SUMMARY

February 3, 2022

2022COA14

No. 17CA1079, People v. Buckner — Constitutional Law —

Fourth Amendment — Searches and Seizures — Warrantless 

Search; Crimes — Unlawful Sexual Behavior — Victim’s and 

Witness’s Prior History

A division of the court of appeals considers whether the 

district court plainly erred by allowing the prosecution to, first, 

comment regarding the defendant’s exercise of his Fourth 

Amendment right to refuse to consent to a warrantless search and, 

second, ask the jury to render a guilty verdict to do justice for the 

victim. A majority of the division concludes that the comments 

were obviously improper, cumulatively undermined the 

fundamental fairness of the trial, and cast doubt on the reliability of 

the jury’s verdict. Although the partial dissent disagrees that the

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.
prosecutor’s comments warrant reversal, the division reverses the 

defendant’s convictions and remands for a new trial. 

Because the issue is likely to arise on remand, the division 

also concludes that the district court erred by denying the 

defendant an evidentiary hearing on his motion to admit evidence 

that the victim had a history of false reporting of sexual assaults. 

The division concludes that the defendant’s offer of proof was 

sufficient to warrant a hearing. In so doing, the division concludes, 

as a matter of first impression, that the plain statutory language 

“history of false reporting of sexual assaults” in Colorado’s rape 

shield statute, section 18-3-407(2), C.R.S. 2021, does not require 

that the allegedly false report be made to law enforcement.
COLORADO COURT OF APPEALS 2022COA14

Court of Appeals No. 17CA1079

City and County of Denver District Court No. 15CR5224

Honorable Martin F. Egelhoff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Larry D. Buckner,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE BROWN

Lipinsky, J., concurs

Furman, J., concurs in part and dissents in part

Announced February 3, 2022

Philip J. Weiser, Attorney General, Ellen Michaels, Assistant Attorney General, 

Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Larry D. Buckner, appeals his judgment of 

conviction and sentence for kidnapping and sexual assault. He 

contends that the district court (1) plainly erred by allowing the 

prosecution to engage in reversible misconduct and (2) erred by 

failing to hold an evidentiary rape shield hearing. We agree with 

both contentions.1 

¶ 2 First, we conclude that the district court plainly erred by 

allowing prosecutors to improperly comment on Buckner’s exercise 

of his Fourth Amendment right to refuse to consent to a warrantless 

search and to improperly pressure the jury to render a guilty verdict 

to do justice for the victim. Considered cumulatively, these errors 

require us to reverse his convictions and remand for a new trial. 

¶ 3 Because the issue is likely to arise on remand, we also 

conclude that the district court erred by denying Buckner an 

evidentiary hearing on his motion to admit evidence that the victim 

had a history of false reporting of sexual assaults. In so doing, and 

as a matter of first impression, we reject the People’s argument that 

1 On appeal, Buckner also contends that the Sex Offender Lifetime 

Supervision Act of 1998 is unconstitutional. Because we reverse 

his convictions as set forth below, we need not address the 

constitutionality of his sentence.
2

section 18-3-407(2), C.R.S. 2021, requires that the allegedly false 

reports contemplated by the statute be made to law enforcement.

I. Background

¶ 4 On September 18, 2015, J.D. told police that she had been 

physically assaulted the previous night by an unknown assailant in 

an alley several blocks from her apartment. That same day, a 

sexual assault nurse examiner (SANE) evaluated J.D. and 

documented bodily and genital trauma. 

¶ 5 Four days later, J.D. had a follow-up interview with police 

about the September 17 attack. This time she told police that one 

of her neighbors “pulled [her] into his apartment, threw [her] on the 

couch,” and proceeded to beat and sexually assault her in his 

apartment for approximately eight hours starting late on the night 

of September 17 and into the early morning of September 18. She 

admitted that she fabricated the alley attack story but said she did 

so because she was scared. From a photo array, J.D. identified 

Buckner, one of her neighbors, as the perpetrator. 

¶ 6 Police arrested Buckner and the People charged him with one 

count of second degree kidnapping, two counts of sexual assault, 
3

one count of first degree assault, and one count of second degree 

assault. 

¶ 7 Buckner went to trial on the charges in October 2016. His 

theory of the case was that J.D.’s physical injuries were caused by 

her girlfriend during a domestic dispute and that he and J.D. had a 

consensual encounter. The jury acquitted Buckner of the assault 

charges but hung on the kidnapping and sexual assault charges, so 

the court declared a mistrial. 

¶ 8 Buckner was retried on the kidnapping and sexual assault 

charges in February 2017. The prosecution and defense theories 

remained the same.

¶ 9 On cross-examination, J.D. admitted that, after she put her 

daughter to bed on the night of September 17, she was “kind of 

drunk” and had a “loud” fight with her then-underage girlfriend

(now wife) that lasted forty minutes, during which she “ripped a 

couple papers off the wall” and “stomped on the ground.” She 

denied the fight was physical. The fight ended when J.D.’s 

girlfriend called her mother to pick her up. According to J.D., while 

she was escorting her girlfriend downstairs, Buckner came to his 

doorway and spoke to the couple. J.D.’s girlfriend asked Buckner 
4

not to call the police to report the fight; Buckner agreed so long as 

J.D.’s girlfriend left.

¶ 10 After her girlfriend left, J.D. said she was trying to go back to 

her apartment when Buckner grabbed her, pulled her inside his 

apartment, and threw her to the couch. J.D. testified to the various 

sexual acts Buckner forced on her, including forcing her to perform 

oral sex on him and forcing her to engage in vaginal and anal 

intercourse. She said that Buckner’s penis was erect when he was 

raping her and that he ejaculated multiple times. 

¶ 11 The prosecution presented the testimony of a DNA analyst, 

who was able to verify that Buckner’s DNA was found on J.D.’s 

vagina, labia, and neck. The DNA analyst did not detect 

spermatozoa in the samples and was thus unable to verify that

Buckner had ejaculated on or in J.D. 

¶ 12 At trial, Buckner called two witnesses. Buckner’s ex-girlfriend 

testified that, in September 2015, he used a catheter every four 

days and was unable to “obtain an erection.” She further testified 

that Buckner had been unable to have an erection since he had 

surgery in 2010. 
5

¶ 13 One of Buckner’s friends testified that he was with Buckner 

for part of the evening on September 17. He said that Buckner was 

concerned about medication he had taken, was nauseated, and 

threw up a couple of times. He testified that, while he was in 

Buckner’s apartment, he heard fighting in the apartment upstairs 

— including “[t]humping, falling, running.” He said that two women

knocked on Buckner’s door and asked him not to call the police. 

Buckner’s friend also testified that he left while Buckner was still 

standing in his doorway speaking to the women. As he passed the 

women on his way out, he observed “scars or bruising” and 

scratches on J.D. 

¶ 14 In closing argument, Buckner’s attorney argued that J.D. “got 

into a physical altercation in the upstairs apartment with [her 

girlfriend] on the evening in question, September 17, 2015.” He 

argued that J.D. sustained “significant visible injuries” during the 

fight. Afterward, J.D. and Buckner had “some kind of consensual 

encounter” during which his DNA was transferred to her, but they

did not have sexual intercourse because Buckner could not have an 

erection. Defense counsel argued that J.D. was motivated to lie 

about what took place that night because she “got beaten brutally 
6

by her girlfriend” and “couldn’t tell the truth” because her girlfriend 

was underage. J.D. feared her girlfriend “was very likely going to be 

arrested” for what happened that night.

