SUMMARY

November 2, 2023

2023CA102

No. 22CA0331, People v. Salazar — Criminal Law — Jury 

Instructions — Sexual Assault on a Child by One in a Position 

of Trust — Mens Rea — Knowingly

A division of the court of appeals considers a criminal 

defendant’s challenge to the trial court’s jury instructions defining 

the offense of sexual assault on a child by one in a position of trust 

under section 18-3-405.3(1), C.R.S. 2023. Specifically, he contends 

that the instructions were erroneous because they failed to apply 

the culpable mental state of the offense (“knowingly”) to the element 

that he occupied a position of trust with respect to the child. 

Addressing a novel issue in Colorado, the division concludes that 

the culpable mental state does not apply to the position of trust 

element. Because the division also rejects his other claims, the 

division affirms the judgment. 

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.
COLORADO COURT OF APPEALS 2023CA102

Court of Appeals No. 22CA0331

Weld County District Court No. 19CR528

Honorable James F. Hartmann, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Adrian Elijah Salazar,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE NAVARRO

Grove and Bernard*, JJ., concur

Announced November 2, 2023

Philip J. Weiser, Attorney General, Alejandro Sorg, Assistant Attorney General, 

Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, 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. 2023. 
1

¶ 1 Defendant, Adrian Elijah Salazar, appeals the judgment of 

conviction imposed on jury verdicts finding him guilty of several 

offenses based on his sexual abuse of two children. Among other 

offenses, he was convicted of multiple counts of sexual assault on a 

child by one in a position of trust. On appeal, Salazar contends 

that the trial court’s jury instructions were erroneous because they 

failed to apply the culpable mental state of this offense (“knowingly”) 

to the element that he occupied a position of trust with respect to 

the children. We disagree and hold that the culpable mental state 

does not apply to the position of trust element. Because we also 

reject Salazar’s other challenges to the judgment, we affirm. 

I. Factual and Procedural History

¶ 2 The children at issue, M.R. and M.M., were less than fifteen 

years old at the time of the offenses. M.R.’s mother and Salazar 

were friends who met through their work. Salazar helped around 

M.R.’s house and ultimately spent time alone with him. M.M. is

Salazar’s cousin; Salazar also spent significant time alone with him. 

When alone with M.R. or M.M., Salazar played video games with 

them, took them to restaurants and to other activities, and had

them stay overnight at his home. 
2

¶ 3 After suspicions arose about the nature of Salazar’s 

relationships with the boys, they underwent forensic interviews. 

During their initial interviews, both M.M. and M.R. denied any 

sexual abuse. At a later interview, however, M.M. disclosed that 

Salazar had sexually abused him.

¶ 4 Based on that interview, the police arrested and interviewed

Salazar. He confessed to multiple instances of sexual contact with 

both M.M. and M.R., including acts of sexual contact with M.R. of 

which the police were then unaware (but which M.R. later 

confirmed).

¶ 5 Officers then conducted a second forensic interview with M.R.,

who again did not disclose any sexual abuse. Shortly before trial,

however, M.R. disclosed Salazar’s sexual assaults of him, and M.R.

testified to those assaults at trial. M.M. also testified that Salazar 

had sexually assaulted him. Salazar did not testify at trial.

¶ 6 A jury convicted Salazar of sexual assault on a child, sexual 

assault on a child as part of a pattern of abuse, sexual assault on a 

child by one in a position of trust, and sexual assault on a child 
3

who was less than fifteen years old by one in a position of trust and 

as part of a pattern of abuse.1

¶ 7 On appeal, Salazar contends that the trial court

(1) erroneously instructed the jury on the culpable mental state for 

the position of trust charges; (2) admitted improper character 

evidence; (3) admitted improper testimony concerning probable 

cause that he committed the offenses; and (4) permitted

prosecutorial misconduct. We do not detect reversible error. 

II. Alleged Instructional Error

¶ 8 Salazar argues that the trial court erred by failing to instruct 

the jury that the culpable mental state of “knowingly” applies to the 

position of trust element of the offense of sexual assault on a child 

by one in a position of trust. We disagree. 

