SUMMARY

August 5, 2021

2021COA103

No. 18CA0480, People v. Curtis — Election Law — Offenses 

Related to Mail Ballots; Crimes — Forgery

A division of the court of appeals considers whether, under 

People v. Bagby, 734 P.2d 1059, 1061 (Colo. 1987), the legislature 

intended to limit prosecution for conduct related to mail ballots to 

the mail ballot offense statute, section 1-13-112, C.R.S. 2020. The 

division concludes it did not, and, therefore, the prosecution had 

discretion to charge the defendant with a mail ballot offense as well 

as felony forgery under section 18-5-102(1)(d), C.R.S. 2020. 

The division also concludes that (1) the defendant’s 

convictions for forgery and a mail ballot offense do not violate his 

right to equal protection; (2) felony forgery is not a lesser included 

offense of misdemeanor mail ballot offense; and (3) the prosecutor 

did not commit reversible misconduct. 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2021COA103

Court of Appeals No. 18CA0480

Weld County District Court No. 17CR245

Honorable Julie C. Hoskins, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Steven Curtis,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE DUNN

Fox and Pawar, JJ., concur

Announced August 5, 2021

Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney 

General, Kevin E. McReynolds, Senior Assistant Attorney General, Denver, 

Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State 

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

¶ 1 Defendant Steven Curtis tried to vote twice in the November 

2016 general election. In addition to his mail ballot, Curtis also 

filled out his ex-wife’s mail ballot, forged her signature on the ballot 

envelope, and mailed it to the Weld County Clerk and Recorder. For 

this, a jury convicted Curtis of felony forgery, section 

18-5-102(1)(d), C.R.S. 2020, and a misdemeanor mail ballot offense, 

section 1-13-112, C.R.S. 2020. 

¶ 2 Curtis appeals his forgery conviction, contending that the 

prosecution lacked the discretion to charge him under the general 

forgery statute and, instead, could charge him only under “the more 

specific” mail ballot offense statute. Because we disagree, we reject 

Curtis’s contention that we must vacate his forgery conviction. And 

because we are unpersuaded by Curtis’s other challenges, we 

affirm. 

I. Background

¶ 3 Curtis and his wife Kelly ended their marriage in May 2016. 

Kelly later moved to South Carolina. Before the November 2016 

general election, the Weld County Clerk and Recorder’s office sent 

Kelly’s mail ballot to the home she once shared with Curtis. Soon 
2

after, Curtis filled out, signed, and mailed both his and Kelly’s 

ballots to the Weld County Clerk.1 

¶ 4 Meanwhile, Kelly contacted the Weld County Clerk’s office to 

obtain an absentee ballot but was told that she “had already voted” 

and that her ballot “was sitting right there.” Kelly explained that 

she hadn’t filled out a ballot or given anyone permission to do so on 

her behalf. She later confirmed that the signature on the ballot 

envelope wasn’t hers. 

¶ 5 When asked, Curtis denied signing Kelly’s ballot. 

Unconvinced, the prosecution obtained a court order requiring 

Curtis to provide DNA and handwriting samples. DNA testing 

showed that Curtis had sealed Kelly’s ballot return envelope, and a 

handwriting expert concluded that Curtis had filled out the return 

address on the envelope and signed Kelly’s name. 

¶ 6 The prosecution charged Curtis with forgery and a mail ballot 

offense. At trial, Curtis implicitly acknowledged that he filled out 

1 Curtis signed Kelly’s name on the “Voter’s Signature” line on her 

ballot return envelope. See § 1-7.5-103(7), C.R.S. 2020 (defining 

“[r]eturn envelope” as “an envelope that is printed with spaces for 

the name and address of, and a self-affirmation to be signed by, an 

eligible elector voting in a mail ballot election . . . .”). 
3

and signed Kelly’s ballot but asserted an involuntary intoxication 

affirmative defense. He argued that his chronic diabetes resulted in 

blood sugar “blackouts” that made him confused and unable to 

remember most of October 2016. As a result, he argued that he 

“did not possess the mental state [necessary] to commit or 

complete” the charged offenses. 