¶ 15 After the second trial, the jury convicted Buckner of 

kidnapping and sexual assault. 

II. Analysis

A. Prosecutorial Misconduct 

¶ 16 Buckner contends that the district court plainly erred by 

allowing prosecutors to improperly (1) comment on his refusal to 

consent to a DNA test as evidence of his guilt and (2) pressure the 

jury to do justice for the victim. We conclude that both comments 

were obviously improper and that together they cast doubt on the 

reliability of the conviction, requiring reversal. 

1. Standard of Review and Generally Applicable Law

¶ 17 We engage in a two-step analysis when reviewing a claim of 

prosecutorial misconduct. Wend v. People, 235 P.3d 1089, 1096 

(Colo. 2010). First, we “must determine whether the prosecutor’s 

questionable conduct was improper based on the totality of the 

circumstances and, second, whether such actions warrant reversal 

according to the proper standard of review.” Id. 
7

¶ 18 Closing argument may properly include the facts in evidence 

and the reasonable inferences drawn from those facts, as well as 

the law on which the jury has been instructed. Domingo-Gomez v. 

People, 125 P.3d 1043, 1048 (Colo. 2005). A prosecutor must not 

“intentionally misstate the evidence or mislead the jury as to the 

inferences it may draw” from that evidence. Id. at 1049 (quoting 

ABA Standards for Crim. Just., Prosecution Function & Def.

Function § 3-5.8 (3d ed. 1993) (hereinafter, ABA Standards)). 

¶ 19 We acknowledge that a prosecutor must have “wide latitude in 

the language and presentation style used to obtain justice.” Id. at 

1048. But while a prosecutor is “free to strike hard blows,” she “is 

not at liberty to strike foul ones.” Id. (quoting Wilson v. People, 743 

P.2d 415, 418 (Colo. 1987)). Indeed, “[w]hile a prosecutor can use 

every legitimate means to bring about a just conviction, she has a 

duty to avoid using improper methods designed to obtain an unjust 

result.” Id. “Overzealous advocacy that undermines the quest for 

impartial justice by defying ethical standards cannot be permitted.” 

Id.

¶ 20 Defense counsel did not object to the statements Buckner 

contends constitute prosecutorial misconduct. We review alleged 
8

prosecutorial misconduct to which no contemporaneous objection 

was made for plain error. Id. at 1053. Plain error occurs only when 

an error is obvious and so undermines the fundamental fairness of 

the trial itself as to cast serious doubt on the reliability of the jury’s 

verdict. Id. “Only prosecutorial misconduct which is ‘flagrantly, 

glaringly, or tremendously improper’ warrants reversal.” Id.

(quoting People v. Avila, 944 P.2d 673, 676 (Colo. App. 1997)). If we 

find multiple instances of prosecutorial misconduct, we “must 

carefully review whether the cumulative effect of the prosecutor’s 

statements so prejudiced the jury’s verdict as to affect the 

fundamental fairness” of the trial. Id. 

2. Refusal to Consent to a DNA Test

¶ 21 Buckner contends that the prosecutor improperly commented 

on his “refusal” to consent to a DNA test. We agree. 

a. Additional Background 

¶ 22 After his arrest, Buckner voluntarily spoke with Detective

Mary McIver for about thirty minutes in the jail. During the 

recorded conversation, the detective asked Buckner about 

consenting to a DNA test. Buckner was equivocal — he neither 

consented to nor refused a DNA test. Instead, he pondered aloud 
9

how his DNA could be found on J.D. and, if it was found there, “is it 

[his] fault?” By the end of the conversation, the detective told 

Buckner that she would get a court order for the DNA test. 

¶ 23 Ultimately, the prosecution secured a court order for a buccal 

swab from Buckner. As noted, Buckner’s DNA was detected on

swabs from J.D.’s vagina, labia, and neck.

¶ 24 In opening statement, the prosecutor focused on the 

importance of the DNA evidence, telling the jury, “We got his 

DNA . . . his DNA is inside her vagina, DNA on the outside of her 

vagina, DNA is on her anus.” 

¶ 25 During trial, without objection from defense counsel, the 

prosecutor elicited testimony that, pursuant to a court order for a 

buccal swab, an investigator with the District Attorney’s Office had

taken a saliva sample from Buckner in an interview room at the

courthouse. The prosecutor also admitted the recorded 

conversation between Buckner and the detective into evidence for 
10

the jury’s consideration, again without a contemporaneous 

objection from Buckner.2 

¶ 26 In closing argument, when arguing to the jury about why it 

should discount “Mr. Buckner’s side” of the story, the prosecutor

told the jury, “[Buckner] refuses to give his DNA sample to Detective 

McIver. In fact, he gets visibly nervous, starts stuttering on the 

interview when she’s asking about the DNA.” Defense counsel did 

not object.

b. Right to Refuse to Consent to a Warrantless Search

¶ 27 By prohibiting unreasonable searches and seizures, the 

Fourth Amendment to the United States Constitution “necessarily 

grants to individuals the right to refuse warrantless entries and 

searches.” People v. Pollard, 2013 COA 31M, ¶ 26. A cheek swab or 

saliva sample to obtain DNA is a search subject to Fourth 

Amendment protections. See People v. Lancaster, 2015 COA 93, ¶ 

14. 

2 Before trial, Buckner moved to suppress his statements and all 

evidence gathered as a result of such statements as involuntarily 

given and a violation of Miranda v. Arizona, 384 U.S. 436 (1966). 

The court denied the motion. 
11

¶ 28 It is well settled that a person should not be penalized for 

exercising a constitutional privilege. Pollard, ¶ 25 (collecting cases). 

Thus, “a person’s refusal to consent to a search may not be used by 

the prosecution — either through the introduction of evidence or by 

explicit comment — to imply the person’s guilt of a crime.” Id. at 

¶ 32. “[T]he prosecution impermissibly ‘uses’ a person’s refusal to 

consent to a search when it introduces evidence of the refusal, 

without having a proper purpose for admission of the evidence, or

when it argues to the jury that such evidence is probative of guilt.” 

Id. at ¶ 30. The prosecution may properly use evidence of a 

person’s refusal to consent to a warrantless search for purposes 

other than to support an inference of guilt. Id. at ¶ 29.

c. Analysis 

¶ 29 Buckner contends that it was improper for the prosecutor to 

“emphasize Buckner’s guilt and/or consciousness of guilt based on 

his refusal to consent to a warrantless body search.” We agree. 

¶ 30 The People acknowledge that it would be improper for the 

prosecution to introduce evidence of, or urge an inference of guilt 

based on, a defendant’s refusal to consent to a cheek swab. See

Pollard, ¶ 28; Lancaster, ¶ 14. They argue, however, that 
12

introduction of the challenged evidence and the prosecutor’s 

comments about it could not have impermissibly penalized Buckner

for exercising his constitutional right to refuse to consent to the 

cheek swab because Buckner never actually refused to consent. 