A. Standard of Review

¶ 9 We review de novo whether the jury instructions adequately 

informed the jury of the governing law. People v. Garcia, 2021 COA 

1 The prosecution also charged Salazar with twenty-seven counts of 

sexual exploitation of a child based on his possession of sexually 

explicit videos depicting children. Those counts were severed from 

the other charges. Salazar pleaded guilty to two exploitation counts 

after the jury’s verdicts on the other charges. 
4

80, ¶ 9, aff’d, 2023 CO 30. We also review de novo “questions of 

statutory interpretation.” Manjarrez v. People, 2020 CO 53, ¶ 19. 

While trial courts have “broad discretion to determine the form and 

style of jury instructions,” an elemental instruction “should 

substantially track the language of the statute describing the 

crime.” People v. Grudznske, 2023 COA 36, ¶ 48 (citation omitted). 

B. Relevant Law

¶ 10 “In interpreting a statute, we give effect to the intent of the 

legislature.” Gorman v. People, 19 P.3d 662, 665 (Colo. 2000). To

do so, “[w]e begin with the plain language of the statute, reading the 

words and phrases in context and construing them according to 

their common usage.” Manjarrez, ¶ 19. 

¶ 11 “The power to define criminal conduct and to establish the 

legal components of criminal liability is vested in the General 

Assembly.” Gorman, 19 P.3d at 665. The culpable mental state of a 

criminal statute “may speak to conduct, or to circumstances, or to 

result, or to any combination thereof, but not necessarily to all 

three.” People v. Cross, 127 P.3d 71, 74 (Colo. 2006), abrogated in 

part on other grounds by Counterman v. Colorado, 600 U.S. 66, 143 

S. Ct. 2106 (2023). “When a statute defining an offense prescribes 
5

as an element thereof a specified culpable mental state, that mental 

state is deemed to apply to every element of the offense unless an 

intent to limit its application clearly appears.” § 18-1-503(4), C.R.S.

2023. Under this rule and its exception, we must carefully consider 

whether the legislature intended that the expressed culpable mental 

state of the offense applies only to certain elements. Cross, 127 

P.3d at 74.

¶ 12 Section 18-3-405.3(1), C.R.S. 2023, provides,

Any actor who knowingly subjects another not 

his or her spouse to any sexual contact 

commits sexual assault on a child by one in a 

position of trust if the victim is a child less 

than eighteen years of age and the actor 

committing the offense is one in a position of 

trust with respect to the victim. 

A person acts “knowingly” with respect to conduct or circumstances

described by a statute when “he is aware that his conduct is of 

such nature or that such circumstance exists.” § 18-1-501(6), 

C.R.S. 2023. One in a “position of trust” includes, but is not 

limited to, 

any person who is a parent or acting in the 

place of a parent and charged with any of a 

parent’s rights, duties, or responsibilities 

concerning a child, including a guardian or 

someone otherwise responsible for the general 
6

supervision of a child’s welfare, or a person 

who is charged with any duty or responsibility 

for the health, education, welfare, or 

supervision of a child, including foster care, 

child care, family care, or institutional care, 

either independently or through another, no 

matter how brief, at the time of an unlawful 

act.

§ 18-3-401(3.5), C.R.S. 2023.

C. Relevant Facts

¶ 13 The trial court gave the jury the following instruction for all

counts of sexual assault on a child by one in a position of trust: 

The elements of the crime of Sexual Assault on 

a Child by One in a Position of Trust as 

charged in counts 1, 2 (referring to [M.M.])[,] 5, 

and 6 (referring to [M.R.]) are:

1. That Adrian Elijah Salazar, 

2. in the State of Colorado, at or about the 

date and place charged,

3. knowingly, 

a. subjected ([M.M. or M.R.]), a child 

under eighteen years of age, who was not 

his spouse

b. to any sexual contact, and

4. Adrian Elijah Salazar was in a position of 

trust with respect to ([M.M. or M.R.]). 
7

The court also instructed the jury on the statutory definition of 

“knowingly” as well as the meaning of one in a “position of trust.”

The jury returned guilty verdicts on all four position of trust counts. 

D. Application

¶ 14 We reject Salazar’s contention that the court erroneously 

instructed the jury by not wording the instruction so as to apply the

culpable mental state of “knowingly” to the position of trust element 

of sexual assault on a child by one in a position of trust. We hold, 

as an apparent matter of first impression, that the mental state of 

“knowingly” does not apply to the position of trust element.