¶ 7 The jury rejected the involuntary intoxication defense and 

convicted Curtis as charged. The trial court sentenced Curtis to 

probation and community service. 

II. The Bagby Challenge 

¶ 8 Relying on People v. Bagby, 734 P.2d 1059, 1061 (Colo. 1987), 

Curtis first contends that the prosecution lacked authority to 

charge him under the general forgery statute because the

legislature intended to limit prosecution for conduct related to mail 

ballots to the more specific mail ballot offense statute. We disagree. 

A. Waiver and Preservation

¶ 9 We first reject the People’s contention that Curtis waived his 

Bagby challenge because it is a challenge to the information that 

must be raised before trial under Crim. P. 12(b)(2). 
4

¶ 10 An information may be defective in either form or substance. 

See People v. Williams, 984 P.2d 56, 63 (Colo. 1999). Objections 

based on defects to the form of the information must be made 

before trial or they are waived. Crim. P. 12(b)(2). But a defect in 

substance is jurisdictional and may be raised at any time. See

Williams, 984 P.2d at 63-64. A substantive defect requires 

“dismissal of the charge” or renders “void any conviction entered on 

such charge.” Id.

¶ 11 Although the People contend that Curtis’s claim “raise[s] an 

alleged defect in the charging information,” they don’t point to any 

specific form defect in the information. See People v. Davis, 2017 

COA 40M, ¶ 9 (concluding Crim. P. 12(b) doesn’t apply where the 

defendant’s claim didn’t involve a defect in the charging document).

¶ 12 Nor is any form defect self-evident. The information charged 

Curtis with two crimes based on the same set of facts. That’s 

entirely proper. See § 18-1-408(7), C.R.S. 2020. So we see 

“[n]othing on the face of the charging document” that “revealed a 

defect to which [Curtis] could have properly objected.” People v. 

Wester-Gravelle, 2020 CO 64, ¶ 23; see also People v. Zadra, 2013 

COA 140, ¶¶ 65-66 (recognizing that federal appellate courts 
5

uniformly apply Fed. R. Crim. P. 12(b)(2) “where the defect is 

apparent from the face of the charges”) (citations omitted), aff’d on 

other grounds, 2017 CO 18, ¶ 18.

¶ 13 To the extent Curtis’s claim can be characterized as an 

objection to the information at all, it appears to be a substantive 

one. Indeed, if Curtis is correct that the mail ballot offense statute 

abrogates the general forgery statute, then the prosecution “lacked 

authority” to charge him with forgery. Thus, should he prevail, we’d 

have to vacate the forgery conviction. See Williams, 984 P.2d at 64

(substantive defect renders void any conviction entered on such 

charge); People v. Moore, 200 Colo. 481, 485, 615 P.2d 726, 729 

(1980) (“[W]hen an information fails to charge a crime, the court 

acquires no jurisdiction.”). Such an objection doesn’t need to be 

brought before trial. See Williams, 984 P.2d at 63-64. 

¶ 14 Even if we assume Curtis’s objection could be classified as a

form objection, we see nothing in the record — and the People point 

to nothing — suggesting Curtis’s failure to raise the challenge under 

Crim. P. 12(b) was intentional, rather than an oversight. See People 

v. Rediger, 2018 CO 32, ¶ 39 (waiver is the intentional 

relinquishment of a known right). Because our supreme court
6

construes waivers under Crim. P. 12(b) as it does other waivers, see 

Wester-Gravelle, ¶ 26, and “indulge[s] every reasonable presumption 

against waiver,” Rediger, ¶ 39 (citation omitted), absent any 

“evidence that [Curtis] intended to relinquish the right in question,” 

Phillips v. People, 2019 CO 72, ¶ 33, we can’t conclude that Curtis 

waived his claim that the prosecution lacked authority to charge 

him with forgery. See Wester-Gravelle, ¶ 26 (concluding the 

defendant’s failure to demand a prosecutorial election or request a 

modified unanimity instruction under Crim. P. 12(b) constituted a 

forfeiture); see also Zadra, ¶¶ 68, 70 (reviewing multiplicity 

challenge for plain error where the failure to bring the motion under 

Crim. P. 12(b) “was a result of oversight”). 