¶ 31 True, during his conversation with the detective, Buckner 

neither agreed nor refused to submit to a DNA test. He asked 

questions. He appeared confused. He was equivocal.3 At trial, 

however, the prosecutor unequivocally characterized Buckner’s 

statements to the detective as a refusal to consent to the search. 

She said, “He refuses to give his DNA sample to Detective McIver.”

¶ 32 During closing argument, a prosecutor may “point to different 

pieces of evidence and explain their significance within the case.” 

Domingo-Gomez, 125 P.3d at 1048. Although arguments of counsel 

are not evidence, People v. Rodriguez, 914 P.2d 230, 278 (Colo. 

1996), a prosecutor should not intentionally misstate the evidence 

3 On appeal, Buckner also contends that the district court plainly 

erred by admitting evidence that he did not voluntarily consent to 

have his DNA sample taken. Because Buckner did not clearly 

consent to or refuse the search, however, we doubt admission of the 

evidence constituted plain error. But we need not decide this 

question because we reverse based on how the prosecution 

mischaracterized and misused the evidence.
13

or mislead the jury as to the inferences it may draw from that 

evidence, Domingo-Gomez, 125 P.3d at 1049. Indeed, “[p]rosecutors 

have a higher ethical responsibility than other lawyers because of 

their dual role as both the sovereign’s representative in the 

courtroom and as advocates for justice.” Id. Because prosecutors 

represent the State and the People of Colorado, “their ‘argument is 

likely to have significant persuasive force with the jury.’” Id.

(quoting ABA Standards § 3-5.8 cmt.).

¶ 33 Under these circumstances, given the prosecutor’s 

characterization of Buckner’s conduct, it would have been 

reasonable for a juror to reach the suggested conclusion — that 

Buckner refused to consent to a DNA test — from the admitted 

evidence. We are not persuaded by the People’s argument that 

Buckner’s Fourth Amendment rights were not implicated because 

he “neither agreed to nor refused a DNA test.”

¶ 34 The People next contend that the prosecution did not 

introduce or use evidence of Buckner’s refusal to consent to the 

DNA test for an improper purpose. See Pollard, ¶ 29 (collecting 

cases where evidence of a refusal to consent to search was admitted 

for a proper purpose, including to impeach a defendant’s assertion 
14

that he did not live at a particular place, to rebut a claim of 

cooperation or self-defense, or to establish dominion or control over 

premises). They argue that Buckner’s “sudden nervousness when 

asked about DNA testing indicated that his prior story was not 

truthful.” We are not persuaded. 

¶ 35 We acknowledge that the prosecutor did not expressly state 

that the jury should consider Buckner’s refusal to consent to a DNA 

test as evidence of his guilt, but the prosecutor’s use of refusal 

evidence may be improper even in the absence of such an overt 

statement. See id. at ¶ 31 (“The introduction of this type of 

evidence is erroneous, even if it is not accompanied by, or followed 

with, an explicit reference or comment relating it to the defendant’s 

consciousness of guilt . . . .”). As the Ninth Circuit has explained, 

the prosecution’s use of evidence that a defendant refused a search 

“can have but one objective to induce the jury to infer guilt.” United 

States v. Prescott, 581 F.2d 1343, 1352 (9th Cir. 1978). The 

prosecutor can argue that, “if the defendant were not trying to hide 

something,” they would have consented to the search. Id. 

“[W]hether the argument is made or not, the desired inference may 
15

be well drawn by the jury.” Id. This is why “the evidence is 

inadmissible in the case of refusal to let the officer search.” Id.

¶ 36 Moreover, although prosecutors are generally permitted to 

comment on the demeanor of an individual during an interview, see 

People v. Thames, 2019 COA 124, ¶ 32, the prosecutor here did not 

simply argue to the jury that Buckner’s “nervousness” meant his 

story was not credible; she specifically referenced his refusal to 

consent to give a DNA sample. Cf. United States v. Clariot, 655 F.3d 

550, 555-56 (6th Cir. 2011) (“The exercise of a constitutional right, 

whether to refuse to consent to a search, to refuse to waive Miranda

rights or to decline to testify at trial, is not evidence of guilt. And 

evidence of nervousness in the context of being asked to waive some 

of these rights is a weak, if indeed even legitimate, indicator of 

criminal behavior.” (citing, among other cases, Wainwright v. 

Greenfield, 474 U.S. 284, 295 (1986), and Florida v. Royer, 460 U.S. 

491, 507 (1983))).

¶ 37 The prosecutor did not reference Buckner’s refusal to impeach 

or rebut a specific claim he made (e.g., that he cooperated with the 

investigation). The People contend that the refusal evidence 

suggested that Buckner was dishonest during his interview and 
16

that the prosecutor properly argued the evidence that way. But, 

considering the facts of this case, the only “dishonesty” in 

Buckner’s interview that could be impeached by his refusal to 

consent to a DNA test was his claim that he did not do what J.D.

alleged. In other words, the only claim the refusal evidence 

impeached or rebutted was Buckner’s claim that he was not guilty.

¶ 38 Considered in context, the prosecutor used Buckner’s refusal 

to voluntarily provide a DNA sample to infer his guilty knowledge or 

consciousness of guilt, a prohibited purpose. Pollard, ¶ 28.

Therefore we conclude that the prosecutor’s statement was 

improper. 

3. Justice for the Victim

¶ 39 Buckner contends that the prosecutor improperly asked the 

jury to do justice for the victim. We agree. 

¶ 40 A prosecutor may not “pressure jurors by suggesting that 

guilty verdicts are necessary to do justice for a sympathetic victim.” 

People v. Marko, 2015 COA 139, ¶ 221 (quoting People v. McBride, 

228 P.3d 216, 223 (Colo. App. 2009)), aff’d on other grounds, 2018 

CO 97; see also United States v. Young, 470 U.S. 1, 18 (1985) (“The 

prosecutor was also in error to try to exhort the jury to ‘do its job’; 
17

that kind of pressure, whether by the prosecutor or defense 

counsel, has no place in the administration of criminal justice.”); cf. 

Domingo-Gomez, 125 P.3d at 1049 (“The prosecutor should not 

make arguments calculated to appeal to the prejudices of the jury” 

and “should refrain from argument which would divert the jury 

from its duty to decide the case on the evidence.” (quoting ABA 

Standards § 3-5.8)). 

¶ 41 During rebuttal closing argument, referencing J.D., a different

prosecutor argued, “Her day of justice is a long time coming. That’s 

today. Hold him accountable for what he did to that girl that 

night.” Defense counsel did not object. The prosecutor’s plea for 

justice for J.D. was the last thing the jury heard before being 

instructed regarding the verdict forms and taken back to the jury 

room to begin deliberations.

¶ 42 A prosecutor may not pressure jurors to “do justice” for a 

victim. The prosecutor’s final statement to the jury in rebuttal 

closing argument did just that. It was improper.

