COLORADO COURT OF APPEALS 2017COA81 

Court of Appeals No. 14CA0562 

El Paso County District Court No. 13CR3349 

Honorable Thomas K. Kane, Judge 

The People of the State of Colorado, 

Plaintiff-Appellee, 

v. 

Kyree Davon Howard-Walker, 

Defendant-Appellant. 

JUDGMENT AFFIRMED 

Division II 

Opinion by JUDGE BERGER 

Dailey and J. Jones, JJ., concur 

Announced June 15, 2017 

Cynthia H. Coffman, Attorney General, Matthew S. Holman, Senior Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee 

Douglas K. Wilson, Colorado State Public Defender, M. Shelby Deeney, Deputy 

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

¶ 1 A jury convicted defendant, Kyree Davon Howard-Walker, of 

first degree burglary and conspiracy to commit first degree burglary. 

He appeals, arguing that the trial court erred in (1) denying his 

three challenges under Batson v. Kentucky, 476 U.S. 79 (1986), to 

allegedly discriminatory peremptory strikes; (2) admitting allegedly 

improper testimony from one of the investigating detectives; and (3) 

failing to instruct the jury on the predicate crime of theft and failing 

to define “intent.” He also claims that the prosecutor engaged in 

misconduct and that that the cumulative effect of these errors 

requires reversal. 

¶ 2 We conclude that there were several trial errors, most 

resulting from prosecutorial overreach and one instance of 

prosecutorial misconduct. Howard-Walker’s counsel objected to 

almost none of these errors and the standard of review for almost 

all of them is thus plain error. None of these errors, considered by 

themselves, requires reversal. Moreover, these errors did not 

substantially prejudice Howard-Walker’s right to a fair trial and 

thus do not require reversal under the cumulative error doctrine. 

Therefore, we affirm the judgment. 
2 

I. Relevant Facts and Procedural History 

¶ 3 The victim, the owner of a marijuana business, left his home 

one night to run errands and spend time with his girlfriend. When 

he returned home the next day, he discovered an open garage door, 

a window which had been broken, and his bedroom in disarray. 

The contents of the unlocked safe in his bedroom (he had evidently 

forgotten to lock the safe) — some $8000 in cash, several watches, 

other pieces of jewelry, and a number of credit cards — were gone. 

¶ 4 Video from a motion-activated surveillance camera showed two 

men (whom the victim did not recognize) entering the victim’s 

bedroom. Both of the men were wearing baseball caps and 

sunglasses, and one — allegedly, Howard-Walker — was holding a 

gun. The video showed the men searching the room, opening the 

safe, and removing its contents. After viewing the video, the victim 

reported the burglary to the police.

¶ 5 A police officer responded to the victim’s home. The officer 

viewed the surveillance video and took a copy of the video as 

evidence. Near the broken window, the officer discovered footprints 

which the victim said did not belong to him. The officer measured 

and took photographs of the footprints. Consistent with the police 
3 

department’s policy for “cold” burglaries, no crime scene 

technicians were called to the scene.

¶ 6 After the officer left, the victim, who also owned a video-editing 

business, edited the surveillance video and made a shorter, clearer, 

“enhanced” version. He sent it to a number of media outlets and 

offered a reward of $1000 for information about the perpetrators. 

Some of the media outlets played the video on local television 

stations and advertised the reward. 

¶ 7 Howard-Walker’s girlfriend’s uncle supposedly recognized him 

from a news broadcast and contacted the police. He told the police 

that, although it was difficult to discern the faces of the two men 

committing the burglary, he recognized the hat and sunglasses that 

Howard-Walker was wearing in the video. He also provided the 

police with a photograph of Howard-Walker wearing a similar hat 

and sunglasses. 

¶ 8 Based on the uncle’s tip, one of the investigating officers, 

Detective Mark Garcia, contacted Howard-Walker’s probation 

officer. He showed the probation officer several still photos derived 

from the surveillance video and asked if he recognized Howard-
4 

Walker. The probation officer said that he was “ninety-five percent 

sure” that Howard-Walker was depicted in the photos. 

¶ 9 The police arrested Howard-Walker, and Detective Garcia 

interviewed him after advising him of his Miranda rights. 

Howard-Walker consistently denied that he committed the burglary. 

However, at one point near the end of the interview, Howard-Walker 

asked the detective “what it would get him if he gave [Detective 

Garcia] the name of the other person.” The detective responded 

that if Howard-Walker identified the other burglar, he would apprise 

the district attorney of Howard-Walker’s assistance, which would 

“help him,” but promised no concessions. Howard-Walker later 

refused to speak further with the police. 

¶ 10 Detective Garcia then searched (under a warrant) 

Howard-Walker’s apartment. He found none of the stolen items; 

none of those items were ever recovered by the police. He also 

showed Howard-Walker’s live-in girlfriend the still photographs 

from the surveillance video and asked if she recognized the person 

in the photos. According to the detective, the girlfriend initially told 

him that she was “eighty percent” certain that one of the men in the 

photos was Howard-Walker. At trial, the girlfriend denied making, 
5 

and then recanted, that statement, claiming that Detective Garcia 

had intimidated her into identifying Howard-Walker. 

¶ 11 Detective Garcia also compared the photographs of the 

footprints found at the scene of the burglary with the shoes that 

Howard-Walker was wearing at the time of his arrest, and 

concluded (and testified) that the footprints matched the shoes. 

¶ 12 The prosecution charged Howard-Walker with first degree 

burglary, see § 18-4-202(1), C.R.S. 2016, and conspiracy to commit 

first degree burglary, see § 18-2-201, C.R.S. 2016. 

¶ 13 Howard-Walker’s defense at trial was that he did not commit 

the burglary and that the witnesses had misidentified him from the 

video and still photos. The jury convicted Howard-Walker as 

charged, necessarily rejecting his misidentification defense. The 

trial court sentenced him to thirteen years in the custody of the 

Department of Corrections. 

II. Batson Challenges 

¶ 14 Howard-Walker contends that the trial court erred when it 

denied his Batson challenges to the prosecutor’s peremptory strikes 

excusing three prospective jurors — one who identified himself as 

African-American, and two who identified themselves as Hispanic. 
6 

Specifically, he challenges the trial court’s rulings on the third 

Batson step, asserting that the prosecutor’s stated “race-neutral” 

reasons for removing the jurors were not worthy of belief. 

A. Standard of Review 

¶ 15 The United States and Colorado Constitutions prohibit 

peremptory strikes to dismiss prospective jurors on the basis of 

race, gender, or ethnicity. Batson, 476 U.S. at 85-87; People v. 

Beauvais, 2017 CO 34, ¶ 20; People v. Lucero, 2014 COA 53. In 

Batson, the Supreme Court prescribed a three-step process to 

evaluate claims of purposeful discrimination in jury selection. 

¶ 16 First, the person challenging a peremptory strike must make a 

prima facie showing that the prosecutor used a peremptory strike to 

exclude a prospective juror based on his or her race. Batson, 476 

U.S. at 96; Beauvais, ¶ 21.1 A prima facie showing requires only 

 

1 While Batson v. Kentucky, 476 U.S. 79 (1986), refers only to race 

as an impermissible discriminatory factor, its progeny also includes 

gender and ethnicity within Batson’s proscription. See, e.g., People 

v. Lucero, 2014 COA 53. Whereas “African-American” typically 

describes a person’s race, the term “Hispanic” is used sometimes to 

describe a person’s race and other times to describe a person’s 

ethnicity. Because it is equally impermissible to discriminate based 

on race and ethnicity, we apply those cases discussing race to the 

challenges of the two jurors who identified themselves as Hispanic. 