¶ 15 Although “knowingly” presumptively applies to every element 

of an offense when a statute prescribes this mental state, “this 

general rule contains an exception that applies to this case.” Cross, 

127 P.3d at 77; see § 18-1-503(4). The structure of section 18-3-

405.3(1) makes this plain. See Cross, 127 P.3d at 76-77 

(considering the “statutory phraseology,” the statute’s “actual 

wording,” and the statement of legislative intent when deciding that 

the prescribed mental state of “knowingly” did not apply to all 
8

elements).2 “Knowingly” appears in the independent clause defining 

the conduct constituting sexual assault on a child by one in a 

position of trust: “Any actor who knowingly subjects another not his 

or her spouse to any sexual contact commits [this offense].” § 18-3-

405.3(1). Hence, “knowingly” applies to this conduct.

¶ 16 The position of trust element, however, is offset by the 

conjunction “if” and appears in a different clause. § 18-3-405.3(1). 

Grammatically, “if” is widely understood to introduce a conditional 

clause, which is a clause that states a condition necessary “for the 

truth or occurrence of the main statement of a sentence.” United 

States v. Flores, 664 F. App’x 395, 399 (5th Cir. 2016) (citation 

omitted). This separate conditional clause describes the 

2 In Counterman v. Colorado, 600 U.S. 66, ___, 143 S. Ct. 2106, 

2111 (2023), the United States Supreme Court addressed a 

Colorado stalking statute identical to the one at issue in People v. 

Cross, 127 P.3d 71 (Colo. 2006), and decided that the First 

Amendment requires proof that the defendant had some subjective 

understanding of the threatening nature of his statements. But the 

Court did not mandate a mental state of “knowingly,” concluding 

instead that a mental state of recklessness was sufficient. See 

Counterman, 600 U.S. at ___, 143 S. Ct. at 2117-18. In any event, 

the Court’s constitutional analysis has no bearing on the Colorado 

Supreme Court’s interpretation of the legislature’s intent in the 

statute at issue in Cross, a question of Colorado law. See Willhite v. 

Rodriguez-Cera, 2012 CO 29, ¶ 9 (“[T]his court is the final authority 

on questions of Colorado law.”).
9

circumstances necessary for commission of the offense — including

“the actor committing the offense is one in a position of trust with 

respect to the victim.” § 18-3-405.3(1). Because “knowingly” does 

not appear in that separate clause, “knowingly” does not apply to 

this circumstance.3 The trial court’s instruction here accurately 

tracked the statutory language with respect to the position of trust 

element. See Cross, 127 P.3d at 77 (“The trial court’s instruction 

possesses the virtue of utilizing the statute’s actual language.”); 

Garcia, ¶ 10 (“Instructions that accurately track the language of the 

applicable statute are generally sufficient.”).4

3 In his opening brief, Salazar acknowledges that the position of 

trust element represents an essential circumstance of the offense, 

which he also describes as the accused’s “parent-like status” over a 

child. To the extent Salazar changes course in his reply brief 

(without explanation) and says this element defines conduct 

essential to the offense, we are not persuaded. As its name implies, 

the “position of trust” element refers to a circumstance or situation

of a person, not to any particular action that person takes. See 

People v. Roggow, 2013 CO 70, ¶ 21 (explaining that the objective of 

the position of trust statute is “to protect vulnerable children from 

adult offenders uniquely situated to exploit those children”) 

(emphasis added).

4 The elemental instruction here seemed to apply “knowingly” to the 

element of the victim’s age. Because neither party argues that this 

was erroneous, we express no opinion on that question.
10

¶ 17 Bolstering our view are decisions addressing statutes with 

analogous structures. For instance, the decision in Grudznske, 

¶ 63, concerned the extreme indifference murder and extreme 

indifference assault statutes. A division of this court concluded 

that “the clear structure of the extreme indifference statutes 

demonstrate[s] that knowingly applies only to the action and 

outcome elements of the statutes, not the circumstances element.” 

Id. at ¶ 65. In support, the division explained that the 

circumstances element (“[u]nder circumstances evidencing an 

attitude of universal malice manifesting extreme indifference to the 

value of human life generally,” § 18-3-102(1)(d), C.R.S. 2023) 

appeared in a different clause than “knowingly” and the action and 

outcome elements (“knowingly engages in conduct which creates a 

grave risk of death to a person, or persons, other than himself, and 

thereby causes the death of another,” id.). Grudznske, ¶ 65. 