4. The Improper Comments Require Reversal

¶ 43 Because Buckner’s counsel did not object at trial, reversal is 

not warranted in the absence of plain error. Pollard, ¶ 22. Plain 
18

error is both obvious and substantial. Id. at ¶ 24. Plain error is

error that is “so clear-cut, so obvious, that a trial judge should be 

able to avoid it without benefit of objection.” Id. at ¶ 39. For an 

error to be this obvious, it must contravene a clear statutory 

command, a well-settled legal principle, or Colorado case law. Id. at 

¶ 40; People v. Ujaama, 2012 COA 36, ¶ 42. To be substantial, an 

error must so undermine the fundamental fairness of the trial itself 

as to cast serious doubt on the reliability of the judgment of 

conviction. Pollard, ¶ 43.

¶ 44 We first conclude that allowing the prosecutors’ statements

was obvious error. The first prosecutor’s use of evidence that 

Buckner refused to consent to a DNA test was obviously improper

because (1) a DNA test is a search, Lancaster, ¶ 14; (2) a person has 

the constitutional right to refuse to consent to a warrantless search, 

Pollard, ¶ 26; (3) it is “well settled” that a person cannot be 

penalized for exercising a constitutional privilege, id. at ¶ 25; and 

(4) the prosecution may not use evidence of a person’s refusal to 

consent to a search to infer guilt, id. at ¶¶ 28, 30. The second 

prosecutor’s statements to the jury saying that the victim’s “day of 

justice” is “today” and imploring the jury to hold Buckner 
19

accountable for “what he did to that girl that night” were obviously 

improper because a prosecutor may not “pressure jurors by 

suggesting that guilty verdicts are necessary to do justice for a 

sympathetic victim.” Marko, ¶ 221 (quoting McBride, 228 P.3d at 

223).

¶ 45 Having determined that allowing the prosecutors’ statements

was obvious error, we must next determine whether reversal is 

warranted. Wend, 235 P.3d at 1096. 

¶ 46 We “review the combined prejudicial impact of the prosecutor’s 

improper statements” to determine whether their cumulative effect 

“so prejudiced the jury’s verdict as to affect the fundamental 

fairness” of Buckner’s trial. Domingo-Gomez, 125 P.3d at 1053. 

“Factors to consider include the language used, the context in 

which the statements were made, and the strength of the evidence 

supporting the conviction.” Id.; see also Wend, 235 P.3d at 1098 

(“We focus on the cumulative effect of the prosecutor’s statements 

using factors including the exact language used, the nature of the 

misconduct, the degree of prejudice associated with the 

misconduct, the surrounding context, and the strength of the other 

evidence of guilt.”); People v. Nardine, 2016 COA 85, ¶ 65 (same). 
20

And although “‘[t]he lack of an objection may demonstrate defense 

counsel’s belief that the live argument, despite its appearance in a 

cold record, was not overly damaging,’ such deference must be 

tempered to allow an appellate court to correct particularly 

egregious errors.” Nardine, ¶ 64 (quoting People v. Rodriguez, 794 

P.2d 965, 972 (Colo. 1990)). “Ensuring fundamental fairness in 

trial is the beacon of plain error review.” Id.

¶ 47 In Pollard, ¶¶ 18-47, a division of this court considered 

whether it was plain error to allow the prosecution to introduce 

evidence that the defendant did not allow police to search his car 

and then argue to the jury that it should infer guilt from that 

evidence. In closing argument, the prosecutor in that case argued 

to the jury, “And when you consider [the defendant telling police not 

to look in his car] your reason and common sense tells you what 

does he have to hide? Why not let him go in?” Id. at ¶ 21. Because 

the evidence against the defendant was “far from overwhelming” 

and because the prosecutor’s improper comment on the defendant’s 

refusal to consent to the search went directly to his theory of 

defense — that he did not knowingly possess the drugs in question 

— the division concluded that “the recurring references to 
21

defendant’s refusal to consent to the search, and the prosecution’s 

explicit use of that evidence to imply guilty knowledge on his part, 

cast serious doubt on the reliability of his conviction, necessitating 

reversal for a retrial.” Id. at ¶¶ 44, 47. 

¶ 48 Similarly here, the evidence against Buckner was not 

overwhelming. J.D. claimed that Buckner subjected her to hours of 

physical and sexual abuse, during which he held or repeatedly 

obtained an erection sufficient to engage in oral sex, vaginal 

intercourse, and anal intercourse, and ejaculated multiple times. 

Buckner’s theory of the case was that J.D. had been physically 

assaulted by her girlfriend and that he and J.D. had some kind of 

consensual encounter thereafter that did not include intercourse. 

The indisputable physical evidence — the fact that Buckner’s DNA 

was found on J.D. — was consistent with both stories. Thus, the 

case hinged on credibility; to convict Buckner, the jury had to 

believe J.D.

¶ 49 The prosecutor’s use of Buckner’s refusal to consent to provide 

a DNA sample went directly to whether the encounter was 

consensual. Buckner admitted he and J.D. had contact. So, if the 

contact was consensual, why would Buckner not give up his DNA? 
22

Why did the prosecution have to get a court order to collect it? 

What was he trying to hide? The prosecutor’s comments on 

Buckner’s refusal had but one objective: to induce the jury to infer 

guilt. See Prescott, 581 F.2d at 1352.

¶ 50 Aside from a consciousness of guilt improperly inferred from 

Buckner’s refusal, the other affirmative evidence supporting only 

J.D.’s account was her physical injuries. The prosecution in the 

second trial relied on the fact that J.D. had been beaten to support 

its theory that what happened between J.D. and Buckner was a 

violent sexual assault rather than a consensual encounter. But 

J.D. admitted that she got into a fight with her girlfriend on the 

evening in question, although she denied it was a physical fight. 

And the first jury acquitted Buckner of the assault charges, 

suggesting it did not believe J.D. when she said Buckner was the 

one who beat her up, and hung on the sexual assault and 

kidnapping charges, suggesting the evidence on those counts was 

not overwhelming. The prosecution and defense proceeded on the 

same theories in the second trial.

¶ 51 J.D. also had credibility issues. She admittedly fabricated a 

detailed account of being abducted and assaulted in an alley and 
23

told police and medical professionals that her physical injuries were 

caused by that attack. She was also impeached several times 

during her testimony at trial for giving details about the assault 

that were different from those to which she had previously testified 

under oath.

¶ 52 For his part, and although the jury was free to reject it, 

Buckner offered evidence corroborative of his defense, including 

testimony from his ex-girlfriend that he was incapable of getting or 

maintaining an erection and testimony from a friend who observed 

physical injuries on J.D. before she claimed Buckner assaulted her. 

¶ 53 In sum, the evidence was not overwhelming.4 And in such a 

case, the prosecutor’s argument assumes greater significance and 

4 We are not persuaded by the People’s argument that any error 

could not have been prejudicial because Buckner relied on the 

portion of his interview with the detective that he now argues was 

inadmissible. Cf. People v. Pollard, 2013 COA 31M, ¶¶ 34-38 

(concluding that the defendant did not invite error by referencing 

and relying on improperly admitted evidence of his refusal to 

consent to a search). We have not (and need not have) determined 

whether admitting the evidence was erroneous; we have concluded 

that the prosecutor engaged in improper conduct by using the fact 

that Buckner did not voluntarily provide the detective with a DNA 

sample to infer consciousness of guilt. But even if the interview 

was admissible, and even if Buckner relied on the interview during 

trial, the prosecutor was obliged not to use the evidence to penalize 
24

weighs more heavily on the jury’s decision than it might otherwise. 