See, e.g., Hernandez v. New York, 500 U.S. 352, 355 (1991). 
7 

that the challenger “present evidence sufficient to raise an inference 

that discrimination occurred.” Valdez v. People, 966 P.2d 587, 590 

(Colo. 1998). 

¶ 17 If the challenger meets his burden under step one of Batson, 

the burden shifts to the prosecutor to articulate a nondiscriminatory reason for the strike. Id.

¶ 18 If the prosecutor does so, step three of Batson requires the 

trial court, after giving the challenger an opportunity to rebut the 

prosecutor’s reason for the strike, to determine if the prosecutor’s 

reason is worthy of belief or is, instead, pretextual. Id. If the trial 

court finds, based on a preponderance of the evidence, that the 

prosecutor’s reason is pretextual, the court must deny the 

peremptory strike. Batson, 476 U.S. at 85-87. “[T]he ultimate 

burden of persuasion regarding [discriminatory] motivation rests 

with, and never shifts from, the [objecting party].” Beauvais, ¶ 24 

(citation omitted). Accordingly, a trial court should sustain a 

Batson objection only if “the striking party’s non-discriminatory 

reasons are sufficiently incredible that the discriminatory 

hypothesis better fits the evidence.” Id. (citation omitted). 
8 

¶ 19 We review de novo whether the parties have met their 

respective burdens under Batson steps one and two. Valdez, 966 

P.2d at 590-91. We review the trial court’s Batson step three 

determination of whether the prosecutor’s strike was motivated by 

purposeful discrimination for clear error. People v. Robinson, 187 

P.3d 1166, 1174 (Colo. App. 2008); People v. Gabler, 958 P.2d 505, 

507 (Colo. App. 1997). We give considerable deference to a trial 

court’s Batson step three findings because “[o]nly the trial court can 

assess non-verbal cues, such as hesitation, voice inflection, and 

facial expressions, that are not recorded on a transcript.” People v. 

Wilson, 2015 CO 54M, ¶ 18. Given this deferential standard, 

reversal of a trial court’s factual determination that the strike was 

not motivated by discriminatory animus is justified only under 

“exceptional circumstances.” Beauvais, ¶ 22 (quoting Snyder v. 

Louisiana, 552 U.S. 472, 477 (2008)). 

B. Analysis of the Peremptory Strikes 

¶ 20 We address each of the peremptory strikes in turn. 

1. Female Hispanic Juror 

¶ 21 The prosecutor exercised a peremptory strike against a female 

juror who identified herself as Hispanic on her jury questionnaire. 
9 

This met Howard-Walker’s minimal step one Batson burden. In 

response to Howard-Walker’s challenge, the prosecutor said that 

the juror had “apparently filled out her jury questionnaire.” 

Because the significance of the juror having filled out the 

questionnaire (as all of the other prospective jurors had done) is 

unclear, we presume that the prosecutor’s statement as reflected in 

the record resulted from a transcription error. The prosecutor also 

claimed that she had “seemed jumpy” during voir dire, and 

contended that the prospective juror “didn’t want to be here.” 

¶ 22 The trial court did not review the juror’s questionnaire, but, in 

denying the Batson challenge, said it “trust[ed]” the prosecutor’s 

characterization of what was said in the questionnaire. The court 

further explained that it had observed the female juror during voir 

dire and that she “seemed disinterested.” 

¶ 23 We first reject Howard-Walker’s argument that the trial court’s 

decision not to review the female juror’s questionnaire amounted to 

a summary denial of his Batson challenge and reflected the court’s 

failure to weigh the evidence. 

¶ 24 One important tool that a trial court uses to determine 

whether the objecting party proved that the striking party exercised 
10 

its peremptory challenges with “discriminatory animus” is “an 

assessment of the striking party’s credibility and the plausibility of 

its non-discriminatory explanations.” Id. at ¶ 23. Having observed 

the demeanor of the prospective juror (and, for that matter, the 

prosecutor), the trial court was entitled to credit the prosecutor’s 

assessment that the juror “did not want to be here.” See id. at ¶ 25; 

Wilson, ¶ 14. And, though the prosecutor did not question the juror 

prior to exercising his strike against her, which might raise an 

inference of purposeful discrimination, Gabler, 958 P.2d at 508, the 

trial court agreed that the juror had seemed “disinterested.” A 

prospective juror’s disinterest in the proceedings is a legitimate, 

non-discriminatory reason for exercising a peremptory strike. See, 

e.g., Beauvais, ¶ 9 (use of peremptory strikes against two jurors 

who had not been directly questioned because both jurors “looked 

disinterested” did not violate Batson). Howard-Walker did not then 

and does not now attempt to refute the trial court’s assessment of 

the juror’s level of interest in the proceedings. 

¶ 25 We reject Howard-Walker’s argument that the trial court 

committed legal error in considering that the female Hispanic juror 

was not of the same race as Howard-Walker. Though we agree that 
11 

Batson does not require that the excluded juror share the same 

racial identity as the defendant, Valdez, 966 P.2d at 589, our 

reading of the record does not support Howard-Walker’s argument. 

While the trial court noted that it perceived the female juror as “a 

person of color[,] . . . [a]lbeit not the same ethnicity as the 

defendant,” it rested its denial of the Batson challenge on the juror’s 

lack of interest in the proceedings, not on any comparison of the 

races of the juror and Howard-Walker. 

¶ 26 Thus, we conclude that the trial court’s Batson step three 

findings with respect to the female Hispanic juror are supported by 

the record. 

2. African-American Male Juror 

¶ 27 After the prosecutor exercised four of the prosecution’s six 

peremptory strikes, he accepted the jury as then constituted, which 

defense counsel characterized as “completely white.” 

Howard-Walker continued exercising his peremptory strikes, which 

resulted in a male juror who identified himself as African-American 

joining the panel. Despite having previously accepted the jury, the 

prosecutor then exercised one of its remaining peremptory strikes 

against that juror. 
12 

¶ 28 In response to Howard-Walker’s Batson challenge, the 

prosecutor explained that the prospective juror “seemed 

anti-prosecution” because, in response to voir dire questions, he 

said that police officers often misidentify suspects and he indicated 

on his jury questionnaire that he had had a “particularly bad 

experience” with law enforcement. Howard-Walker attempted to 

rebut this explanation by noting that some unchallenged white 

jurors had expressed similar opinions about police misidentification 

and also reported negative experiences with the police. 

¶ 29 The trial court denied the Batson challenge, saying that “this 

isn’t a pattern yet” and because, based on its own observations, the 

juror apparently believed that law enforcement officers often make 

mistakes. 

¶ 30 Howard-Walker asserts that the prosecutor’s retention of a 

white juror who had discussed his negative views of police officers 

at some length and its retention of other white jurors who had 

expressed that the police sometimes make mistakes in identifying 

suspects demonstrated that the prosecutor’s reasons for the strike 

was pretexual. “A prosecutor’s disparate treatment of prospective 
13 

jurors, who, but for their race, have similar and allegedly 

objectionable experiences, is pretextual.” Gabler, 958 P.2d at 508. 

