

(Emphasis added.)

¶ 56 Dominguez contends this comment “redefin[ed] ‘reasonable 

doubt’” and warrants reversal. Because his attorney did not object 

to the comment, we review for plain error. See People v. Ujaama,

2012 COA 36, ¶ 37. To be plain, the error must be (1) obvious and 

(2) so grave that it casts serious doubt on the reliability of the 

judgment of conviction. Id. at ¶ 43.

¶ 57 Even if we assume (without deciding) that the prosecutor 

misstated the law on reasonable doubt, see People v. Van Meter, 
24

2018 COA 13, ¶ 31, we conclude reversal is not warranted for two 

reasons.

¶ 58 First, the prosecutor’s reasonable doubt comment occurred 

only once during rebuttal closing argument, and it was not 

repeated. See People v. Carter, 2015 COA 24M-2, ¶ 60 (finding no 

plain error in prosecutor’s brief improper comment on reasonable 

doubt standard); see also People v. Grant, 174 P.3d 798, 811 (Colo. 

App. 2007) (concluding that the prosecutor’s one brief misstatement 

of the law in closing argument did not constitute plain error).

¶ 59 Second, the trial court correctly instructed the jury orally and 

in writing on reasonable doubt, “neutraliz[ing]” the prosecutor’s 

improper comment. People v. Santana, 255 P.3d 1126, 1136 (Colo. 

2011). And before making the rebuttal comment, the prosecutor 

referred to this instruction. Absent record evidence to the contrary, 

we presume that the jury followed the court’s instruction. See Van 

Meter, ¶ 33; Carter, ¶ 59.

¶ 60 For these reasons, we see no plain error in the prosecutor’s 

single reasonable doubt comment.
25

V. Merger

¶ 61 Last, Dominguez contends that, as a lesser included offense, 

his reckless driving conviction must merge with his vehicular 

eluding conviction. Under the circumstances here, we don’t agree.

¶ 62 Dominguez didn’t preserve this issue, so we review for plain 

error. Reyna-Abarca, ¶ 47.

¶ 63 The Double Jeopardy Clauses of the United States and 

Colorado Constitutions protect a defendant from suffering multiple 

punishments for the same offense. U.S. Const. amend. V; Colo. 

Const. art. II, § 18; Reyna-Abarca, ¶ 49. A defendant, therefore, 

may not be convicted of a lesser included offense when “the 

elements of the lesser offense are a subset of the elements of the 

greater offense, such that the lesser offense contains only elements 

that are also included in the elements of the greater offense.” 

Reyna-Abarca, ¶ 64; see also Jackson, ¶ 73. But “[m]ultiple 

convictions for two separate offenses the elements of one of which 

constitute a subset of the elements of the other can clearly stand if 

the offenses were committed by distinctly different conduct.” People 

v. Rock, 2017 CO 84, ¶ 17; accord Jackson, ¶ 73.
26

¶ 64 “A person who drives a motor vehicle . . . in such a manner as 

to indicate either a wanton or a willful disregard for the safety of 

persons or property is guilty of reckless driving.” § 42-4-1401(1), 

C.R.S. 2018. “[R]eckless driving is a lesser included offense of 

vehicular eluding.” People v. Esparza-Treto, 282 P.3d 471, 478 

(Colo. App. 2011); see also § 18-9-116.5(1), C.R.S. 2018 (elements 

of vehicular eluding).

¶ 65 But, here, the undisputed evidence shows that, though not 

separately charged, Dominguez committed two separate and 

temporally distinct instances of reckless driving. Cf. Rock, ¶ 17 

(“Separate convictions for even the same offense are permissible if it 

was committed more than once.”); Jackson, ¶ 82 (recognizing that,

to determine whether separate offenses were committed, “we 

examine whether the conduct occurred at different locations, was 

the product of new volitional departures, was separated by time, or 

was separated by intervening events”).

¶ 66 In opening statements, Dominguez’s counsel told the jury that 

at the house of Dominguez’s daughter’s grandmother, “Dominguez 

sped off driving recklessly without his license and got into the chase 

with the police.”
27

¶ 67 Consistent with Dominguez’s attorney’s opening statement, 

the prosecution presented evidence of two distinct reckless driving 

incidents. First, testimony about Dominguez leaving the home of 

his daughter’s grandmother established the following:

• Dominguez “took off at a very high rate of speed, and he 

didn’t stop. There’s a stop sign at the bottom of [the] hill, 

and he hit the dip[s] . . . and everything just came flying 

out of the truck and landed back down.” 

• Dominguez “sped off . . . and when he did that, he hit the 

dip of a hill . . . and nearly flipped the truck.”

• He was driving “[r]ecklessly and fast.”

• “He placed the vehicle in drive[,] floored it[,] took off, and 

hit the dip at the bottom of . . . the hill and almost rolled 

the truck there. The truck went on two wheels spun 

around, fishtailed for a while and then he straightened it 

out and continued on.”

¶ 68 Second, Agent Garza testified that she later saw Dominguez’s 

truck pull up beside her and that she followed the truck for a short 

time in traffic before attempting a traffic stop. She stated only at 

that point did Dominguez “accelerate” and “pull[] away from” her. 
28

She described Dominguez driving fifteen to almost forty miles per 

hour over the speed limit, weaving around other cars, and driving in 

the median.

¶ 69 With respect to the two incidents, in closing argument 

Dominguez’s counsel told the jury, “you heard the evidence, he 

peeled away from the house” and after the agents activated their 

sirens, he “led them on a high-speed chase.” 

¶ 70 Thus, the jury heard evidence (not disputed by Dominguez) 

that he recklessly drove away from his daughter’s grandmother’s 

house and then, at some later point and in a different location, 

recklessly led the police on a high-speed chase. Given the break in 

time and space between these two reckless driving incidents, the 

undisputed evidence supported “distinctly different conduct” 

between the reckless driving and vehicular eluding convictions.

¶ 71 We therefore can’t conclude that the trial court plainly erred in 

not sua sponte merging these convictions. See Rock, ¶ 17; cf.

People v. Gingles, 2014 COA 163, ¶ 42 (concluding that because the 

evidence supported two separate convictions, there was no double 

jeopardy violation).
29

VI. Conclusion

¶ 72 We affirm the judgment of conviction and sentence.

JUDGE MÁRQUEZ and JUDGE MILLER concur.