See Domingo-Gomez, 125 P.3d at 1055 (Bender, J., dissenting).

¶ 54 Although, for these reasons, we could conclude that the 

prosecutor’s improper use of Buckner’s refusal to consent to 

provide a DNA sample, by itself, warrants reversal under the plain 

error standard, we do not view such improper comments in 

isolation. See id. at 1054 (majority opinion) (requiring review of the 

cumulative effect of the prosecutor’s improper statements). Recall 

that the last thing a prosecutor asked the jury to do before it began 

deliberating was to give the victim justice. The prejudice resulting 

from this statement likely was exacerbated by its timing. “Rebuttal 

closing is the last thing a juror hears from counsel before 

deliberating, and it is therefore foremost in their thoughts.” Id. at 

1052.

¶ 55 Because the outcome of the case depended on the jury’s 

decision regarding whose story to believe, one prosecutor’s misuse 

of Buckner’s refusal to consent to a DNA test to infer his guilt

combined with another prosecutor’s plea to the jury to do justice for 

Buckner for exercising a constitutionally protected right. Id. at 

¶ 25.
25

the victim undermined the fundamental fairness of Buckner’s trial 

and cast doubt on the reliability of the jury’s verdict. Accordingly, 

we reverse his convictions for kidnapping and sexual assault and 

remand the case for retrial.

B. Rape Shield Hearing

¶ 56 Buckner contends that the district court erred by denying his 

renewed motion for a rape shield hearing in advance of his second 

trial. We agree and address this contention as it is likely to arise on 

remand. See People v. Stewart, 2017 COA 99, ¶ 64 (J. Jones, J., 

concurring in part and dissenting in part) (“[O]ur common practice 

is to address contentions that pertain to issues likely to arise on 

remand. . . . [T]he interest in judicial efficiency demands that we do 

so.”).

1. Standard of Review and Applicable Law

¶ 57 The purpose of Colorado’s rape shield statute is to protect 

sexual assault victims from humiliating public fishing expeditions 

into their past sexual conduct. People v. Cook, 2014 COA 33, ¶ 36. 

To that end, the statute creates a presumption that evidence of an 

alleged victim’s prior or subsequent sexual conduct is irrelevant to 

the criminal trial. § 18-3-407(1); see People v. Weiss, 133 P.3d 
26

1180, 1185 (Colo. 2006). There are, however, several exceptions to 

this general rule. See Weiss, 133 P.3d at 1185-86. 

¶ 58 As relevant here, the rape shield statute allows a defendant to 

offer “evidence that the victim . . . has a history of false reporting of 

sexual assaults” if the procedure outlined in the statute is followed. 

§ 18-3-407(2); Lancaster, ¶ 36. Under this procedure, the moving 

party is required to file a written motion setting forth “an offer of 

proof of the relevancy and materiality” of the evidence. § 18-3-

407(2)(a). The motion must be accompanied by an affidavit stating 

the offer of proof. § 18-3-407(2)(b). 

¶ 59 An offer of proof typically states (1) what the anticipated 

testimony of the witness would be if the witness were permitted to 

testify; (2) the purpose and relevance of the testimony sought to be 

introduced; and (3) all the facts necessary to establish the 

testimony’s admissibility. Weiss, 133 P.3d at 1186-87. It is a 

“preview of the evidence a party is prepared to introduce at an 

evidentiary hearing” and “consists of allegations that the party’s 

attorney represents would be proven if the court granted the 

hearing.” People v. Marx, 2019 COA 138, ¶ 46. 
27

¶ 60 If the court finds that the offer of proof is sufficient, it must 

notify the other party of this finding. § 18-3-407(2)(c). If the 

prosecution stipulates to the facts in the offer of proof, then the 

court must rule on the motion based on the offer of proof without 

an evidentiary hearing. Id. Otherwise, the court must set the 

matter for an in camera hearing before trial. Id. At the conclusion 

of the hearing, if the court finds that the evidence proposed to be 

offered regarding the sexual conduct of the victim is relevant to a 

material issue in the case, it shall order that the evidence may be 

introduced and prescribe the nature of the evidence or questions to 

be permitted. § 18-3-407(2)(e). 

¶ 61 To warrant a hearing, the defendant’s offer of proof must 

“articulate facts which, if demonstrated at the evidentiary hearing

by a preponderance of the evidence, would show that the alleged 

victim made multiple prior or subsequent reports of sexual assault 

that were in fact false.” Weiss, 133 P.3d at 1182. Proof by a 

preponderance of the evidence requires that the evidence must 

“preponderate over, or outweigh, evidence to the contrary.” Marx, 

¶ 49 (quoting City of Littleton v. Indus. Claim Appeals Off., 2016 CO 

25, ¶ 38). In the absence of such a showing, the evidence is 
28

“irrelevant, immaterial, and inadmissible in the case at trial.” 

Weiss, 133 P.3d at 1189. 

¶ 62 Although a defendant may offer more evidence at the hearing 

than that set forth in the offer of proof, the offer of proof itself must 

make the threshold showing. In other words, if the defendant 

established only the facts alleged in the offer of proof at the 

evidentiary hearing, those facts must be sufficient to establish, by a 

preponderance of the evidence, that the alleged victim made 

multiple prior or subsequent false reports of sexual assault.

¶ 63 We review a trial court’s determination of the admissibility of 

evidence under the rape shield statute for an abuse of discretion, 

but we review its interpretation of the rape shield statute de novo. 

Id. A court abuses its discretion when its ruling is manifestly 

arbitrary, unreasonable, or unfair, or is based on an erroneous view 

of the law. People v. Osorio-Bahena, 2013 COA 55, ¶ 21.

2. Additional Background

¶ 64 Twenty-one days before his first trial, Buckner filed a motion 

requesting an evidentiary hearing to determine the admissibility of 

evidence that J.D. had a history of making false allegations of 

sexual assault. In the motion, Buckner alleged that J.D. had made 
29

“at least two false allegations of sexual assault,” both of which were 

against J.B. — the father of J.D.’s daughter (who was born in 

2008). The two alleged instances were that (1) J.D. falsely accused 

J.B. of sexually assaulting her on the occasion that her child was 

conceived, and (2) J.D. falsely accused J.B. of sexually assaulting 

her on a later occasion when J.B. visited J.D. at J.D.’s mother’s

house to spend time with their daughter. 

¶ 65 The motion was accompanied by an affidavit signed by 

Buckner’s attorney. With respect to the first allegedly false report,

the affidavit attested that, among other things, J.D.’s mother had 

provided defense counsel with a recording of a telephone 

conversation between J.D. and her girlfriend wherein J.D. admitted 

that she falsely told several people that her daughter was conceived 

as a result of a sexual assault committed by J.B. when, in fact, J.D. 

and J.B. were in a relationship at the time and the sexual 

encounter was consensual. According to the affidavit, J.D. further 

admitted that she had concocted the story to prevent the girlfriend 

from being angry with her for being in a prior relationship with a 

man. 
30

¶ 66 With respect to the second allegedly false report, the affidavit 

attested that J.B. had reported to defense counsel that he had 

consensual sex with J.D. one night while he was at J.D.’s mother’s 

home visiting his daughter and that thereafter, in November 2014, 

J.D.’s girlfriend contacted him via Facebook and accused him of 

sexual assault. The affidavit relayed J.D.’s mother’s observations 

about this incident as well, which corroborated J.B.’s report that 

the encounter was consensual.