¶ 18 Additionally, in the statute examined in Copeland v. People, 2 

P.3d 1283 (Colo. 2000), the mental states specified by the fourth 

degree arson statute (“knowingly or recklessly”) appeared before 

both the proscribed conduct (“starts or maintains a fire . . . on his 

own property or that of another”) and the proscribed result (“and by 
11

so doing places another in danger of death or serious bodily 

injury”). Id. at 1284 (quoting § 18-4-105(1), C.R.S. 2023). Still, our 

supreme court concluded that the mental state requirement did not 

apply to the result element because the statute’s “phraseology . . . 

demonstrate[d] the legislature’s intent to hold the arsonist 

responsible for the fire’s result, regardless of the arsonist’s 

awareness of the fire’s danger to other persons or property.” Id. at 

1286; see also People v. Benzor, 100 P.3d 542, 544 (Colo. App. 

2004) (holding that, because “knowingly” appeared only in the 

conduct clause of the statute but not in the circumstance clause, 

the legislature intended that the “mental state ‘knowingly’ apply 

only to the conduct element of the crime of escape following 

conviction”); People v. Metcalf, 926 P.2d 133, 137-38 (Colo. App. 

1996) (concluding that neither the specified mental state of “intent” 

nor an implied mental state of “knowingly” applied to all elements of 

the statute proscribing violation of a custody order).

¶ 19 Contrary to Salazar’s view, the statute here is not like the one

at issue in Auman v. People, 109 P.3d 647 (Colo. 2005), and People 

v. Bornman, 953 P.2d 952 (Colo. App. 1997). At the time of those 

cases, the relevant theft statute said, in part, that “[a] person 
12

commits theft when he knowingly obtains or exercises control over 

anything of value of another without authorization.” § 18-4-401(1), 

C.R.S. 2004. The mental state of “knowingly” appeared in close 

proximity to the disputed element at issue — “without 

authorization.” Given this proximity (the mental state and the 

circumstance appeared in the same clause), the courts recognized 

that “knowingly” applied to the “without authorization” 

circumstance. See Auman, 109 P.3d at 663-64; Bornman, 953 P.2d 

at 954. In this case, however, the position of trust element in 

section 18-3-405.3 appears in an entirely separate clause from the 

mental state requirement and not near it. So the mental state 

requirement does not apply to the position of trust element.

¶ 20 Our interpretation also aligns with the purposes behind the 

statute. Cf. Metcalf, 926 P.2d at 138 (noting that the division’s 

plain language reading of a statute furthered the statute’s purpose 

of protecting children from those who intend to deprive the lawful 

custodian of custody of the child). The position of trust statute 

“reflect[s] the General Assembly’s overarching intent to target those 

offenders who are entrusted with special access to a child victim 

and who exploit that access to commit an offense against the child.” 
13

Manjarrez, ¶ 23 (quoting People v. Roggow, 2013 CO 70, ¶ 15). The 

legislature has recognized that “a child is more vulnerable to abuse 

if an offender is known to the child or is entrusted with the care of 

the child by one who is otherwise responsible for that care.” Id. at 

¶ 24 (citation omitted). Regardless of whether a person knows or

subjectively believes they are in a position of trust as defined by 

statute, “[a] person in a position of trust is more likely to be alone 

with a child, successfully lure a child to a place of isolation, or 

manipulate a child to submit to abuse or keep it secret.” Id.

(citation omitted).

¶ 21 Accordingly, the legislature “intended to target adults who, by 

virtue of their position relative to the victim, are trusted to be alone 

with, and responsible for, a child.” Id. at ¶ 25; see also Pellman v. 

People, 252 P.3d 1122, 1127 (Colo. 2011) (“In adopting the position 

of trust statute, the legislature focused on those instances in which 

a defendant has gained access to a child through the position of 

trust he or she holds.”). And “a defendant need not be expressly

charged with a particular duty or responsibility over the child at the 

time of the unlawful act in order to occupy a position of trust.” 

Roggow, ¶ 2 (emphasis added). Rather, “a defendant may occupy a 
14

position of trust with respect to the victim where an existing 

relationship or other conduct or circumstances establish that the 

defendant is entrusted with special access to the child victim.” Id.;

see id. at ¶ 21 (“To hold otherwise would limit the statute’s 

otherwise broad definition of ‘position of trust’ and undermine its 

larger objective to protect vulnerable children from adult offenders 

uniquely situated to exploit those children.”). Hence, when an 

offender occupies a position of trust with respect to a child, the 

legislature’s intent to protect the child in this circumstance depends 

in no way on whether the offender subjectively believes they are in a 

position of trust. Cf. Gorman, 19 P.3d at 667 (“In analogous 

circumstances, the defendant’s awareness of the victim’s age is not 

the focus of the statute’s mens rea requirement. The legislature 

holds the defendant responsible for the offense if the defendant 

engaged in the prohibited conduct and the victim’s age fell within 

the statutorily defined age element.”).