¶ 31 The Colorado Supreme Court in Beauvais recently clarified the 

required procedure for a Batson comparative juror analysis. While 

“[t]wo potential jurors need not be identical in every respect,” 

“[i]solated similarities do not automatically render two jurors 

‘similarly situated’ for purposes of deciding a Batson challenge.” 

Beauvais, ¶ 56. For example, “if an attorney strikes a female 

potential juror because she is unemployed and lacks a college 

degree, a male potential juror who is either unemployed or lacks a 

college degree would not be similarly situated and not suitable for 

comparison.” Id. at ¶ 57. 

¶ 32 At least three white jurors who served on the jury expressed 

views similar to the male African-American’s juror’s that police 

sometimes make mistakes in identifying suspects. But none of 

those jurors also expressed that they had had “a particularly bad 

experience” with law enforcement. Moreover, the record 

demonstrates that these jurors’ statements were more limited in 

scope, while the African-American prospective juror’s statements 

were broader and less deferential to the police, particularly in 
14 

regard to identification of a suspect in a photograph or video. For 

instance, while one of the other jurors said that misidentification 

sometimes happens, she also said that misidentification might 

result from not getting “the best look” at the person. Another juror 

similarly said that misidentification might occur due to any number 

of circumstances, including the time of day and distance. Still 

another asserted that misidentification could occur based on a 

video or photograph if either of those mediums lacked clarity. 

¶ 33 In contrast, the African-American juror opined that police 

officers are no better at identifying a person in a photograph or 

video than anyone else, and that misidentification may occur unless 

the photograph or video was completely clear. 

¶ 34 Having observed the prospective juror’s responses to questions 

during voir dire, the trial court agreed with the prosecutor’s 

assessment that the African-American juror seemed 

“anti-prosecution,” an assessment that has record support. 

Additionally, we note that the prosecutor exercised a peremptory 

strike against a white juror who had similarly expressed that 

“policemen are humans so they can make errors just like anybody 

else.” 
15 

¶ 35 Howard-Walker also asserts the prosecutor’s reasons for 

exercising a peremptory strike against the prospective juror were 

pretextual because, although the juror indicated on his jury 

questionnaire that he had had a negative experience with law 

enforcement, no strikes were exercised against white jurors who 

had also indicated negative experiences with law enforcement on 

their questionnaires. We reject this argument because there is no 

indication in the record that the trial court relied on the juror’s 

negative experience with law enforcement to deny Howard-Walker’s 

Batson challenge. And, as we noted above, no other juror disclosed 

both a negative experience with law enforcement and a belief that 

police officers sometimes misidentify suspects; thus, no other juror 

was similarly situated to the excused juror. Id. at ¶¶ 56-57. 

¶ 36 We recognize that the trial court said, with respect to the 

denial of Howard-Walker’s challenge of the strike against the 

African-American juror, that “this isn’t a pattern yet.” Had the 

court concluded that Howard-Walker had not proved purposeful 

discrimination with respect to the juror because he had not 

established a “pattern” of discrimination, that would have been 

error. A pattern of strikes may “give rise to an inference of 
16 

discrimination,” but is not “a necessary predicate to a [Batson] 

violation.” Batson, 476 U.S. at 95-97. But the court did not rest its 

Batson step three determination on whether Howard-Walker had 

proved a pattern. Rather, the court, with record support, concluded 

that the juror believed that police officers frequently misidentified 

suspects — a central issue in the case. Howard-Walker does not 

dispute that the juror expressed that police officers may misidentify 

suspects. Based on the juror’s responses to voir dire questions, 

and with deference to the court’s superior opportunity to judge the 

juror’s demeanor, we discern no clear error by the court in 

concluding that the prosecutor’s race-neutral reasons for excusing 

that juror were credible. 

3. Male Hispanic Juror 

¶ 37 After the African-American prospective juror was excused, 

another male juror, who identified himself as Hispanic, joined the 

panel. The prosecutor exercised his final peremptory strike against 

the juror. In response to Howard-Walker’s Batson challenge, the 

prosecutor explained that the juror had reported a bad experience 

with law enforcement on his jury questionnaire, had faced a 

criminal conviction on charges brought by the same district 
17 

attorney’s office, and had indicated in his responses to voir dire 

questions that he had a negative view of law enforcement. 

¶ 38 Howard-Walker attempted to rebut the prosecutor’s 

race-neutral explanation for the strike, asserting that the 

prosecutor’s peremptory strikes had shown a pattern of excusing 

“minorities” and that white jurors who had disclosed similar 

experiences and views regarding the police had not been stricken. 

The trial court denied the Batson challenge, noting that the 

prospective juror “was quite reluctant and critical of law 

enforcement generally.” 

¶ 39 While it is true that a white juror said on his jury 

questionnaire that he had had a particularly bad experience with 

the police, his answers to questions during voir dire revealed that 

his experiences were significantly different from that of the 

challenged male Hispanic juror. The white juror was a firefighter. 

He said that he did not have “a high impression” of the police 

because they often “butted heads” at work. He then clarified that 

he only had a bad impression of state patrol officers (as opposed to 

other police officers) during traffic stops, and that he could put his 
18 

negative perceptions aside. The state patrol was not involved in 

Howard-Walker’s case. 

¶ 40 The dismissed male Hispanic juror also said that he felt some 

police officers are “bad apples” and that he felt his liberties were “on 

the line” because, generally speaking, the police were becoming “a 

little militia with a private army.” There was no rehabilitative 

questioning either by the court or defense counsel that would 

demonstrate that the juror could set aside his negative impressions 

of the police. 

¶ 41 As we did with respect to the female Hispanic juror, we reject 

Howard-Walker’s argument that the trial court erred in considering 

that the male Hispanic juror was not of the same race as 

Howard-Walker. Though the court noted that the male Hispanic 

juror and Howard-Walker’s ethnicities were not the same, it 

nevertheless denied the Batson challenge based on the juror’s 

criticisms of law enforcement. 

¶ 42 For these reasons, we conclude that the trial court’s step three 

Batson findings are supported by the record, and we reject 

Howard-Walker’s claims to the contrary. 
19 

III. Allegedly Improper Police Testimony2

¶ 43 Howard-Walker next argues that the admission of several 

portions of Detective Garcia’s testimony constituted reversible error. 

A. Standard of Review 

¶ 44 We review a trial court’s evidentiary rulings for an abuse of 

discretion. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002). “[W]e 

review nonconstitutional trial errors that were preserved by 

objection for harmless error.” Hagos v. People, 2012 CO 63, ¶ 12. 

Under this standard, we reverse only if the error “substantially 

influenced the verdict or affected the fairness of the trial 

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

1986)). 

 

2 We observe that the defendant’s selection of small portions of two 

long days of trial testimony has an effect on the reader that is quite 

different than the effect when reading the entire trial transcript. 