¶ 67 Buckner’s motion acknowledged that section 18-3-407(2)

“generally requires a written motion to be filed at least thirty-five 

days prior to trial in order for the [c]ourt to consider admitting 

evidence governed by the Rape Shield statute,” but it argued that 

good cause existed for the court to accept the untimely motion. 

¶ 68 Five days before Buckner’s first trial was scheduled to begin, 

the district court held a hearing on Buckner’s untimely rape shield 

motion. The court allowed the parties to present argument but did 

not allow the parties to present evidence — specifically, the court 

invited the parties to address the issues of whether there was good 

cause for the late filing and whether Buckner had alleged multiple

allegations of false reporting. 
31

¶ 69 Following the hearing, the court concluded that there was not 

good cause for the late filing and that the affidavit attached to 

Buckner’s motion was insufficient to establish more than one prior 

false report. Specifically, the court did not view J.B.’s report that 

J.D.’s girlfriend had contacted him via Facebook in 2014 and 

accused him of sexual assault as “sufficient to establish a sufficient 

offer of proof with respect to any prior false report.” The court cited 

Weiss and clarified that a “history” of false reporting required more 

than one such false report. The court denied Buckner’s motion 

without further hearing and the case proceeded to trial. 

¶ 70 Before the second trial, Buckner timely renewed his motion for 

a hearing under the rape shield statute and attached a new affidavit 

signed by his attorney. With respect to the second allegedly false 

report, the second affidavit stated that the circumstances made 

clear that J.D. told her girlfriend that J.B. had assaulted her and 

that the girlfriend subsequently accused J.B. of sexual assault 

through Facebook messages. 

¶ 71 The district court summarily denied the motion, stating that 

“[t]he motion was filed and denied in advance of the first trial in this 

matter. The motion asserts no new grounds that would satisfy the 
32

statutory criteria or cause the Court to reconsider its previous 

denial of the motion.” 

¶ 72 After the second jury convicted Buckner of kidnapping and 

sexual assault, Buckner filed a timely motion for a new trial 

pursuant to Crim. P. 33 in which he argued that the district court 

erred by denying his request for a rape shield hearing. The court 

summarily denied the motion for new trial. 

3. Analysis 

¶ 73 Buckner contends that the district court erred by denying him 

an evidentiary hearing on his rape shield motion. Specifically, he 

contends that the district court erred by concluding that his motion 

and affidavit did not sufficiently allege more than one false report of 

sexual assault. We agree. 

¶ 74 To resolve this contention, we must first address a novel 

question of statutory interpretation. If the defendant follows the 

required procedure, the rape shield statute creates an exception to 

the general rule that a victim’s sexual conduct is presumptively 

irrelevant for “evidence that the victim . . . has a history of false 

reporting of sexual assaults.” § 18-3-407(2) (emphasis added). 

Because Buckner’s motion did not allege that J.D. falsely reported 
33

any prior sexual assault to “police or any other authority that might 

result in repercussions for J.B.,” the People contend that Buckner 

failed to allege that J.D. falsely “reported” anything. In other words, 

the People contend that the allegedly false “report” must be made 

“to authorities” for it to qualify as “false reporting” under the rape 

shield statute. We disagree. 

¶ 75 When interpreting statutes, our primary goal is to ascertain 

and give effect to the legislative intent. People v. Sosa, 2019 COA 

182, ¶ 12. To do so, we look first at the language of the statute, 

giving words and phrases their plain and ordinary meanings if the 

language is clear and unambiguous. Id. In applying the plain 

meaning of a statute, we must give consistent effect to all its parts 

and construe each provision in harmony with the overall statutory 

design. Id. at ¶ 13. When a statutory term is undefined, we 

construe it in accordance with its ordinary meaning. Id.

¶ 76 Section 18-3-407(2) states simply that “evidence that the 

victim . . . has a history of false reporting of sexual assaults” may

be admissible if the defendant satisfies the statutory procedures. 

The statute does not mandate that such reports be made to “law 

enforcement” or to “the authorities.” It does not specify to whom 
34

the allegedly false report must be made. “[W]e respect the 

legislature’s choice of language, and we do not add words to or 

subtract words from a statute.” People ex rel. Rein v. Meagher, 2020 

CO 56, ¶ 22. And we note that, if the General Assembly had 

intended that only formal reports to law enforcement agencies be 

considered when evaluating whether a victim “has a history of false 

reporting” it could have made that intention clear, as it has in other 

contexts. See, e.g., § 16-2.7-102(1), C.R.S. 2021 (“Any person . . . 

may make a missing person report to a law enforcement agency.”); 

§ 18-1-711(1)(a), C.R.S. 2021 (providing immunity to any person 

who “reports in good faith an emergency drug or alcohol overdose 

event to a law enforcement officer, to the 911 system, or to a 

medical provider”); § 18-6.5-108(1)(a), C.R.S. 2021 (requiring a 

person who observes the mistreatment of an at-risk elder to “report 

such fact to a law enforcement agency”).

¶ 77 The term “reporting” is not defined in the statute. Courts may 

refer to dictionary definitions to determine the plain and ordinary 

meaning of undefined statutory terms. People v. Serra, 2015 COA 

130, ¶ 52. The dictionary defines “report” to include, among other 

things, “a written or spoken description of a situation, event, etc.,” 
35

“a usually detailed account,” or “an account spread by common 

talk.” Merriam-Webster Dictionary, https://perma.cc/8ME4-

D8HQ. This common definition contains no requirement that a 

“report” be made to a particular audience or recipient. 

¶ 78 In the absence of a clear directive from the General Assembly 

that a victim’s “history of false reporting” for purposes of the rape 

shield statute be limited to only those false reports made to law 

enforcement or other “authorities,” we decline to engraft such a 

limitation.

¶ 79 The People appear to concede that, if a victim’s comments 

during a “private conversation” can be considered a “report” for 

purposes of the rape shield statute, then Buckner’s offer of proof 

sufficiently demonstrated one instance of allegedly false reporting

(when J.D.’s daughter was conceived). The affidavit alleged that 

J.D.’s mother provided defense counsel with a recording of a 

conversation during which J.D. admitted to her girlfriend that “she 

had falsely told several people that her daughter . . . was conceived 

as a result of a sexual assault committed by [J.B.] when, in reality, 

the two were in a relationship and the sexual encounter was 

consensual.” We conclude that the facts alleged in the offer of 
36

proof, if established at the hearing by a preponderance of the 

evidence, would be sufficient to prove this first instance of alleged 

false reporting.

¶ 80 But the People argue that the district court correctly

concluded that Buckner failed to sufficiently demonstrate a second 

instance of allegedly false reporting (regarding the night at J.D.’s 

mother’s house). Specifically, the People argue that Buckner 

presented no evidence that J.D. was the person who made the 

second allegedly false report and that it was unclear whether J.D.’s 

girlfriend’s messages to J.B. referred to the first allegedly false 

report or the second allegedly false report. Based on the facts 

alleged in the second affidavit, however, we disagree. 