¶ 15 All this said, we agree with the People that Curtis didn’t 

preserve his Bagby challenge. Thus, if we agree error occurred, we 

won’t reverse unless the error is plain. See Rediger, ¶ 47. 

B. Legal Principles and Standard of Review

¶ 16 When a defendant’s actions violate more than one criminal 

statute, the prosecution ordinarily may charge the defendant under 

each statute. See § 18-1-408(7); see also People v. Clanton, 2015 

COA 8, ¶ 10. In that scenario, it’s for the prosecution “to determine 
7

what charges to file.” People v. Stewart, 55 P.3d 107, 118 (Colo. 

2002); see also People v. Smith, 938 P.2d 111, 115 (Colo. 1997) 

(“Ordinarily, a prosecutor has discretion to charge any applicable 

offense.”).

¶ 17 But in rare circumstances the prosecution may be barred from 

charging a defendant under a general criminal statute when the 

legislature evinces a “clear” intent to limit prosecution to a more 

specific statute. Smith, 938 P.2d at 115-16; accord Bagby, 734 P.2d 

at 1061; Clanton, ¶ 11. 

¶ 18 To determine whether the legislature clearly intended to limit 

prosecution to a more specific statute, courts consider whether (1) 

the specific statute invokes the full extent of the state’s police 

powers; (2) the specific statute is part of an act creating a 

comprehensive and thorough regulatory scheme to control all 

aspects of a substantive area; and (3) that act carefully defines 

different types of offenses in detail. See Bagby, 734 P.2d at 1062;

Smith, 938 P.2d at 116; People v. Warner, 930 P.2d 564, 568 (Colo.

1996). 

¶ 19 Applying the Bagby factors, our supreme court has found only 

two instances where the legislature “intended the specific 
8

provisions” of a statute “to supplant the more general provisions” of 

the criminal code. Warner, 930 P.2d at 568. First, in Bagby, the 

supreme court concluded that the legislature intended to require 

the offense of falsely completing a liquor license application to be 

prosecuted under the Liquor Code and not the general criminal 

code. Bagby, 734 P.2d at 1062. And later, in Warner, the court 

reached a similar conclusion regarding the Limited Gaming Act of 

1991, holding that the legislature intended that the use of a device 

to remove tokens from a slot machine be prosecuted exclusively 

under the Limited Gaming Act. See Warner, 930 P.2d at 568. 

¶ 20 Bagby and Warner reached their conclusions, in part, by 

finding that the Liquor Code and the Limited Gaming Act were 

comprehensive regulatory schemes. Beyond that, however, the 

supreme court relied significantly on the legislative declarations in 

the Liquor Code and the Limited Gaming Act. Those respective 

declarations each invoked the “full extent” of the state’s police 

powers. See Bagby, 734 P.2d at 1062 (holding the Liquor Code’s 

legislative declaration expressly invoked the full extent of the police 

powers); Warner, 930 P.2d at 568 (concluding that the Limited 
9

Gaming Act’s legislative declaration invoked the full extent of the 

state’s police powers). 

¶ 21 We review de novo to determine whether the legislature 

intended a specific statute to abrogate the general criminal code. 

See Clanton, ¶ 13. 

C. The Mail Ballot Offense Statute Doesn’t Supplant the General 

Forgery Statute

¶ 22 As relevant here, a person commits forgery

if, with intent to defraud, such person falsely 

makes, completes, alters, or utters a written 

instrument which is or purports to be, or 

which is calculated to become or to represent if 

completed:

. . . .