¶ 22 We recognize that the relevant model jury instruction may 

imply that “knowingly” applies to the position of trust element of 

this offense. See COLJI-Crim. 3-4:40 (2022). But courts are not 

bound by the model instructions because they are not law and are 
15

not authoritative. Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 

2009); see Grudznske, ¶ 66 (“Nor do we reach a contrary conclusion 

based on the fact that the model jury instruction used knowingly to 

apply to the circumstances element of the extreme indifference 

offenses.”). Instead, courts should “‘give weight’ to the model 

instructions but must ultimately ensure that an instruction tracks 

the language of the statute.” Grudznske, ¶ 66 (citation omitted); see

Garcia v. People, 2019 CO 64, ¶ 22 (explaining that, because “the 

model instructions weren’t ‘approved as accurate reflections of the 

law’ and were merely ‘intended as helpful resource material,’” they 

“are not a safe harbor that insulates instructional error from 

reversal”) (quoting COLJI-Crim. Preface (2008)). Here, the trial 

court’s instruction followed the language of the statute. 

¶ 23 In sum, because section 18-3-405.3(1) does not apply the 

“knowingly” mental state to the position of trust element of the 

statute, the elemental instruction here was correct.

III. Alleged Character Evidence

¶ 24 Salazar contends that the trial court violated CRE 404(a) by

admitting a portion of his recorded interrogation video that 
16

indicated his bad character for liking “younger guys.” We do not 

discern reversible error. 

A. Relevant Principles

¶ 25 All relevant evidence is admissible unless otherwise provided

by constitution, statute, or rule. See People v. Kern, 2020 COA 96, 

¶ 12; CRE 402. “Evidence of a person’s character or a trait of his 

character is not admissible for the purpose of proving that he acted 

in conformity therewith on a particular occasion,” except in a few 

circumstances that do not apply here. CRE 404(a). Character 

evidence under CRE 404(a) “is a generalized description of a 

person’s disposition, or of the disposition in respect to a general 

trait, such as honesty, temperance or peacefulness, that usually is 

regarded as meriting approval or disapproval.” People v. Trujillo, 

2015 COA 22, ¶ 11 (citation omitted). 

¶ 26 Salazar adequately preserved this issue. While defense 

counsel did not cite CRE 404(a) specifically when objecting to the 

material at issue, counsel argued that the pertinent portion of the 

video “implie[d] a general character and a propensity to commit the 

types of assault and offenses charged by the People[,] which would 

not be admissible.” This argument implicated CRE 404(a). 
17

¶ 27 Because Salazar preserved the claim, we review any violation 

of CRE 404(a) under the harmless error standard applicable to

nonconstitutional error. See Yusem v. People, 210 P.3d 458, 469 

n.16 (Colo. 2009) (“Erroneous admission of CRE 404(b) evidence is 

not error of constitutional dimension.”). Under this standard, 

“reversal is required unless the error does not affect the substantial 

rights of the accused.” Id. at 469. “If a reviewing court can say 

with fair assurance that, in light of the entire record, the error did 

not substantially influence the verdict or impair the fairness of the 

trial, the error may properly be deemed harmless.” Kern, ¶ 13.

B. Relevant Facts

¶ 28 During Salazar’s interrogation, and shortly after he confessed 

to having sexual contact with both M.M. and M.R. (including anal 

and oral sex), Salazar said he hated “that part about [himself]” and 

he did not know whom he could talk to about it. The interviewing 

detective asked whether Salazar had ever tried to talk about it, and 

he replied that “it’s hard to go up to somebody and be like, I like 
18

younger guys” and “I just had like cravings and I don’t know how to 

deal with it and it was just hard.”5 

¶ 29 Salazar sought to redact this portion of the interview, but the 

trial court found the statements admissible. 

C. Application

¶ 30 We need not decide whether the court erred by admitting 

Salazar’s statements about “liking younger guys” and having

“cravings” because any error was harmless given the other admitted 

evidence that he does not challenge on appeal. 