¶ 81 The affidavit alleged that defense counsel had spoken with 

J.B., who reported that he had consensual sex with J.D. one night 

while he was at J.D.’s mother’s home visiting his daughter. The 

affidavit also alleged that J.D.’s mother reported that J.B. had 

visited the residence to spend time with his daughter and ended up 

spending the night. J.D.’s mother reported observing J.B. and J.D. 

“lying in bed together, close together, ‘spooning’ with one another” 

and that J.D. “gave no indication anything out of the ordinary had 
37

occurred the previous night.” The affidavit alleged that, after the 

visit, in November 2014, J.D.’s girlfriend contacted J.B. via 

Facebook and accused him of sexual assault. The affidavit also 

stated that the circumstances surrounding J.B.’s overnight stay 

with J.D. at her mother’s house, followed by J.D.’s girlfriend’s 

Facebook accusations, “make clear that [J.D.] told [her girlfriend] 

that J.B. had assaulted her, and that [the girlfriend] subsequently 

accused J.B. of sexual assault through Facebook messages.”

¶ 82 From this evidence it would be reasonable to infer that 

(1) J.D.’s girlfriend’s Facebook accusations referred to the alleged 

sexual assault on the night J.B. visited his daughter and stayed 

with J.D. (rather than referring to an incident alleged to have 

occurred over six years earlier), and (2) J.D. was the person who 

told her girlfriend she had been sexually assaulted on that 

occasion. 

¶ 83 We acknowledge that the evidence described in the affidavit 

was circumstantial, rather than direct. See COLJI-Crim. D:01 

(2020) (defining circumstantial evidence as indirect evidence “based 

on observations of related facts that may lead you to reach a 

conclusion about the fact in question”). But in determining the 
38

sufficiency of evidence, the law makes no distinction between direct 

and circumstantial evidence. People v. Bennett, 183 Colo. 125, 131, 

515 P.2d 466, 469 (1973); People v. Medina, 51 P.3d 1006, 1013 

(Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d 

973 (Colo. 2003).

¶ 84 In addition, that the facts may be disputed or may lead to 

other reasonable inferences is of no consequence at this stage. The 

rape shield statute makes clear that if the offer of proof is sufficient 

and if the prosecution does not stipulate to the facts contained in 

the offer of proof, “the court shall set a hearing to be held in camera 

prior to trial.” § 18-3-407(2)(c) (emphasis added). 

¶ 85 Although it is a close call, we conclude that the facts described 

in the affidavit — if proved by a preponderance of the evidence at a 

hearing — would be sufficient to establish multiple instances of 

false reporting. See Weiss, 133 P.3d at 1184. Thus, we conclude 

that the district court erred by denying Buckner a hearing on his 

motion. 

¶ 86 By so concluding, however, we do not intend to minimize what 

must be shown by an offer of proof to justify a hearing. Courts 

should remain mindful of the purpose of the rape shield statute to 
39

protect victims of sexual assault “from humiliating and public 

exposure of intimate details of their lives absent a ‘preliminary 

showing that evidence thus elicited will be relevant to some issue in 

the pending case.’” Marx, ¶ 41 (quoting People v. McKenna, 196 

Colo. 367, 371-72, 585 P.2d 275, 278 (1978)).

III. Conclusion

¶ 87 The judgment of conviction is reversed and the case is 

remanded for a new trial. If Buckner renews his motion to admit 

evidence that J.D. has a history of false reporting of sexual assaults

based on the same offer of proof, the district court shall conduct an 

evidentiary hearing under section 18-3-407(2) to determine whether 

such evidence is admissible.

JUDGE LIPINSKY concurs.

JUDGE FURMAN concurs in part and dissents in part.
40

JUDGE FURMAN, concurring in part and dissenting in part.

¶ 88 The majority concludes that the combined prejudice of the 

prosecutor (1) stating that Buckner refused to voluntarily provide 

DNA and (2) asking for justice for the victim during closing remarks 

requires reversal under a plain error standard. I disagree that these 

brief statements whether considered individually or cumulatively 

“so undermined the fundamental fairness of the trial itself so as to 

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

See Hagos v. People, 2012 CO 63, ¶ 14 (quoting People v. Miller, 113 

P.3d 743, 750 (Colo. 2005)). Therefore, I respectfully dissent from 

this portion of the majority’s opinion. In all other respects, I 

concur. 

I. The Evidence at Trial

¶ 89 During an interview, a detective asked Buckner if he would 

take a DNA test. She briefly explained how DNA worked and what 

it could show in his case. The detective then told Buckner that she 

might seek a court order for a DNA test and, before he gave her a 

definitive answer as to whether he would submit to testing, she told 

him, “[W]e’ll go ahead and do it that way.”
41

II. The Prosecutor’s Closing Argument

¶ 90 During closing argument, the prosecutor made these 

comments (among others):

Let’s look at two sides to the story. Let’s look 

at the two sides. You heard -- we’ve gone 

through [J.D.’s] side. Let’s look at [Buckner’s] 

side. He denies any type of sexual contact 

whatsoever with [J.D.].

The detective was very clear with him; you’ve 

heard and seen that video statement. She was 

very clear. Detective: You didn’t have any kind 

of sexual intercourse with her? Defendant: I 

didn’t do this to this girl. Detective: She’s 

saying you’re the person that did this -- did 

that; that it was against her will. Defendant: 

No. Detective: She’s saying that you raped her 

with force while beating her up. Defendant: 

See, I didn’t do that. He denies [she] was even 

in [his] apartment.

Detective: Did she ever come into your 

apartment that night? Defendant: The 

apartment is small. Detective: No. I mean, 

like, into your apartment, like into your 

bedroom at all. Defendant: Come on, Man. 

Detective: I’m asking you because this is stuff 

she’s telling me. Defendant: No. That’s a lie.

He refuses to give his DNA sample to [the 

detective]. In fact, he gets visibly nervous, 

starts stuttering on the interview when she’s 

asking about the DNA. He didn’t give enough 

information to her for her to be able to contact 

[J.D.’s friend]. And, in fact, [J.D.’s friend] 

never contacted the detective.
42

(Emphasis added.)

III. Defense Counsel’s Closing Argument

¶ 91 During closing argument, defense counsel made these 

comments (among others):

Upstairs, in the upstairs apartment directly 

above [Buckner] were [J.D.] and [J.D.’s 

girlfriend]. 

They got into a fight. And they got into a fight 

that wasn’t simply a verbal argument. It 

wasn’t simply a verbal argument where 

pictures got pulled off the wall, some 

stomping, but a full-on domestic violence 

altercation in which [J.D.] got beat up.

[J.D.] and [J.D.’s girlfriend] then came 

downstairs. The decision got made between 

the two of them -- [J.D.’s girlfriend] was 

leaving. They came downstairs. They knocked 

on that door; and when Mr. Buckner 

answered, they asked Mr. Buckner, Please, 

please do not call the police. Don’t call the 

police.

And [Buckner] didn’t want to call the police. 

He had no interest in involving law 

enforcement. He definitely did want [J.D.] to 

get out of there. He wanted [J.D.] to leave 

because she was beating up her girlfriend, and 

there’s an altercation going on upstairs.