A public record or an instrument filed or 

required by law to be filed or legally fileable in 

or with a public office or public servant.

§ 18-5-102(1)(d).

¶ 23 By contrast, a person commits a mail ballot offense if, among 

other conduct, he “falsely makes, alters, forges, or counterfeits any 

mail ballot before or after it has been cast.” § 1-13-112.

¶ 24 Curtis contends he could only be charged with the latter 

offense because the legislature intended that the more specific mail 

ballot offense statute supplant the general criminal code. To get 
10

there, he asserts that the mail ballot offense statute is part of a 

broader, comprehensive act that he calls the “Elections Offense 

Act.” (Curtis identifies this “Act” as all of title 1, article 13 of the 

Colorado Revised Statutes.) He then asserts that, in enacting that 

“Act,” the legislature clearly intended to “invoke the State’s police 

powers.” But unlike the Liquor Code and the Limited Gaming Act,

we don’t see a legislative declaration in article 13 evincing such an 

intent and Curtis doesn’t point us to one. See People v. Stansberry, 

83 P.3d 1188, 1190 (Colo. App. 2003) (holding that the prosecution 

could bring charges under the general forgery statute where the 

legislative declaration in the motor vehicle tax statute contained no 

“broad invocation of police powers”); see also Clanton, ¶ 24 

(rejecting Bagby challenge that argued the Colorado Employment 

Security Act supplanted the general forgery statute). 

¶ 25 Recognizing this gap, Curtis urges us to discern a clear 

legislative intent to supplant the general criminal code from the 

“statutory provisions” in that “Act.” But even assuming this

suggested approach is consistent with Bagby and Warner, Curtis 

doesn’t direct us to any “statutory provision” in article 13 that 

invokes the state’s police powers, expressly or otherwise. Nor does 
11

he direct us to any particular provision from which we could infer a

clear legislative intent to limit the prosecution’s discretion to bring 

forgery charges. 

¶ 26 Looking past article 13, of more interest to us is the Mail 

Ballot Election Act and its legislative declaration. See Ch. 43, sec. 

2, § 1-13-112, 1990 Colo. Sess. Laws 318; see also § 1-7.5-101, 

C.R.S. 2020 (identifying short title of the act). Though Curtis 

doesn’t mention it, the mail ballot offense statute was enacted

through this Act. The Act’s legislative declaration, however, doesn’t 

invoke the state’s police powers or otherwise help Curtis. See 

§ 1-7.5-102, C.R.S. 2020. Rather, it declares simply that “mail 

ballot elections are cost-efficient and have not resulted in increased 

fraud,” Ch. 43, sec. 1, § 1-7.5-102, 1990 Colo. Sess. Laws 314, and 

that, “by enacting this article, the general assembly hereby 

concludes that it is appropriate to provide for mail ballot elections 

under specified circumstances,” § 1-7.5-102(1). Such a narrow 

declaration is nowhere close to the broad legislative declarations 

that Bagby and Warner concluded showed a clear legislative intent 

to invoke the full extent of the state’s police powers and supplant 
12

the general criminal code. See Bagby, 734 P.2d at 1062; Warner, 

930 P.2d 568. 

¶ 27 Because the Mail Ballot Election Act doesn’t satisfy the first 

Bagby factor — invocation of the full extent of the state’s police 

powers — we needn’t consider the remaining two factors. 

¶ 28 All told, we conclude the prosecution had discretion to charge 

Curtis under the forgery statute. 

III. Equal Protection

¶ 29 Curtis next contends that the forgery conviction violates his 

right to equal protection under the law. This is so, he argues,

because the forgery statute fails to provide an intelligible standard 

by which to differentiate the conduct it proscribes from the conduct 

proscribed by the mail ballot offense statute. We disagree.