¶ 31 Any prejudicial impact of the challenged statements depended 

on their connection to Salazar’s confession to sexual contact with 

M.M. and M.R. because that confession contextualized who Salazar 

considered to be “younger guys.” In fact, his statement about liking 

“younger guys” immediately followed his confession to sexual 

contact with the victims and was part and parcel of that confession. 

But Salazar does not challenge the admission of that confession 

5 This reflects our best effort at understanding the recorded

interrogation, which is difficult to hear at times. Our description is 

the same as Salazar’s transcription of the interview. 
19

into evidence.6 It seems unlikely that the jury would give any 

weight to his comment about liking “younger guys” unless the jury 

also believed his confession to sexual contact with the victims. 

That is, the jury likely would have either believed both Salazar’s

confession to the sexual contact and his comment about liking

“younger guys” or disbelieved both. 

¶ 32 Moreover, it is highly unlikely that the jury would have given

greater weight to Salazar’s confession to liking “younger guys” 

generally than to his confession to acting on that predilection on 

multiple occasions by sexually assaulting M.M. and M.R. See, e.g., 

People v. Cross, 2023 COA 24, ¶ 26 (concluding that the admission 

of testimony about the defendant’s physical and emotional abuse of 

the victim was not unduly prejudicial “in the context of the 

allegation that [the defendant] shot the victim twice in the head”). 

Hence, if the jury did not otherwise believe Salazar’s confession to 

sexually assaulting the boys on multiple occasions, the challenged 

comments would not have tipped the scales toward conviction. 

6 During trial, defense counsel argued that Salazar confessed to the 

crimes merely to end the interrogation, not because the confession 

was true. On appeal, Salazar does not contend that his confession 

was involuntarily made or was otherwise inadmissible.
20

¶ 33 Finally, the evidence against Salazar was very strong because

his confession corroborated the victims’ testimony, as did text 

messages and videos. People v. Mendenhall, 2015 COA 107M, ¶ 70 

(holding in part that an error was harmless because there was 

overwhelming evidence that the defendant was guilty). And the 

prosecutor never mentioned the “younger guys” comment during

trial. See People v. Compos, 2019 COA 177, ¶ 37 (“Moreover, when 

a reference to improper conduct is fleeting, . . . the potential 

prejudice is minimized.”), aff’d in part and vacated in part, 2021 CO 

19.

¶ 34 Consequently, we conclude that the brief mention of Salazar’s 

liking “younger guys” and having “cravings” did not substantially 

influence the verdict or affect the fairness of the trial. Hagos v. 

People, 2012 CO 63, ¶ 12.

IV. Evidence Pertaining to Probable Cause

¶ 35 Salazar contends the trial court erred by permitting improper 

testimony about the police having probable cause to arrest him. We 

see no need for reversal.
21

A. Standard of Review and Preservation

¶ 36 The parties dispute whether this issue was preserved. We 

need not resolve this dispute because, even assuming Salazar 

preserved this claim, any error was harmless. 

B. Relevant Facts

¶ 37 During trial, the prosecutor asked Officer Adam Cronquist 

whether he had arrested Salazar on a particular date. Defense 

counsel objected, arguing that the facts that Salazar had been 

arrested and that he was in custody during this case were irrelevant 

and unfairly prejudicial.7 After the court overruled the objection, 

the following exchange then took place:

[Prosecutor]: Did you arrest someone by the 

name of Adrian Elijah Salazar on February 

25th of 2019? 

[Officer]: Yes, sir. 

[Prosecutor]: And why did you make that 

arrest?

[Officer]: Detective [Erin] Gooch had sent out 

an email indicating she had probable cause to 

arrest him. 

7 We note that defense counsel had already elicited evidence of 

Salazar’s arrest from a previous witness.
22

Later, when questioning Detective Gooch, the prosecutor asked: 

[Prosecutor]: [Detective], after that forensic 

interview, what decision did you make or what 

did you do after collecting those drawings?

[Detective]: I just wrote [a] warrantless arrest 

affidavit. And then I sent out an email kind of 

[to] the Department to let them know that I 

had probable cause. 

¶ 38 Before closing arguments, the court instructed the jury that 

the fact that Salazar had been arrested and remained in custody 

while this case was pending “is irrelevant and cannot be used as 

[a]n inference of guilt and cannot prejudice Mr. Salazar.” The court 

explained, “It is not evidence, does not prove anything, and the fact 

of his incarceration must not be considered for any purpose.”