So whether he encouraged or not, he stepped 

in and [J.D.’s girlfriend] left. Then he and 

[J.D.] are alone together. And at some point, 
43

she comes back into his apartment, whether 

she was in his apartment on that evening or 

some other occasion, got the information about 

some of the contents of the apartment. We 

don’t necessarily know. But she -- they were 

hanging out alone together.

She had been drinking, per her own 

admission. And at some point, she starts 

hugging up on him or some kind of a 

consensual encounter in which his DNA gets 

on her. That’s what took place. It was short of 

any form of sexual intercourse; that we know 

that [Buckner] cannot get an erection. And it 

certainly wasn’t the violent attack that’s been 

described.

Now, when we talk about [Buckner’s] story, I 

want to direct your attention to all of the 

things, because the district attorney read some 

portions of the transcript of [Buckner’s] 

videotaped interview with the detective -- . . . , 

who is seated over in the courtroom -- read 

some portions of the transcript. What I want 

you to do when you go back to deliberate, I 

want you to watch that video again. And I 

want you to watch a couple of things very 

closely.

Remember this is taking place -- this interview 

is taking place the following week after this 

incident supposedly occurred. And remember 

that the interview didn’t happen because [the 

detective] came downstairs, came to [Buckner], 

said, Hey, I want to speak with you. Will you 

please speak with me? The interview 

happened because [Buckner] went to her. He 

wanted to talk to her because he didn’t know 
44

why he was even in there. He didn’t 

understand why he was in jail.

IV. Rebuttal Closing Argument 

¶ 92 During rebuttal closing argument, the prosecutor made these 

comments (among others):

You guys determine what the facts are. We 

can stand up here and repeat over and over 

the testimony that you’ve already heard, give 

you our opinions on what we think the facts 

are, but it’s irrelevant. It’s your job to 

determine what the facts are.

You’ve heard [J.D.] tell you what happened on 

September 17th, and you heard his version of 

events. You can believe all of it, you can 

believe part of it or you can believe none of it. 

Right. That’s what the judge told you in his 

instructions. If you believe what [J.D.] told 

you, [Buckner] is guilty of kidnapping and he’s 

guilty of sexual assault.

They want you to take a good long, hard look 

at [Buckner’s] statements. It’s your evidence, 

but their argument is that [Buckner] is here 

because [J.D.’s girlfriend] assaulted [J.D.].

. . . .

And that proof, ladies and gentlemen, is in the 

DNA. The thing about DNA, it doesn’t choose 

sides. It doesn’t change its story. It doesn’t 

forget details. You don’t have to believe in it 

for it to be true.
45

Her day of justice is a long time coming. That’s 

today. Hold him accountable for what he did 

to that girl that night.

(Emphasis added.)

V. Analysis

¶ 93 Our supreme court in Hagos, ¶ 23, stated that “[p]lain error 

review allows the opportunity to reverse convictions in cases 

presenting particularly egregious errors, but reversals must be rare 

to maintain adequate motivation among trial participants to seek a 

fair and accurate trial the first time.” “Because this standard was 

formulated to permit an appellate court to correct ‘particularly 

egregious errors,’ Wilson v. People, 743 P.2d 415, 420 (Colo. 1987), 

the error must impair the reliability of the judgment of conviction to 

a greater degree than under harmless error to warrant reversal.” 

Hagos, ¶ 14; see id. at ¶ 12 (explaining that reversal is required 

under the harmless error standard only if the error “substantially 

influenced the verdict or affected the fairness of the trial 

proceedings” (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 

1986))). Reversing for prosecutorial misconduct in this case could 

blur the distinction between the plain error and harmless error 

standards. See id. at ¶¶ 12, 14.
46

¶ 94 I conclude that these brief statements during closing 

arguments — (1) regarding Buckner’s refusal to voluntarily provide 

DNA and (2) requesting justice for the victim — did not affect the 

fundamental fairness of the proceedings to the degree required by 

plain error. See id. at ¶ 14; see also People v. Sepeda, 196 Colo. 13, 

25, 581 P.2d 723, 732 (1978) (“[W]e have held on numerous 

occasions that prosecutorial misconduct in closing arguments 

rarely, if ever, is so egregious as to constitute plain error, within the 

meaning of Crim. P. 52(b) . . . .”). 

A. Refusal to Provide DNA

¶ 95 Any purported refusal by Buckner to give DNA had little value 

to a disputed issue at trial. Buckner’s theory of defense was that 

the contact was consensual. And the jury heard evidence from the 

detective that Buckner appeared to be cooperative with the DNA 

testing. Our case, therefore, is unlike People v. Pollard, where the 

prosecutor’s improper comment on the defendant’s refusal to 

consent to a search went directly to the theory of defense. 2013 

COA 31M, ¶ 47.

¶ 96 The prosecutor’s comments were brief. And our supreme 

court has held that “[c]omments that were ‘few in number, 
47

momentary in length, and were a very small part of a rather prosaic 

summation’ do not warrant reversal under the plain error 

standard.” Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 

2005) (quoting People v. Mason, 643 P.2d 745, 753 (Colo. 1982)).

¶ 97 And, before closing arguments, the trial court instructed the 

jurors that they must “not allow bias” to influence their decision, 

and that the burden of proof is on the prosecution to prove “beyond 

a reasonable doubt the existence of all the elements necessary to 

constitute the crime charged.” See People v. Reed, 2013 COA 113, 

¶ 28. I presume the jury understood and followed these 

instructions.

B. Justice for the Victim

¶ 98 The very brief reference to justice for the victim was not so 

inflammatory or evocative of the jury’s sympathy as to cast serious 

doubt on the reliability of the judgment or undermine the 

fundamental fairness of the proceedings. See Hagos, ¶ 12. 

¶ 99 This was not pervasive misconduct. See People v. Nardine, 

2016 COA 85, ¶ 65; see also Wend v. People, 235 P.3d 1089, 1098 

(Colo. 2010) (“We focus on the cumulative effect of the prosecutor’s 

statements using factors including the exact language used, the 
48

nature of the misconduct, the degree of prejudice associated with 

the misconduct, the surrounding context, and the strength of the 

other evidence of guilt.”).

¶ 100 And the timing of this statement at the very end of rebuttal 

argument seems to support the implication that the absence of a 

defense objection reflects that the defense counsel did not think 

that this statement was overly damaging. See People v. Rodriguez, 

794 P.2d 965, 972 (Colo. 1990) (“The lack of an objection may 

demonstrate defense counsel’s belief that the live argument, despite 

its appearance in a cold record, was not overly damaging.” (quoting 

Brooks v. Kemp, 762 F.2d 1383, 1397 n.19 (11th Cir. 1985))). 

Buckner had given his closing argument, and the last few 

statements of rebuttal are similarly prominent in the mind of the 

listening defense counsel as they are in the mind of the jury.

¶ 101 In summary, I don’t think the two brief statements made by 

the prosecutor during closing arguments “so undermined the 

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

on the reliability of the judgment of conviction.” Hagos, ¶ 14 

(quoting Miller, 113 P.3d at 750). In my view, therefore, this is not 
49

the rare case of plain error that our supreme court determined 

warrants reversal. See Wend, 235 P.3d at 1098.