A. Legal Principles and Standard of Review

¶ 30 The Colorado Constitution implicitly guarantees a defendant 

equal protection under the law. Stewart, 55 P.3d at 114; see also

Colo. Const. art. II, § 25. “If a criminal statute proscribes different 

penalties for identical conduct, and a defendant is convicted under 

the statute imposing the harsher penalty, then the defendant’s right 

to equal protection is violated unless there are reasonable 
13

differences or distinctions between the statutes at issue.” People v. 

Blue, 253 P.3d 1273, 1279 (Colo. App. 2011); see also Stewart, 55 

P.3d at 114. 

¶ 31 To determine whether two statutes prohibit identical conduct, 

we compare the statutory elements. See Campbell v. People, 73 

P.3d 11, 14 (Colo. 2003); Blue, 253 P.3d at 1279. “If the elements 

differ qualitatively (and not merely semantically), such that one 

statute requires proof of an element that the other does not, there is 

no equal protection violation.” Clanton, ¶ 27; see also Blue, 253 

P.3d at 1279.

¶ 32 We review de novo whether two statutes prohibit the same or 

different conduct. See People v. Lee, 2020 CO 81, ¶ 11; accord 

Clanton, ¶ 28. 

B. The Forgery and Mail Ballot Offense Statutes Require Different

Mens Reas

¶ 33 To review, as relevant here, forgery requires proof that (1) a 

person; (2) with intent to defraud; (3) falsely makes, completes, 

alters, or utters a written instrument; (4) which was or was 

purported to be, or which was calculated to become or to represent 

if completed; (5) a “public record or an instrument filed . . . or 
14

legally fileable in or with a public office or public servant . . . .” 

§ 18-5-102(1)(d).2 

¶ 34 By comparison, a mail ballot offense requires proof that a 

person (1) falsely made, altered, forged, or counterfeited; (2) any 

mail ballot; (3) “before or after it ha[d] been cast . . . .” § 1-13-112. 

¶ 35 Curtis’s equal protection argument is premised on the 

assumption that “both statutes provide for the same mens rea.”

But they don’t. Forgery requires “intent to defraud” while a mail 

ballot offense doesn’t. See People v. Billington, 191 Colo. 323, 327, 

552 P.2d 500, 503 (1976) (“An essential element of the crime of 

second-degree forgery is intent to defraud . . . .”). This difference 

between the statutes is “real in fact.” Stewart, 55 P.3d at 114. It 

makes forgery a specific intent crime, see § 18-1-501(5) C.R.S. 

2020, and requires the prosecution to present evidence that a 

defendant has an “intent to defraud” someone or something. See 

also Black’s Law Dictionary (11th ed. 2019) (defining “defraud” as 

“[t]o cause injury or loss to (a person or organization) by deceit”); 

see also Webster’s Third New International Dictionary 593 (2002) 

2 The legislature expressly defined “falsely complete.” See

§ 18-5-101(3), C.R.S. 2020. 
15

(Defraud means “to take or withhold from (one) some possession, 

right, or interest by calculated misstatement or perversion of truth, 

trickery, or other deception.”). Because “a different mens rea is 

required, different conduct is being punished[] and there is no equal 

protection violation.” People v. Reynolds, 194 Colo. 543, 547, 575 

P.2d 1286, 1290 (1978).

¶ 36 To the extent Curtis asks us to import an “intent to defraud” 

element into the mail ballot offense statute, we decline to do that. 

Had the legislature intended to make a mail ballot offense a specific 

intent crime, it would have done so. E.g., People v. Moseley, 193 

Colo. 256, 262, 566 P.2d 331, 335 (1977) (holding that “where a 

particular specific intent is included as an element of an offense, 

the legislature has done so expressly” and concluding, based on the 

legislature’s silence, that robbery “requires no specific intent”); see 

also Bates v. United States, 522 U.S. 23, 29 (1997) (declining to 

read an “intent to defraud” element into a criminal statute and 
16

explaining that courts “ordinarily resist reading words or elements 

into a statute that do not appear on its face”).3 

¶ 37 That’s not to say the mail ballot offense statute has no mens 

rea (an issue neither party asks us to resolve and on which we 

express no opinion); rather, we simply conclude it doesn’t include 

an intent to defraud.