When read in its entirety, the trial transcript portrays an engaged 

trial court. None of the testimony objected to for the first time on 

appeal was set off by any particular circumstances from the rest of 

the non-objected testimony. It is very easy for an appellate court to 

read a cold transcript and conclude that certain unobjected 

testimony should not have been admitted. The trial court might 

well come to the same conclusion if the court had the luxury of 

reading a transcript. But that luxury is not available to the trial 

court and that is one good reason why the standard for plain error 

is so high. 
20 

¶ 45 When a defendant fails to object to the admission of evidence 

at trial, we will not reverse in the absence of plain error. People v. 

Vecellio, 2012 COA 40, ¶ 54. “Under the plain error standard, the 

defendant bears the burden to establish that an error occurred, and 

that at the time the error arose, it was so clear cut and so obvious 

that a trial judge should have been able to avoid it without benefit 

of objection.” People v. Conyac, 2014 COA 8M, ¶ 54. Reversal is 

required if the error was so grave that it “undermined the 

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

on the reliability of the conviction.” Id.

B. Testimony that the Handgun in 

the Surveillance Video Was “Real” 

¶ 46 The prosecutor did not qualify Detective Garcia as an expert 

witness. Therefore, his opinion testimony was limited to his 

rationally based perceptions that were helpful to the jury in 

understanding the testimony or determining a fact in issue. CRE 

701; Venalonzo v. People, 2017 CO 9, ¶ 18. 

¶ 47 After the surveillance video was played for the jury, which, as 

noted above, showed one of the perpetrators holding what appeared 

to be a handgun, the prosecutor asked Detective Garcia, “How can 
21 

you tell that’s a real handgun?” Detective Garcia answered, without 

objection by Howard-Walker, as follows: 

Well, one of the things that would make it real 

is a size of the barrel. It’s a large barrel. Air 

soft guns [sic] their muzzles have a red tip and 

small barrel for the little air soft pellet to come 

out. This is an open barrel. That’s a large 

barrel for a large projectile to exit the weapon. 

¶ 48 Howard-Walker argues that this was improper expert 

testimony offered in the guise of lay opinion. We agree, but also 

conclude that, under the circumstances, this testimony did not 

constitute plain error. 

¶ 49 CRE 701 governs admissibility of lay testimony. It provides 

that 

[i]f the witness is not testifying as an expert, 

the witness’ testimony in the form of opinions 

or inferences is limited to those opinions or 

inferences which are (a) rationally based on the 

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

understanding of the witness’ testimony or the 

determination of a fact in issue, and (c) not 

based on scientific, technical, or other 

specialized knowledge within the scope of Rule 

702. 

(Emphasis added.) 

¶ 50 In a series of cases decided after Howard-Walker’s trial, the 

Colorado Supreme Court clarified the standard that distinguishes 
22 

lay testimony from expert testimony. Marsh v. People, 2017 CO 

10M; Venalonzo, ¶¶ 17-25; People v. Ramos, 2017 CO 6. 

If the witness provides testimony that could be 

expected to be based on an ordinary person’s 

experiences or knowledge, then the witness is 

offering lay testimony. If, on the other hand, 

the witness provides testimony that could not 

be offered without specialized experiences, 

knowledge, or training, then the witness is 

offering expert testimony. 

Venalonzo, ¶ 2. 

¶ 51 As the Venalonzo court itself recognized, the line between lay 

and expert testimony may be difficult to discern. Id. at ¶ 24. This 

is particularly the case when the witness is a police officer. 

Stewart, 55 P.3d at 123. While police officers may offer testimony 

based on their perceptions and experiences, officer lay testimony is 

objectionable when it requires the application of or reliance on 

specialized skills or training. Venalonzo, ¶ 19. 

¶ 52 In Stewart, in analysis that was not displaced by Venalonzo, 

the supreme court held that while it was appropriate for an officer 

to give lay testimony about his observations of an accident scene, 

his testimony crossed the expert line when he essentially 

reconstructed the accident by deducing matters such as the 
23 

vehicle’s direction, position, and speed. 55 P.3d at 124. Similarly, 

in People v. Veren, 140 P.3d 131, 139-40 (Colo. App. 2005), cited 

favorably by Venalonzo, a division of this court concluded that while 

an ordinary citizen might know that Sudafed contains an ingredient 

that can be used to manufacture methamphetamine, the lay 

witness officer’s testimony that he suspected the defendant was 

manufacturing based on the amount of Sudafed in his possession 

constituted expert testimony because an ordinary citizen would 

probably not know how much Sudafed would be required for that 

purpose. And in Ramos, ¶ 9, decided together with Venalonzo, the 

supreme court held that an ordinary citizen could not be expected 

to differentiate between “blood cast-off” and “blood transfer.” 

¶ 53 Applying Venalonzo, we strongly doubt that ordinary citizens 

can determine whether a gun depicted in a video was real or fake. 

See also People v. Romero, 2017 CO 37, ¶ 15. To do so requires 

expertise beyond the ken of the ordinary citizen, and such 

testimony constituted expert testimony under CRE 702. 

¶ 54 While this evidence was improperly admitted as lay opinion 

evidence, admitting it was not plain error, for two reasons. First, 

the latest supreme court formulation of the distinction between lay 
24 

and expert testimony was not decided until more than a year after 

Howard-Walker’s trial. 

¶ 55 More importantly, no Colorado case has directly addressed the 

distinction between lay and expert testimony with respect to 

whether a gun depicted in a video is real or fake. “Ordinarily, for an 

error to be obvious, the action challenged on appeal must 

contravene a clear statutory command, a well-settled legal principle, 

or Colorado case law.” People v. Manyik, 2016 COA 42, ¶ 36. It 

necessarily follows that any error in the admission of this brief 

testimony was not obvious and thus was not plain error.

C. The Detective’s Testimony that the Perpetrator Would Have Used 

the Gun if He Had Encountered the Homeowner 

¶ 56 The prosecutor asked Detective Garcia, “How is that particular 

handgun being used during the burglary?” Detective Garcia 

answered that “[the gun] was being used in a manner that if 

someone was to walk in on the individuals during the burglary or 

be confronted by the police, they were ready to engage.” 

Howard-Walker objected on the basis that peering into the mind of 

the perpetrator regarding an event that never occurred was nothing 

more than speculation, but the trial court overruled the objection. 
25 

¶ 57 Detective Garcia continued, saying: 

[The gun] is being openly displayed with the 

hand and the finger on the trigger ready to be 

utilized. Individuals going through the room 

with the gun out in a manner to me the way I 

see it is as a threatening manner whether to 

engage if a homeowner or engage by officers 

that that person is ready [sic]. If he did not 

intend it, I don’t believe the weapon would be 

presented in that manner, scanning the room 

as he is doing so as in the video. 

¶ 58 Howard-Walker argues that this testimony was inadmissible 

because Detective Garcia had no personal knowledge about what 

the person in the video would have done with the gun had he 

encountered the homeowner and thus he was improperly 

speculating. We agree. 

¶ 59 “A lay witness may state an opinion about another person’s 

motivation or intent only if the witness had sufficient opportunity to 

observe the person and to draw a rational conclusion about the 

person’s state of mind.” People v. Jones, 907 P.2d 667, 669 (Colo. 

App. 1995). An opinion not based on personal knowledge is 

speculative and therefore inadmissible. Id. Detective Garcia was 

not present during the burglary. And while he did view the video, it 

is at least questionable how the video could inform a person’s 
26 

rational conclusion about what the perpetrator would have done 

had he encountered the homeowner or the police. 