C. Relevant Law and Its Application

¶ 39 Generally, when probable cause to arrest the defendant is not 

at issue, it is improper to present evidence about obtaining an 

arrest warrant or possessing probable cause. People v. Mullins, 104 

P.3d 299, 301 (Colo. App. 2004). But we conclude that any error in 

admitting the challenged evidence was harmless in this case.

¶ 40 The evidence here did not resemble the detailed testimony 

admitted in Mullins, in which an officer testified that (1) the police 
23

must convince a judge that they have sufficient information to 

believe the defendant committed a crime and (2) a judge had found 

probable cause in that case. See id. (“The facts that the police 

believed they had enough evidence and that a judge found there 

was probable cause to arrest defendant had no rational tendency to 

prove that defendant committed the assault.”). Moreover, the other 

factors favoring reversal in Mullins are absent here. See id. at 301-

02 (reversing in light of (1) the detailed testimony; (2) the fact that 

the improper evidence undermined the defendant’s self-defense 

claim; (3) the trial court’s statement that “the evidence indicated a 

‘very close case of self-defense’”; and (4) the prosecutor’s improper 

closing argument about self-defense). And nothing in Mullins

reveals that the trial court there gave a limiting instruction like the 

one the court gave here.

¶ 41 Nor is the testimony challenged here akin to the extensive 

evidence of the prosecution’s screening process preceding its 

charging decisions admitted in Mendenhall, ¶¶ 54-59, or the 

prosecutor’s closing argument describing a “screening process” that 

weeds out weak cases in Domingo-Gomez v. People, 125 P.3d 1043, 

1052 (Colo. 2005) (“The prosecutor’s reference to a ‘screening 
24

process’ is improper because it both hints that additional evidence 

supporting guilt exists and reveals the personal opinion of the 

prosecutor.”). In any event, consistent with our analysis, the 

appellate courts in those cases concluded that the errors did not 

warrant reversal. See Mendenall, ¶¶ 60-71; Domingo-Gomez, 125 

P.3d at 1054-55.

¶ 42 To reiterate, the testimony here was brief and lacked detail. 

Probable cause was mentioned twice, but the witnesses did not 

describe how officers obtain probable cause, what that means, or 

whether a judge made a probable cause finding. The prosecutor did 

not mention probable cause during closing argument, and the court 

gave a pointed instruction limiting the jury’s use of the arrest

evidence. See People v. Dominguez-Castor, 2020 COA 1, ¶ 91 

(“Absent a contrary showing, we presume that the jury followed that 

instruction.”).

¶ 43 Given all this, we conclude that the alleged error did not 

substantially influence the verdict or impair the fairness of the trial. 

See Kern, ¶ 13.
25

V. Alleged Prosecutorial Misconduct

¶ 44 Salazar’s final argument is that the trial court erred by failing 

to address, sua sponte, prosecutorial misconduct during closing 

arguments. We disagree.

A. Relevant Principles

¶ 45 When reviewing a claim of prosecutorial misconduct, “we 

consider whether the prosecutor’s conduct was improper and 

whether any impropriety requires reversal.” People v. Walker, 2022 

COA 15, ¶ 27. “Whether a prosecutor’s statements constitute 

misconduct is generally a matter left to the trial court’s discretion.” 

Domingo-Gomez, 125 P.3d at 1049. Therefore, we will not disturb 

the trial court’s rulings on alleged misconduct absent a showing of 

an abuse of that discretion. Walker, ¶ 27. 

¶ 46 Because Salazar’s counsel did not object to the alleged 

misconduct in the trial court, we may reverse only if plain error 

occurred. See id. at ¶ 28. “[P]lain error occurs when there is (1) an 

error, (2) that is obvious, and (3) that so undermines the 

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

the reliability of the judgment of conviction.” Cardman v. People, 

2019 CO 73, ¶ 19. To be plain, “an error must ‘be so obvious’ at 
26

the time it is made ‘that a trial judge should be able to avoid it 

without the benefit of an objection.’” Id. at ¶ 34 (citation omitted).

¶ 47 Reversals on plain error review “must be rare to maintain 

adequate motivation among trial participants to seek a fair and 

accurate trial the first time.” Hagos, ¶ 23. Thus, prosecutorial 

misconduct is plain error only if it is flagrantly, glaringly, or 

tremendously improper. Walker, ¶ 28. 