¶ 38 We also reject Curtis’s assertion that the statutes prohibit the 

same actus reus. Without relying on principles of statutory 

construction, Curtis asserts that “falsely . . . forges” (as used in the 

mail offense ballot statute) means the same thing as “falsely 

complete” (as used in the forgery statute). But the legislature 

specifically defined “falsely complete.” See § 18-5-101(3)(a), C.R.S. 

2020. By contrast, the mail ballot offense statute doesn’t define 

3 In a footnote, Curtis observes that the prosecutor argued at trial 

that it “could be inferred” that the mail ballot offense statute shared 

the same mens rea as forgery by considering section 1-13-106, 

C.R.S. 2020 — a different provision in the same article that 

cross-references the felony forgery statute. Curtis doesn’t further 

develop this observation or explain how it informs his equal 

protection argument. See People v. Durapau, 280 P.3d 42, 49 (Colo. 

App. 2011) (declining to address undeveloped arguments). To the 

extent the supreme court’s recent decision in People v. Rojas, 2019 

CO 86M, ¶ 14, which construes a different statute with language 

similar to section 1-13-106, bears on this observation, Curtis 

doesn’t make that argument and it’s not before us. 
17

“forges.” Rather, it includes the term “forges” alongside “makes, 

alters, . . . or counterfeits.” See § 1-12-113. We therefore interpret 

“forges” for purposes of the mail ballot offense statute consistently 

with its plain meaning as informed by its companion terms. See 

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation 

of Legal Texts 195 (2012) (“When several nouns or verbs or 

adjectives or adverbs — any words — are associated in a context 

suggesting that the words have something in common, they should 

be assigned a permissible meaning that makes them similar.”). 

Doing that leads us to conclude that in this statutory context, 

“forges” simply means “to make or imitate falsely.” See Webster’s 

Third New International Dictionary at 891.4

¶ 39 For these reasons, we conclude Curtis’s convictions for forgery 

and a mail ballot offense don’t violate his right to equal protection.

4 Curtis switches gears in his reply brief and argues not that “forge” 

equates to “falsely complete” but, rather, that by using the term 

“forge” the legislature intended to import the criminal elements of 

felony forgery, including an “intent to defraud,” into the mail ballot 

offense statute. We will not consider arguments first raised in a 

reply brief. See People v. Hall, 59 P.3d 298, 301 (Colo. App. 2002).
18

IV. Merger

¶ 40 Curtis next contends that felony forgery is a lesser included 

offense of a misdemeanor mail ballot offense and that the district 

court erred by failing to merge the convictions and vacate the 

forgery conviction. We disagree.

A. Legal Principles and Standard of Review

¶ 41 The United States and Colorado Constitutions prohibit 

multiple punishments for the same offense. See Page v. People,

2017 CO 88, ¶ 8. Thus, a defendant may not be convicted of two 

offenses for the same conduct if “[o]ne offense is included in the 

other.” § 18-1-408(1)(a). 

¶ 42 To determine whether “an offense is a lesser included offense 

of another offense,” we consider whether “the elements of the lesser 

offense are a subset” of those of the greater, “such that the lesser 

offense contains only elements that are also included in the 

elements of the greater offense.” Reyna-Abarca v. People, 2017 CO 

15, ¶ 64. 