¶ 60 Moreover, even if Detective Garcia had an adequate foundation 

for this testimony, it likely should have been excluded both under 

principles of relevancy and under CRE 403. What might have 

happened was not an element of the offense; the relevant element of 

the offense was the use of a deadly weapon in the course of the 

burglary, which (if the gun was real) the video amply displayed. It 

was immaterial whether the perpetrator might have committed an 

additional crime had he encountered the homeowner or the police. 

¶ 61 Even so, we conclude on this record that any error was 

harmless. If the jury believed that the gun would have been used 

had the perpetrators encountered the homeowner or the police, that 

belief could have prejudiced the jurors against Howard-Walker. But 

the jury could have drawn this inference for itself (still another 

reason why the testimony should not have been admitted); the fact 

that Detective Garcia testified about such an immaterial (but easily 

drawn) inference did not, in our view, “substantially influence[] the 

verdict or affect[] the fairness of the trial proceedings.” Hagos, ¶ 12 

(quoting Tevlin, 715 P.2d at 342). 
27 

D. The Detective’s Identification of Howard-Walker in the Video 

¶ 62 Detective Garcia testified, without objection, that he was “one 

hundred percent” certain that he recognized Howard-Walker as one 

of the perpetrators in the video. 

¶ 63 Howard-Walker argues that because Detective Garcia testified 

that his “time and experience on the Police Department” helped him 

to make this identification, his identification of Howard-Walker was 

improper expert testimony. He also argues that the identification 

invaded the province of the jury and was substantially more 

prejudicial than probative. Following precedents from the supreme 

court and other divisions of this court, we reject these arguments. 

¶ 64 A lay witness may testify regarding the identity of a person 

depicted in a surveillance photograph (or, for that matter, a video), 

“if there is some basis for concluding that the witness is more likely 

to correctly identify the defendant from the [video] than is the jury.” 

Robinson v. People, 927 P.2d 381, 382 (Colo. 1996). That is the 

case here. 

¶ 65 Though Garcia’s contact with Howard-Walker came after he 

had seen the video (a fact that is not relevant under Robinson), he 

nevertheless was in a better position than the jury to identify 
28 

Howard-Walker as one of the perpetrators in the video because he 

had had close, face-to-face contact with him during the police 

interview. What’s more, while Howard-Walker was clean-shaven 

during the trial, he, like the perpetrator in the video, had facial hair 

during the police interview, making Detective Garcia’s testimony 

that much more helpful to the jury. Any allegation (which is not 

made explicitly by Howard-Walker) that Detective Garcia’s 

perception was somehow tainted by the fact that he only met 

Howard-Walker after viewing the video goes to the weight of his 

testimony, not its admissibility. No specialized knowledge is 

required to recognize an individual in a video. 

¶ 66 This evidence was obviously probative of a material fact — 

indeed, the critical fact at issue. Merely because Detective Garcia’s 

testimony may have been detrimental to Howard-Walker did not 

render that testimony unfairly prejudicial. Kelly v. 

Haralampopoulos by Haralampopoulos, 2014 CO 46, ¶ 47. And it 

did not “invade the province of the jury,” Davis v. People, 2013 CO 

57, ¶ 27, a contention that was rejected dispositively by Robinson. 

Accordingly, we discern no error, much less plain error, in the 

admission of this testimony. 
29 

E. The Detective’s Testimony Regarding Probable Cause 

¶ 67 The prosecutor asked Detective Garcia to describe his 

investigation. In a lengthy, narrative response, the detective 

testified that he wrote the search warrant for Howard-Walker’s 

apartment, had it reviewed by his supervisor, and “once [the 

supervisor] said there was probable cause, took the warrant to [a 

judge] for review.” Though Howard-Walker did not object to this 

testimony, he nevertheless argues on appeal that the trial court 

should have stepped in, sua sponte, and prohibited the testimony. 

¶ 68 When probable cause to search or arrest is not at issue, “it is 

improper to present to the jury evidence about obtaining an arrest 

or search warrant.” People v. Mullins, 104 P.3d 299, 301 (Colo. 

App. 2004). This is so because whether the police believed and a 

judge found that there was probable cause to arrest a defendant is, 

under most circumstances, irrelevant to determining whether the 

prosecution proved the commission of a crime beyond a reasonable 

doubt. Id.; see CRE 401. We agree with Howard-Walker that 

probable cause was not at issue in this case and this evidence 

should not have been admitted. 
30 

¶ 69 Under some circumstances, police officers may testify about 

why they took certain investigative steps, even when this testimony 

“touches upon prohibited subjects.” People v. Penn, 2016 CO 32, 

¶ 32. For instance, in Casias v. People, 160 Colo. 152, 162, 415 

P.2d 344, 349 (1966), superseded by statute on other grounds as 

stated in People v. Ceja, 904 P.2d 1308 (Colo. 1995), the supreme 

court held it was not error for a detective to testify that he arrested 

the defendant on the “strength of the warrant” because that 

testimony was relevant to the prosecutor’s explanation of the 

circumstances of the arrest. But in this case, Detective Garcia did 

not need to describe the search and arrest warrants process to 

explain the investigation; thus, his testimony on those matters 

should not have been admitted. 

¶ 70 However, because under some circumstances testimony 

regarding probable cause is admissible, and because Detective 

Garcia’s reference to probable cause was fleeting, we cannot 

conclude that the error was obvious. Therefore, there was no plain 

error. People v. Renfro, 117 P.3d 43, 48 (Colo. App. 2004). 
31 

F. Testimony Regarding the Girlfriend’s 

Reaction to Identifying Howard-Walker 

¶ 71 Detective Garcia testified that when he interviewed 

Howard-Walker’s girlfriend, she said that she was “eighty percent” 

certain that she recognized Howard-Walker in the stills of the 

surveillance video. He further testified that she “was getting 

emotional” and “really began crying,” observations that were 

perfectly appropriate for a lay witness to express. CRE 701; People 

v. Hulsing, 825 P.2d 1027, 1032 (Colo. App. 1991). But then the 

prosecutor asked Detective Garcia why he thought the girlfriend 

was “getting emotional,” an inquiry into the girlfriend’s state of 

mind that the detective was neither competent to undertake or to 

give testimony about. He answered that it was because “[s]he 

recognized her boyfriend in the photos.” As with almost all of the 

testimony relied on for reversal, Howard-Walker did not object. 

¶ 72 Howard-Walker asserts that this testimony was improper 

because Detective Garcia had no personal knowledge, as required 

by CRE 602, to know what the girlfriend was thinking when she 

started “getting emotional” and was crying. We conclude that the 
32 

admission of this evidence was erroneous, but did not constitute 

plain error. 

¶ 73 Questions regarding the girlfriend’s initial identification of 

Howard-Walker from the surveillance video, and the reliability of 

that identification, were fully explored during the trial, and the jury 

had extensive information to make its judgment on that issue. 

Moreover, the jury was just as able as the officer to decide why the 

girlfriend was crying (again, another reason why this evidence 

should not have been admitted). Given this, we cannot conclude 

that the brief testimony by the officer in this respect was obviously 

improper or “undermine[d] the fundamental fairness of the trial.” 

Conyac, ¶ 54. 