B. Relevant Facts

¶ 48 During closing argument, the prosecutor focused on the idea 

that M.M. and M.R. testified to similar experiences with Salazar. 

Then, after explaining the elements of the offenses and how the

evidence supported each element, she returned to the victims’ 

shared experiences. She argued,

And I know it’s a big ask because it’s a big 

crime, but I am asking you to have today be 

the last day that you give these boys 

something new to share in common. Let today 

be the day that you tell both of these boys “we 

believe you.” Let today be the day that they 

share in common, that their courage in coming 

in here and talking about what happened to 

them is going to hold their abuser accountable.

Even if their paths never cross ever again, let 

them know that somehow together all of the 

things that they shared in common were 
27

convincing enough for you to become the 

criminal justice system right now. You get the 

last word. I don’t get it; they don’t get it; you 

get it. Make the last word be that these boys 

have something in common and that he is 

guilty of abusing both of them. 

In rebuttal, the prosecutor reiterated,

Don’t make these boys wait any longer before 

you tell them that they are believed and before 

you convict this man of each and every thing 

that he is charged with. 

Defense counsel did not object to any of these arguments.

C. Application

¶ 49 According to Salazar, the prosecutor improperly appealed to 

the jurors’ passions or prejudices and pressured them to find 

Salazar guilty to achieve justice for the victims. 

¶ 50 Prosecutors may not use arguments calculated to inflame the 

passions and prejudices of the jury. People v. Sampson, 2012 COA 

167, ¶ 32. But although the prosecutor sailed close to the wind 

with some of the challenged comments, we need not decide whether 

the prosecutor erred because we conclude that the argument was 

not so egregious as to constitute plain error.

¶ 51 The premise of the prosecutor’s arguments was that the jury 

should convict Salazar if the jury believed the victims. And it is 
28

true that, if the jury believed the victims, Salazar committed sexual 

assault on a child. See People v. Krutsinger, 121 P.3d 318, 324 

(Colo. App. 2005) (“[W]here the case turns on which witness the 

jury believes, each side is entitled to argue that its witnesses 

testified truthfully . . . .”). The prosecutor did not argue that the 

jury should convict Salazar regardless of whether the jury believed 

the victims but solely to do justice. Cf. People v. McBride, 228 P.3d 

216, 223 (Colo. App. 2009) (holding that a prosecutor’s telling 

jurors to “do justice for other strangers” was improper because it 

suggested that guilty verdicts were necessary for justice). And 

before the arguments at issue, the prosecutor methodically walked 

through each element of each offense and explained how the 

evidence supported each element. Therefore, the prosecutor’s

arguments, overall, were anchored in the evidence, not in emotion.

See People v. McMinn, 2013 COA 94, ¶ 61 (“Prosecutors may 

comment on the evidence admitted at trial and the reasonable 

inferences that can be drawn therefrom.”); see also People v. 

Vialpando, 2022 CO 28, ¶ 23 (recognizing that a prosecutor may

use oratorical embellishment and metaphorical nuance). 
29

¶ 52 In addition, the prosecutor’s comments were fleeting within 

the context of closing argument and the trial at large. See Walker,

¶ 49 (discerning no plain error in prosecutor’s allegedly improper 

remarks because, among other things, they were fleeting). And 

defense counsel’s failure to object indicates counsel’s belief that the 

prosecutor’s arguments were not overly damaging. See DomingoGomez, 125 P.3d at 1054. 

¶ 53 For these reasons, as well as the strong evidence of Salazar’s 

guilt, we conclude that the prosecutor’s conduct “does not warrant 

the drastic remedy of reversal under the plain error standard.” Id.

at 1055.8

VI. Conclusion

¶ 54 The judgment is affirmed. 

JUDGE GROVE and JUDGE BERNARD concur.

8 To the extent Salazar appends a cumulative error argument to the 

end of his prosecutorial misconduct claim in his opening brief, we 

decline to address it because it is presented in a very conclusory 

fashion. See People v. Relaford, 2016 COA 99, ¶ 70 n.2 (“We do not 

consider bare or conclusory assertions presented without argument 

or development.”); People v. Mendoza, 313 P.3d 637, 645 (Colo. App. 

2011) (“If [the party] wanted a weightier resolution of the issue, it 

should have mounted a weightier contention. Gravitas begets 

gravitas.”) (citation omitted).