¶ 43 We review de novo whether an offense is a lesser included 

offense of another. People v. Thomas, 2020 COA 19M, ¶ 30 (cert. 

granted Sept. 28, 2020). 
19

B. Forgery is not a Lesser Included Offense of a Mail Ballot 

Offense 

¶ 44 For the same reason Curtis’s equal protection argument is 

unavailing, so too is his merger argument. That’s because Curtis’s 

merger argument again hinges on his assertion that the mail ballot 

offense statute requires “the same mens rea — intent by the 

defendant to defraud” as the forgery statute. As already explained, 

however, the mail ballot offense statute doesn’t require an “intent to 

defraud.” Thus, the prosecution may prove a mail ballot offense

without also proving forgery. Which is to say forgery is not a lesser 

included offense of a mail ballot offense. See Reyna-Abarca, ¶ 64.

¶ 45 While perhaps more expected, Curtis doesn’t argue that his 

mail ballot offense conviction merges into his forgery conviction. 

We therefore don’t consider whether it does. See, e.g., Galvan v. 

People, 2020 CO 82, ¶ 45 (The party presentation principle “relies 

on the parties to frame the issues to be decided and assigns to 

courts the role of neutral arbiters of the matters raised.”); accord 

United States v. Sineneng-Smith, 590 U.S. ___, ___, 140 S. Ct. 1575, 

1579 (2020).
20

¶ 46 We conclude the district court properly declined to merge

Curtis’s forgery conviction into his mail ballot offense conviction. 

V. Prosecutorial Misconduct 

¶ 47 Curtis last contends that the prosecutor committed reversible 

misconduct during closing and rebuttal closing argument. We 

disagree. 

A. Legal Principles and Standard of Review

¶ 48 A prosecutor has wide latitude to argue based on facts in 

evidence and reasonable inferences drawn from those facts, as well 

as to respond to the defendant’s arguments. People v. Maloy, 2020 

COA 71, ¶ 61. But a prosecutor may not “make remarks for the 

purpose of denigrating the defense.” People v. Collins, 250 P.3d 

668, 678 (Colo. 2010); see also People v. Welsh, 176 P.3d 781, 788

(Colo. App. 2007). We evaluate improper argument claims in the 

context of the argument as a whole and in light of the evidence 

presented. People v. Munsey, 232 P.3d 113, 123 (Colo. App. 2009).

¶ 49 We engage in a two-step analysis to review prosecutorial 

misconduct claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 

2010). First, we evaluate whether the prosecutor’s conduct was 

improper based on the totality of the circumstances. Id. Second, if 
21

it was, we determine whether the conduct warrants reversal under 

the applicable standard. Id.; People v. Robinson, 2019 CO 102, 

¶ 18.

¶ 50 Because Curtis didn’t object to the prosecutor’s arguments, we 

review for plain error. See Robinson, ¶ 19. 

B. The Prosecutor Didn’t Denigrate Curtis’s Defense Theory

¶ 51 Curtis defended on the theory that, due to his diabetes and 

related health issues, he was “impaired” and therefore “did not 

possess the mental state to commit” the charged crimes. In support 

of this defense, Curtis presented medical experts to discuss diabetic 

episodes and the impact of uncontrolled blood sugar, as well as 

family members that testified to their observations of Curtis’s 

diabetic episodes. 

¶ 52 And the jury heard directly from Curtis who detailed his 

long-standing diabetic condition, prior hypoglycemic episodes, and 

specific health challenges during October 2016. Curtis also 

explained that after he learned about the DNA and handwriting 

analysis, he had a “vague” memory of injecting insulin late one 

evening and seeing a ballot in the trash when he went to dispose of 
22

his needle. But he testified he had no memory of signing or mailing 

his ex-wife’s ballot. 

¶ 53 In closing argument, the prosecutor argued Curtis “knew 

exactly what he was doing” and that “when he realized how 

provable the crimes were, he grabbed on to the only thing that he 

could[,] and he has been trying to sell that story ever since.” The 

prosecutor later used the term “story” roughly a half dozen times in 

closing and rebuttal closing when discussing Curtis’s version of 

events. 