G. The Detective’s Testimony Regarding Howard-Walker’s 

Statement About Possibly Identifying the Other Perpetrator 

¶ 74 Detective Garcia testified that when he interviewed 

Howard-Walker about the burglary, Howard-Walker asked him, 

“[w]hat would it get me if I told you the name of the other person [in 

the video]?” The prosecutor asked the detective what he thought 

that statement meant, and he answered, without objection, “[t]hat 
33 

[Howard-Walker] was involved and knows who the other person was 

that committed the burglary.” 

¶ 75 Howard-Walker argues that this testimony was improper 

because it constituted an impermissible opinion on his guilt. A 

witness may not testify that he believes that the defendant 

committed the crime at issue. Penn, ¶ 31. 

¶ 76 But the officer did not testify that Howard-Walker was guilty; 

he only testified what he thought Howard-Walker’s statement 

meant. The inference that may be drawn from Howard-Walker’s 

statement is obvious to any reasonably intelligent person, so even if 

the officer’s testimony was improper, it did not undermine the 

fundamental fairness of the trial. Conyac, ¶ 54. 

H. Testimony About Whether Howard-Walker was Being Truthful 

¶ 77 The prosecutor asked Detective Garcia whether he felt that 

Howard-Walker was “forthcoming” or “truthful” during the police 

interview. Detective Garcia answered “no” to both questions. 

Howard-Walker did not object to this testimony. 

¶ 78 It is improper to ask one witness to opine on the truthfulness 

of another. Liggett v. People, 135 P.3d 725, 733 (Colo. 2006). 

Though a detective may testify about his assessment of an 
34 

interviewee’s credibility when that testimony is offered to provide 

context for the detective’s interrogation tactics and investigative 

decisions, Davis, ¶ 17, Detective Garcia’s testimony was not offered 

for those purposes and was therefore improper. 

¶ 79 But that error does not rise to the level of plain error. As in 

Liggett, 135 P.3d at 734, there was ample evidence before the jury 

to support Howard-Walker’s convictions without relying on 

Detective Garcia’s improper testimony. Multiple witnesses 

identified Howard-Walker as one of the men in the video, 

Howard-Walker’s shoes were consistent with the footprints found 

near the broken window of the victim’s home, and the jury was 

entitled to determine that Howard-Walker’s offer to give up the 

name of the other suspect meant that he was involved in the crime. 

Thus, Howard-Walker has not shown that that testimony 

undermined the fundamental fairness of the trial. Id. at 734-35; 

Conyac, ¶ 54. 

IV. Prosecutorial Misconduct 

¶ 80 Howard-Walker next asserts that the prosecutor engaged in 

three instances of reversible misconduct. 
35 

¶ 81 We engage in a two-step analysis to review claims of 

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

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

was improper based on the totality of the circumstances. Id. 

Second, we decide whether any misconduct warrants reversal 

according to the proper standard of review. Id.

¶ 82 Because Howard-Walker did not object to any of the 

prosecutor’s statements, we review for plain error. Id. at 1097. 

A. Confronting the Girlfriend About Perjury 

¶ 83 The girlfriend testified that she did not remember telling 

Detective Garcia that she had recognized Howard-Walker in the 

video. She and the prosecutor then engaged in the following 

colloquy: 

Q. All right. Now, you understand that today 

you have been sworn in under oath, right? 

A. Right. 

Q. And you understand how perjury works, 

right? 

A. Right. 

Q. You realize you have been sworn to tell the 

truth, the whole truth, and nothing but the 

truth? 
36 

A. Yes, I do. 

Q. And you understand that perjury is not 

telling the truth in court? 

A. Right. 

Q. And so it’s your testimony today that you 

did not identify anyone from that videotape? 

A. Right, no. 

¶ 84 “A prosecutor’s statement or question indicating his belief that 

a witness committed perjury is improper.” People v. Romero, 2015 

COA 7, ¶ 37. But even if the prosecutor stepped over the 

permissible line in repeatedly suggesting that the girlfriend was 

committing perjury, because the prosecutor did not threaten, 

coerce, or otherwise “drive[] [her] ‘off the stand,’” any such 

misconduct was not reversible. Id. (quoting Webb v. Texas, 409 

U.S. 95, 95-98 (1972)). 

¶ 85 As in Romero, ¶ 40, the prosecutor’s statements were brief and 

did not silence the witness or alter the girlfriend’s testimony; she 

continued to answer the prosecutor’s questions, and, at least at 

first, continued to assert that she had never identified 

Howard-Walker in the video stills. The girlfriend later, in response 

to a different line of questioning, changed her testimony by saying 
37 

that she had told Detective Garcia that she had recognized 

Howard-Walker. But even then, she asserted that she only did so 

because Detective Garcia had allegedly pressured or intimidated 

her. Thus, as in Romero, ¶ 40, the girlfriend’s testimony “was 

virtually the same before and after the prosecutor’s references to 

perjury.” Under these circumstances, any error did not amount to 

plain error. 

B. Prosecutor’s Comment on the Girlfriend’s Truthfulness 

¶ 86 In closing argument, the prosecutor said that the girlfriend 

“was not forthcoming,” “was not being honest,” and was “not a 

credible witness.” 

¶ 87 A prosecutor is permitted to comment on the evidence, 

including the reasons why the jury should believe or not believe a 

particular witness, as long as the prosecutor does not go so far as 

to call that witness a “liar.” Domingo-Gomez v. People, 125 P.3d 

1043, 1050 (Colo. 2005). Indeed, drawing reasonable inferences 

from the evidence regarding the credibility of witnesses is one of the 

fundamental purposes of closing argument. Id. at 1048-50. These 

statements did exactly that and were not improper. 
38 

¶ 88 As the prosecutor pointed out in closing argument, the 

girlfriend’s testimony conflicted with that of Detective Garcia. 

Indeed, the girlfriend gave inconsistent testimony at trial — at first 

she claimed that she had never told Detective Garcia that she had 

identified Howard-Walker in the video stills, and then, after some 

probing, said that she had in fact identified Howard-Walker. The 

prosecutor fairly characterized this testimony as confusing and “all 

over the place.” Like in Domingo-Gomez, id. at 1051, the evidence 

supported a reasonable inference that the girlfriend’s testimony was 

false, and thus the prosecutor’s comments were proper. 

C. Reference to Howard-Walker’s Decision Not to Testify 

¶ 89 The Fifth Amendment forbids comment by the prosecution on 

the accused’s decision not to testify. Griffin v. California, 380 U.S. 

609, 615 (1965). An impermissible comment is one that “in 

context, was calculated or intended to direct the attention of the 

jury to the defendant’s neglect or failure to exercise his right to 

testify in his own behalf.” Martinez v. People, 162 Colo. 195, 200, 

425 P.2d 299, 302 (1967). 

¶ 90 We agree that the prosecutor stepped over the line when he 

told the jury in closing argument that the only person who knew the 
39 

location of the fruits of the burglary was Howard-Walker and “he 

won’t [testify].” We view this statement as a reference to HowardWalker’s decision not to testify. U.S. Const. amend. V; Colo. Const. 

art. II, § 18; People v. Todd, 189 Colo. 117, 121, 538 P.2d 433, 436 

(1975). 

¶ 91 Had Howard-Walker objected to this testimony, and had it 

been admitted over objection, we would review for constitutional 

harmless error, but no objection was made and thus we review for 

plain error. People v. Miller, 113 P.3d 743, 749 (Colo. 2005). Under 

this standard, only prosecutorial misconduct which is “flagrantly, 

glaringly, or tremendously improper” warrants reversal. 

Domingo-Gomez, 125 P.3d at 1053. 

¶ 92 While we do not condone the prosecutor’s comment, we 

nevertheless conclude that the comment did not amount to plain 

error, for two reasons. 

¶ 93 First, the comment was a single, minimal reference. See

People v. Travis, 192 Colo. 169, 171, 558 P.2d 579, 580-81 (1976); 

People v. Gilkey, 181 Colo. 103, 106, 507 P.2d 855, 857 (1973); 

People v. Petschow, 119 P.3d 495, 505-06 (Colo. App. 2004). 
40 

¶ 94 Second, the jury was correctly instructed, several times, that 

Howard-Walker had an absolute right not to testify and that no 

adverse inference from his exercise of that right was permissible. 

People v. Garcia, 2012 COA 79, ¶ 20 (we presume that the jury 

followed the court’s instructions, absent evidence to the contrary) 

(citing Qwest Servs. Corp. v. Blood, 252 P.3d 1071, 1088 (Colo. 

2011)); see also State v. Escalante-Orozco, 386 P.3d 798, 826 (Ariz. 

2017). There is no suggestion in the record that the jury did not 

heed this instruction. 

¶ 95 We therefore conclude that the prosecutor’s statement was not 

“flagrantly, glaringly, or tremendously improper,” Domingo-Gomez, 

125 P.3d at 1053, and did not fundamentally undermine the 

fairness of the trial, Conyac, ¶ 54. 

V. Adequacy of the Jury Instructions 

¶ 96 Howard-Walker next argues that the trial court erred when it 

failed to instruct the jury on the predicate crime of theft, and when 

it failed to define the word “intent.” The parties agree and we 

concur that the jury instructions were deficient because they failed 

to instruct on the elements of theft, but we nevertheless conclude 

that the error was not reversible. 
41 

¶ 97 “We review jury instructions de novo to determine whether 

[they] as a whole accurately informed the jury of the governing law.” 

People v. Ridgeway, 2013 COA 17, ¶ 12 (citation omitted). When, 

as in this case, no objection is made to the jury instructions, we 

reverse only for plain error. Id. at ¶ 9. As noted, “[p]lain error 

occurs when, after a review of the entire record, the appellate court 

can say with fair assurance that the error so undermined the 

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

reliability of the judgment of conviction.” Bogdanov v. People, 941 

P.2d 247, 255 (Colo.), amended, 955 P.2d 997 (Colo. 1997). 

¶ 98 The United States and Colorado Constitutions require the 

prosecution to prove every element of the charged offense beyond a 

reasonable doubt. Griego v. People, 19 P.3d 1, 7 (Colo. 2001); see

U.S. Const. art. III, § 2, cl. 3; U.S. Const. amend. VI; U.S. Const. 

amend. XIV, § 1; Colo. Const. art. II, § 16; Colo. Const. art. II, § 23; 

Colo. Const. art. II, § 25. “To preserve this constitutional right, a 

trial court must properly instruct the jury on every element of a 

crime.” Ridgeway, ¶ 12. 

A. The Elements of Burglary and the Predicate Crime of Theft 

¶ 99 The elements of burglary with a deadly weapon are as follows: 
42 

 the defendant; 

 knowingly entered unlawfully, or remained unlawfully 

after a lawful or unlawful entry; 

 in a building or occupied structure; 

 with intent to commit therein a crime, other than 

trespass; 

 against another person or property; and 

 the defendant used a deadly weapon or possessed and 

threatened the use of a deadly weapon in effecting the 

burglary. 

§ 18-4-202(1). 

¶ 100 The trial court must instruct on both the elements of burglary, 

as well as the elements of the underlying crime (in this case, theft). 

People v. Palmer, 87 P.3d 137, 140 (Colo. App. 2003). 

Howard-Walker did not object to the instruction; indeed, his 

counsel approved it.3 When the elemental instructional error 

 

3 Because Howard-Walker’s counsel affirmatively approved the jury 

instructions, there is an argument that Howard-Walker waived any 

instructional error. See United States v. Olano, 507 U.S. 725, 733 

(1993); People v. Rediger, 2015 COA 26, ¶ 64 (cert. granted Feb. 16, 

2016). The Attorney General does not argue that Howard-Walker 

waived the instructional error. Because we conclude for other 
43 

relates to an element that is not contested at trial, the failure to 

instruct is not plain error. People v. Cowden, 735 P.2d 199, 202 

(Colo. 1987).

¶ 101 In Cowden, the defendant was charged with six counts of 

felony theft. Id. at 200. The trial court failed to instruct the jury 

that it must find that the value of the stolen property was between 

$200 and $10,000, one of the elements of the theft charge. Id. at 

201. The supreme court held that, at least as to five of the theft 

counts, because the prosecution presented uncontested evidence 

that the value of the allegedly stolen items was more than $200, the 

deficiency in the instructions did not require reversal. 

¶ 102 Similarly, in People v. Fichtner, 869 P.2d 539, 541 

(Colo. 1994), the supreme court held that the trial court’s failure to 

define “serious bodily injury” in the jury instruction on menacing 

with a deadly weapon, although erroneous, was not plain error. In 

that case, the prosecution presented uncontested evidence that the 

defendant had threatened the victim with an axe handle. Id. His 

defense was that he was only using the axe handle to defend his 

 

reasons that the deficient instructions do not require reversal, we 

do not address whether Howard-Walker waived the error. 
44 

property; he never contested the victim’s assertion that she had 

feared that she was in imminent danger of suffering serious bodily 

injury. Id. at 544. Accordingly, the court concluded that because 

whether the defendant had placed the victim in fear of imminent 

serious bodily injury was not at issue in the case, the trial court’s 

instructional error did not constitute plain error. Id.

¶ 103 We agree with both parties that the trial court failed to 

properly instruct the jury on the elements of burglary. The jury was 

instructed to find Howard-Walker guilty if it found that he entered 

the victim’s home “with intent to commit therein a crime, other than 

trespass,” but the instructions did not identify the underlying crime 

or define its elements. Howard-Walker argues that this deficiency 

meant that the jury could have convicted him for his intent to 

commit any crime, without unanimously agreeing that he intended 

to commit any particular crime. We reject this argument. 

¶ 104 The complaint and information alleged that Howard-Walker 

broke into the victim’s home and committed theft. The jury viewed 

the surveillance video, which depicted a person (whom several 

witnesses identified as Howard-Walker) stealing the contents of the 

victim’s safe. Howard-Walker never argued that the crime captured 
45 

by the surveillance video was any crime other than theft, nor did he 

assert that a crime did not occur; his only defense was that he did 

not commit the crime. Under these facts, we cannot discern what 

underlying crime could have been committed, other than theft. 

¶ 105 Moreover, during both opening statement and closing 

argument the prosecutor asserted that Howard-Walker broke into 

the victim’s home with the intent to commit theft. The record 

demonstrates that the specification of the underlying crime was not 

a controverted element of the burglary offense; therefore, the court’s 

failure to instruct the jury on theft was not plain error. Cowden, 

735 P.2d at 203. 

B. Intent 

¶ 106 For similar reasons, we reject Howard-Walker’s argument that 

the court’s failure to define the word “intent” was plain error. 