¶ 54 Curtis didn’t object at trial, yet he now argues that the 

prosecutor improperly denigrated his defense theory by using the 

word “story” when discussing his account of what happened. But 

Curtis testified and put his credibility at issue. It’s proper for a 

prosecutor to argue — based on reasonable evidentiary inferences 

— why the jury should or shouldn’t believe a witness. DomingoGomez v. People, 125 P.3d 1043, 1050 (Colo. 2005); see also 

Martinez v. People, 244 P.3d 135, 141 (Colo. 2010).

¶ 55 The prosecutor did that here. Read in context, the references 

to Curtis’s “story” were tied directly to the evidence. They were not 

personal attacks on Curtis or his counsel. They didn’t imply Curtis 
23

or his counsel acted in bad faith. They weren’t dressed up with any 

inflammatory adjectives or adverbs. Rather, the comments were 

part of the argument explaining why — based on the evidence —

the jury shouldn’t believe Curtis’s account of what happened. See 

Collins, 250 P.3d at 678 (The prosecutor’s comment that the 

defense counsel’s theory of reasonable doubt was “absurd” was not 

improper but “merely a response to defense counsel’s assertions 

that the jury could not find defendant guilty beyond a reasonable 

doubt.”); cf. People v. Serra, 2015 COA 130, ¶ 88 (The prosecutor’s 

“statements . . . that [the defendant] was making up a story to suit 

his ‘selfish, narcissistic needs’ were . . . improper” because they 

“impl[ied] the defendant ha[d] a bad character” and thus distracted 

the jury’s attention away from the evidence.).

¶ 56 Thus, in this closing argument, the prosecutor’s comments on 

Curtis’s version of events were proper. 

C. The Prosecutor’s Comments Weren’t Otherwise Improper

¶ 57 We are equally unpersuaded with Curtis’s contention that the 

prosecutor’s closing argument “improperly transformed” his 

constitutional rights into a “burden on his credibility.” 
24

¶ 58 Though he doesn’t say so directly, Curtis appears to contend 

the prosecutor made an improper generic tailoring argument. A 

generic tailoring argument “occur[s] when the prosecution attacks 

the defendant’s credibility by . . . drawing the jury’s attention to the 

defendant’s presence at trial and his resultant opportunity to tailor 

his testimony” absent support in the record. See Martinez, 244 

P.3d at 141. Curtis, however, doesn’t direct us to any portions of 

the closing argument where the prosecutor did that. Nor do we see 

a generic tailoring argument. 

¶ 59 To the extent Curtis is upset that the prosecutor made a 

specific tailoring argument when commenting that Curtis only

“remembered” seeing his ex-wife’s ballot after learning about the 

DNA and handwriting analysis, that argument is directly tethered to 

Curtis’s testimony and is proper. See id. (noting prosecutors may 

“make specific tailoring arguments when they are tied to the 

evidence in the record”). 

¶ 60 Curtis also argues that this same statement — that he 

“remembered” seeing his ex-wife’s ballot after he was presented with 

the evidence against him — was an improper comment on his “right 

to the disclosure of evidence material to his defense” and to 
25

“confront the prosecution’s evidence.” As we understand it, Curtis 

suggests that, because it’s improper for a prosecutor to comment on 

a defendant’s right to remain silent, it’s likewise improper for a 

prosecutor to comment on a defendant’s other constitutional rights.

¶ 61 Curtis, of course, didn’t remain silent, and he doesn’t explain 

how the prosecutor improperly commented on any particular 

constitutional rights. Instead, he appears to simply take issue with 

the prosecutor’s argument that cast doubt on his version of events.

Commenting on witness credibility, however, is fair. See DomingoGomez, 125 P.3d at 1050.

¶ 62 We conclude the prosecutor’s comments were proper. 

VI. Conclusion

¶ 63 We affirm the judgment of conviction. 

JUDGE FOX and JUDGE PAWAR concur.