¶ 107 The culpable mental state “intent” is an element both of 

burglary and conspiracy to commit burglary. §§ 18-2-201, 18-4-

202. As such, it must have been “established with the same 

certainty as any other material element of the crime[s].” Palmer v. 

People, 964 P.2d 524, 527 (Colo. 1998). Thus, to convict a 

defendant of burglary and conspiracy to commit burglary, the jury 
46 

must conclude beyond a reasonable doubt that the defendant’s 

“conscious objective [was] to cause the specific result proscribed by 

the statute[s] defining the offense[s].” § 18-1-501(5), C.R.S. 2016. 

Because the word “intent” carries a “technical or particular 

meaning,” its definition must be presented to the jury. Griego, 19 

P.3d at 7 (citation omitted). 

¶ 108 In this case, the trial court’s failure to provide the definition of 

“intent” to the jury was error. But Howard-Walker did not challenge 

whether the evidence showed that the person in the video acted 

“with intent.” When a person is seen on a surveillance video seizing 

items that do not belong to him, it is not a leap of faith to infer that 

he intended to take the victim’s property. Indeed, Howard-Walker’s 

only defense was that it was not he, but some other person, who 

was depicted taking the victim’s property in the video. He never 

argued or suggested that the person depicted in the video did not 

intend to dispossess the lawful owner of the seized property. Under 

these circumstances, the trial court’s failure to define the culpable 

mental state did not constitute plain error. Fichtner, 869 P.2d at 

544. 
47 

VI. Cumulative Error 

¶ 109 Finally, Howard-Walker argues that the cumulative effect of 

the trial court’s errors and prosecutorial misconduct violated his 

right to a fair trial. Although we have identified several evidentiary 

errors (none of which, considered by themselves, requires reversal), 

one instance of prosecutorial misconduct, and two instructional 

errors, we ultimately conclude that these errors, viewed 

cumulatively, did not substantially prejudice Howard-Walker’s right 

to a fair trial. People v. Munsey, 232 P.3d 113, 124 (Colo. App. 

2009). 

¶ 110 As an initial matter, we note that we have identified both one 

preserved error (reviewed for harmless error) and several 

unpreserved errors (reviewed for plain error). The preserved error 

was the detective’s testimony about what Howard-Walker would 

have done had he encountered the homeowner (or anyone else) 

during the burglary. The unpreserved errors were the deficient jury 

instructions; portions of the detective’s testimony (that the gun was 

real, that a judge had determined that there was probable cause to 

search Howard-Walker’s apartment, why the girlfriend cried during 

the police interview, and whether Howard-Walker was being 
48 

“truthful” during the police interview); and one instance of 

prosecutorial misconduct. 

¶ 111 In view of our finding both preserved and unpreserved errors, 

we follow the Tenth Circuit’s protocol in United States v. Caraway, 

534 F.3d 1290, 1302 (10th Cir. 2008), to determine whether there 

was cumulative error warranting reversal. There, the Tenth Circuit 

held as follows: 

First, the preserved errors should be 

considered as a group under harmless-error 

review. If, cumulatively, they are not 

harmless, reversal is required. If, however, 

they are cumulatively harmless, the court 

should consider whether those preserved 

errors, when considered in conjunction with 

the unpreserved errors, are sufficient to 

overcome the hurdles necessary to establish 

plain error. In other words, the prejudice from 

the unpreserved error is examined in light of 

any preserved error that may have occurred. 

Id. Because we have identified only one preserved error, and have 

determined that the error was harmless, we proceed to the next 

step to determine whether the combined effect of all of the errors 

constituted plain error. 

¶ 112 To resolve whether there was cumulative error, we must 

determine whether “[n]umerous formal irregularities . . . in the 
49 

aggregate show the absence of a fair trial.” Munsey, 232 P.3d at 

124 (quoting Oaks v. People, 150 Colo. 64, 66-67, 371 P.2d 443, 

446 (1962)). 

¶ 113 Few Colorado cases provide meaningful guidance as to when 

multiple errors rise to the level of reversible cumulative error. See, 

e.g., People v. Roy, 723 P.2d 1345 (Colo. 1986); People v. Scheidt, 

182 Colo. 374, 385, 513 P.2d 446, 452 (1973); People v. Reynolds, 

194 Colo. 543, 575 P.2d 1286 (Colo. 1978); Oaks, 150 Colo. at 66-

67, 371 P.2d at 446. 

¶ 114 Some guidance is provided by federal cases. A court evaluates 

whether the total effect of errors warrants reversal based on a 

number of non-exclusive factors, including: the nature and number 

of the errors committed; their interrelationship, if any, and 

combined effect; how the district court dealt with the errors as they 

arose (including the efficacy of any remedial efforts); the strength of 

the government’s case; and the length of the trial. United States v. 

Baker, 432 F.3d 1189, 1223 (11th Cir. 2005), abrogated in part and 

on other grounds as recognized by United States v. Charlestain, 662 

F. App’x 691, 692 (11th Cir. 2016). 
50 

¶ 115 In Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011), the 

Ninth Circuit recognized that habeas corpus relief may be granted 

when the otherwise harmless errors “amplify each other in relation 

to a key contested issue in the case.” The court determined that 

because the defendant’s claimed errors did not have a “synergistic 

effect,” the combined effect of which might “infect the trial with 

unfairness,” he was not entitled to habeas corpus relief. Id. 

¶ 116 In this case, even the most serious error — the improper 

comment on Howard-Walker’s exercise of his right against 

self-incrimination — was fleeting, and the less serious errors bore 

little relation to each other. Whether the gun in the video was “real” 

was unrelated to the critical issue in the case, which was whether 

Howard-Walker was one of the perpetrators of the burglary. The 

same is true of the erroneous jury instructions and Detective 

Garcia’s testimony about how Howard-Walker might have used the 

gun had he encountered the homeowner or the police. 

¶ 117 Detective Garcia’s testimony about probable cause, that he did 

not believe Howard-Walker was being “truthful” during the police 

interview, and that the girlfriend was upset because she had 

recognized Howard-Walker in the video stills may have tended to 
51 

undermine Howard-Walker’s misidentification defense. But each of 

these references was brief. Howard-Walker’s failure to object to any 

of these errors is one indication that, in context, his trial counsel 

did not consider the now-objected-to testimony to be seriously 

prejudicial to Howard-Walker. 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.”) (citation 

omitted). 

¶ 118 Even when considered cumulatively, these errors were 

relatively small events scattered over the course of a two-day trial, 

during which substantial evidence was presented — including 

Howard-Walker’s question to Detective Garcia about what it would 

get him if he gave up the name of the other perpetrator — from 

which the jury reasonably could have concluded that 

Howard-Walker was the man with the gun. See Miller, 113 P.3d at 

751 (Colo. 2005) (finding no plain error in light of overwhelming 

evidence of the defendant’s guilt). 

¶ 119 Because Howard-Walker received a fair trial in spite of the 

identified errors, we conclude that a new trial is not warranted. 
52 

VII. Conclusion 

¶ 120 The judgment of conviction is affirmed. 

JUDGE DAILEY and JUDGE J. JONES concur.